FBI Law Enforcement Bulletin - Aug04leb

9 ViCAP AlertUnidentified Homicide Victim

10 Focus on Illegal DrugsKhat

14 The Bulletin HonorsChristos G. Rouses Memorial

Homicidal Poisoning By Arthur E. Westveer,

John P. Jarvis, and Carl J. Jensen III

Identification withthe Aggressor

By Ryan E. Melsky

U.S. Land BorderSearch Authority By M. Wesley Clark

1

Victims of crime often identify with theiraggressors, which can challenge thoseattempting to help them.

This study can help law enforcementagencies obtain a clearer picture of theattributes of homicidal poisoners.

16

ISSN 0014-5688 USPS 383-310

22 Law enforcement officials exercisebroad search authority to safeguardAmerican borders.

Features

Departments

15 Book ReviewPolice Suicide

20 SnapshotSea Hunt

21 Bulletin ReportsCollaborationReference and Statistics

United StatesDepartment of Justice

Federal Bureau of InvestigationWashington, DC 20535-0001

Robert S. Mueller IIIDirector

Contributors’ opinions and statementsshould not be considered an

endorsement by the FBI for any policy,program, or service.

The attorney general has determinedthat the publication of this periodical is

necessary in the transaction of thepublic business required by law. Use

of funds for printing this periodical hasbeen approved by the director of theOffice of Management and Budget.

The FBI Law Enforcement Bulletin(ISSN-0014-5688) is published

monthly by the Federal Bureau ofInvestigation, 935 PennsylvaniaAvenue, N.W., Washington, D.C.

20535-0001. Periodicals postage paidat Washington, D.C., and additionalmailing offices. Postmaster: Sendaddress changes to Editor, FBI LawEnforcement Bulletin, FBI Academy,

Madison Building, Room 201,Quantico, VA 22135.

EditorJohn E. Ott

Associate EditorsCynthia L. Lewis

David W. MacWhaBunny S. Morris

Art DirectorDenise Bennett Smith

Assistant Art DirectorStephanie L. Lowe

This publication is produced bymembers of the Law Enforcement

Communication Unit, Training Division.

Internet [email protected]

Cover Photos© PhotoDisc

Send article submissions to Editor,FBI Law Enforcement Bulletin, FBIAcademy, Madison Building, Room

201, Quantico, VA 22135.

August 2004Volume 73Number 8

August04a.pmd 7/13/04, 3:36 PM4

August 2004 / 1

oisoning, of course,differs considerablyfrom many other

Homicidal PoisoningThe Silent OffenseBy ARTHUR E. WESTVEER, M.L.A., JOHN P. JARVIS, Ph.D., and CARL J. JENSEN III, Ph.D.

method of murder, which,therefore, cannot be the subjectof extenuation as some otherforms of killing can.”1

Given such a description,the crime of homicidal poison-ing would seem a rich arenafor research. Surprisingly,however, other than a fewpublished reviews of somefamous historical poisoningcases, the authors found littlewritten material on the charac-teristics of poisoners and theirvictims.2 A further probe of the

international forensic literaturealso failed to reveal any previ-ously published epidemiologicalstudies dealing with criminalinvestigative analyses, or psy-chological “profiles,” of thehomicidal poisoner. Yet, thepotential for toxic substancesbecoming weapons of massdestruction has increaseddramatically in recent years.Therefore, the authors won-dered if empirical data con-cerning homicidal poisonersand their victims would reveal

“Pcrimes, frequently committed inuncontrolled passion and in theheat of the moment. The innatecharacter of the crime of homi-cidal poisoning demands subter-fuge, cunning, and, what isequally important, usually aperiod of careful planning, andalso not infrequently the repeti-tion of the act of administeringpoison.... Its characteristic beingone of premeditation, it is a

© Comstock Images

August04a.pmd 7/13/04, 3:36 PM5

2 / FBI Law Enforcement Bulletin

relationships, patterns, andcharacteristics that could helplaw enforcement professionals.Building on the few empiricallybased studies that exist, theyexamined recently reportedpoisoning homicides to find out.

METHODTo conduct this research,

the authors drew upon FBIUniform Crime Reporting(UCR) supplementary homicidereports (SHR) of those incidentsoccurring in the United Statesover the last decade (1990-1999). Specifically, they exam-ined these data to isolate homi-cides where a poisoning agentwas reported as the cause ofdeath.3 The authors intentionallyselected this time period topermit comparisons with anearlier work that reviewedsimilar data reported over the

period of the previous decade(1980-1989).4

Traditionally, the UCR pro-gram has offered the criminaljustice community a way tolook for fluctuations in the levelof crime and to provide statis-tics for varied research andplanning purposes. From thesedata, the SHRs reveal muchof what criminologists knowempirically about the nature andscope of homicidal behavior inthe United States.

For this study, 186,971 SHRmurders in the United Statesthat occurred during the 10-yearperiod 1990-1999 were avail-able for analysis. This volumeof cases represented an 8 per-cent decline in reported murderscompared with the 202,785homicides recorded in thedecade of the 1980s. From thesecases, the authors extracted

those homicides involving achemical (nondrug) poison or adrug/narcotic that an offenderhad used for homicidal pur-poses. They excluded reportsentailing asphyxiation/fumesbecause the data did not allowthem to differentiate asphyxia-tion by smothering from thosecases concerning chemicalfumes (e.g., carbon monoxide).

RESULTSOf the total 186,971 SHR

reports in the United States forthe period 1990-1999, 346, or1.9 per 100,000 total homicides,were poisonings involving asingle victim and a single of-fender or a single victim and anunknown number of offenders.5

Compared with the 1980s when292 similar homicidal poison-ings were reported, the 1990ssaw an increase of 18 percent

Dr. Jarvis is an instructor inthe Behavioral Science Unitat the FBI Academy.

Mr. Westveer is a violent crimespecialist in the BehavioralScience Unit at the FBI Academy.

Dr. Jensen, an FBI special agent,is an instructor in the BehavioralScience Unit at the FBI Academy.

August04a.pmd 7/13/04, 3:36 PM6

August 2004 / 3

of these crimes, which repre-sented a 35 percent increase inthe rate of these cases coming tothe attention of law enforcementduring these years.

The effective investigationof homicides generally, andpoisoning cases in particular,often depends upon a numberof factors, including such basicinvestigative data as victimdemographics, possible offendercharacteristics, geographic andtemporal features of the case,and any particular incidentattributes that may assist lawenforcement. The findings ofthis study, therefore, underscorethe importance of cooperationbetween the medicolegal andlaw enforcement communitiesand serve as a foundation forthe continued examination ofbehavioral attributes of homi-cidal poisoners.

Victim DemographicsThe SHR data for the 1990s

showed that victims of homi-cidal poisonings were dividedalmost equally between malesand females. The victims’ agesranged from a single victim lessthan 1 week old to 13 victims75 years or older. The greatestnumber of victims fell in theage range of 25 to 44 years,which constituted 91 (37.2percent) of the victims. The ageof the victim was unknown in 4(1.2 percent) of the homicides.By race, white victims weredivided almost equally between

males and females in poisoninghomicides. Victims of otherraces (American Indian orAlaskan Native and Asian orPacific Islander) were as likelyto be males as females.

Offender AttributesThe data also revealed that

victim characteristics may dic-tate some contingency related tooffender characteristics. That is,when victims were female, theoffenders were predominantlymale. By contrast, if victims

1 percent to 3.5 percent amongother races as victims comparedwith the 1980s analysis. Addi-tional findings showed thatwhites were predominantly thevictims of male offenders,blacks were almost equally thevictims of male and femaleoffenders, and people of otherracial backgrounds were equallylikely to be victims of female orunknown offenders.

By race, black poisoningoffenders were males twice asoften as females, and whitepoisoning offenders also weremore likely to be males. By sex,the result that 168 (48.6 per-cent) of the poisoning offenderswere male compared with 115(33.2 percent) female offenderswould seem to challenge theperception that primarily fe-males use poisons. Of course,these cases represented onlythose murders that becameknown to law enforcement. Itmay be that females are thepredominate poisoners, but aremore successful at getting awaywith the crime. Furthermore,this information reflected a 50percent increase in the partici-pation of females in this crimi-nal homicidal behavior com-pared with data from the 1980s.It must be noted, of course, thatthe sex of 63 (18.2 percent) ofthe offenders remained un-known. The offenders’ agesranged from one offender be-tween the ages of 10 and 14 tofour offenders 75 years or older.

were male, the offenders weredivided almost equally betweenmales and females. Regardlessof the sex of the victim, thepoisoning offender was pre-dominantly white. When exam-ining race, it appeared thathomicidal poisonings, like otherhomicidal behavior, usually didnot cross racial lines, with theoffender predominantly of thesame race as the victim. How-ever, this information alsoindicated a slight increase from

”

...the potential for toxicsubstances becoming

weapons of massdestruction has

increased dramaticallyin recent years.

“

August04a.pmd 7/13/04, 3:36 PM7


The age category of 20 to 34years accounted for 111 (32.1percent) of the offenders. Theage of the offender was un-known in 73 (21.1 percent) ofthe homicides. These patternsremained relatively stable incomparison with those of the1980s.

However, as a word ofcaution, because the authorsfound the percent of poisoningoffenders with unknown charac-teristics to be 20 to 30 timeshigher than those with unknowncharacteristics among all homi-cide offenders, some of thesedemographic findings mustremain tentative. This problemis most likely due to a lack ofwitnesses to provide insight intooffender characteristics.

Relationship of PoisoningVictim to Offender

Homicides within familiesoccurred with some frequencyand accounted for 125 (36.1percent) of the poisonings in the1990s. The four most frequentrelationships within the of-fender’s family were son (9.5percent), daughter (7.2 percent),wife (6.9 percent), and husband(5.2 percent). However, whilemany people may widely be-lieve that poisoning is predomi-nantly a household or domesticcrime, this study found that ofthe reports where the relation-ship of the offender to thevictim was known, more of thevictims came from outside the

family (63.9 percent) than fromwithin the family (36.1 percent)of the offender. Victims outsidethe family of the offender ac-counted for 221 (63.9 percent)of the poisoning homicides. Thefive most frequent relationshipsoutside the family were ac-quaintance (69, or 19.9 percent),unknown (66, or 19.1 percent),other (31, or 9 percent), friend(22, or 6.4 percent), and girl-friend (13, or 3.8 percent).

offender. So, the prevalence ofunknown characteristics maydampen the significance ofsome of these patterns. Inparticular, the variance with thefindings of the 1980s may bedue to fluctuations in missingdata relative to these cases,rather than true compositionalchanges in homicidal-poisoningbehavior.

Type of PoisonThirty (8.7 percent) of the

female offenders and 38 (11percent) of the male offendersemployed a chemical (nondrug)poison. Eighty-five (25 percent)female offenders and 130 (37.6percent) male offenders used adrug/narcotic as their homicidalagent. Although it was notpossible from the SHR to deter-mine the exact identification ofthe poison used, male offenderschose chemical (nondrug)poisons in a ratio of 5 to 4compared with female offend-ers. While male offenders useda drug/narcotic in a ratio ofalmost 3 to 2 to female offend-ers, this still represented a 33percent increase in the use ofdrug/narcotic poisonings bywomen when compared withdata from the 1980s. Becausethe SHRs did not identify theexact poison used in the homi-cides, this important piece ofinformation must come from amore in-depth analysis of thespecific case reports on file inthe various jurisdictions.

These results are in starkcontrast to the findings from the1980s that showed just 39percent of victims outside thefamily of the offender. Theearlier analysis disclosed a moreequitable distribution of rela-tionships, whereas this studyrevealed substantially morevictimizations of individualsoutside the family. But, onceagain, 66 homicide victims(19.1 percent) in the 1990s hadan unknown relationship to the

© PhotoDisc

August04a.pmd 7/13/04, 3:36 PM8

August 2004 / 5

ecause they often display few visible signs, homicidal poisonings remain one of the most difficultcrimes to detect and prosecute. All too often, authorities may certify a death as due to a natural or

Case Examples

In a small country town, a white male suddenly became extremely ill with what his family claimedwas pneumonia. Upon admission to the local hospital, he received treatment of antibiotics and painkillers. Ten days after the onset of his symptoms, he succumbed and was declared to have died from hisillness. Unbeknownst to authorities, the victim’s wife was involved in an adulterous affair and wishedto marry her lover. After her husband’s death, she returned some highly toxic herbicide to a fruitgrower who became suspicious and contacted the police. Upon further investigation, the police learnedthat the victim’s wife had collected on a $55,000 insurance policy and was pressuring her paramourinto marriage. The police had the husband’s body exhumed and discovered the highly toxic chemicalparaquat in his body. As a result of these findings and other evidence, the police arrested and chargedthe wife with the death of her husband. She was later convicted and sentenced to 5 years’ imprisonmentand treatment in a mental hospital.

Case #1

Officers were called to a residence at 3:30 a.m. to treat an 8-month-old baby who reportedly hadstopped breathing. The boy was transported to the local hospital and died later that morning. It waspresumed that the infant had suffered from sudden infant death syndrome (SIDS). An autopsy laterrevealed that the child had a blood ethanol level of 0.12 (120 mg/dl). Further investigation led thepolice to suspect that the father had given the child a toxic dose of peppermint schnapps. The father wasarrested and charged with negligent homicide for the alcohol poisoning of his son.

