FBI Law Enforcement Bulletin - June05leb

8/9/2019 FBI Law Enforcement Bulletin - June05leb

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10 Book ReviewPolice Traffic Stops

and Racial Profiling

The Law EnforcementIntelligence Function

By David L. Carter

Activity-Based BudgetingBy Jon M. Shane

The Supreme Court Bringsan End to the End Run

Around Miranda By Lucy A. Hoover

1

This budget type can link activities to expenses, giving executives a better understanding of the full costs of service and resource allocation.

A robust intelligence capacity can help law enforcement agencies share information and fulfill their mission as societys protectors.

11

Departments

ISSN 0014-5688 USPS 383-310

Features

24 ViCAP AlertUnidentified Homicide Victim

25 Unusual WeaponFM Radio

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 publishedmonthly by the Federal Bureau ofInvestigation, 935 Pennsylvania

Avenue, N.W., Washington, D.C.20535-0001. Periodicals postage paid

at Washington, D.C., and additionalmailing offices. Postmaster: Sendaddress changes to Editor, FBI Law Enforcement Bulletin , FBI Academy,

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Editor John E. Ott

Associate Editors Cynthia L. Lewis

David W. MacWha

Bunny S. MorrisArt Director

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This publication is produced bymembers of the Law EnforcementCommunication Unit, Training and

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Send article submissions to Editor,FBI Law Enforcement Bulletin ,

FBI Academy, Madison Building,Room 201, Quantico, VA 22135.

June 2005Volume 74Number 6

Courts consider a number of factors when determining whether suspects subjected to two-tiered interrogation tactics have waived their Miranda rights knowingly, intelligently, and voluntarily.

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June 2005 / 1

aw enforcement intelli-

gence has changeddramatically since the

Sharing Plan (NCISP), state,

local, and tribal law enforce-ment organizations have begunto revisit their roles in intelli-gence processes. Agencies thathave intelligence units shouldreexamine their operatingpolicies and guidelines toensure consistency with na-tional standards, contemporarylaws, and current acceptablepractices. Those without suchunits need to develop some typeof intelligence capacity, even if it consists of only one persontrained to understand the lan-guage, processes, and productsavailable. This individual can

serve as the department s

intelligence contact point, aswell as the conduit to dissemi-nate information to those whoneed it.

The foundation of develop-ing an intelligence capacityrests on understanding its rolein the overall mission of theorganization. ILP serves as thecontemporary model for thisfunction. 1 Emerging as a con-cept following an InternationalAssociation of Chiefs of Police(IACP) summit on intelligenceand information sharing, ILPseeks to provide guidance onoperational activities based on

Lterrorist attacks of September11, 2001. Fueled by the needfor more widespread informa-tion sharing and a higher qualityof intelligence for counterterror-ism, these reforms also havehelped law enforcement agen-cies investigate criminal enter-prises and prevent crimes of alltypes.

With the development of the intelligence-led policing(ILP) philosophy and its oper-ationalization through the

National Criminal Intelligence

The Law Enforcement Intelligence Function State, Local, and Tribal Agencies By DAVID L. CARTER, Ph.D.

Digital Vision


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2 / FBI Law Enforcement Bulletin

empirical evidence objectivelyassessed and analyzed. 2

As the community policingphilosophy evolved by embrac-ing problem solving and, mostrecently, Compstat, it becameclear that law enforcementagencies could effectivelymanage crime and disorder intheir communities by basingtheir operations on an analysisof empirically collected data ontrends of concern. 3 While analy-sis (including Compstat) tendsto concentrate on street crimesand burglaries within a jurisdic-tion, ILP focuses on complex,multijurisdictional crime andterrorism. Like communitypolicing, ILP is proactive,giving operational guidanceand, hence, using resources

more efficiently and effectively.Importantly, ILP providesphilosophical integration of intelligence activities withinlaw enforcement operations,

rather than being an undefinedtangential activity as was toooften the case in the past.

Of course, any conceptmust be translated to practiceto have an effect. As a result,the NCISP serves as a blueprintfor administrators to promoteintelligence sharing while, at thesame time, protecting citizensconstitutional rights. The planestablishes standards for main-taining records, training person-nel, developing information-sharing partnerships, andgenerally enhancing the abilityof the law enforcement commu-nity to prevent terrorism andorganized crime through arobust intelligence capacity.

The emergence of ILP andthe NCISP significantly en-

hanced the law enforcementintelligence function. Thechallenge now centers onimplementing these initiativesin Americas law enforcement

agencies, addressing the con-cerns expressed by citizenson matters of privacy and the

expression of free speech, andaccomplishing these objectivesin a relatively short time frame.

PURPOSE SERVEDIn the purest sense, intelli-

gence is the product of ananalytic process that evaluatesinformation collected fromdiverse sources, integrates therelevant data into a cohesivepackage, and produces a conclu-

sion or estimate about a crimi-nal phenomenon by using thescientific approach to problemsolving (i.e., analysis). Thus,intelligence, a synergisticproduct, can provide meaning-ful and trustworthy direction tolaw enforcement decisionmakers about complex unlawfulactivities, including criminalenterprises and extremists, aswell as terrorists.

Essentially, an intelligencefunction within a law enforce-ment organization serves twobroad purposes. The first in-volves prevention (tacticalintelligence). This includesgaining or developing informa-tion related to threats of terror-ism or crime and using thisinformation to apprehendoffenders, harden targets, or

employ strategies that willeliminate or mitigate the threat.The second purpose coversplanning and resource allocation(strategic intelligence). The

The foundation of developing an

intelligence capacity rests on understanding

its role in the overall mission of the organization.

Dr. Carter teaches at Michigan State Universitys School of Criminal Justice in East Lansing.


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June 2005 / 3

intelligence function providesinformation to decision makersabout the changing nature,

characteristics, and methodolo-gies of threats, as well asemerging threat idiosyncrasies,so they can develop responsestrategies and reallocate re-sources as necessary to accom-plish effective prevention.

While investigation clearlyconstitutes part of the informa-tion collection process, theintelligence function often ismore exploratory and broadlyfocused than a criminal investi-gation, per se. 4 For example, a law enforcement departmentmay reasonably suspect that a person or group has the intent,capacity, and resolve to commita crime or terrorist act. How-ever, evidence may fall short of the probable cause standard,even concerning an arrest forcriminal attempt or conspiracy.

Moreover, a compelling com-munity safety reason may existfor keeping an inquiry open toidentify other criminal offend-ers, notably leaders, and weap-ons that they may use.

