Justification

Budget strategies and their attendant analysis are important, but justification remains the primary ingredient to the success of the agency’s budget. A solid justification includes all of the relevant information for the legislative body, the budget office, and the city’s chief executive. The department should justify the budget in three separate spending categories: mandatory, base, and discretionary.

Mandatory Expenditures

Federal, state, or local laws govern mandatory expenditures, such as social security, pensions, unemployment contributions, and contractually negotiated benefits. Salaries also may fall into this category, except for those considered discretionary. It is best to justify mandatory budget expenditures by citing the applicable federal, state, and local laws.

Base Expenditures

Essential for the agency’s continued operation, base expenditures include utilities, equipment, supplies and materials, and other consumables. Justification in this category comes from analyzing previous budgets and projections for service delivery. The executive must be prepared to explain increases in operating expenditures, such as developing a special task force to address a spike in drug crime. Budget review members always welcome workload and performance-improvement data.

Discretionary Expenditures

Discretionary expenditures enhance an existing level of service. These costs do not affect the department’s operations but contribute to improved service delivery or a particular program’s efficiency. A valid example is hiring. By hiring more officers, the agency expects to improve response time and reduce fear of crime, but not having the extra officers does not adversely impact the organization’s ability to provide basic service. In defending discretionary spending, the executive must convince the budget review members of the necessity or worthiness of the proposal. Once again, workload and performance data are at the top of the list for developing the rationale.

Figure 1: Principal Modalities (Major Activities

THE WORKLOAD ANALYSIS

Objectivity denotes a recurring theme in budget development. The department will find an objective budget, based on empirical data, the most reasonable and the easiest to justify. A question often raised in law enforcement circles is, How many officers do we need or should we have? Typical responses cover a range of options, including as many as we can afford, as many as the mayor and council want, or as many as the people of the city will pay for. While these statements have merit, “the only logical and defensible means of determining how many persons should be assigned to patrol duty is through a careful and systematic analysis of the duties performed by patrol officers.”¹¹ This is true of any position within the police department; therefore, the first step toward a logical budget justification starts with a workload analysis.

Figure 2: Distribution of Time

Figure 3: Nonproductive FTE (Relief Factor)

Data Collection

A workload analysis is “the process of collecting and analyzing data on patrol activities for the purpose of more efficient scheduling and deployment of manpower.”¹² In activity-based budgeting, the process begins by collecting data on calls for service, generally captured by a computer-aided dispatch system (CAD). If the department does not have a CAD system, it will have to capture the data manually. The agency must have at least 1 complete year of data to account for seasonal fluctuations or other anomalies that might occur. A better data set would encompass 2 years of information to clarify these same variables and also to illuminate personnel trends. For example, gaining or losing officers may adversely impact how the organization handles calls for service, including the amount of time required to do so. The data set must include the—

• type of call;

• average number of hours spent handling the call;¹³

• number of calls of that type for the year (or the period being examined);

• number of officers required to handle the call; and

• total employee hours per modality.¹⁴

Once the agency has captured the principal modalities, it should format them for a typical computer spreadsheet application. After arranging the columns, the department can easily calculate the total employee hours per modality.¹⁵

Figure 1 represents the principal modalities and the acuity. ¹⁶ The hours per unit show the average amount of time spent handling a single call for service of that type (e.g., one murder will require 3 hours). The units per year comprise the total number of calls for service for that type (e.g., 41 murders occurred for the year). The department can derive the total employee hours per modality by simply multiplying the hours per unit times the units per year times the number of officers 3 hours to handle. Over the course of 1 year, officers will handle 41 murders for a total of 246 employee hours. The agency repeats these calculations for each modality and then sums the units per year and the total employee hours per modality. The sums of these two categories provide the foundation for future calculations and for activity-based budgeting development. Units per year employee modality total 122,927. The department can add the percentage allocation as a last column. This will provide an excellent visual representation of which activities consume the most, as well as the least, of the budget.

In addition, figure 1 shows that arrests consume 37.25 percent of the time, followed by traffic control duty with 10.69 percent. The department can order the percent percentages from highest to lowest, or vice versa, and contrast them against each other for comparison purposes, thereby revealing efficiency. In short, the executive sees where time is spent, thus influencing processes or technology changes that reduce effort requirement for the activity.