Case #2

Case #3

Police found a 33-year-old woman dead on her waterbed. The investigating officer noticed a blacksubstance around her mouth and nose and, recalling similar evidence from a case 12 years earlier,suspected possible cyanide poisoning. During the autopsy, personnel detected the distinctive bitter-almond odor common to cyanide poisonings.7 Laboratory tests confirmed the presence of cyanide inthe victim’s blood, but not in her stomach contents. Due to this finding, investigators thought that thevictim somehow was forced to inhale hydrogen cyanide gas. They later discovered that her husbandworked at an exterminating company where hydrogen cyanide was readily available. Combining thisinformation with evidence of both marital and financial problems, the police later arrested the husband.Prosecutors have sought a first-degree murder conviction and a possible life sentence.

unknown cause, resulting in important evidence of the crime being buried with the victim. Therefore,a great number of homicides by poisoning are detected only upon specific toxicological analysescarried out after the exhumation of the victim’s remains.

Selected from FBI and police files, as well as from public source court documents, these casesidentify incidents in which the nature of the initial poisoning was either not detected or misdiagnosed.In most cases, the initial causes of death were thought to be accidental or due to natural causes, but weredetermined later (through considerable legal and investigative effort) to be homicides where poisonwas the weapon of choice.

B

August04a.pmd 7/13/04, 3:36 PM9


As to what can serve as apotential homicidal poison, anearly, but accurate, definitioncan suffice: “What is there thatis not a poison, all things arepoison and nothing withoutpoison. Solely the dose deter-mines that a thing is not apoison.”6 Thus, any chemicalsubstance has the potential ofbecoming the means of commit-ting a poisoning homicide.Clearly, the prime candidate forthe most effective weapon inhomicidal poisonings is thechemical with the greatestlethality, the smallest dose, andthe least likelihood of detection.

Geographic andTemporal Features

A total of 44 (88 percent) ofthe 50 states reported poisoninghomicides for the decade of the1990s. The seven states with themost reported cases, accountingfor 178 (51.5 percent) of thetotal reported homicides, wereCalifornia with 63 (18.2 per-cent), Washington with 34 (9.8percent), Texas with 23 (6.6percent), Pennsylvania with 22(6.4 percent), and Arizona,Michigan, and New York with12 (3.5 percent) each. Uponanalyzing the 346 poisoninghomicide reports by geographicregion for the United States, theauthors found that the Northeasthad 52 (15 percent), the Mid-west 56 (16 percent), the South87 (25 percent), and the West151 (44 percent). These findings

were very similar to the analy-ses of the 1980s with the excep-tion of an increase of 9 percentin reported cases from thewestern United States.

The fact that UCR receivedfewer SHR reports from onegeographic area over another,however, does not necessarilymean lower poisoning homiciderates in any specific region.

varied from a high of 41 in 1995to a low of 26 in 1999. Theaverage number of poisoninghomicide reports per year was34.6. Yet, the authors foundlittle year-to-year variation inthe data reported.

The incidence of poisoninghomicide reports by month forthe decade varied from a high of40 in December to a low of 16in August. The average rate ofpoisoning homicide reports bymonth was 28.8.

The data collection formatof the SHRs made it impossibleto determine an exact motive in220 (64 percent) of the crimesbecause of the generalizedcategories, such as “other, notspecified,” “other,” or “unableto determine circumstances.”This important informationrelating to motive likely willhave to come from a more in-depth analysis of specific casesamong local jurisdictions.Interestingly, only two (0.6percent) SHRs reported thecircumstance as related to a“lover’s triangle,” which ap-peared contrary to the generalperception that poisons oftenare used in domestic situationsto remove spouses or significantothers.

Because of the large numberof reports that fell into general-ized unknown categories, theauthors also could not deter-mine the exact motive as itrelated to the relationship ofvictim to offender. Additionally,

Factors that could impact thenumber of reports received froma jurisdiction include legislationrequiring autopsies or toxicol-ogy screens on all deaths of un-known cause, the sophisticationof analytical toxicology labora-tories in the area, or the work-load of the local law enforce-ment or forensic pathologypersonnel.

Modus OperandiThe number of homicide

reports per year for the decade

”

...the prime candidatefor the most effectiveweapon in homicidal

poisonings is thechemical with thegreatest lethality,

the smallest dose, andthe least likelihood

of detection.

“

August04a.pmd 7/13/04, 3:36 PM10

August 2004 / 7

they could not ascertain howthe poison was administered.However, a summary of find-ings concerning the demograph-ics of homicidal poisoningsdepicts the consistency ofpatterns in these crimes andmay provide an opportunity forinvestigators in developingleads that may reveal the meth-ods used by these killers.

CONCLUSIONFrom this study, the authors

concluded that the incidenceof reported homicides due topoisoning comprised only asmall portion of the SHR datafor the decade. They wondered,though, if more of these types ofhomicides remained undetectedbecause of the many holes inthe investigative net throughwhich the homicidal poisonercan slip. Also, many of thedemographics of poisoningoffenders were largely un-known, at least when comparedwith that of overall homicides

harmony, and psychologicalmakeup. Unfortunately, SHRsdo not contain this information;it can be generated only byin-depth research into actualcircumstances surroundinghomicidal-poisoning cases.Such analyses may assist lawenforcement personnel in theirinvestigations by arming themwith a clearer picture of thepoisoner. Finally, while thiswork has focused on individualincidents of homicidal-poison-ing behavior, the importanceof these patterns may be evenmore significant in the contextof the 21st century. That is, thepotential for toxic substancesbecoming a weapon of massdestruction may prove more ofa substantial threat than in thepast. In addition, the expandingelderly population may provideadditional victims for those whowish to commit homicides thatappear as deaths from naturalcauses. Understanding someof the attributes of homicidal

during the decade. This mayhave indicated that homicideinvestigators had discovered apoisoned victim but could notidentify the offender. An oldand wise adage related tohomicide detection states that“all deaths are homicides untilfacts prove otherwise.” Asevident from the cases identi-fied at the outset of this researchand the statistical analysisperformed, perhaps this adagecould prove more relevant topoisoning cases rephrased as“all deaths, with no visible signsof trauma, may be consideredpoisonings until facts proveotherwise.”

The authors also felt thatmany other factors may beimportant to the identificationof a poisoning homicide of-fender, such as the offender’ssocioeconomic status, IQ, levelof education, professionaltraining, personality (introver-sion/extroversion), ethnicity,prior criminal history, marital

Demographics of Homicidal Poisonings (1990–1999)

Age 25-44 20-348

Sex Male/Female9 Male10

Race White11 White12

Circumstances Unknown13 UnknownRelationship 63 percent outside family14 36 percent within familyWeapon 75 percent drug/narcotic 25 percent nondrug15

Unknown 20-30 percent higher for both than that of all homicides

Attribute Victim Offender

August04a.pmd 7/13/04, 3:36 PM11


poisoners may enhance theability of the law enforcementand forensic communities whenthey are called upon to assist inthe prevention and investigationof homicides.

Endnotes1 J. Glaister, “Methods and Motives,”

in The Power of Poison (New York, NY:William Morrow and Company, 1954),153-182.

2 Some earlier attempts to identifycharacteristics of poisoners include thoseby J. Rowland who found that poisonerslikely had an unfortunate married life,failed to make an impression on life,possibly were connected with the medicalworld, were vain, possessed a mindwithout sympathy or imagination, andlikely were spoiled by their parents, see“The Mind of the Poisoner,” in Poisonersin the Dock (London, UK: Arco Publica-tions, 1960), 230-237. Alternatively, C.Wilson described poisoners as prone todaydreaming and fantasy; possessing anartistic temperament; and being weak-willed, cowardly, and avaricious, see“Poisoners,” in The Mammoth Book ofCrime (New York, NY: Graf Publishers,Inc., 1988), 476-484. While thesedepictions may have been anecdotallyaccurate when offered, the questionremains of whether current law enforce-ment perceptions and medicolegalstatements about poisoners’ characteristicsstill are valid and reliable. For recentexceptions, see A.Westveer, J. Trestrail,and A. Pinizzotto “Homicidal Poisoningsin the United States: An Analysis of theUniform Crime Reports from 1980-1989,”American Journal of Forensic Medicineand Pathology 17, no. 4 (1996): 282-288;and J. Trestrail, Criminal Poisoning:Investigational Guide for Law Enforce-ment, Toxicologists, Forensic Scientists,and Attorneys (Totowa, NJ: HumanaPress, Inc., 2000).

3 UCR data, believed to be the mostreliable source of information concerning

incidents that come to the attention of thepolice, form the basis for all analysespresented in this article. For additionalinformation on UCR, see U.S. Departmentof Justice, Federal Bureau of Investigation,Crime in the United States, 2002 (Wash-ington, DC, 2003).

4 See A.Westveer, J. Trestrail, and A.Pinizzotto “Homicidal Poisonings in theUnited States: An Analysis of the UniformCrime Reports from 1980-1989,”American Journal of Forensic Medicineand Pathology 17, no. 4 (1996): 282-288for all references in this article to data onhomicidal poisonings occurring from 1980through 1989.

8 Age or sex unknown in approximately20 percent of the cases.

9 If victim was male, offender was nomore frequently male or female; if victimwas female, offender was more frequentlymale.

10 More frequent than female, but 50percent increase in female offendingcompared with analyses of 1980s.

11 If victim was white, offender wasmore frequently male; if victim was black,offender was no more frequently male orfemale. Black male victims occurred twotimes more than black female victims;white or other race males occurred equallywith white or other race females. Otherrace victims increased from 1 percent to3.5 percent compared with the analyses of1980s.

12 Both white and black offenders weremore frequently male.

13 Circumstances were not informativein 64 percent of cases due to beingreported as unknown/other/missing. Yet,three times more husbands as wives werereported as victims in lover’s trianglecircumstance, along with some acquain-tance victims in this circumstance.

14 Relationship reported to be 39percent outside family in the analyses ofthe 1980s.

15 Drug/narcotic type poisoninginvolving female offenders increased 33percent compared with the analyses of the1980s.

5 For the purposes of this study, inthose reports where there were anunknown number of offenders, the authorsassumed that at least one offender wasinvolved. Therefore, they included all ofthese cases, even though the exact numberof offenders remained unknown.

6 The physician Paracelsus (1493-1541)made this observation in 1538.

7 It is estimated that only about 50percent of the human population can detectthe odor of cyanide. Therefore, thepossibility exists that the use of thispoisonous substance often may goundetected.

The authors thank the FBI UCR stafffor providing SHR data relating topoisoning homicides. Additionally, theyexpress appreciation to John Trestrailfor his insights on earlier drafts and hiscontributions to earlier works in thisarea. Finally, they gratefully acknowl-edge those Behavioral Science Unitmembers who assisted at all stagesof the process, including Intern EmilyNoroski who reworked initial draftsand Special Agents Harry Kern andSharon Smith who reviewed the finalproduct.

”

Understanding...homicidalpoisoners may

enhance the ability ofthe law enforcement

and forensiccommunities...to assistin the prevention and

investigation ofhomicides.

“

August04a.pmd 7/13/04, 3:36 PM12

he Kansas City, Missouri, Police Depart-ment seeks information regarding the iden-

Unidentified Homicide Victim

tity of a child homicide victim. The child’s head-less body was found by officers on April 28, 2001,and the severed head was found on May 1, 2001, inthe same area. The child never was identified; theKansas City community named the child PreciousDoe.

Crime SceneOn April 28, 2001, along a dirt road in a

wooded area at 59th and Kensington in KansasCity, Missouri, officers found the nude, headlessbody of a young African-American female lying inweeds along the edge of the road. Two searches ofthe area with cadaver dogs failed to turn up anyrelated evidence. On May 1, 2001, the victim’ssevered head, wrapped in a trash bag, was found inthe same wooded area.

Subsequent forensic examination determinedthe victim to be a child between 3 and 4 years ofage, 42" to 44" in height, and between 35 and 40pounds. She had a light, crescent-shaped birthmarkon her front, upper left shoulder.

Alert to Law EnforcementThe Kansas City Police Department contacted

the FBI’s Violent Criminal Apprehension Program(ViCAP) and submitted a report about the child.The information was entered into the nationwideViCAP database of murdered, missing, or uniden-tified found persons. Further, ViCAP conductedsearches of its own and other databases for similarcrimes. Based on photographs of the young child’shead, the National Center for Missing and Ex-ploited Children in Alexandria, Virginia, producedthe first computer-generated depiction of how thechild may have looked in life. Release of thispicture garnered national attention and producednumerous leads, none of which revealed her iden-tity. Other attempts by forensic experts who pro-duced drawings and a bust constructed from theactual face and skull received media and newspublicity but have not resulted in identification ofthe child.

Almost 1,000 leads have been logged in thiscase. A poster was released through Interpol to itsover 180 member nations, and leads have beenfollowed in Great Britain, Holland, and Jamaica.On July 15, 2003, the remains of Precious Doewere exhumed and the Forensic Anthropology andComputer Enhancement Services (FACES) labo-ratory reconstructed the child’s skull and prepareda model of what the child’s face may have lookedlike.