Because of this broaderrole, as well as the need tokeep information secure andto maintain records on individu-als where evidence of criminalinvolvement is uncertain ortangential, law enforcementagencies must abide by rigidguidelines that protect theconstitutional rights of citizenswhile, at the same time,

permitting inquiries to proceedfor purposes of communitysafety. 5 These guidelines also

facilitate accurate and secureinformation sharing because thenature of terrorism and criminalenterprise threats are inherentlymultijurisdictional. Further, if law enforcement organizationsat all strata of governmentsubscribe to the same guide-lines, they can increase informa-tion sharing because they know that the security and integrity of the records will remain intact.

members of the public havebegun to scrutinize law enforce-ment intelligence operations.

Moreover, modern policemanagers insist on carefulaccountability in the intelli-gence function because of theresponsibility to uphold citi-zens rights, as well as to reduceexposure to liability.

Criminal PredicateLessons learned from a

legacy of lawsuits againstintelligence units dating back tothe 1960s clearly demonstratethat departments cannot collectinformation about individualsand store it in an intelligencerecords system unless a criminalpredicate exists. This oftenproves more difficult than itmay appear. Individuals whosupport an unpopular cause,have radical beliefs, or expressan ideology that underminesAmerica s founding principlesmay be distasteful, but theseactions fall within their consti-tutionally protected rights. Assuch, agencies may not keepintelligence records on them,even ones personally held byunit employees, unless a reason-able suspicion documented inthe records system demonstratesthat the individuals are involvedin criminal activity.

Policies and Procedures

To ensure that intelligencefiles meet constitutionalstandards, law enforcement

Agencies must establish policies

with respect to what types of data they

will impart and to whom.

ACCOUNTABILITYFACTOR

Law enforcement agenciesmust consider many factors inthe development of an intelli-gence function; however, a number of contemporary issuesrank as the first among equalsin today s environment. Part of the reason lies in a well-publi-cized history of past abuses of information collection andrecord keeping. As a result,various watchdog groups and


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Essentially,an intelligence

function within a law enforcement

organization serves two broad

purposes.

organizations must establishpolicies and procedures con-cerning the collection, assess-

ment, storage, dissemination,and purging of criminal intelli-gence records. Agencies thatreceive federal funding for a multijurisdictional intelligencerecords system must adhere tothe federal regulation 28 CFR Part 23, which establishesguidelines for submitting andentering data, securing thesystem, accessing the systemfor inquiries, disseminatinginformation, reviewing records,and purging data. While theregulation exempts single-agency and nonfederally fundedsystems, adhering to the stan-dard remains a sound practice,especially as an affirmativedefense in a liability lawsuitrelated to records keeping. 6

Collection IssuesPermeating both the crimi-

nal predicate and recordssystem concerns is the collec-tion and retention of informa-tion about people protestingissues in support of positionsviewed as extreme that conceiv-ably may result in violence,criminal disorder, or propertydamage. 7 In such cases, theexistence of a criminal predicateoften is unclear. It proves

difficult, if not impossible, todetermine when members of a demonstration may continue a vocal, yet lawful, protest versusthose who commit a criminal

act, sometimes out of spontane-ity. Often more problematic for political, rather than legal,

reasons is an undercoverofficer s attendance at an openplanning meeting of a protestgroup to identify participantsand assess the probability of unlawful actions.

and ensuring that communitysafety is not compromised.Information about demonstra-

tors may include personal data of eachmember (e.g., name, age,sex, race, ethnicity, andresidence);

group organization (Is therea parent or national group?How formal is the structure?What are the rules of theorganization? What doesthe organization condone

and condemn with respectto demonstrations?); the basis of their ideologyand what it teaches them;

their goals and what theywant to accomplish, includ-ing changes to policy or law,making their cause known,disruption of society, ordestruction of enemies;

their protest style, such as

their history, stated plans,and inferences from theirinformal network; and

their mood, which can helpdetermine community safety(Are they making or posingthreats?).To best accomplish these

goals, law enforcement organi-zations should have clearprocedures and training in place

to deal with these issues. Thefollowing recommendations areperhaps the most restrictiveapproach to information collec-tion under these circumstances;

On one hand, collectinginformation on people in situa-tions where criminal activity isonly a possibility may violatetheir civil rights if no crimeoccurs and the records remainon file. Conversely, not gather-ing it may be negligent shouldcommunity security becomecompromised if violence orproperty damage emergesfrom the event.

Departments should collectinformation that relates to

establishing a criminal predi-cate, identifying and apprehend-ing criminal law violators,gathering evidence and wit-nesses to support prosecution,


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June 2005 / 5

however, they nonethelesspresent an avenue to afford boththe strictest protection of citi-

zens rights and the greatestprecaution against liability. Agencies should have writ-ten guidelines and trainingon specific provisions of substantive law, includingelements of the offenses,which may arise from a protest or demonstration.

They should instruct theirpersonnel to make detailed

documentation of observa-tions and actions that sup-port the elements of of-fenses and to exclude FirstAmendment expressionsand noncriminal statements.

Supervisors should approvean information collectionplan, including each inci-dent wherein meetings aremonitored, and review andapprove reports. Theyshould purge informationthat does not support theelements of the offensesor aid as evidence.

Collection methods shoulduse the least intrusivemeans available.

Personnel should purgephotographs and videorecordings not evidentiaryin nature nor supportive of a criminal investigation.

If a surveillance is based, inpart, on the fact that affiliategroups or persons within thegroup have committed

criminal law violations inthe past while participatingin similar situations, these

records should includeappropriate documentation. The records should fullyarticulate any compellingcommunity safety issues.

with the missing informationthat a decision maker needs. 9

Defining a requirement is not

necessarily an easy process. Itinvolves detecting the potentialthreats (terrorist or criminal)within the jurisdiction anddetermining their veracity, aswell as identifying potentialtargets in the area and assessingtheir vulnerability. Throughoutthis process, occasions willarise when departments haveinsufficient information tomake judgments, therebyencountering an intelligencerequirement. Threats willchange over time, obligatingagencies to make this processconsistent. While the effort mayappear laborious, it nonethelessprovides the best use of re-sources because it focuses ontrue needs, not random ornonessential information.

Law enforcement organiza-

tions must report requirementsin an easily understood mannerthat specifically addresses theneed they fulfill. Hence, in theplanning process, an intelli-gence unit should define itsproducts, a series of regularlyprepared intelligence reportsthat have a specific format andconvey an intended message.

Intelligence Products

To accomplish its goals, theunit should place intelligenceand critical information in a format that maximizes theconsumption and use of theknowledge. The report should

REQUIREMENTSAND PRODUCTS

Law enforcement depart-ments should focus on whatthey do not know. The absenceof evidence is not the absenceof a threat. 8 Agencies defineintelligence requirements togain these new insights. If theydevelop new intelligence, theymust transmit it in a consum-able form to permit personnel from the executive to the streetofficer to make the best

decisions about how to dealwith the threats.