“Activity-based budgeting (ABB) holds [some] promise as a...solution to the faults and frustrations of traditional budgeting methods:

1. Traditional budgets don’t identify waste. ABB ex poses nonvalue costs.

2. Traditional budgets focus on workers. ABB focuses on workload.

3. Traditional budgets focus on division cost. ABB also focuses on process cost.

4. Traditional budgets focus on fixed versus variable costs. ABB also focuses on used versus unused capacity.

5. Traditional budgets measure ‘effect.’ ABB measures root ‘cause.’”²¹

It also provides an alternative to traditional government budgets; the line item may be required by law, but nothing prevents an organization from adopting activity-based budgeting to solve internal problems. After all, “what is the bottom line when there is no ‘bottom line’? Performance!”²²

Figure 8: The Activity-Based Budget: Present Level of Service

Endnotes

Elstad and Its Evolution into an Interrogation Tactic

The U.S. Supreme Court held that Seibert’s waiver was not effective because of the unwarned interrogation just prior to providing her the Miranda rights. The Supreme Court’s ruling in Seibert rejected an interpretation of its holding in Oregon v. Elstad which seemed to promote the concept that the “mere recitation of the littany suffices to satisfy Miranda in every conceivable circumstance.”¹⁹ The U.S. Supreme Court’s holding in Elstad gave rise to what evolved into an approach to conducting interrogations that became somewhat popular and was used in Seibert v. Missouri; that is, holding off on advising suspects of their Miranda rights until after obtaining an incriminating statement or confession.

In Seibert, the U.S. Supreme Court took the opportunity to distinguish between the interrogation situation in Elstad and what occurred in Seibert. Concerned with an approach that implicitly encouraged Miranda violations, the U.S. Supreme Court ruled that the practice of conducting two-tiered interrogations, sometimes referred to as “beachheading,”²⁰ violates the purpose of Miranda.

In Elstad, law enforcement officers went to the home of a burglary suspect to take him into custody. The suspect’s mother answered the door and led the officers to the suspect, who was in his bedroom. Prior to the arrest, one of the law enforcement officers waited for the suspect to get dressed and accompanied him to the living room while the other officer asked the suspect’s mother to step into the kitchen where he advised her that they had a warrant for her son’s arrest on a burglary charge. The officer who remained in the living room with the suspect testified that he “sat down with Mr. Elstad and asked him if he was aware why [they] were there to talk to him. He stated that he had no idea....” The officer then “asked him if he knew a person by the name of Gross, and he said yes, he did, and also added that he heard that there was a robbery at the Gross house.” It was at this point that the officer “told Mr. Elstad that [he] felt [Elstad] was involved in that.” Mr. Elstad then “looked at [the officer] and stated, ‘Yes, I was there.’”²¹

The suspect then was transported to the police station, waived his Miranda rights, and provided a full confession. Counsel for the defendant, in a motion to suppress, argued that the confession in response to custodial interrogation at the police station was “tainted” by the unwarned statement made in the suspect’s living room. Despite compliance with Miranda at the station house, the defense argued that once the “cat [was] out of the bag,”²² any efforts of law enforcement to rehabilitate or save an already tainted admission were pointless. The defense argued that the law enforcement officer’s comment that he “felt” the young man was involved in the burglary was an “elicitation” akin to interrogation. Accordingly, the statements, including the station house confession derived from the officer’s exchange with the suspect, should be suppressed because Miranda warnings had not been provided during the initial exchange at the house. The lower court held that once the initial Miranda violation occurred, all that followed was tainted, including the station house confession and, therefore, inadmissible. The lower court reasoned that “[r]egardless of the absence of actual compulsion, the coercive impact of the unconstitutionally obtained statement remains because in a defendant’s mind it has sealed his fate.”²³

The Supreme Court agreed with the lower court’s recognition that “[i]t is this [coercive] impact that must be dissipated in order to make a subsequent confession admissible.”²⁴ The Court identified two of the most important factors to consider in determining whether that coercive impact has been dissipated as: the “lapse of time and change of place from the original surroundings.”²⁵ The Court stated that it has “never gone so far as to hold that making a confession under circumstances which preclude its use perpetually disables the confessor from making a usable one after those conditions have been removed.”²⁶ Moreover, the Elstad Court continued, “[t]here is a vast difference between the direct consequences flowing from coercion of a confession by physical violence or the deliberate means calculated to break the suspect’s will and the uncertain consequences of disclosure of a ‘guilty secret’ freely given in response to an unwarned but noncoercive question, as in this case.”²⁷

Based upon this reasoning,the U.S. Supreme Court rejected with the lower court’s reasoning in Elstad and found that the purpose of the pause in the burglary suspect’s living room, where he first acknowledged being at the scene of the crime, was not to interrogate him but, rather, to inform his mother of the reason for the arrest. The Court characterized the police officer’s failure to warn as an “oversight” that“may have been the result of confusion as to whether the brief exchange qualified as‘custodial interrogation’or…may simply have reflected…reluctance to initiate an alarming police procedure before [an officer] with [the young man’s] mother.”28