The Kansas City Police Department asks anyagency having information concerning the identityof the child homicide victim to use the followingcontact information: 1) Kansas City PoliceDepartment at 800-399-8517; 2) Sergeant DavidBernard, Kansas City Police Department, Homi-cide Unit, 1125 Locust, Kansas City, Missouri,64106, at 816-234-5043 or via e-mail [email protected]; 3) Crime Analyst SuzanneD. Stiltner, ViCAP, Quantico, Virginia, 22135, at703-632-4173; or 4) Major Case Specialist Eric W.Witzig, ViCAP, Quantico, Virginia, 22135, at703-632-4194 or via e-mail at [email protected].

ViCAP Alert

T

August 2004 / 9

August04a.pmd 7/13/04, 3:36 PM13


he word khat (pronounced cot) may notevoke much response from most of Ameri-

Focus on Illegal Drugs

KhatA Potential Concernfor Law EnforcementBy M. Justin Crenshaw, M.S., and Tod Burke, Ph.D.

can society, but it could herald a significant prob-lem for law enforcement in the near future.1 Khat isa plant that originates in eastern Africa and thesouthern Middle East; people of these regionsknow it well and, reportedly, for centuries havechewed its leaves for their narcotic properties. Us-ers in these areas may spend up to half of theirincome on the drug.2 Khat is known by othernames throughout the world; people in easternAfrica most commonly call it miraa, but it also isreferred to as chat, jat, oat, kat, African salad, andAbyssinian tea. Many countries consider it a legiti-mate (and profitable) export.

The United States considers khat dangerousand classifies it as a controlled substance. Un-doubtedly, a passion for this drug in America’s

fast-paced society would present a crisis. Armedwith an understanding of this natural narcotic, in-cluding its origins, chemical and medical con-cerns, and cultural status, law enforcement will bebetter equipped to combat it if it expands into thelarger U.S. population.

Composition and CultivationThe main psychoactive ingredients in khat are

cathinone (chemically similar to amphetamine)and cathine. In addition, khat plants contain chemi-cals called alkaloids, which long have served asnarcotics and hallucinogens.

DEA classifies cathinone as a Schedule I nar-cotic.3 The amounts of cathinone that exist in khatand, thus, the drug’s mind-altering effects mayvary based on the area where it was harvested. Forinstance, the amount of cathinone in khat plantsfrom Kenya may reach 14 percent, while levels inplants from Yemen may be as low as 3.3 percent.4

Once khat leaves dry and the cathinone evaporates,only cathine remains, and the plant drops to aSchedule IV narcotic.5

Current interest in cathinone exists becauserecent discoveries confirm that illegal laboratoriesproduce a chemical called methcathinone, a syn-thetic form of cathinone. Ephedrine, a compoundfound in over-the-counter cold medicines, andpseudoephedrine represent the main precursorchemicals. Methcathinone, which sells as a meth-amphetamine alternative, commonly is called catand often mistaken for khat.6

The khat tree grows 3,000 to 6,000 feet abovesea level and can reach a height of 20 feet. Theleaves of the plant are reddish-brown while on thetree, but quickly become a leathery yellow-greenonce picked. Although people may use all of thestems and leaves, they appear to prefer the youngshoots at the top of the plant because they findthem softer and easier to chew than the older onestoward the bottom. While most leaves are har-vested for chewing, some are deliberately driedand crushed into a powder form for additional

T© Drug Enforcement Administration

August04a.pmd 7/13/04, 3:37 PM14

August 2004 / 11

uses, such as smoking, brewing tea, orsprinkling over food. People harvest theleaves and stems of the plant on a con-tinual basis throughout the year.

Khat leaves must be transportedquickly to market because once they dry(within 48 hours), the cathinone evapo-rates, leaving only the milder cathine.When this happens, of course, users whocrave the more potent effects find thekhat of little worth. To help avoid this,harvesters package the leaves and stemsin plastic bags or wrap them in bananaleaves to preserve their moisture and maysprinkle them with water during transportto keep them moist. Frozen or refriger-ated khat may retain cathinone longer.

Effects and ConcernsCathinone stimulates an excessive

production of dopamine, which controlsfeelings of pleasure and happiness, in thehuman brain. This can lead to a variety ofshort-term effects, including hallucina-tions, bizarre thoughts, schizophrenia,high blood pressure, rapid breathing,lethargy, mild depression, nightmares, and height-ened alertness.7 Other possible examples are a sup-pressed appetite for food and sex8 and an increasedability to stay awake for long periods of time.9 Thedrug also can make users more aggressive, inflatetheir egos, and cause them to be irrational andirritated, which may lead to unusual behavior, suchas increased arguments, reckless actions, and vio-lence.10 Additional, less dramatic examples caninclude dry mouth, flushing, and an urge to uri-nate.11 The effects of chewing khat, which can varyby user, may not show up for 3 or more hours, butthen may last for several hours.

The long-term effects for chronic users mayinclude anxiety, confusion, dysphoria, aggressiveor agitated behavior, insomnia, high blood pres-sure, loss of weight due to a lack of appetite,

increased heart rate and stomach irritation, anddehydration. Visual hallucinations and paranoiarepresent additional examples.12 The chemicals inkhat also may block the body’s absorption of ironand other necessary minerals, causing potentialhealth consequences.13

Advocates of khat argue that the drug easessymptoms of diabetes, asthma, and intestinal dis-orders. Furthermore, users claim that they are moreadept at problem solving and social communica-tion and have increased spirits and sharpenedthinking.14

Many khat users have adapted strategies toimpede the ill effects of the drug. Most veteranconsumers can estimate the amount they can chewto avoid the negative effects of sleep deprivationand loss of appetite. Neophytes typically do not

Long Term

• anxiety• confusion• dysphoria• aggressive behavior• insomnia• high blood pressure• weight loss due to

decreased appetite• increased heart rate• stomach irritation• dehydration• hallucinations• paranoia• decreased absorp-

tion of importantnutrients

• hallucinations• bizarre thoughts• schizophrenia• increased blood

pressure• rapid breathing• lethargy• mild depression• nightmares• heightened alertness• loss of appetite• difficulty sleeping• inflated ego• agitation• aggressive behavior

Examples of Khat Use Effects

Short Term

August04a.pmd 7/13/04, 3:37 PM15


start chewing large amounts of khat; therefore,they build up a tolerance for the drug slowly. Someusers even have supplemented alcohol or otherdepressants to counteract the effect that khat has onsleep. Due to the small quantity often consumed,overdose is unlikely.

While khat does have a strong psychologicaladdiction for most users, the withdrawal symptomsare relatively minor when compared with otherillegal drugs, such as heroin and cocaine. With-drawal signs may include laziness, depression,nightmares, and slight tremors.15 The duration ofthese symptoms may differ by user. Furthermore,the severity of the depression can vary and maylead to agitation or sleeping difficulties.

The rise of khat use in the United States seemsto coincide with the increase in the number ofimmigrants arriving from eastern Africa and theArabian Peninsula.16 In 2000, the U.S CustomsService seized 70,008 pounds of khat, an increase

of 21,070 pounds from the previous year. InColumbus, Ohio, which has the second largestSomali population in the United States, policeseized 860 pounds in 2002, an increase over theprevious 2 years’ seizures of 633 pounds and 8.5pounds, respectively.17 New York City, Detroit,Minneapolis, Seattle, and San Diego may see anincrease in khat arrests due to growing easternAfrican communities.18

Many immigrants are unaware that khat is ille-gal in the United States. As a result, they often usethe drug in public and later face arrest. Some citieseven have seen khat advertised and sold openly ingrocery stores and restaurants. Many sellers, in anattempt to keep sales of the drug quiet, only dealwith users of eastern African descent and turnaway everyone else.

On the street, khat currently sells for $28 to $50a bundle (100 to 200g) and $300 to $440 a kilo-gram;19 these prices currently compare with those

of some other drugs,such as ecstasy andoxycodone, but areconsiderably lowerthan prices of othernarcotics, such asmarijuana, cocaine,and heroin. Khat’slow cost makes itappealing to manydrug users, especiallyyouths.

Most of the khatenters the UnitedStates from easternAfrica via overnightshipping, althoughthere have been someinstances of cultiva-tion in the UnitedStates. A majority ofkhat arrives throughSource: Drug Enforcement Administration

Seizures of Khat at U.S. Ports of Entry (in Metric Tons)

August04a.pmd 7/13/04, 3:37 PM16

August 2004 / 13

commercial shipping services, although some pas-sengers aboard airlines will smuggle it in theirluggage or place it with other cargo and mark it as“vegetables.”

RecommendationsWith khat seizures nearly doubling annually,20

law enforcement personnel must become morecognizant of this drug. The following recommen-dations may assist officers to better combat itsmanufacturing, distribution, and use:• Law enforcement officers must receive train-

ing in academies and in-service seminars torecognize khat. Examples ofthe actual drug can aid inidentification. Drug detec-tion canines also should betrained to detect khat.

• To identify users on thestreet, officers must have anunderstanding of khatsymptoms and methods ofuse.

• Because the trafficking andsmuggling practices of khatare not unlike those of otherillegal narcotics coming into the UnitedStates, current drug detection methods canprove successful.

• Law enforcement agencies must use interna-tional communication and cooperation totrack the progression of khat and possibledealers migrating to the United States.

• Law enforcement must be aware of any khatcultivation in the United States. The plantgrows in higher altitudes with wet climates(or in greenhouses or indoors where theclimate can be duplicated); in this regard,officers must monitor, as appropriate, anyareas in the United States that may providekhat with the means to grow.

• Because khat has previously existed only inunderdeveloped countries, few scientificstudies exist. Reliable data could help lawenforcement agencies understand the poten-tial long-term effects of khat.

• To target incidents of khat use, law enforce-ment and medical institutions, includinghospitals, research facilities, and healthdepartments, must make a coordinated effort.

ConclusionWith khat numbers growing in the United

States, law enforcement must fight this drugproactively. To evaluate the po-tential for khat use, Americansonly need to consider the pro-gression of other drugs, such asoxycodone and ecstasy, whichstarted with a small communityof users and now continue tospread across the country. Whilekhat has not yet become wide-spread, it soon may be a legiti-mate problem.

If law enforcement person-nel can become educated about

khat, perhaps this knowledge will prove valuablewhen combating this drug in the United States. Thekey to early success in this effort is recognition.

Endnotes1 The authors based this article on their research and knowl-

edge of narcotics.2 Teri Randall, “Khat Abuse Fuels Somali Conflict, Drains

Economy,” Journal of the American Medical Association 269(January 6, 1993): 12-14.

3 A Schedule I narcotic presents a high potential for abuse anddependence. Examples include LSD, heroin, and cocaine. Foradditional information, see http://www.usdoj.gov/dea/agency/csa.htm.

4 Mwingirwa Kithure, “The Dark Side of Chewing Miraa(Khat)”; retrieved on January 23, 2004, from http://www.africaonline.com/site/Articles/1,10,2654.jsp.

“

”

Armed with anunderstanding of thisnatural narcotic...lawenforcement will bebetter equipped to

combat it....

August04a.pmd 7/13/04, 3:37 PM17

Lt. Crenshaw serves in the U.S. Air Force.Dr. Burke, a former police officer, is a professor of criminaljustice at Radford University in Radford, Virginia.

he Lowell, Massachusetts, Police Department pre-sents the Christos G. Rouses Memorial. This monu-


Christos G. Rouses Memorial

The Bulletin Honors

ment, dedicated in 1980, is named for Officer Rouses, whowas shot to death by an armed robber while responding to asilent alarm at a local pharmacy. The memorial, located inthe plaza directly in front of Lowell Police DepartmentHeadquarters, depicts an officer with his hand on theshoulder of a young child and features the names of OfficerRouses and other fallen Lowell officers. The memorial sits,surrounded by landscaping, in the center of an unusedfountain.

T

Nominations for The Bulletin Honors should include at leastone color 5x7 or 8x10 photograph (slides also are accepted)of a law enforcement memorial along with a short description(maximum of 200 words). Contributors should send submissionsto the Editor, FBI Law Enforcement Bulletin, FBI Academy,Madison Building, Room 201, Quantico, VA 22135.

5 A Schedule IV narcotic presents a lower potential for abuseand dependence than some other controlled substances. Examplesinclude benzodiazepines, darvon, and phenobarbital. For addi-tional information, see http://www.usdoj.gov/dea/agency/csa.htm.

6 U.S. Department of Justice, Drug Enforcement Administra-tion, ìKhat,î Drug Intelligence Brief, June 2002; retrieved onJanuary 23, 2004, from http://www.usdoj.gov/dea/pubs/intel/02032/02032.html.

7 Supra note 4.8 Jonathan Stevenson, ìKrazy Khat: Somaliaís Deadly Drug

War,î The New Republic 207 (November 23, 1992): 17-19.9 Supra note 4.10 Supra notes 2 and 8.11 Richard B. Seymour, ìKhat Has U.S. Presence,î Psycho-

pharmacology Update 10 (June 1999): 5.12 Ibid.; and Mohamed Al-Kamel, ìKhat Plantî; retrieved on

January 24, 2004, from http://www.geocities.com/forceps1974/khat.html.

13 Supra note 12 (Al-Kamel).14 Supra note 12 (Al-Kamel).15 Supra note 4.16 ìKhat Use Increases in Some U.S. Cities,î Alcoholism and

Drug Abuse Weekly 14 (September 16, 2002): 7-9.17 Ibid.18 Frank Bures, ìFrom Civil War to the Drug War: Immigrants

Are Risking Prison for a Taste of Home,î Mother Jones 26(November/December 2001): 23-24.