Intelligence RequirementsIn essence, an intelligence

requirement seeks to fill a gap

PhotoDisc


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identify the targeted consumer(e.g., patrol officers, administra-tors, or task force members),clearly convey the critical infor-mation, identify time param-eters wherein the intelligence isactionable, and provide recom-mendations for follow-up. 10

Intelligence products provemost useful when each has aspecific purpose; follows aconsistent, clear, and aestheticformat; and contains all of thecritical information that theconsumer needs without

Without fixed, identifiableintelligence products, depart-ments will waste efforts andshare information ineffectively.

Operational IntelligenceThis information often

places law enforcement organi-zations in a controversialposition. For purposes of com-munity safety, agencies need tomaintain information on somepeople and organizations fortwo reasons: 1) their potentialto commit crimes and 2) their

superfluous details. The typesof products will vary by thecharacter of the department(e.g., state/local, urban/rural,or large/small), as well as thecollection and analytic capacityof unit personnel. As a generalrule, agencies may need onlythree specific reports: 1) thosethat aid in the investigation andapprehension of offenders; 2)ones that provide threat adviso-ries to harden targets; and 3)those that assist with planningand resource allocation.

Comparing Compstat and Intelligence-Led Policing

Note: Correlated goals and methodologies make both concepts complement each other.

Single jurisdiction Incident driven

Street crime and burglary

Crime mapping

Time sensitive (24-hourfeedback and response

Disrupt crime series (e.g.,burglary ring)

Drives operations Patrol

Tactical unit

Investigators

Analysis of offender MOs

Each has a goal of prevention

Each requires

Organizational flexibility

Consistent informationinput

A significant analyticcomponent

Bottom-up driven withrespect to operationalneeds

Multijurisdiction Threat driven

Criminal enterprises andterrorism

Commodity flow; traffickingand transiting logistics

Strategic

Disrupt enterprises

Drives operations

JTTF

Organized crime investigations

Task forces

Analysis of enterprise MOs

Commonalities Intelligence-Led PolicingCompstat


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June 2005 / 7

existence as bona fide threats,although the parameters oftenprove difficult to specify.

Departments monitor andrecord actions and affiliationsof these individuals to helpprevent future crimes or tobuild a criminal case later.Inherently problematic is theidea of a future offense. Whatis the rationale for keepinginformation on a person orgroup who has not committeda crime, but might? Essentially,if a compelling interest forcommunity safety exists, law enforcement administrators canmake an effective argument tomaintain records on individualswho threaten that safety as longas they can present reasonable

justification to show a relation-ship to criminality.

In this type of intelligence,a unit creates no product, per se,but, instead, develops regularly

prepared and disseminatedoperational records on peopleand groups who pose threats. 11

Departments must maintain animportant, yet difficult, balance:ensuring that no violation of constitutional rights occurredduring the course of the processwhile, at the same time, compil-ing a resource of credibleinformation for legitimatelaw enforcement purposes.

DISSEMINATIONPROCESS

Obviously, disseminationrepresents the heart of informa-tion sharing. Agencies must

establish policies with respectto what types of data they willimpart and to whom. Critical

to appropriate dissemination isunderstanding which personshave the right and the need toknow, both within the agencyand externally. In some cases,the occasion may arise formultiple versions of one prod-uct. For example, a non-sensitive public edition of a report could advise citizens of possible threats, whereas an-other would provide moredetails to law enforcementpersonnel.

Clearly, electronic network-ing provides the most efficientway to share information. With

availability of secure e-mailsystems, as well as Intranets ingrowing numbers of agencies,dissemination has become fasterand easier. The caveat, how-ever, is to ensure that the intelli-gence products contain essentialinformation and reach thecorrect consumer. If reportsdeluge law enforcement offic-ers, the overload will have thesame outcome as not sharinginformation at all. That is, if officers delete intelligenceproducts without reading them,then the effect becomes thesame as not disseminatingthem in the first place.

STANDARDSAND INITIATIVES

To create the most profes-sional and effective intelligencefunction, law enforcementexecutives should consideradopting a number of standardsand initiatives. While most arenot required, they nonethelesscontribute to the efficacy of intelligence operations whileconcomitantly protecting civilrights and reducing liability.

The philosophy of intelli-gence-led policing 12

The tenets and standards of the Global Justice Informa-tion Sharing Initiative 13

The standards of the Na-tional Criminal IntelligenceSharing Plan 14

Without fixed,identifiable intelligence products, departments will waste efforts and

share information ineffectively.

With dissemination of sensitive material, a depart-ment should impose the third-agency rule, which means thatany recipient of intelligencecannot share the information

with another organization.This affords some degree of control and accountability, yetallows the originating depart-ment to waive the rule whenappropriate.


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The guidelines for informa-tion and intelligence sharingof the Office of Domestic

Preparedness Guidelines forHomeland Security 15

The guidelines of the Com-mission on Accreditation forLaw Enforcement Agencies(CALEA) Standard 51.1.1Criminal Intelligence 16

The provisions of the Inter-national Association of Chiefs of Police (IACP)Model Criminal Intelligence

Policy17

The standards of theLaw Enforcement Intelli-gence Bureau (LEIU)Criminal IntelligenceFile Guidelines 18

The IACP Code of Ethics 19

or an agency-developedarticulated code of ethics

The IACP Code of Con-duct 20 or an agency-createdarticulated code of conduct

An agency-producedarticulated statementof values 21

The regulations of 28 CFR Part 23 for its criminalintelligence records system 22

The tenets of the JusticeInformation PrivacyGuidelines 23

The tenets for informationsystem security defined inthe Applying SecurityPractices to Justice Informa-tion Sharing Report 24

Defined activities designedexclusively to prevent andcontrol crime with no

political, religious, ordoctrinal purposeAn intelligence unit does

not need to incorporate all of these factors verbatim. Rather,adherence to the spirit of thestandards as an overarchingphilosophy that is operation-alized via policy and proceduresin a manner consistent withlocal law will suffice.

Officials responsible forany aspect of law enforcementoperations must understand

current intelligence initiativesas they become part of thefabric of the overall securityof this country. Recognizingthe importance of a robustintelligence capacity can helpagencies work together toshare information and fulfilltheir mission as society sprotectors.

Endnotes

1 http://www.theiacp.org/documents/ pdfs/Publications/intelsharingreport% 2Epdf

2 http://policechiefmagazine.org/ magazine/index.cfm?fuseaction=display_ arch&article_id=137&issue_id=112003

3 Jon Shane, Compstat Process, FBI Law Enforcement Bulletin , April 2004,12-21; Compstat Design, FBI Law

Enforcement Bulletin , May 2004, 12-19;and Compstat Implementation, FBI Law

Enforcement Bulletin , June 2004, 13-21.4 In the context of law enforcement

intelligence, investigation is the pursuit of data based on leads and evidence associ-ated with a particularly defined act toidentify and apprehend offenders forprosecution. Information collection is thecapture of data based on a reasonablesuspicion of criminal involvement for usein developing cases, identifying crimetrends, and protecting the community bymeans of intervention, apprehension, ortarget hardening.