The Supreme Court also found that there was no indication of coercion by the police officers at the time the suspect admitted his presence at the scene of the crime. Further, that the issue of coercion goes to the heart of Miranda. The constitutional protection ensures, that“no person shall be compelled in any criminal case to be a witness against himself.” The Court recognized that a “simple failure to administer the[Miranda] warnings” with no indication of behavior on the part of the law enforcement officer that could be interpreted as coercion, compulsion, oran effort to “undermine the suspect’s ability to exercise his free will” should not keep out a statement that otherwise is voluntary.29 “Suppressing post-warning statements under such circumstances would serve‘neither the general goal of deterring improper police misconduct nor the Fifth Amendment goal of assuring trustworthy evidence.’”30

Unintentional Versus Intentional Violations

Seibert presented the U.S. Supreme Court with the opportunity to distinguish between the“simple failure to warn” and the calculated practice of a two-tiered interrogation technique consciously chosen by an officer to disregard the government’s obligation to provide Miranda warnings and obtain a waiver. The police officer conducting the interrogation in Seibert admitted that he made a“conscious decision to withhold Miranda warnings.” The stated purpose of this practice was to afford the police officer the time and opportunity to establish rapport with suspects in an effort to get them to open up and make admissions or full confessions. According to training, once the suspect has“let the cat out of the bag,” the interrogating officer should provide the Miranda warnings and ask the suspect for a waiver. The government argued that once Miranda rights are provided and waived, statements should be admitted in the subsequent prosecution.

The U.S. Supreme Court rejected that line of reasoning in Seibert because its primary concern was one of abuse. Moreover, because the object of such a practice was to “question first, Mirandize later,” the Court reasoned that it fundamentally“render[ed] Miranda warnings ineffective by waiting for a particularly opportune time to give them,” specifically, “after the suspect has already confessed.”31

The Court’s opposition to a practice that renders the Miranda warnings ineffective is a reaffirmation of the Miranda ruling in 1966 in which it held that “incommunicado interrogation of individuals in a police-dominated atmosphere,resulting in self-incriminating statements without full warnings of constitutional rights violates the Constitution.”32Once advised, the suspect may waive those rights afforded by Miranda, provided that the waiver is made voluntarily,knowingly, and intelligently.

For law enforcement officers, the threshold problem that the Seibert case presents, aside from eliminating an interrogation tactic endorsed and practiced by many, boils down to a basic question, How can a person voluntarily, knowingly and intelligently waive a right to remain silent when the officer,through deliberate tactics, has already managed to get the “cat out of the bag”?

To give credence to Seibert’s second confession, the Court would have had to reject their long-standing holding concern that anyone subjected to custodial interrogation is guaranteed“a full and effective warning of his rights.”33 A practice of condoning the “mere recitation of the [Miranda]litany”34 is arguably a full warning, but hardly effective, as there exists the genuine fear that“rights declared in words maybe lost in reality.”35 This is especially true in a sequential confession case, like Seibert, in which the “earlier and later statements are realistically seen as parts of a single, unwarned sequence of questioning.”36

The U.S. Supreme Court held that the recitation of the Miranda warnings “midstream”did not effectively provide the procedural safeguards it envisioned in Miranda. In doing so,the Court questioned the validity of Seibert’s waiver, questioning whether it was made voluntarily, knowingly, and intelligently when Miranda was presented to her after she already had “let the cat out of the bag.” After all, could she truly appreciate the fact that the protections afforded to her by Miranda, albeit midstream,provided her with the opportunity to invoke either or both of her rights to silence and to counsel?

In distinguishing Elstad from Seibert with regard to those questions, the U.S. Supreme Court agreed with the Missouri Supreme Court’s opinion that the interrogating officer’s “intentional omission of a Miranda warning was intended to deprive Seibert of the opportunity knowingly and intelligently to waive her Miranda rights.”37 Further,the Court went on to say that“[t]o allow the police to achieve an ‘end run’ around Miranda…would encourage Miranda violations and diminish Miranda’s role in protecting the privilege against self-incrimination.”38

Post-Seibert Developments

In U.S. v. Stewart,39 the Third Circuit Court of Appeals remanded a case of a bank robber and directed that the admissibility of the confession be evaluated in light of the Seibert ruling. The circuit court of appeals expressed concern that the confession may be the product of a two-tiered interrogation. As such, the case was remanded to obtain sufficient information to rule on the validity of the defendant’s waiver. Additional information was needed regarding the temporal and spatial circumstances surrounding the first and second interrogations before ruling on the admissibility of the confessions. The circuit court of appeals stated that this analysis would involve consideration of “a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their objectives: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.”⁴⁰

Impact of Seibert on Interrogation Tactics

As a result of Seibert, law enforcement agencies must reevaluate their interrogation practices to ensure that they are consistent with the Court’s ruling. The previously endorsed practice of holding off on providing the advice of rights to an arrestee with a follow-up “warned” interview, viewed by some as an effective interrogation tactic, will lose its effectiveness when the confession is suppressed. Thus, department interrogation practices should continue to reflect the fundamental principles announced by the U.S. Supreme Court in Miranda and its progeny.