19 Supra notes 6 and 12 (Al-Kamel).20 T.Trent Gegax, ìMeet the Khat Heads,î Newsweek,

September 30, 2002, 35.

August04aAAFinal.pmd 7/26/04, 3:56 PM18

August 2004 / 15

Police Suicide: Tactics for Preventionby Dell P. Hackett and John M. Violanti,Charles C. Thomas Publisher, Springfield,Illinois, 2003.

The information, issues, and concepts pre-sented in Police Suicide: Tactics for Preven-tion deserve serious consideration in the ad-vancement of law enforcement suicideprevention and reduction. The book was re-searched and written by leading experts intheir fields of law enforcement, pathology,psychiatry, and other behavioral sciences,along with consultants connected to law en-forcement.

Studies have documented that within aspecific time frame, some law enforcementagencies have had more officer deaths fromsuicide than from line-of-duty homicides. Insome situations, this rate is higher than in otheremployment areas, as well as the generalpopulation of the United States. The authors ofthis book addressed in-depth the law enforce-ment teaching and working culture, rangingfrom entry into the academy to executive-leveladministration of the department. They exam-ined the supervisor’s role in detection and pre-vention of suicide and organizational denial ofthe suicide dilemma, as well as concerns offamily members and survivors of the victimofficer, including the who, what, when, where,how, and why of confidential help, or lackthereof, from professionals.

The purpose of this well-researched bookis to get the reader much closer to the detectionof law enforcement personnel in low- to high-risk crisis postures who may commit self-harmcoupled with sound strategies and tactics forprevention for all departments. Three strongpoints emerge from the book besides its over-all comprehensiveness. First, an outstandingmodified flowchart depicts a model for suicideprevention with initial and ending protocol

actions involving the officer’s family. Second,results from a National Police SuicideFoundation’s officer survey revealed 10 rea-sons why officers commit suicide. Within thispoint, the authors also identify a startling po-tential phenomena coined “suicide by sus-pect.” This involves officers deliberately fail-ing to initiate a defensive action against alife-threatening situation as an honorable wayout of their depressed state of mind. The thirdpoint entails information on a training module,Gatekeeper, that focuses on officers in a crisissituation using the technique of questioning,persuading, and referring as preventive mea-sures to suicide incidents.

Police Suicide: Tactics for Prevention is amust read for all law enforcement personnel,ranging from the basic recruit in the academyto the top echelons of command, includingstaff supervisors, managers, administrators,and commissioners. It is a critical book for thepolicy and procedures writers, in-servicetraining and assessment center representa-tives, psychological testing personnel, correc-tional members, chaplains, and all first re-sponders in the community.

This book is an exemplary research effortin the field of law enforcement designed toreverse the thinking that may lead to life-end-ing decisions. Information in this book is es-sential to the advancement of law enforcementsuicide prevention. It surfaces the hidden psy-chological dangers common to law enforce-ment officers involving job stress and theirroles in society.

Reviewed byLarry R. Moore

Certified Emergency ManagerInternational Associationof Emergency Managers

Knoxville, Tennessee

Book Review

August04a.pmd 7/13/04, 3:37 PM19

he notion that a trau-matic experience pro-duces an extreme reac-

tion is an ancient one. Whenconfronted with serious, oftenlife-threatening situations,crime victims instinctively re-sort to various cognitive mech-anisms that allow them to copewith their sudden victimiza-tion.2 Many people are familiarwith the more common of thesecoping strategies, or “defensemechanisms” as psychologistscall them, which include regres-sion, denial, and repression.

THe was too weak to live down the shock of the killing. That’s what hesuspected must be troubling him. A real man could have come out of it in ashort time and resumed a normal life.

After all, he had done all he could that night. He had nothing to feel badabout. Nothing at all. It was easy for some of them to criticize him. To havetheir training classes and criticize him and Ian and say what should havebeen done.

Then he was crying. It was the first time he had cried like this. KarlHettinger sat hunched in his chair and his wet cheeks glistened silver fromthe light of the television, and his shoulders began heaving and greatshuddering sobs ripped out. He lost control. He wept and the shame of itmade the tears gush hot. There was nothing left, not a shred of self-respect.

One day while walking through a department store with O’Lear lookingfor thieves, he saw a masonry drill he needed. He started to buy it butinstead just put it in his pocket. It was as baffling and inexplicable as theweeping.

—Joseph Wambaugh, The Onion Field1


Identification withthe AggressorHow Crime Victims OftenCope with TraumaBy RYAN E. MELSKY, M.A., J.D.

© Digital Stock

August04a.pmd 7/13/04, 3:37 PM20

August 2004 / 17

In addition to these, crimevictims also can cope with life-threatening trauma by “identify-ing” with their aggressor, just asKarl Hettinger—an officer withthe Los Angeles, California,Police Department—did afterwitnessing two thieves murderhis partner. Identifying with theaggressor has become a well-documented, bona fide defensemechanism.3 By understandingwhy people often identify withtheir aggressors and how thisaffects future behavior, the lawenforcement community canbetter comprehend the vicissi-tudes of victimization and, as aresult, provide more effectivevictim services, thereby facili-tating a healthy recovery forcrime victims.

Identification ProcessThe process of identification

occurs when one person formsan emotional bond with another.Introjection then takes place,whereby identifying partiesmodify their own personalitiesand physical characteristics inan attempt to imitate the personthey are identifying with.4 Typi-cally motivated by unconsciousforces, identifying parties maynot recognize the effects thatidentification has on theiractions.5

Examples of identificationhappen every day, especially inchildren and teenagers. Littleboys wear toy guns and badgesto emulate their police officer

fathers. Young girls don theirmothers’ jewelry and makeup tolook like them. Teenagers oftendress in the same type of clothesand speak in the same mannerto identify with their socialgroups.

Identification with AggressorsBy identifying with their

aggressors, assuming theirattributes, and imitating theiraggression, crime victimscognitively transform them-selves from the people threat-ened into those making thethreat.6 This mental transfor-mation allows the victim toachieve some feeling of strengthin an otherwise humiliatingsituation. In short, when anaggressor sticks a gun in a per-son’s face or kidnaps someoneat knifepoint, often the victim’sonly chance for survival is tojoin the aggressor emotionally,as well as physically. Anything

short of total cooperation likelywill result in death.

In addition to its cognitiveutility, identification with theaggressor serves an important,external function. With thisdefense mechanism, victimsmake an intuitive predictionregarding their aggressors’reactions to the bond.7 Instinc-tively, victims know that if theyappease their aggressors, theirchances of survival increase.Aggressors assured that theyare “right” or whose controllingideations are bolstered by thecompanionship of submissivevictims will less likely disposeof this “positive” reinforcement.In this way, the victim’s iden-tification has somewhat of acontrolling effect on the aggres-sor. Intuitively, the victim hasoutsmarted the aggressor.

From a causal perspective,some theorize that identificationwith the aggressor results from

“

”Sergeant Melsky serves with the ClintonTownship, New Jersey, Police Department.

Identifying withthe aggressorhas become a

well-documented,bona fide defense

mechanism.

August04a.pmd 7/13/04, 3:37 PM21


the victim’s appreciation forbeing allowed to live. Whenabductors threaten to kill vic-tims, they establish intense fearin their captives. However,when abductors change theirminds and begin to show com-passion, their victims feelgratitude toward them.8

Well-Known ExamplesKarl Hettinger’s troubling

postvictimization behavior rep-resents one well-known illus-tration of how crime victimsidentify with their aggressors.History is full of examples ofhow otherwise law-abiding vic-tims bonded with their aggres-sors and subsequently went onto participate in, or cooperatewith, criminal conduct.

When Adolf Hitler andother leaders of the Nazi regimeimplemented policies calling formass genocide during the 1930sand 1940s, they recruited un-likely participants to carry outtheir murderous plans in theconcentration camps. As a re-sult, many of Germany’s doc-tors were transformed fromhumanistic healers to cold-blooded torturers and killers.Under the threat of their violentleaders, whether actual orimplied, these educated andaccomplished concentrationcamp doctors came to justifytheir crude and pointlesshuman experiments as beingnecessary under the current

conditions, just as Nazi policiesproclaimed.9

In 1973, a bungled bankrobbery in Stockholm, Sweden,resulted in a prolonged hostagesituation. As time wore on, thehostages became impatient andfrustrated. As a result, theyidentified with their captors andeventually came to assist themagainst the police. This caseprompted the term Stockholmsyndrome.10

enjoyed her crimes as she actedunder her own free will.

Many wonder why peoplecaught up in such situations asthese did not attempt to fleetheir captors. This mentalityreflects a pervasive lack ofknowledge regarding the sub-jective experience of crimevictims. This insensibility, inturn, serves to revictimize thevictim. Members of the lawenforcement community, aswell as society as a whole, mustrealize that the experience ofbeing a crime victim creates acomplex, long-lasting effecton the person’s cognitive pro-cesses. Moreover, these effectsare not easily understood.

Long-Term Effects andFuture Considerations

In its mildest form, identifi-cation with the aggressor is ahealthy defense mechanism.It allows people to adjust tothreatening situations. Forexample, a little girl afraid towalk down the dark hallway ofher house for fear of meeting aghost may solve the problemby “booing” her way along thecorridor.12

On the opposite end of thespectrum, identification with theaggressor may lead to antisocialor “psychopathic” behavior.Although especially true withcontinuous victimization over along period of time beginningin early childhood,13 a single

In what probably representsthe most well-known case ofidentification with the aggres-sor, Patty Hearst was kid-napped, kept blindfolded andnude in a closet for severalmonths, sexually assaulted, anddeprived of food and sleep.Eventually, her abductors freedher from her confines and beganto show her compassion.11

When they did, she joined theirbank-robbing escapades. Ac-counts of Hearst committingbank robberies seemed toportray a young woman who

© stockbyte

August04a.pmd 7/13/04, 3:37 PM22

life-threatening experience maybe enough. Such was the casewith Karl Hettinger. Obviously,identifying with an aggressorduring victimization createslong-term psychological andpersonality changes likely tolast well after the aggressor hasrelinquished control. Sadly,many crime victims, despitetreatment by competent profes-sionals, remain psychologicallydisabled.14

Coupled with identificationwith the aggressor, a traumaticexperience also may lead topost-traumatic stress disorder(PTSD). In turn, the victim mayexperience amnesia, depression,or suicidal tendencies, all ofwhich are by-products of PTSD.Overall, the traumatic threatimposed on an unwilling victimby an aggressor can producemultiple cognitive and behav-ioral abnormalities for the restof that person’s life.15

This does not bode well forlaw enforcement officers, pros-ecutors, or therapists workingwith crime victims who haveidentified with their aggressors.In situations where antisocialbehavior has resulted, the intra-psychic identification betweenthe victim and the aggressor canbe so intense that the victimactually will project the aggres-sion onto those trying to help.16

This results in an angry, diffi-cult victim who resists change.

However, this does notmean that no hope exists.

Rather, just as no one can forcea physical wound to healquickly, no one can force apsychological wound to healeither. In both cases, a personhas to flow with the healingprocess, not fight it.17

What often is overlooked isthat the healing process beginswith the first law enforcementofficer to make contact with thevictim. Soon after, the victim

reactions of victims of violentcrime because history hasshown that this defense mecha-nism has played a role in savingthe lives of countless victims.

Instead, people should cometo accept what they alreadyknow—a traumatic experienceproduces an extreme response.Understanding this, law en-forcement officers and otherscoming into contact with vic-tims of violent crime can helpthese individuals begin the longroad to healing, as opposed toexacerbating the problem byrevictimizing them. A victim’sseemingly odd reaction to thetrauma directly results fromthe fact that the person had nochoice but to adopt this form ofbehavior. Keeping this foremostin mind will serve the publicand, most important, crimevictims well.

Endnotes1 Joseph Wambaugh, The Onion Field

(New York, NY: Dell Publishing, 1973),347.

2 Michael J. Scott and Stephen G.Stradling, Counseling for Post-TraumaticStress Disorder (Thousand Oaks, CA:Sage Publications, 1992).

3 Anna Freud, The Ego and theMechanisms of Defense, vol. 2 (Madison,CT: International Universities Press, Inc.,1966).

4 Nandor Fodor and Frank Gaynor,eds., Freud: A Dictionary of Psychoanaly-sis (Greenwich, CT: Fawcett Publications,1958).

5 Robert B. Ewen, An Introduction toTheories of Personality, 3d ed. (Mahwah,NJ: Lawrence Erlbaum Associates, Inc.,1988), 37.

likely will encounter other offi-cers, detectives, paramedics,nurses, physicians, family mem-bers, prosecutors, judges, jurors,and therapists, to name a few.By not judging the victim byhow they think that they wouldhave acted in the situation, theseprofessionals can resist thenatural, often subconscious,tendency to blame the victim.

ConclusionThe process of identifying

with their aggressors is a real,instinctive phenomenon thatcrime victims often experience.No one should scrutinize orjudge the subjective, complex

No one shouldscrutinize or judge the

subjective, complexreactions of victimsof violent crime....