5 This includes information in anintelligence temporary file, as well asnoncriminal identifying information as

defined in 28 CFR Part 23.6 The File Guidelines prepared by theLaw Enforcement Intelligence Unit (LEIU)may provide the best model for translatingthis regulation to policy and procedures.The provisions of this model have

CONCLUSIONThe terrorist attacks of

September 11, 2001, broughtthe intelligence function of thelaw enforcement community tothe forefront. Increased aware-ness of the need for compilingessential information on those

who threaten the safety of allAmericans has changed theprofession s role from solelyfighting crime and disorder toinclude combating terrorism.

In essence,an intelligence

requirement seeks to fill a gap with the missing information

that a decision maker needs.


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withstood the test of challenges and arecomprehensive in nature. See http:// www.leiu-homepage.org .

7 An extremist ideology is one in which

a commonly accepted set of core beliefsare interpreted and often applied in a frequently literal manner, rather than a spiritual one, and embodies attitudes andvalues considered unreasonable andunacceptable to conventional doctrine.

8 From a presentation by FBI ExecutiveAssistant Director Maureen Baginski atthe Police Executive Research ForumConference on Intelligence, Washington,DC, December 16, 2003.

9 From a presentation by FBI ExecutiveAssistant Director Maureen Baginski at theMajor City Chiefs Intelligence Command-ers Conference, Washington, DC, April 6,2004.

10 For example, follow-up instructionsmay direct a patrol officer to complete a field interview card, notify a special unit,conduct surveillance of the target, or take

safety precautions.11 Agencies must make distinctions

between people who make threats andthose who pose them. A person may posea threat without making one and viceversa. This represents an intelligencerequirement.

12 Supra note 1.13 http://it.ojp.gov/topic.jsp?topic_id=814 http://it.ojp.gov/topic.jsp?topic_

id=9315 http://www.ojp.usdoj.gov/odp/docs/

ODPPrev1.pdf 16 http://www.calea.org/newweb/

accreditation%20Info/descriptions_of_ standards_approv.htm

17 http://it.ojp.gov/process_links.jsp?link_id=3774

18 http://it.ojp.gov/process_links.jsp?link_id=3773

19 http://www.theiacp.org/documents/ index.cfm?fuseaction=document&document_type_ id=1&document_id=95

20 http://www.theiacp.org/documents/ index.cfm?fuseaction=document&document_ type_id=1&document_id=94

21 For one example, see the Santa Clara,California, Police Department s ValueStatements at http://www.scpd.org/ value_statement.html .

22 http://www.iir.com/28cfr/ 23 http://www.ncja.org/pdf/

privacyguideline.pdf 24 http://it.ojp.gov/documents/asp/

June 2005 / 9

Subscribe Now


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Book Review

Police Traffic Stops and Racial Profil-

ing by James T. ORiley, Charles C. Thomas,Publisher, Springfield, Illinois, 2002.In Police Traffic Stops and Racial Profil-

ing , the author provides a unique and compre-hensive review of the literature, yet distills hisresearch so that the critical information neededcan be of great value to law enforcement orga-nizations. The books broad definition of ra-cial profiling includes any actions based uponracial or ethnic stereotypes and that have theeffect of treating minority motorists differ-ently than nonminority motorists.

Much of this interesting and well-re-searched text deals with departmentwideenforcement on civil rights laws under U.S.Code 42, Section 14141, along with somedrastic consequences for law enforcement ad-ministrators should such a decree be levied.In-depth, the author dissects the consent de-cree section and its application to the NewJersey State Police experience.

An outstanding book, it presents reviewson the evolution of traffic stops versus consti-

tutional decisions by the U.S. Supreme Courtthrough the more recent decades. It also ad-dresses both sides of the issues, includingwhat the critics have to say about the concernsof racial profiling.

The book contains six critical steps pro-posed for law enforcement administrators touse in not violating racial profiling during traf-fic stops. These are supported by 20 outlinedareas that can impact departmental budgets if law enforcement agencies are affected by animposed consent decree.

The book design, in its distilled concept,addresses the core of issues and their re-sponses with appropriate endnotes listed at the

conclusion of each chapter. This allows the

reader an easy and quick review of specificreferences and comments to the chapter.This book covers the necessary informa-

tion for all law enforcement agencies at eachlevelcity, county, state, and federalthatmay need to address the ramifications of trafficstops and racial profiling. A major strong pointabout the book is a 38-page appendix, designedin an outline format. It commences with thefirst 5 pages of the New Jersey official jointapplication consent decree followed by 33pages of the New Jersey decree concerning thestate police, a crucial guide for other law en-forcement administrators, managers, and first-line supervisors.

In addition, the applicability of this book includes, but is not limited to, all law enforce-ment training academies, in-service trainingprograms, police-civilian review boards, andfraternal orders of police. Furthermore, it isrecommended for policy and procedure writ-ers, prosecutors and defense attorneysdealing with racial profiling cases, and appli-

cable members of the U.S. Department of Justice, U.S. Senate and House of Representa-tives, state attorney general offices, and statelegislatures.

Police Traffic Stops and Racial Profilingwas a distinct pleasure to read. It is well de-signed and written in a comparative analysisformat that is understandable.

Reviewed byMajor Larry R. Moore (Ret.)

U.S. Army Military Police CorpsLife Member, International Association of

Chiefs of PoliceKnoxville, Tennessee


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June 2005 / 11

t some point in theircareers, executives willneed to develop a A

budget. Indeed, this represents a primary responsibility. A budgetis merely a plan described infinancial terms. Knowing whichbudget plan to choose, however,depends on what a managerneeds to convey. Many budget

styles exist, each with a differ-ent purpose. For example, themost common governmentbudget, the line-item style, isoriented toward control and

economy and answers thequestion, What is to be bought?A program budget, directed atplanning and effectiveness,responds to the inquiry, What isto be achieved? And, a perfor-mance budget, disposed towardmanagement and efficiency,replies to the query, What is tobe done? 1 Each has its place

depending upon the goal. How-ever, one style, activity-basedbudgeting, has gained popular-ity over the last few yearsbecause of its ability to link

activities to expenses, givingexecutives a better understand-ing of the full costs of serviceand resource allocation.

Activity-based budgeting isan outgrowth of activity-basedcosting, similar to zero-basedbudgeting. 2 This budget typeaccounts for how staff membersallocate their efforts among

activities. After calculating thefull cost of each task, managerscan establish mechanisms thatlink support functions to theprimary obligations of the

Adobe Image Library

Activity-Based Budgeting Creating a Nexus Between Workload and Costs By JON M. SHANE, M.A.