Conclusion

As noted by the Supreme Court, the Elstad ruling evolved into an interrogation tactic that encouraged law enforcement to interview an individual who was in custody “outside of Miranda” to pave the way to a full confession. The decision of the Supreme Court in Seibert has rejected expressed opposition to such interrogation tactics, viewing them as an attempt to “achieve an ‘end run’ around Miranda.” However, effective interviewers often will want to establish a rapport with the interviewee before launching into the heart of the interview. Such rapport building, to the extent that it occurs, now must be conducted consistent with the Court’s mandate in Seibert. There is no doubt that the impact of pre-warning exchanges between interviewer and an in-custody interviewee on the admissibility of statements obtained post-Miranda will be followed closely in light of the Court’s ruling in Seibert.

Endnotes

¹ 348 U.S. 436 (1966).

² Id. at 444. The Fifth Amendment to the U.S. Constitution provides in pertinent part that “no person…shall be compelled in any criminal case to be a witness against himself.....”

³ 124 S. Ct. 2601 (2004).

⁴ Id. at 2605.

⁵ Id. at 2606

⁶ Id.

⁷ Id.

⁸ Id.

⁹ Id.

10 Id.

¹¹ No. 23729, 2002 WL 114804 (1/3/ 2002) (not released for publication), citing Oregon v. Elstad, 470 U.S. 298 (1985).

¹² State v. Seibert, 93 S.W.3d 700 (2002).

¹³ Seibert, at 2608. The Supreme Court noted that the Police Law Institute instructed officers on the two-tiered interrogation approach. Additionally, the Court referred to other training programs that encouraged the practice of questioning outside of Miranda first to secure an admission prior to proceeding with the advice of rights. Id.

¹⁴ Id. at 2609. 15 Id. 16 Id. 17 Id.

18 Id. ¹⁹ Seibert, at 2610. 20 Id.

²¹ Elstad, at 1289.

22 Id. ²³ Id. at 1290. 24 Id.

25 Id. ²⁶ Id. at 1294. ²⁷ Id. at 1295. ²⁸ Id. at 1296. ²⁹ Id. at 1293. ³⁰ Seibert, at 2604. ³¹ Id. at 2610. ³² Miranda, at 436. ³³ Id. at 444. ³⁴ Seibert, at 2610. ³⁵ Miranda, at 443. ³⁶ Seibert, at 2610. ³⁷ Id. at 2606-2607. ³⁸ Id. at 2607. ³⁹ 388 F. 3d 1079 (2004). ⁴⁰ Id. at 1089.

The Bulletin Notes

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

Trooper Schneider

While on traffic patrol, Trooper Kevin Schneider of the Wisconsin State Patrol observed a vehicle that was being driven erratically. When he attempted to stop the car, a high-speed chase ensued. Within a few minutes, the male driver stopped the vehicle in the middle of the road and refused to exit the car. As Trooper Schneider cautiously approached, the man displayed a 7-inch fixed-blade knife and deeply slit his own throat and carotid artery. The trooper quickly removed the knife from the driver—now going into shock—and administered first aid to stop the profuse bleeding. Then, the individual was transported to a local hospital for emergency surgery; he later recovered. Trooper Schneider’s brave actions and quick thinking saved the man’s life.

Lieutenant Heavey	Lieutenant Cochran

Lieutenants James Heavey and Richard Cochran of the Greenwich, Connecticut, Police Department were the first to respond to a house fire. Upon arrival, the officers found flames under a rear two-story deck and stairway, the only access to the second- and third-floor apartments. Fearing the fire would spread and trap the residents—two women and a young girl, the officers climbed the burning deck and rescued the three occupants from the building. The swift and heroic actions of Lieutenants Heavey and Cochran saved the residents from harm.

Nominations for the Bulletin Notes should be based on either the rescue of one or more citizens or arrest(s) made at unusual risk to an officer’s safety. Submissions should include a short write-up (maximum of 250 words), a separate photograph of each nominee, and a letter from the department’s ranking officer endorsing the nomination. Submissions should be sent to the Editor, FBI Law Enforcement Bulletin, FBI Academy, Madison Building, Room 201, Quantico, VA 22135.

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Patch Call

The seal of the city of Connersville serves as the design of the police department’s patch. At the center is an old canal house, representing the transportation of goods; smokestacks, depicting industry; and a Spartan head, symbolizing excellence in school athletics. The colors are those of the United States.

The patch of the Gilford, New Hampshire, Po-lice Department, a replica of the town seal, features the waters of Lake Winnipesaukee with mountain ranges in the background. The boat represents the recreational opportunities offered by Gilford.