“”

August 2004 / 19

August04a.pmd 7/13/04, 3:37 PM23

6 Supra note 3, 113.7 For additional information on the

intuitive ability to predict violence, seeGavin De Becker, The Gift of Fear:Survival Signals That Protect Us fromViolence (New York, NY: Little, Brownand Company, 1997).

8 Vincent J. Schodolski and V. DionHaynes, “Captive Girl’s Actions Hint atBrainwashing,” Easton (PA) The Express-Times, March 16, 2003.

9 Robert Jay Lifton, The Nazi Doctors:Medical Killing and the Psychology ofGenocide (New York, NY: Basic Books,1986).

10 John Douglas and Mark Olshaker,Mind Hunter: Inside the FBI’s Elite SerialCrime Unit (New York, NY: Pocket StarBooks, 1995), 82.

11 Supra note 8, sec. A, p. 4.12 Christopher F. Monte, Beneath the

Mask: An Introduction to Theories of

Personality, 5th ed. (Fort Worth, TX:Harcourt Brace, 1995), 201.

13 J. Reid Meloy, The PsychopathicMind: Origins, Dynamics, and Treatment(Northvale, NJ: Jason Aronson, 1988).

14 Shelley Neiderbach, InvisibleWounds: Crime Victims Speak (Bingham-ton, NY: Harrington Park Press, 1986).

15 Supra note 2.16 Supra note 13, 52-53.17 Supra note 2.

he New Hanover Coun-ty, North Carolina,T

Sheriff’s Office received acall that a male had shot atand kidnapped his estrangedgirlfriend at gunpoint, forc-ing his way into her truck ona rural road. Shortly after re-ceiving the call, officers lo-cated an abandoned vehiclethat had been operated by thesubject along with a firearm.Investigation revealed theidentities of the victim and the subject; cellular phone calls to family members by both the victimand the subject verified investigative results. A negotiator with the sheriff’s office emergencyresponse team contacted the victim by telephone and, after several hours, determined the locationof the two individuals.

On learning the location, both the negotiator and tactical elements of the emergency responseteam moved into the area. The subject, now driving the truck, attempted to flee but was blocked,so he turned to drive toward the intra-coastal waterway. The victim jumped from the truck, andthe subject drove directly into the waterway.

The photo depicts members of the sheriff’s office emergency response team deployed on thebow of a U.S. Coast Guard vessel approaching the subject who was partially concealed on thefloor of the flooded truck. The subject was removed without incident after approximately 30minutes; he suffered exposure to the 39-degree water.

Sea Hunt

Snapshot


August04a.pmd 7/13/04, 3:37 PM24

August 2004 / 21

Bulletin Reports

The National Institute of Justice (NIJ) presents Fighting UrbanCrime: The Evolution of Federal-Local Collaboration. Although rarebefore the mid-1980s, collaboration between federal and local lawenforcement has grown rapidly as local police and prosecutors haveworked closely with federal authorities to address increased levels ofdrug trafficking and violent crime. This report examines the rise offederal-local collaboration; the various types of relationships, such astask forces and grant-funded programs; and the advantages collabora-tion offers both local and federal authorities. These partnerships havebeen characterized by restraint, careful coordination, and shared oper-ational leadership. Researchers found that collaboration has become

institutionalized in many U.S. cit-ies and likely will expand in thefuture. This report is availableelectronically at http://www.ncjrs.org/pdffiles1/nij/197040.pdf or bycontacting the National CriminalJustice Reference Service at 800-851-3420.

Collaboration

Bulletin Reports is an edited collection of criminal justice studies, reports, and project findings. Send yourmaterial for consideration to: FBI Law Enforcement Bulletin, Room 201, Madison Building, FBI Academy,Quantico, VA 22135. (NOTE: The material in this section is intended to be strictly an information source andshould not be considered an endorsement by the FBI for any product or service.)

Indicators of School Crime and Safety: 2003, ajoint effort by the Bureau of Justice Statistics and theNational Center for Education Statistics, presents up-to-date, detailed data on crime at school (includingcrime in school and on the way to and from school)from the perspectives of students, teachers, principals,and the general population. Information was gatheredfrom an array of sources, including the National CrimeVictimization Survey (1992 to 2001), School CrimeSupplement to the National Crime Victimization Sur-vey (1995, 1999, and 2001), Youth Risk BehaviorSurvey (1993, 1995, 1997, 1999, and 2001), SchoolSurvey on Crime and Safety (2000), and School andStaffing Survey (1993 to 1994 and 1999 to 2000). Thisreport is available electronically at http://nces.ed.gov/pubs2004/2004004.pdf.

Reference and Statistics

August04a.pmd 7/13/04, 3:37 PM25

he need to safeguardU.S. borders has drawnmore attention recentlyT

than ever before. The law tradi-tionally has recognized that sig-nificant public safety interestsare at stake when it comes tosafeguarding America’s bor-ders. This has translated into aunique body of law that permitsthe government to exercisebroad search authority at theborder to safeguard the public.This article discusses the con-tours of land border search law,including a discussion of therole the actual site of the searchplays, whether the site is at the

actual border, at the functionalequivalent of the border, at theextended border, or during thecourse of roving border patrols.

ACTUAL BORDERThe state of the law with

respect to suspicionlesssearches conducted at actual, or“true,” U.S. borders is the moststraightforward and most easilyunderstood. Such searches havebeen described as either excep-tions to the Fourth Amend-ment’s warrant and probablecause requirements (leavingthem subject only to theamendment’s reasonableness

standard) or as a species ofsearch wholly outside theFourth Amendment.1

A true border search can bemade without probable cause,without a warrant, and, indeed,without any articulable suspi-cion at all.2 The only limitationon such a search is the FourthAmendment stricture that it beconducted reasonably. Note thatthe reasonableness calculus isdifferent at the border (i.e.,looser) than it is inland.3 Ofcourse, the experience andtraining of law enforcementpersonnel must be the lensthrough which all of the facts


U.S. Land BorderSearch AuthorityBy M. Wesley Clark, J.D., LL.M.

Legal Digest

©PhotoDisc

August04a.pmd 7/13/04, 3:37 PM26

August 2004 / 23

giving rise to concern on thepart of the officer or agent at theborder are viewed.4 The law hasdeveloped a sliding scale withregard to border searches—asthe degree of intrusivenessincreases, so does the require-ment for indicia of suspicion.

Routine BorderWhen crossing the border

into the United States, a travel-er’s luggage, conveyance, outerclothing, purse, wallet, andpockets are subject to suspicion-less (i.e., routine) inspection.5

When inspecting luggage, it ispermissible as part of a routinesearch to scratch the exterior todetermine if the luggage shellvibrates (lack of vibrationwould be abnormal), to flex theluggage exterior (lack of flexwould be abnormal), and to heftthe luggage to see whether it isequally weighted (unexplainedweight might suggest a hiddencompartment containingcontraband).6

Pat Downs and ExposuresPat downs and requests,

for example, to raise a skirt toreveal an undergarment may beconsidered to fall–dependingupon the circuit–somewherebetween the suspicionlessborder search7 and such non-routine border examinations asstrip and body cavity searches.8

Therefore, these may requiresome level of suspicion, albeitminimal.

Nonroutine Border

Drilling/Destructive/DisruptiveInvasive measures designed

to reveal the nature of the con-tents of a container, such as asuitcase or steel drum used forshipping materials, requiresome level of justification tocomply with the Fourth Amend-ment. For example, drilling intothe bottom of a traveler’s bagbecause it had an unusualbottom is not a routine searchand, therefore, requires reason-able suspicion.9 Similarly, oncereasonable suspicion arose,drilling into a vessel to revealcocaine hidden in a secretcompartment was a properreasonable means of effectuat-ing a border search.10 Drillinginto a metal cylinder arriving atan international airport in theUnited States, not a routinesearch, must be based upon

reasonable suspicion.11 Insertinga long, thin metal probe in thedrain valve of an electricaltransformer awaiting customsclearance has been held properbecause the search was basedupon reasonable suspicion.12 Insummary, at the border, reason-able suspicion justifies a full-scale search that employsreasonable means.13

However, a nondestructivesearch taking only 1 to 2 hoursat the border that involves onlydismantling and reassembly,such as the removal, inspection,and reattachment of a vehiclegas tank (a reversible procedurethat does not threaten vehiclesafety or operation), requires nosuspicion. In United States v.Flores-Montano,14 an inspectortapped a station wagon gas tank,“noted that the tank soundedsolid,” and had a mechanicon contract with the U.S. Cus-toms Service remove the tank.

“...significant publicsafety interests are

at stake when itcomes to

safeguardingAmerica’s borders.

Mr. Clark is a senior attorney in the DomesticCriminal Law Section, Office of Chief Counsel, DEA.”

August04a.pmd 7/13/04, 3:37 PM27


Conducting a search involvingneither serious damage ordestruction, the inspector then“hammered off bondo (a putty-like hardening substance usedto seal openings) from the topof the gas tank[,]... opened anaccess plate underneath thebondo and found 37 kilogramsof marijuana bricks.”15 TheSupreme Court ruled that underthese circumstances, no level ofsuspicion is needed to justifythe search inasmuch as it andothers similarly conducted atthe border are inherently “rea-sonable simply by virtue of thefact that they occur at theborder.”16 Unfortunately, theFlores-Montano decisiondeliberately left unaddressedwhether more invasive orlengthier searches, such aspotentially destructive drilling,also can be conducted withoutany suspicion whatsoever.17

Similar to drilling for pur-poses of detecting the contentsof a container, the relativelylow reasonable suspicion stand-ard is the level of proof requiredfor involuntary x-rays,18 except,perhaps, in the Ninth Circuit.19

Indeed, it even can be arguedthat x-rays, particularly atairports, are routine.20

StripWhen a search more inva-

sive than a routine inspectionis conducted at the border,additional requirements areimposed. The degree of

invasiveness visited upon thedetainee must be weighed.21

A strip search, for example,requires “‘reasonable’ or ‘real’suspicion, directed specificallyto [the] person[.]”22 Note, how-ever, that the continuing viabil-ity of the real (as opposed toreasonable) suspicion and othertests (discussed below)23 devel-oped by the Ninth Circuit are in

needs no more than reasonablesuspicion,26 although more isrequired in the Ninth Circuit—aclear indication or plain sugges-tion.27 A physical body cavityinspection at the border alsomust be based upon reasonablesuspicion28 or, within the Ninthand Fifth Circuits, upon a clearindication that contraband isbeing hidden in a body cavity.29

Detention at the BorderDetaining someone at the

border for a period longer thanthat necessary for a routineinspection is justified if basedon reasonable suspicion that thewould-be entrant, for example,is “smuggling contraband in heralimentary canal.”30 Once thedecision is made to detainsomeone, the next issue be-comes the length of time theperson may be detained. Thereis no “bright-line” solution aseach case is judged by itsunique set of facts, and a deter-mination whether continueddetention is reasonable isreached in light of all of thosefacts.31 Courts recognize thatthe time for which a suspect isheld often is lengthened by thesuspect’s own behavior, which,in balloon-swallowing cases,can involve refusal to eat, drink,excrete, submit to x-rays, ortake laxatives.32 Many casesbegin with detentions that ripeninto arrests. When the entirerestraint period is considered(periods of detention plus

serious doubt given the 1985Supreme Court decision inUnited States v. Montoya deHernandez,24 which “rejectedthe Ninth Circuit’s view thatthere exists a ‘clear indication’standard, intermediate between‘reasonable suspicion’ and‘probable cause,’ applicablewhen a seizure of a travelerpersists beyond a routine bordersearch.”25

Body cavity searches are themost intrusive and personaltypes of searches. Accordingly,a higher standard sometimes isimposed on the government toconduct such searches, whetherthey are conducted visuallyor by way of a physicalexamination. A visual examina-tion of body cavities generally

”The degree of

invasiveness visitedupon the detaineemust be weighed.“

August04a.pmd 7/13/04, 3:37 PM28

August 2004 / 25

arrest), care must be taken topresent the facts to a magistratejudge in a timely fashion. Fail-ing to do so may result in mo-tions for sanctions against thegovernment. In one reporteddecision, a balloon-swallowingdefendant argued that his deten-tion actually had ripened into anarrest, that consequently he hadnot been provided “with theprocedural protections requiredfor warrantless arrests,” and,therefore, his incriminatingstatements made after the“arrest” should be suppressed.33

Although the appellate panelhad no trouble dismissing thedefendant’s argument,34 it estab-lished a rule applicable in theFifth Circuit that when balloonswallowers are detained, thegovernment “must seek ajudicial determination, within areasonable period, that reason-able suspicion exists to supportthe detention.” This can bedone, the court added, by mak-ing an ex parte presentation toa magistrate judge. If this isnot done within 48 hours, thejudges warned that the “burden”shifts “to the government todemonstrate a bona fide emer-gency or extraordinary circum-stance justifying the lengthierdelay.”35

MailAll mail arriving from over-

seas certainly may be openedwithout a warrant at the postalfacility in the United States

where it first arrives if there isreasonable cause to suspect itscontents are being unlawfullyintroduced into the country.36