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organization in a law enforce-ment environment, the mainactivities are the direct costs of

program delivery (e.g., patrolservices, investigations, tacticaloperations, and traffic control). 3

By developing a comprehensiveactivity-based budget, execu-tives can create a clear nexusbetween workload and costs.Once they develop this, execu-tives and managers can exercisecontrol in several ways byassigning personnel based upona demonstrated need; expandingor contracting personnel propor-tionately as the need changes;uncovering waste and hiddencosts; viewing which activitiesare most and least expensive;assessing the full efficiency of the organization; identifyingplaces to cut spending; estab-lishing a cost baseline that maybe influenced through processor technology changes that

reduce effort requirements forthe activity; 4 and, perhaps mostimportant, arguing from an

informed, objective positionin favor of the organization sbudget. To illustrate activity-based budgeting, the authorpresents the activities of a hypothetical police depart-ment s patrol force to determinethe number of officers requiredto handle the workload; thecost of salaries, materials, andequipment; and the distributionof time across three primarycategories of patrol work: callsfor service, administrativeduties, and proactive functions.

ACCOUNTABILITYAND POLITICS OFBUDGETING

Accountability

Being entrusted with publicmonies requires the utmost

integrity and responsibility. Inrecent years, efforts have begunto make budgets more readable

and understandable. Activity-based budgeting is transparentand eliminates hidden costs.This allows a manager to seeat a glance the most expensiveactivities and where to exercisecontrol.

One of the keys to account-ability involves the personassigned to handle the budgethaving real control over theresources that take the formof decision-making authority,information, and skills. Afterall, managers cannot be re-sponsible for a budget in whichthey have no authority to ap-prove expenditures. 5

Politics of BudgetingAppropriations battles are

common. In fact, an executivecharged with budget implemen-tation and control should expectthem from subordinates wholook to that person to exerciseleadership and to argue on theirbehalf for what they need tocarry out their functions. Inpreparing for battle, an execu-tive will find it useful to know that budgets reflect choicesabout what government willand will not do; budgets reflectpriorities between police and

flood control, day care, and roadrepair; budgets reflect the rela-tive proportion of decisionsmade for local and constituencypurpose and for efficiency and

Being entrusted with public monies

requires the utmost integrity and

responsibility.

Captain Shane serves with the Newark, New Jersey, Police Department.


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June 2005 / 13

effectiveness and broaderpublic goals. [Most important],public budgets are not merely

technical managerial docu-ments; they also are intrinsicallyand irreducibly political. 6

Because their budgets arepolitically driven, executivesshould understand electedleaders platforms, often mutu-ally beneficial when seekingfunds. The police departmentmust compete with the otherelements of city governmentfor limited funds, making itof paramount importance forits leader to prepare a soundbudget justification.

SUCCESSFULSTRATEGIES ANDJUSTIFICATION

StrategiesStrategies differ from

justifications. A strategy is anapproach, a careful plan ormethod, or the art of devising oremploying plans toward a goal.A justification means to proveor show to be just, right, orreasonable or to show to havehad a sufficient legal reason. 7

The chief executive s goal is toretain the agency s base budgetand, if possible, to increase itabove the current year s appro-priations. Developing a logical

strategy provides the means tothat end.In November 2002, the

Police Executive ResearchForum (PERF) posted the final

draft of roundtable discussionswith several police chiefs fromaround the country. Among the

different budget strategies theyconsidered, using crime andworkload data was first on thelist. 8 Earlier research revealedthat increased workload wasthe second greatest factorcontributing to an increase inpositions. 9 While not infallible,

population density; age, sex,race, and ethnic composition;education levels; and per capita

and median household incomecan support a budget proposal.

JustificationBudget strategies and their

attendant analysis are important,but justification remains theprimary ingredient to the suc-cess of the agency s budget. Asolid justification includes all of the relevant information for thelegislative body, the budgetoffice, and the city s chief executive. The departmentshould justify the budget inthree separate spending catego-ries: mandatory, base, anddiscretionary.

Mandatory ExpendituresFederal, state, or local laws

govern mandatory expenditures,such as social security, pen-sions, unemployment contribu-tions, and contractually negoti-ated benefits. Salaries also mayfall into this category, exceptfor those considered discretion-ary. It is best to justify manda-tory budget expenditures byciting the applicable federal,state, and local laws.

Base ExpendituresEssential for the agency s

continued operation, baseexpenditures include utilities,equipment, supplies and materi-als, and other consumables.Justification in this category

Budget strategies and their attendant

analysis are important, but

justification remains the primary ingredient to the success of the

agencys budget.

workload data is reasonable andobjective. The other strategiesdiscussed by PERF included

capitalize on sensational crimeincidents (ideally, not occurringlocally), carefully mobilizeinterest groups, plan strategi-cally, participate fully in thefederal grant process, maintain a close working relationship with

the local chief executive andgoverning board members, andinvolve all levels of the policedepartment. 10 In addition,aggregate population and


15/35


Figure 1: Principal Modalities (Major Activities) Acuity

Service Demands

HoursPer

Unit

UnitsPer

Year

Total EmployeeHours Per

ModalityOfficers

RequiredPercentageAllocation

Murder 3 41 246 2 0.20%Robbery 1.5 2,110 6,330 2 5.15%Burglary 1 1,877 3,754 2 3.05%Court Appearances 1.5 1,234 9,255 5 7.53%Theft (shoplifting and all others) 0.58 6,522 7,566 2 6.15% Arson 1 51 102 2 Rape 1.5 88 264 2 0.21%Fraud 0.75 211 158 1 0.13%Prostitution 0.33 1,003 662 2 0.54%Gambling Offense 0.42 468 197 1 0.16%Vicious Animal 0.33 214 141 2 0.11%Bomb Threat 1 12 24 2 0.02%

Fire (car, house, building) 1.5 123 369 2 0.30%DWI 1 44 88 2 0.07%Emotionally Disturbed Person 1 120 240 2 0.20%Traffic Control 2 2,190 13,140 3 10.69%School Crossing 2 1,080 6,480 3 5.27%MV Pursuit 0.75 81 243 4 0.20% Arrest (average for all types of arrests) 1.5 15,264 45,792 2 37.25%Warrant Service 0.75 73 110 2 0.09%Code Enforcement Violations 0.33 315 104 1 0.08%Juvenile Condition (curfew, truancy, and all others) 0.75 457 343 1 0.28%Street Collapse 1 14 28 2 0.02%Wires Down 1 58 58 1 0.05%Burglar Alarm (residential, commercial) 0.33 2,555 1,686 2 1.37%Suicide 1.5 22 66 2 0.05%Sick/Injured Person 0.75 720 540 1 0.44%Train Accident 8 1 48 6 0.04%Kidnapping 3 11 66 2 0.05%Carjacking 1 77 154 2 0.13%Drug Sales 0.3 5,041 3,025 2 2.46% Assault (shooting, stabbing, blunt force) 0.75 1,000 1,500 2 1.22%Stolen Vehicle Report 0.75 2,645 1,984 1 1.61% Assist Officer (back up) 0.25 152 76 2 0.06Directed Patrol Activities 0.33 5,475 3,614 2 2.94%Shots Fired 0.33 730 482 2 0.39%Domestic Violence 1.25 3,255 8,138 2 6.62%Motor Vehicle Accident (with or without injuries) 1 1,825 3,650 2 2.97%Disorderly Conduct (fight, loud music, noisy crowds) 0.3 2,555 1,533 2 1.25%Man with a Gun 0.42 401 674 4 0.55%

Total 60,115 122,927 100.00%


16/35

June 2005 / 15

comes from analyzing previousbudgets and projections forservice delivery. The executive

must be prepared to explainincreases in operating expendi-tures, such as developing a special task force to address a spike in drug crime. Budgetreview members always wel-come workload and perfor-mance-improvement data.

Discretionary ExpendituresDiscretionary expenditures

enhance an existing level of service. These costs do notaffect the department s opera-tions but contribute to improvedservice delivery or a particularprogram s efficiency. A validexample is hiring. By hiringmore officers, the agencyexpects to improve responsetime and reduce fear of crime,but not having the extra officersdoes not adversely impact theorganization s ability to providebasic service. In defendingdiscretionary spending, theexecutive must convince thebudget review members of thenecessity or worthiness of theproposal. Once again, workloadand performance data are at thetop of the list for developingthe rationale.

THE WORKLOAD

ANALYSISObjectivity denotes a recur-ring theme in budget develop-ment. The department will findan objective budget, based on

empirical data, the most reason-able and the easiest to justify.A question often raised in law

enforcement circles is, How many officers do we need orshould we have? Typical re-sponses cover a range of options, including as many aswe can afford, as many as themayor and council want, or asmany as the people of the citywill pay for. While these state-ments have merit, the only

for the purpose of more efficientscheduling and deployment of manpower. 12 In activity-based

budgeting, the process beginsby collecting data on calls forservice, generally captured by a computer-aided dispatch system(CAD). If the department doesnot have a CAD system, it willhave to capture the data manu-ally. The agency must have atleast 1 complete year of data toaccount for seasonal fluctua-tions or other anomalies thatmight occur. A better data setwould encompass 2 years of information to clarify thesesame variables and also toilluminate personnel trends.For example, gaining or losingofficers may adversely impacthow the organization handlescalls for service, including theamount of time required to doso. The data set must includethe

type of call; average number of hoursspent handling the call; 13

number of calls of that typefor the year (or the periodbeing examined);

number of officers requiredto handle the call; and

total employee hours permodality. 14

Once the agency has cap-tured the principal modalities,it should format them for a typical computer spreadsheetapplication. After arranging the

Once the agency has captured the

principal modalities,it should format

them for a typical computer spreadsheet

application.

logical and defensible means of determining how many personsshould be assigned to patrolduty is through a careful andsystematic analysis of the dutiesperformed by patrol officers. 11

This is true of any positionwithin the police department;therefore, the first step towarda logical budget justificationstarts with a workload analysis.

Data CollectionA workload analysis is the

process of collecting and ana-lyzing data on patrol activities


17/35


columns, the department caneasily calculate the total em-ployee hours per modality. 15

Figure 1 represents the

principal modalities and theacuity. 16 The hours per unitshow the average amount of time spent handling a single callfor service of that type (e.g., onemurder will require 3 hours).The units per year comprise thetotal number of calls for servicefor that type (e.g., 41 murders

occurred for the year). Thedepartment can derive the totalemployee hours per modality bysimply multiplying the hours

per unit times the units per yeartimes the number of officersrequired. For example, a call fora murder takes two officers 3hours to handle. Over the courseof 1 year, officers will handle41 murders for a total of 246employee hours. The agencyrepeats these calculations for

each modality and then sumsthe units per year and the totalemployee hours per modality.The sums of these two catego-

ries provide the foundation forfuture calculations and foractivity-based budgeting devel-opment. Units per year equal60,115 while hours per em-ployee modality total 122,927.The department can add thepercentage allocation as a lastcolumn. This will provide anexcellent visual representationof which activities consume themost, as well as the least, of thebudget.

In addition, figure 1 showsthat arrests consume 37.25percent of the time, followed bytraffic control duty with 10.69percent. The department canorder the percentages fromhighest to lowest, or vice versa,and contrast them against eachother for comparison purposes,thereby revealing efficiency. In

short, the executive sees wheretime is spent, thus influencingprocesses or technologychanges that reduce effortrequirements for the activity.

Figure 2: Distribution of Time Activity % Time Daily/Minutes Daily/Hours Split Force Force Allocation

Service Demands 60% 122,927 288 4.8 88 66%Administrative 10% 20,488 48 0.8 0 0%

Proactive 30% 61,463 144 2.4 45 34%Total 100% 204,878 480 8 134 100%

Availability 2,086 (40 hours per week, 52.14 weeks per year)Effective Strength 98.23 FTE Patrol Officers

Relief Factor 1.360 FTE Patrol OfficersActual Strength 134 FTE Patrol Officers

Figure 3: Nonproductive FTE (Relief Factor) Time Off Days HoursVacation 28 224

Compensatory 5 40Sick Leave 15 120

Personal 3 24Training 8 64

Bereavement 10 80Total Time Off 69 552

Work Year 260.70 2,086Personnel Availability 191.70 1,534

Relief Factor 1.360 1.360


18/35

June 2005 / 17

Distribution of TimeThe next step involves one

of the most important in the

budget development processbecause what happens with thedistribution of time directlyaffects the budget. After deter-mining the baseline calcula-tions, it becomes necessary todistribute the time across threeprimary categories: servicedemands (i.e., calls for service),administrative duties, andproactive functions.

The first category, servicedemands, proves critical be-cause the other areas receivetheir allotted time based on howmuch time this one consumes.The sum of employee hours permodality (122,927) represents100 percent of the workload.Obviously, police officers mustperform other assignmentsbesides respond to calls for

service. These include adminis-trative duties (e.g., submittingreports and attending meetings)

and proactive functions (e.g.,community policing and di-rected or self-initiated tasks).An agency cannot realisticallyformulate a budget around 100percent of the total employeehours per modality withoutfactoring in these other respon-sibilities. This reveals whereprudent management decisionsmust be made regarding howmuch of the officers time thedepartment is willing to distrib-ute across these three catego-ries. In other words, the lowerthe percentage of time allocatedfor service demands, the morepolice officers the organizationwill need.

After determining the totalhours, the agency calculates theeffective strength of its patrol

force, 17 which differs from theactual strength. Based on awork year of 2,086 hours, the

effective strength is 98.23 full-time equivalent (FTEs) patrolofficers. Because officers do notactually work 2,086 hours peryear, one additional calculationbecomes necessary, the relief factor. Figure 2 depicts thedistribution of time across thethree primary managementcategories and the effectivepatrol force strength.