Indeed, the Fourth Amendmentpermits the inspection of itemscrossing the border without anysuspicion.37 The area of the lawwith regard to mail crossing theborder has been overlaid,however, with statutory andregulatory provisions, whichseemingly provide additional

from someone knowledgeablein the applicable circuit caselaw: “[T]he constitutionalnecessity of the statutory re-quirement of reasonable suspi-cion for a search of internationalmail is unsettled; many lowercourts, however, have upheldspot-checks of internationalmail conducted without particu-larized suspicion.”41 Note thatboth the functional equivalentand extended search doctrinesmay apply to both incoming andoutgoing mail or its substitute(e.g., commercial expressmail).42

FUNCTIONALEQUIVALENT

“Under the ‘functionalequivalent’ doctrine, routineborder searches are constitution-ally permissible at places otherthan actual borders wheretravelers frequently enter or exitthe country.”43 Examples offunctional equivalent bordersinclude airports within theUnited States where interna-tional flights depart or firstland44 and at an “establishedstation near the border, at apoint marking the confluence oftwo or more roads that extendfrom the border.”45 Of course,this means that those travelingby vehicle “may be stopped atfixed checkpoints near theborder without individualizedsuspicion even if the stop isbased largely on ethnicity.”46

Additionally, “boats on inland

protection to sealed letter classmail. In such cases, “reasonablecause to suspect the presenceof...contraband”38 must beestablished. This standard is notdifficult to meet. For example,little more than the recognitionthat the letter class mail origi-nated from a drug source coun-try establishes reasonablecause.39 Some courts havebypassed the reasonable causerequirement by using a separatestatutory provision that has nothreshold proof requirement.40

As the law in this area is con-fused, it is best to seek guidance

August04a.pmd 7/13/04, 3:37 PM29


waters with ready access to thesea may be hailed and boardedwith no suspicion whatever.”47

The first point inside the UnitedStates where a ship arrivingfrom outside the country docksis another example of a borderfunctional equivalent.48 The keyfeature of a border functionalequivalent, then, is that it is “thefirst point at which an entrantmay practically be detained.”49

EXTENDED BORDER“The extended border doc-

trine provides that non-routineborder searches that occur nearthe border are deemed constitu-tionally permissible if reason-able under the Fourth Amend-ment,” something which isdetermined by a three-part test,“whether 1) there is a reason-able certainty [or a high degreeof probability] that a bordercrossing has occurred; 2) thereis a reasonable certainty that nochange in the condition of theluggage [i.e., the item or personto be examined] has occurredsince the border crossing; and 3)there is a reasonable suspicionthat criminal activity has oc-curred.”50 This three-part testbecomes necessary in an ex-tended border search contextbecause it “entails greaterintrusion on an entrant’s legiti-mate expectation of privacythan does a search conductedat the border or its functionalequivalent[.]”51 What, however,is reasonable certainty? This isa proof threshold that lies

between probable cause andbeyond a reasonable doubt.52

Regarding the second prongof the test, key to concludingwhether or not there has beenany change in the luggage,conveyance, or any other item,because it crossed the border arefactors including “the time anddistance from the original entryand the manner and extent ofsurveillance.”53 The signal

(INS)55 has the power to searchany vehicle located “within areasonable distance from anyexternal boundary of the UnitedStates” without a warrant. Areasonable distance is definedas “within 100 air miles fromany external boundary of theUnited States.” However, sucha yardstick is not necessarilydeterminative. “It is clear, ofcourse, that no Act of Congresscan authorize a violation of theConstitution.”56 Despite thestatute and regulation, theSupreme Court refused tocondone a suspicionless BorderPatrol vehicle search 25 airmiles north of the border withMexico that resulted from aroving patrol. Note that a rov-ing patrol does not keep thesuspect or suspect conveyanceunder nearly continuous surveil-lance from the point where theactual border was crossed. “Inthe absence of probable causeor consent, the search violatedthe...Fourth Amendment rightto be free of ‘unreasonablesearches and seizures.’”57 TheCourt continued, quoting fromone of its earlier opinions, that“those lawfully within thecountry, entitled to use thepublic highways, have a rightto free passage without inter-ruption or search unless thereis known to a competent offi-cial, authorized to search,probable cause for believingthat their vehicles are carry-ing contraband or illegalmerchandise.”58

characteristic that differentiatesthe extended border search fromone conducted at the border’sfunctional equivalent is that thefirst “takes place after the firstpoint in time when the entitymight have been stopped withinthe country.”54 Significantly, aproper extended border like afunctional equivalent searchmay take place without either awarrant or probable cause.

ROVING PATROLSBy statute, the Immigration

and Naturalization Service

”

...only those federalofficers with customs

or immigrationenforcement authority,or those acting undertheir supervision, may

conduct bordersearches.

“

August04a.pmd 7/13/04, 3:37 PM30

August 2004 / 27

Not only may searches awayfrom the border or its func-tional/extended equivalent notbe conducted absent probablecause or consent, neither maybrief stops59 be effected absentreasonable suspicion. In 1973,the Border Patrol stopped a carbelow San Clemente, Califor-nia, and away from the U.S.-Mexican border solely becauseall three of its occupants “ap-peared” to be of “Mexicandescent.”60 The governmentrelied on the INS statutory andregulatory to support its posi-tion that it had the authority tostop vehicles in the border areasolely for the purpose of deter-mining whether the occupantswere legally in the UnitedStates. As before, the BorderPatrol was disappointed beforethe Supreme Court. Al-thoughrecognizing the serious illegalimmigrant problem along thesouthwest border, the Courtnevertheless concluded that“[t]he Fourth Amendmentapplies to all seizures of theperson, including seizures thatinvolve only a brief detentionshort of traditional arrest.”61

The Court went on to expandits remarks, noting

[e]xcept at the border and itsfunctional equivalents, offi-cers on roving patrol maystop vehicles only if they areaware of specific articulablefacts, together with rationalinferences from those facts,that reasonably warrant

suspicion that the vehiclescontain aliens who may beillegally in the country.62

In sum, away from theactual, functional equivalent,or extended border, traditionalFourth Amendment conceptsapply to both searches andseizures. Put differently, so-called roving patrols enjoy nospecial Fourth Amendmenttreatment, nor do they fall underany special exception to thereasonableness requirement.

authority. Indeed, the govern-ment could not even make a

claim that the FBI agent is aperson ‘authorized to boardor search vessels’ withinSection 48264 or that cus-toms authority has beendelegated to him. The FBIagent surpassed his author-ity.... He acted for generallaw enforcement purposes,not for enforcement ofcustoms laws[.]...Congressand the courts have specifi-cally narrowed the bordersearches to searches con-ducted by customs officialsin enforcement of customslaws.65

Additionally, the FBI agenthad not been acting in concertwith customs officials66 nor hadthe agent been cloaked withcustoms authority as, for ex-ample, by a cross-designationof customs powers. The NinthCircuit has said statutes, suchas the one granting customsofficials their powers, “repre-sent special designations ofauthority to them to conductborder searches. That authorityalso has been extended toimmigration authorities andCoast Guard officials”67 and,conspicuously by omission, tono other federal law enforce-ment personnel. The courtadded that

Congress has given theauthority to conduct bordersearches only to this limitedgroup of officials and has

BORDER SEARCHAUTHORITY

As a general rule, only thosefederal officers with customsor immigration enforcementauthority,63 or those actingunder their supervision, mayconduct border searches. Drugevidence uncovered by an FBIagent who was searching ve-hicles entering the United Statesfrom Mexico to determine ifthey were stolen was suppressedbecause he was not cloakedwith statutory border search

© Digital Stock

August04aAA.pmd 7/23/04, 2:04 PM31


charged them with theexclusive responsibility forinspecting goods and per-sons crossing the bordersand for interdicting illegalentries. Searches conductedby other law enforcementagents are not consideredborder searches and musttherefore meet the tradi-tional demands of theFourth Amendment.68 Ifthere is to be a delegation orcross-designation of, forexample, customs authority,it will not be valid unlessclearly made, such as bywritten agreement69 or, if inthe heat of an enforcementoperation, verbally.70 Del-egations of federal customsauthority may be made bydesignation to other thanfederal personnel, such as tostate or local law enforce-ment personnel.71 Personnelassisting and under thesupervision of customsofficials at the border, suchas National Guard soldiers72

or even nongovernmentindividuals,73 may conductborder searches.

CONCLUSIONBorder search authority is an

important weapon in the lawenforcement arsenal. However,to lawfully exercise such pow-ers, a law enforcement officermust be acting under a cleardelegation of authority or actingunder the direction and supervi-

5 United States v. Braks, 842 F.2d 509, 514(1st Cir. 1988); United States v. Asbury, 586F.2d 973, 975 (2d Cir. 1978); Henderson v.United States, 390 F.2d 805, 808 (9th Cir.1967); Wayne R. LaFave, Search and Seizure:A Treatise on the Fourth Amendment § 10.5(a)(3d ed. & Supp. 2004). Note that there are casesthat suggest that some level of suspicion, albeitless than probable cause, is required for aroutine border search, see, e.g., United Statesv. Bilir, 592 F.2d 735, 739 (4th Cir. 1979)(reasonable cause); United States v. Rodriguez-Gonzalez, 378 F.2d 256, 258 (9th Cir. 1967)(unsupported or mere suspicion). This view is,of course, incorrect and flies in the face of theprimary reason why routine border searches arepermitted, indeed, necessary: “the ‘primordial’national interest in protecting the bordersagainst violation by illegal importations.”Bilir, 592 F.2d at 739 (citation omitted). Note,too, that border searches can be conducted withrespect to persons and items (including mail)leaving the United States, United States v.Whiting, 781 F.2d 692, 695 (9th Cir. 1986)(citations omitted); Turner, 639 F. Supp. at986.

6 United States v. Johnson, 991 F.2d 1287,1292-93 (7th Cir. 1993).

7 “[E]xamination of a person by ordinary patdown or frisk, the requirement that outergarments, such as coat or jacket, hat or shoes beremoved, that pockets, wallet or purse beemptied are part of the routine examination of aperson’s effects, which require no justificationother than the person’s decision to cross ournational boundary.” United States v. Ramos,645 F.2d 318, 322 (5th Cir. 1981); Oyekan, 796F.2d at 835 (pat down is “within the scope ofroutine customs practice unrestricted by theFourth Amendment)(citations omitted); UnitedStates v. Aguebor, No. 98-4258, 1999 WL5110, at *3 (4th Cir. Jan. 4, 1999)(unpub-lished); United States v. Carreon, 872 F.2d1436, 1442 (10th Cir. 1989); United States v.Vega-Barvo, 729 F.2d 1341, 1345 (11th Cir.),cert. denied, 469 U.S. 1088 (1984). But seeUnited States v. Brown, No. 00 CR 407,2000WL 33155619, at *4 (N.D. Ill. Dec. 8,2000)(minimal level of suspicion present toconduct pat down “assuming that someheightened level of suspicion was required”);United States v. Vance, 62 F.3d 1152, 1156(9th Cir. 1995)(pat down at border requiresminimal suspicion)(citations omitted); UnitedStates v. Dorsey, 641 F.2d 1213 (7th Cir.1981)(pat down is more than a routine search sosome unspecified level of suspicion, dependingon the facts of each case, is required).

sion of federal agents who havesuch authority. Of course,benefits from this authority alsomay arise through close coordi-nation of investigations and thesharing of information.

Endnotes1 William E. Ringel, Searches & Seizures,

Arrests and ConfessionS § 15.1 (Justin D.Franklin & Steven C. Bell 2d ed. Supp. 2003).

2 United States v. Cardona, 769 F.2d 625,628 (9th Cir. 1985); United States v. Turner,639 F. Supp. 982, 986 (E.D.N.Y. 1986).

3 United States v. Montoya de Hernandez,473 U.S. 531, 538 (1985)(“[T]he FourthAmendment’s balance of reasonableness isqualitatively different at the international borderthan in the interior” and “not only is theexpectation of privacy less at the border than inthe interior, the Fourth Amendment balancebetween the interests of the government and theprivacy right of the individual is also struckmuch more favorably to the government at theborder.” Id. at 539-40 (citations omitted)).

4 United States v. Vega-Barvo, 729 F.2d1341, 1350 (11th Cir.), cert. denied, 469 U.S.1088 (1984)(“Many of the factors supportingreasonable suspicion will seem innocentenough if evaluated independently and withoutthe expertise of an experienced customsinspector.”) But, what is reasonable suspicion?“A reasonable suspicion consists of a‘particularized and objective basis forsuspecting the particular person’ of smuggling.”United States v. Oyekan, 786 F.2d 832, 836(8th Cir. 1986)(citations omitted).

”

...a proper extendedborder like a

functional equivalentsearch may take place

without either awarrant or probable

cause.

“

August04a.pmd 7/13/04, 3:37 PM32

August 2004 / 29

8 Pat downs and requests to revealunderclothing are routine border searches; bodycavity and strip searches are not and, therefore,require reasonable suspicion before they may beconducted, Braks, 842 F.2d at 512-13.

9 United States v. Aragon, 155 F.3d 561,1998 WL 454085, at *2 (4th Cir. Jul. 28,1998)(unpublished).

10 United States v. Puig, 810 F.2d 1085,1087 (11th Cir. 1987)(because reasonablesuspicion existed, the Supreme Court electednot to pursue whether a lower suspicionstandard would have sufficed to justifydrilling); see also United States v. Moreno, 778F.2d 719, 721 (11th Cir. 1985)(inserting probesinto holes drilled by customs officials intovessel fuel tanks followed by use of electric sawto uncover hidden compartments proper giventhe existence of ample reason).

11 United States v. Robles, 45 F.3d 1, 5 (1stCir.), cert. denied, 514 U.S. 1043 (1995).

12 United States v. Villabona-Garnica, 63F.3d 1051, 1057 (11th Cir. 1995), cert. denied,517 U.S. 1114 and 1126 (1996).

13 United States v. Sarda-Villa, 760 F.2d1232, 1237-38 (11th Cir. 1985)(use of ax andcrowbar to pry up boat deck to reveal hiddencompartment containing contraband wasreasonable means and thus permissibleprocedure given presence of reasonablesuspicion); Carreon, 872 F.2d at 1440-41 (useof drill on camper shell affixed to pickup truckwas based on reasonable suspicion; evidenceuncovered from hidden compartment heldadmissible).

14 No. 02-1794, 2004 WL 609791 (U.S.Mar. 30, 2004).

15 Id. at *2. Arguably, the tapping of thetank by the inspector provided him withreasonable suspicion.

16 Id. at *3 (citation omitted).17 Id. at *4 n.2.18 Oyekan, 786 F.2d at 837; United States v.

Mejia, 720 F.2d 1378, 1381-82 (5th Cir. 1983).19 United States v. Shreve, 697 F.2d 873,

874 (9th Cir. 1983); United States v. Ek, 676F.2d 379, 382 (9th Cir. 1982)(as with bodycavity search, clear indication or plainsuggestion required); United States v. Quintero-Castro, 705 F.2d at 1100.

20 Johnson, 991 F.2d at 1293 (contentionthat x-ray of suitcase at airport was nonroutineis “a proposition that we believe lacks merit”).

21 Vega-Barvo, 729 F.2d at 1346(“[I]ndignity analysis pervades the bordersearch cases throughout the other circuits.... Wehold...that personal indignity suffered by theindividual searched controls the level ofsuspicion required to make the search

reasonable. [W]e have isolated three factorswhich contribute to the personal indignityendured by the person searched: 1) physicalcontact between the searcher and the personsearched; 2) exposure of intimate body parts;and 3) use of force.”) After examining decisionsby the Supreme Court, as well as by sisterappellate courts, the First Circuit identifiedseven factors for determining the degree ofsearch invasiveness in and around the border:“(i) whether the search results in the exposureof intimate body parts or requires the suspectto disrobe; (ii) whether physical contactbetween...officials and the suspect occursduring the search; (iii) whether force is used toeffect the search; (iv) whether the type of searchexposes the suspect to pain or danger; (v) theoverall manner in which the search isconducted; and (vi) whether the suspect’sreasonable expectations of privacy, if any, areabrogated by the search.” Braks, 842 F.2d at512 (citations omitted).

a) excessive nervousness; b) unusual conduct;c) informant’s tip; d) computerized informationshowing “pertinent criminal propensities”; e)loose-fitting or bulky clothing; f) “an itinerarysuggestive of wrongdoing”; g) whetherincriminating evidence is discovered during theroutine aspect of the search; h) no employmentor a claim of self-employment; i) indications ofdrug use, such as needle marks; j) informationobtained as a result of search/conduct oftraveling companion; k) inadequate luggage;and l) evasive or contradictory responses.Asbury 586 F.2d at 976-77. Vance, 62 F.3d at1156 (real suspicion required for strip search);Quintero-Castro, 705 F.2d 1099, 1100 (9th Cir.1983)(same).

23 The Ninth Circuit’s clear indication orplain suggestion test, discussed infra withregard to body cavity searches, is similarlycalled into question.

24 437 U.S. 531 (U.S. 1985). See also theNinth Circuit’s own post-Montoya deHernandez opinion, United States v. Gonzalez-Rincon, 36 F.3d 859, 864 (9th Cir. 1994)(“Stripsearches and body cavity searches...must besupported by reasonable suspicion.”).

25 Oyekan, 786 F.2d at 836 (citationomitted).

26 United States v. Himmelwright, 551 F.2d991, 995 (5th Cir.), cert. denied, 434 U.S. 902(1977).

27 Henderson, 390 F.2d at 808. See alsoLaFave, supra note 5 at § 10.5(b). Reasonablesuspicion sufficient to justify visual inspectionof body cavity (vagina), Himmelwright, 551F.2d at 995.

28 United States v. Ogberaha, 771 F.2d 655,658 (2d Cir. 1985), cert denied, 474 U.S. 1103(1986)(reasonable suspicion contraband beingconcealed internally; invitation to adopt NinthCircuit’s clear indication standard, lyingsomewhere between reasonable suspicion andprobable cause, rejected); United States v.Handy, 788 F.2d 1419, 1420-21 (9th Cir.1986); Gonzalez-Rincon, 36 F.3d at 864.

29 United States v, Mastberg, 503 F.2d 465,471 (9th Cir. 1974); Quintero-Castro, 705F.2d at 1100. See also United States v.Himmelwright, 406 F. Supp. 889, 892 (S.D.Fla. 1975), aff’d, 551 F.2d 991 (5th Cir.), cert.denied, 434 U.S. 902 (1977).

30 Montoya de Hernandez, 473 U.S. at 541.The alimentary canal is the “mucous mem-brane-lined tube of the digestive system,extending from the mouth to the anus andincluding the pharynx, esophagus, stomach,and intestines.” Webster’s II New RiversideUniversity Dictionary 92 (1988). The defendantin Montoya de Hernandez had swallowed 88

22 United States v. Aguebor, No. 98-4258,1999 WL 5110, at *3 n.2 (4th Cir. Jan. 4, 1999)(unpublished)(Noting that the Supreme Court“flatly rejected” the clear indication test);United States v. Smith, 557 F.2d 1206, 1208(5th Cir. 1977)(9th Cir. real suspicion test“expressly rejected” in favor of reasonable sus-picion test); see also United States v. Adekunle,980 F.2d 985, 987-88 (5th Cir. 1992), cert.denied, 508 U.S. 924 & 955(1993); Oyekan,786 F.2d at 837 (reasonable suspicion requiredfor strip search). For a discussion of the realversus reasonable suspicion standards used,respectively, by the Ninth and other circuits(including the Fifth) to justify a strip search, seeAsbury, 586 F.2d at 976-77. Circumstances thatfactor into this real/reasonable suspicion analy-sis, according to the Asbury panel, include

© Mark C. Ide

August04a.pmd 7/13/04, 3:37 PM33


cocaine-filled balloons, which, after refusing tobe x-rayed, she passed while detained by U.S.Customs for 16 hours prior to her arrest, aperiod that the Supreme Court said wasreasonable under the circumstances. For othercases involving upheld detention periods ofballoon-swallowing defendants, all post-Montoya de Hernandez, see United States v.Onumonu, 967 F.2d 782 (2d Cir. 1992)(83condoms, x-ray refused, 4-day detention priorto arrest); United States v. Yakubu, 936 F.2d936 (7th Cir. 1991)(82 balloons, x-ray refused,20-hour detention period prior to arrest); UnitedStates v. Odofin, 929 F.2d 56 (2d Cir.), cert.denied, 502 U.S. 850 (1991)(at least fourballoons, x-ray and effective laxatives refused,last 19 of 24-day detention under judicialsupervision, first 5 were not); United States v.Esieke, 940 F.2d 29 (2d. Cir.), cert. denied, 502U.S. 992 (1991)(63 balloons, x-ray refused,3-day detention); United States v. Adekunle,980 F.2d at 987-88 (defendants detained 2 daysuntil first balloons excreted, then arrested;detention permitted until bowel movements);Oyekan, 786 F.2d at 836 (reasonable suspicionrequired to detain after initial, routineexamination). Given their proximity to Mexico,the Fifth and Ninth Circuits receive a largenumber of balloon-swallower cases.

None too helpfully, the Supreme Court saidin an aside that “[i]t is important to note whatwe do not hold. [W]e suggest no view on whatlevel of suspicion, if any, is required fornonroutine border searches, such as strip, bodycavity, or involuntary x-ray searches.” Montoyade Hernandez, 473 U.S. at 541 n.1. As notedabove, lower courts have filled in the gapswith regard to strip and body cavity searches.

31 “We have said that border stops andsearches must be reasonable and that what isreasonable will depend on all the facts of aparticular case.” Asbury, 586 F.2d at 976(citation omitted).

32 “Our prior cases have refused to chargepolice with delays in investigatory detentionattributable to the suspect’s evasive actions....Respondent’s detention was long, uncomfort-able, indeed, humiliating; but both its lengthand its discomfort resulted solely from themethod by which she chose to smuggle illicitdrugs into this country.” Montoya deHernandez, 473 U.S. at 543-44 (citationsomitted). “We further note our deference tothe expertise and ‘common sense’ of trainedcustoms inspectors.” Ogberaha, 771 F.2d at658.

33 United States v. Adekunle, 2 F.3d 559,561 (5th Cir. 1993), revising previous opinion

at 980 F.2d 985 (1992), cert. denied, 508 U.S.924 & 955 (1993).

34 “A defendant has no constitutional rightto be arrested at the point when either he or thecourt deems that there is sufficient probablecause for his arrest. Law enforcement officialsare ‘not required to guess at their peril theprecise moment at which they have probablecause to arrest a suspect.’ Such a requirementwould punish the cautious officer who errs onthe side of protecting a defendant’s rights byrequiring a stronger showing of probable causethat the court might deem necessary.”Adekunle, 2 F.3d at 561 (citations omitted).

35 Adekunle, 2 F.3d at 562 (citationsomitted).

36 United States v. Ramsey, 431 U.S. at 606,611-12; 19 U.S.C. § 482(a); 19 C.F.R. §145.3(a).

37 Ramsey, 431 U.S. at 616-21.38 19 C.F.R. § 145.3(a) (emphasis added).

More fully, 19 C.F.R. § 145.3(a) provides that“Customs officers and employees may open andexamine sealed letter class mail...which appearto contain matter in addition to, or other than,correspondence, provided they have reasonablecause to suspect the presence of merchandise orcontraband.” (emphasis added).

39 In United States v. Taghizadeh, 87 F.3d287 (9th Cir. 1996), the fact that a package sentletter class from Turkey, a source country,coupled with the fact that it was addressed toa post office box satisfied this requirement.“[O]nce suspicion is triggered by sourcecountry origin, not much else is required tojustify a search.” Id. at 290. Sealed letter classmail is “letter class mail sealed against postalinspection by the sender.” 19 C.F.R. § 145.1(c).And, what is letter class mail? It consists of“any mail article, including packages, postcards, and aerogrammes, mailed at the letterrate or equivalent class or category of postage.”19 C.F.R. § 145.1(b). For a list of factorscontributing to or even establishing thepresence of reasonable cause, see 43 Fed. Reg.14,455-56 (1978).

40 19 U.S.C. § 1582 “The secretary of thetreasury may prescribe regulations for thesearch of persons and baggage...; and allpersons coming into the United States fromforeign countries shall be liable to detention andsearch by authorized officers or agents of thegovernment under such regulations” (emphasesadded). See, e.g., United States v. Pringle, 576F.2d 1114, 1116 (5th Cir. 1978)(“We need notdecide whether such [19 U.S.C. § 482]‘reasonable cause to suspect’ existed in thepresent case, for we find this search justified

by another section of the customs laws, 19U.S.C.A. § 1582, and the regulations thereun-der.... The courts have long held warrantlessborder searches, including mail searches,reasonable, without ‘probable cause’ or anyground for ‘suspicion.’”). But see DeVries v.Acree, 565 F.2d 577, 579 (9th Cir. 1977),overruled by United States v. Taghizadeh(Taghizadeh II), 41 F.3d 1263 (1994)(“Nothingin either the language or the legislative history[of 19 U.S.C. § 1582] suggests that this statutewas related to searches of international mail.”).Taghizadeh II concerned the search of anincoming package containing opium fromTurkey; the Ninth Circuit, in an en bancdecision, determined that § 482 was inappli-cable concluding that § 1582 applied and that itauthorized suspicionless “customs searches ofpackages arriving at the border from a foreigncountry.” Taghizadeh II, at 1265. However, inUnited States v. Taghizadeh (Taghizadeh III),87 F.3d 287 (1996), the Ninth Circuit reachedthe tortured conclusion that the reasonablecause requirement of 19 C.F.R. § 145.3(a) wasone of the regulatory provisions implementing19 U.S.C. § 1582 and that reasonable causeapplied in this case but that the facts estab-lished were sufficient to satisfy that standard.

41 Ringel, supra note 1 at § 15.2(d)(citations omitted).

42 Cardona, 769 F.2d at 629.43 United States v. Yang, 286 F.3d 940,

944 (7th Cir. 2002)(emphasis added, citationomitted)(nonstop flight from Laos and Tokyo,Japan, landed in the United States at Chicago’sO’Hare Airport).