Force Strengthand the Relief FactorActual patrol force strength

is the number of officers re-quired to handle the workload.The relief factor, also known asnonproductive FTE, accountsfor officers time off for variousreasons. Hours, the more basicand preferred work unit for

Figure 4: Supervisory and Investigative Staff By ratio: 1 Sergeant per 7 Officers Sergeants 19.08 effective strength

1 Lieutenant per 5 Sergeants Lieutenants 3.82 effective strength1 Detective per 20 Officers Detectives 8.82 effective strength

Sub Total 31.71 FTE Support Staff

Management Staff Not by ratio: 1 Captain per command Captain 1.000 effective strength

1 Executive Officer Executive Lieutenant 1.000 effective strengthSub Total 2.000 FTE Command Staff (managers)

Support Staff for Management By ratio: 4 support staff members per manager Civilian Aides 8.000 effective strengthSub Total 8.000 FTE Civilian Aides

Total 41.71


19/35


these calculations, are morediscreet and flexible, rather thandays, which the author presents

only for illustrative purposes.The relief factor is derived by a two-part subtraction and divi-sion equation. For example,figure 3 begins with a work yearof 2,086 hours. By subtracting552 hours of allotted time off (i.e., nonproductive FTE), thedifference of 1,534 denotespersonnel availability. Dividingthe work year (2,086) by per-sonnel availability (1,534)results in the quotient of 1.36.This means that it takes 1.36police officers for every posi-tion to provide an acceptablelevel of service 365 days per

year, 24 hours per day.The final step, actual patrol

strength, is determined bymultiplying the effectivestrength by the relief factor.The effective strength is 98.23;

the actual strength is 134 (134 =98.23 1.36). Thus, accordingto the distribution of time as

depicted in figure 2, 134 offi-cers are required to carry out204,878 hours of patrol opera-

tions over a period of 1 year.Management andSupport Staff Positions

Because law enforcementagencies operate with com-mand-rank personnel, supervi-sors, and support staff, theymust account for these employ-ees to develop an accuratebudget. Depending upon con-tractual stipulations or othermanagerial prerogatives, a department may or may not

justify these positions by ratio.If not by ratio, then the agencyonly needs a fixed number.Figure 4 outlines the staff necessary to complete a department s workforce, andfigure 5 shows the total person-nel complement. Now thatthe agency has projected its

workload and staffing needs,it can use the results to developan activity-based budget.

BUDGETDEVELOPMENT

Salary CalculationsCalculating salaries consti-tutes the first element of activ-ity-based budgeting. In manyinstances, personnel account formore than 90 percent of totalbudget expenses. The goal atthis point is to establish the rateper employee hour. Establishingthis figure creates a baselinefrom which to work and also isnecessary for monitoring pur-poses. If the department needsto reduce expenses, it may notbe able to do so from salariesbecause these usually arecontractual. Knowing how much it costs to perform therequired work can benefitmanagers and supervisors asthey monitor individual andcollective performance. Theequation of salary times benefits

times FTE or total employeehours per modality can calculatethe rate per employee hour.

Figure 5: FTE Subtotal Position Complement Work Hours Relief?Captain 1 9-5 MF No Actual Strength

Executive Lieutenant 1 9-5 MF No Actual StrengthLieutenant 5 24/7 Yes Actual Strength

Sergeant 26 24/7 Yes Actual StrengthDetective 9 9-5 MF No Actual Strength

Patrol Officer 134 24/7 Yes Actual StrengthCivilian Aides 8 9-5 MF No Actual Strength

Total FTEs 184 Actual Strength


20/35

June 2005 / 19

Figure 6 outlines the FTE salarycalculations, including thebenefits package, and showsthe rate per employee hour as$128.86.

Materials andEquipment Costs

In lean fiscal times, agenciesgenerally reduce training andequipment budgets. Figure 7depicts the total and unit costsfor materials and equipment.

Materials usually consist of consumable supplies, such aspens, paper, flares, and crimescene tape. A simple calculationbased on a fixed amount peremployee can determine theunit cost for materials. In theexample, materials are appropri-ated at $700 per employee or$128,480 total. By dividing the

total cost ($128,480) by thenumber of units per year(60,115), the department canderive the unit cost for materialsas $2.14.

The larger category of equipment consists of various

items necessary to adequatelycarry out the functions of thepatrol officer. Equipmenttypically has a useful life of more than 3 years; however,this is not a rule. The agencycan calculate equipment expen-ditures by spreading the cost of individual items across theiruseful life spans. Incurring thefull expense of the equipmentwill not come until the depart-ment must replace the items.Therefore, the agency canpredicate the cost upon theequipment s useful life. The

equation of cost equals quantitytimes unit cost divided byuseful life in years shows thetotal cost for equipment as$513,290. The department canderive the unit cost the sameway it did for materials, which

reveals a unit cost for equip-ment of $8.54.

Present Levelof Service

The final step, calculatingthe costs for the present level of service, involves reconciling allof the previous calculations toform the activity-based budget.First, the agency replicatesfigure 8, which holds the princi-pal modalities. These serve asthe foundation upon which theremainder of the budget willrest. The department must

Figure 6: Salary Calculations (includes relief factor)

FTE Salary

Benefits

at 20%

Salary

Cost Title 134 $71,214 $14,243 $11,451,211 Patrol Officers1 $108,109 $21,622 $129,731 Captain1 $92,016 $18,403 $110,419 Executive Lieutenant

26 $84,789 $16,958 $2,645,417 Lieutenant5 $77,215 $15,443 $463,290 Sergeant9 $72,214 $14,443 $779,911 Detective8 $27,125 $5,425 $260,400 Support staff

184 $15,840,379 Total Salary Costdivided by 122,927 total employee hours per modality

Rate per employee hour $128.86


21/35


conduct a few additional calcu-lations to arrive at the totalcost. These include salary per

hour and per unit costs of salary, material, and equipment,along with the unit and totalcosts.

Salary Per HourBy multiplying the rate

per employee hour ($128.86)by the total number of officersrequired, the department can

calculate the salary per hourcost. For example, the totalnumber of officers required to

handle a murder is two; multi-plying this by the rate peremployee hour results in a salary per hour of $257.72.