44 Id.; see also United States v. Duncan, 693F.2d 971, 976-77 (9th Cir. 1982), cert. denied,461 U.S. 961 (1983)(defendant properlystopped by U.S. Customs after he left airlinewaiting area and was “proceeding up the rampto board a plane bound for Bogota, Colombia....It is enough that the passenger manifest adefinite commitment to leave the United Statesand that the search occur in reasonable temporaland spatial proximity to the departure. [B]ychecking his luggage, passing through theairline checkpoint, obtaining a boarding pass,and proceeding up the ramp [defendant] hadmanifested a definite commitment to leave thecountry” Id. at 977); Ramos, 645 F.2d at 320(airport suspect had left customs area servicingdeplaning international passengers and was notaccosted until 30 minutes later in airport lobbyafter having checked in at airport hotel; held:functional equivalent of the border, a determi-nation reached upon considering two factors:1) degree to which traveler “has been

August04a.pmd 7/13/04, 3:37 PM34

August 2004 / 31

assimilated into the mainstream of domesticactivity” and 2) whether the weight of theevidence indicates that the seized contrabandcrossed the border) Id.; United States v.Palmer, 575 F.2d 721, 723 (9th Cir.), cert.denied, 439 U.S. 875 (1978)(suspect departedairport customs area and stopped at baggageclaim, a location still considered to be at theborder); Johnson, 991 F.2d at 1290; UnitedStates v. Ivey, 546 F.2d 139, 144 (5th Cir.1977)(local Florida airport where private planelanded after flight from the Caribbean is borderfunctional equivalent).

45 United States v. Almeida-Sanchez, 413U.S. 266, 272-73 (1973).

46 Montoya de Hernandez, 473 U.S. at 538(emphasis added; citation omitted).

47 Id. (citation omitted); see 19 U.S.C. §1467, which provides that “[w]henever a vesselfrom a foreign port or place...arrives at a port orplace in the United States..., the appropriatecustoms officer for such port or place may...forthe purpose of assuring compliance with anylaw, regulation, or instruction..., causeinspection, examination, and search to be madeof the persons, baggage, and merchandisedischarged or unladen from such vessel....”; seealso 19 U.S.C. § 1581. Note further that 19C.F.R. § 162.6 specifies in pertinent part that“[a]ll persons, baggage, and merchandisearriving in the customs territory of the UnitedStates from places outside thereof are liable toinspection and search by a customs officer.”See also 19 C.F.R. § 162.3. Marine “bordersearches” are generally outside the scope of thisarticle.

48 United States v. Thomas, 257 F. Supp.2d494, 497 (D. P.R. 2003)(search conducted invicinity of the pier area of an arriving ship is aborder functional equivalent); United States v.Victoria-Peguero, 920 F.2d 77, 80 (1st Cir.1990), cert. denied, 500 U.S. 932(1991)(“courts have consistently recognized theconstitutionality of warrantless searches at thefunctional equivalent of the seaborder”)(citations omitted); United States v.Gavira, 805 F.2d 1108 (2d Cir. 1986), cert.denied, 481 U.S. 1031 (1987)(site of extensivefinal customs inspection held to be borderfunctional equivalent even though preliminarycustoms inspection had been conducted atinitial point of entry; final destination 3-parttest established to determine if search of bondedshipment constitutes border functionalequivalent: 1) the search location “is theintended final destination of the goods; 2) thegoods, upon arrival, remain under a customsbond until a final search is undertaken by [U.S.]

Customs; and 3) there is no evidence thatanyone has tampered with the goods while intransit.” Id. at 1114; United States v. Moreno,778 F.2d 719, 721 (11th Cir. 1985). A ship-ment under a customs bond/seal until the pointof actual customs inspection is another exampleof a functional equivalent search, United Statesv. Sheikh, 654 F.2d 1057, 1069-70 (5th Cir.1981), cert. denied, 455 U.S. 991 (1982); cf.United States v. Gallagher, 557 F.2d 1041 (4thCir.), cert. denied, 434 U.S. 879 (1977).

49 United States v. Cardenas, 9 F.3d 1139,1147 (5th Cir. 1993), cert. denied, 511 U.S.1134 (1994)(emphasis added).

50 Yang, 286 F.3d at 945 (emphases added;citations omitted). Of course, one can substitutewhatever “container” is at issue for the termluggage. See also United States v. Espinoza-Seanez, 862 F.2d 526, 531 (5th Cir. 1988). Thethird prong of the extended border test,reasonable suspicion of criminal activity, canarise from a number of factors, to include: “1)characteristics of the area in which the vehicleis encountered; 2) proximity to the border; 3)usual patterns of traffic on the road; 4) previousexperience with alien traffic; 5) informationabout recent illegal crossings in the area; 6)behavior of the driver; 7) appearance of thevehicle; and 8) number, appearance, orbehavior of passengers.” Espinoza-Seanez,supra at 531; see also Cardenas, 9 F.3d at1148; cf. Cardona, 769 F.2d at 629 (totality ofcircumstances test adopted for extended bordersearches)(citations omitted).

51 Yang, 286 F.3d at 946 (defendantaccosted after he had cleared internationalarrival terminal, his luggage having been x-rayed with negative results, and had traveled toa separate terminal via airport tram; secondlook, deemed proper as extended border search,uncovered opium-soaked clothing).

52 Id. at 947 (citations omitted).53 Id. at 948 (citation omitted); see also

United States v. Fogelman, 586 F.2d 337 (5thCir. 1978)(extended border search permitted254 miles and 20 hours from observed bordercrossing); United States v. Martinez, 481 F.2d214 (5th Cir. 1973)(extended border searchallowed 150 miles and 142 hours after borderwas crossed). “[C]ontinuous surveillance is nota requirement of an extended border search[,]”Cardenas, 9 F.3d at 1150, and thus a break inthat surveillance is not fatal to the conduct of anextended border search. “The government is notrequired to negate every hypothetical possibilityas to how the contraband may have beenobtained subsequent to the border crossing.[T]he mere assertion by the defendant that there

was the opportunity to obtain contraband afterthe border crossing is insufficient to controvertthe facts established by the government.” Id.at 1152, quoting from Ramos, 645 F.2d at 321(30-minute break in surveillance does notdefeat application of extended border searchdoctrine). Note that some courts may beconfusing functional equivalent and extendedborder searches. “The ‘functional equivalent’subcategory includes searches made at pointsinland of national borders under circumstancesother than continuous surveillance thatguarantee preservation of border-crossingconditions at the point of search. The under-lying principle that permits them to be treatedas border searches is thus the same as that forextended border searches. Courts may in factbe using the terms interchangeably.” Bilir, 592F.2d at 742 n.11.

54 Cardenas, 9 F.3d at 1148 (originalemphasis). There is one characteristic thatroutine border, border functional equivalent,and extended border searches all have incommon: the person, conveyance, or item to besearched “brings the border with it to the pointof the search.” Id. at 1149 (internal quotationmarks and citations omitted).

55 INS enforcement functions have sincebeen transferred to the U.S. Department ofHomeland Security (DHS), and the statute hasnot yet been updated to reflect this change. 8U.S.C. § 1357(a)(3). The Border Patrol nowfalls under the Bureau of Customs and BorderProtection (CBP) at DHS.

56 Almeida-Sanchez, 413 U.S. at 272 (1973);see also United States v. Brignoni-Ponce, 422U.S. 873, 877-78 (1975), which quotes thisprovision from Almeida-Sanchez with approval.

57 Id. at 273.58 Id. at 274-75, quoting from Carroll v.

United States, 267 U.S. 132, 153-54 (1925).59 Terry v. Ohio, 392 U.S. 1 (1968).60 Brignoni-Ponce, 422 U.S. at 875.61 Brignoni-Ponce, supra note 56 at 878.62 Id. at 884. Helpfully, the Court provided a

nonexclusive list of factors that could give riseto reasonable suspicion in the mind of anexperienced immigration officer: 1) characteris-tics of the area in which they encounter avehicle; 2) the vehicle’s proximity to theborder; 3) the usual patterns of traffic on theparticular road; 4) previous experience withalien traffic; 5) recent illegal border crossings inthe area; 6) the vehicle operator’s drivingbehavior (evasive or erratic?); 7) size andconfiguration of the vehicle (can it easilysmuggle aliens?); 8) whether the conveyanceappears to be heavily loaded; 9) whether the

August04a.pmd 7/13/04, 3:37 PM35


conveyance is carrying a large number ofpassengers; 10) whether passengers makeattempts to hide; and 11) the mode of dress andhaircut typical of in-dividuals from foreigncountries. Id. at 884-85.

63 Historically, the Border Patrol couldsearch only for illegal aliens at the border (andnot for contraband) and U.S. Customs couldsearch only for items entering the United Statesin violation of the customs laws. Now that bothfunctions have merged into the CBP at DHS,this enforcement dichotomy is coming to an endas border protection officials are being cross-trained.

64 19 U.S.C. § 482. Besides being permittedto “board or search vessels,” § 482 also allowsauthorized “officers or persons” to “stop,search, and examine...any vehicle, beast, orperson[.]”

65 United States v. Soto-Soto, 598 F.2d 545,549 (9th Cir. 1979)(marijuana found under thehood of a pickup that crossed border into theUnited States was suppressed; at time ofdiscovery, FBI agent working at the border had

been searching for vehicle identificationnumber stamped on truck frame); Whiting,supra note 5 (evidence found in mail leavingthe United States was suppressed because anOffice of Export Enforcement agent of the U.S.Department of Commerce was not cloaked withcustoms border search authority).

66 Id. at 550.67 Id. at 1136.68 Id. (original emphasis).69 “In order for a border search to be valid, it

must be executed either by a person statutorilyauthorized to conduct border searches or by anindividual who by delegation of authority is soempowered. Furthermore, the delegation ofauthority must be clear.” United States v.Brown, 858 F. Supp. 297, 300 (D.P.R.1994)(citations omitted).

70 Victoria-Peguero, supra note 48.71 Id. (officers from both the Commonwealth

of Puerto Rico Police Narcotics and MarineDivisions given radioed approval from U.S.Customs Service to make customs search atsea); see also 19 U.S.C. § 1401(i), which allows

the designation of “any agent or other person”to “perform any duties of an officer of the[U.S.] Customs Service.”

72 People v. Villacrusis, 992 F.2d 886, 887(9th Cir. 1993).

73 United States v. Noriega, No. 98-50022,1998 WL 515111, at *1 (9th Cir. Aug.14, 1998) (unpublished)(gas station attendantremoved tires containing contraband fromvehicle at direction of customs inspector). Notethat when body cavity searches are conducted,see supra notes 28 and 29 and accompanyingtext, customs officials regularly rely onphysicians to assist them.

Law enforcement officers of other thanfederal jurisdiction who are interestedin this article should consult their legaladvisors. Some police proceduresruled permissible under federalconstitutional law are of questionablelegality under state law or are notpermitted at all.

T he FBI Law Enforcement Bulletinstaff invites you to communicate with

us via e-mail. Our Internet address [email protected].

We would like to know your thoughtson contemporary law enforcement issues.We welcome your comments, questions,and suggestions about the magazine. Pleaseinclude your name, title, and agency on alle-mail messages.

Also, the Bulletin is available forviewing or downloading on a number ofcomputer services, as well as the FBI’shome page. The home page address ishttp://www.fbi.gov.

The Bulletin’sE-mail Address

© Digital Vision

August04a.pmd 7/13/04, 3:38 PM36

The Bulletin Notes

Officer Ricco

Officer Charles Ricco of the Fairfield, Connecticut, Police Departmentresponded to a one-car accident in a residential neighborhood. Upon arrivalat the scene, Officer Ricco determined that the vehicle had gone over a curband struck a tree. The elderly female driver sustained injuries and wastrapped in the car. Officer Ricco also noticed that the engine compartmentwas on fire and that the vehicle was filling with smoke. Quickly andwithout regard for his own safety, Officer Ricco forcefully opened thedriver’s side door and carried the woman to the safety of his patrol car,where they waited for medical help. Officer Ricco’s selfless actions pre-vented the serious injury or death of the elderly driver.

Officer Holquinn

Officers from the Fresno, California, Police Department responded to ashooting incident in which the suspect was still on the scene. Upon arrivalat the residence where the incident occurred, officers saw the shooterpointing a gun under his chin while sitting on a sofa in the small bedroom.The victim was lying motionless on the floor a few feet away from him.Officers attempted to negotiate, but the suspect, continuing to point theweapon at his head and mouth, refused to allow them to enter the bedroomto rescue the unconscious man. Officer Raymond Holquinn then made thedecision to rescue the victim and facilitate medical treatment. He crawledinto the room, just a few feet away from the armed suspect, calming him ashe proceeded, grabbed the victim by the ankles, and pulled him out of the

bedroom to safety, where the man receivedimmediate medical treatment and transportto a local hospital. Officer Holquinn’s braveactions saved the individual’s life.

Law enforcement officers are challenged daily in the performance of their duties; they face eachchallenge freely and unselfishly while answering the call to duty. In certain instances, their actionswarrant special attention from their respective departments. The Bulletin also wants to recognizethose situations that transcend the normal rigors of the law enforcement profession.

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

August04a.pmd 7/13/04, 3:38 PM37

PeriodicalsPostage and Fees PaidFederal Bureau of InvestigationISSN 0014-5688

U.S. Department of JusticeFederal Bureau of InvestigationFBI Law Enforcement Bulletin935 Pennsylvania Avenue, N.W.Washington, DC 20535-0001

Official BusinessPenalty for Private Use $300

Subscribe Now

August04a.pmd 7/13/04, 3:35 PM2

FBI Law Enforcement Bulletin - Aug04leb

Documents

Transcript of FBI Law Enforcement Bulletin - Aug04leb