Per Unit CostsUnit costs compare the

volume of work anticipated tothe items needed to completethe work and the funds required

to purchase the items. Thismethod [is] used to justify theneed for personnel or equip-

ment....18

This reveals the mostsalient feature of activity-basedbudgeting because identifyingthe individual costs is what thisbudget plan seeks to accom-plish. To determine the salaryper unit cost, the departmentmultiplies the hours per unit(3) by the salary per hour($257.72), obtaining the salary

Figure 7: Materials and EquipmentMaterials Equipment

Quantity Unit Cost Useful Life/yrs CostPaper, Pencils, Reports, Forms,

Crime Scene Tape, Flares and allother Consumable Supplies (@ $700

per employee) $128,480 Computers 15 $1,700 5 $5,100Total $128,480 Shotguns 25 $700 15 $1,167

divided by units per year 60,115 Typewriters 15 $300 5 $900Unit Cost $2.14 Marked Police Cars 36 $35,000 3 $420,000

Prisoner Van 1 $40,000 6 $6,667First Aid Kit and Replacements 80 $140 3 $3,733Nontraditional Vehicles 5 $19,000 7 $13,571Night Vision Equipment 5 $7,500 7 $5,357Walk-through Metal Detector 1 $5,500 10 $550Gas Masks 200 $320 7 $9,143Mesh Traffic Vests 50 $30 5 $300Tripod Scene Lighting 5 $1,000 7 $714Megaphones 10 $90 7 $129Prisoner Legirons 25 $43 10 $108Snow Blower 1 $2,600 5 $520Laser Printers 10 $1,400 5 $2,800Unmarked Police Cars 6 $28,000 5 $33,600Traffic Cones 100 $35 10 $350Suites of Furniture 5 $7,500 10 $3,750Photocopier 1 $25,000 6 $4,167Fax 4 $499 3 $665

Total $513,290divided by units per year 60,115

= equipment per unit $8.54


22/35

June 2005 / 21

per unit cost for the modalityof murder of $773.16.

Unit Cost The unit cost is the sum

of salary per unit ($773.16),materials per unit ($2.14), and

equipment per unit ($8.54)costs. The departments unitcost for murder totals $783.84.

Total CostsTotal costs, the final calcu-

lation in the budget, are derived

by multiplying the units per yearfor each modality (41) by theunit cost ($783.84). The totalcost for the murder modality is$32,173.31.

Figure 8 demonstrates thecompleted activity-based budget

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

Per Year

HoursPerunit

OfficersRequired

TotalHours

SalaryPer

hour

SalaryPerunit

MaterialPerunit

EquipmentPerunit

UnitCost

TotalCost

PercentageAllocated

Murder 41 3 2 246.00 $257.72 $773.16 $2.14 $8.54 $783.84 $32,137.31 0.19%Robbery 2,110 1.5 2 6,330.00 $257.72 $386.58 $2.14 $8.54 $397.26 $838,210.65 5.09%

Burglary 1,877 1 2 3,754.00 $257.72 $257.72 $2.14 $8.54 $268.40 $503,779.40 3.06%Court Appearances 1,234 1.5 5 9,255.00 $644.30 $966.45 $2.14 $8.54 $977.13 $1,205,774.74 7.32%

Theft (all types) 6,522 0.58 2 7,565.52 $257.72 $149.48 $2.14 $8.54 $160.15 $1,044,521.19 6.34% Arson 51 1 2 102.00 $257.72 $257.72 $2.14 $8.54 $268.40 $13,688.200.08%Rape 88 1.5 2 264.00 $257.72 $386.58 $2.14 $8.54 $397.26 $34,958.55 0.21%Fraud 211 0.75 1 158.25 $128.86 $96.65 $2.14 $8.54 $107.32 $22,644.70 0.14%

Prostitution 1,003 0.33 2 661.98 $257.72 $85.05 $2.14 $8.54 $95.72 $96,010.59 0.58%Gambling Offense 468 0.42 1 196.56 $128.86 $54.12 $2.14 $8.54 $64.80 $30,324.99 0.18%

Vicious Animal 214 0.33 2 141.24 $257.72 $85.05 $2.14 $8.54 $95.72 $20,484.81 0.12%Bomb Threat 12 1 2 24.00 $257.72 $257.72 $2.14 $8.54 $268.40 $3,220.75 0.02%

Fire (all types) 123 1.5 2 369.00 $257.72 $386.58 $2.14 $8.54 $397.26 $48,862.52 0.30%DWI 44 1 2 88.00 $257.72 $257.72 $2.14 $8.54 $268.40 $11,809.43 0.07%

Emotionally DisturbedPerson 120 1 2 240.00 $257.72 $257.72 $2.14 $8.54 $268.40 $32,207.53 0.20%

Traffic Control 2,190 2 3 13,140.00 $386.58 $773.16 $2.14 $8.54 $783.84 $1,716,602.4910.41%

School Crossing 1,080 2 3 6,480.00 $386.58 $773.16 $2.14 $8.54 $783.84 $846,543.69 5.14%MV Pursuit 81 0.75 4 243.00 $515.44 $386.58 $2.14 $8.54 $397.26 $32,177.75 0.20%

Arrest (all types) 15,264 1.5 2 45,792.00 $257.72 $386.58 $2.14 $8.54 $397.26 $6,063,719.1136.79%Warrant Service 73 0.75 2 109.50 $257.72 $193.29 $2.14 $8.54 $203.97 $14,889.52 0.09%

Code Enforcement 315 0.33 1 103.95 $128.86 $42.52 $2.14 $8.54 $53.20 $16,757.86 0.10%Juvenile Condition 457 0.75 1 342.75 $128.86 $96 .65 $2.14 $8.54 $107.32 $49,045.62 0.30%

Street Collapse 14 1 2 28.00 $257.72 $257.72 $2.14 $8.54 $268.40 $3,757.54 0.02%Wires Down 58 1 1 58.00 $128.86 $128.86 $2.14 $8.54 $139.54 $8,093.08 0.05%

Burglar Alarm (alltypes) 2,555 0.33 2 1,686.30 $257.72 $85.05 $2.14 $8.54 $95.72 $244,573.34 1.48%

Suicide 22 1.5 2 66.00 $257.72 $386.58 $2.14 $8.54 $397.26 $8,739.64 0.05%Sick/Injured Person 720 0.75 1 540.00 $128.86 $96 .65 $2.14 $8.54 $107.32 $77,271.00 0.47%

Train accident 1 8 6 48.00 $773.16 $6,185.29 $2.14 $8.54 $6,195.96 $6,195.96 0.04%Kidnapping 11 3 2 66.00 $257.72 $773.16 $2.14 $8.54 $783.84 $8,622.20 0.05%Carjacking 77 1 2 154.00 $257.72 $257.72 $2.14 $8.54 $268.40 $20,666.50 0.13%Drug Sales 5,041 0.3 2 3,024.60 $257.72 $77.32 $2.14 $8.54 $87.99 $443,566.72 2.69%

Assault (all types) 1,000 0.75 2 1,500.00 $257.72 $193.29 $2.14 $8.54 $203.97 $203,965.971.24%Stolen Vehicle 2,645 0.75 1 1,983.75 $128.86 $96.65 $2.14 $8.54 $107.32 $283,863.62 1.72% Assist Officer 152 0.25 2 76.00 $257.72 $64.43 $2.14 $8.54 $75.11 $11,416.080.07%

Directed Patrol 5,475 0.33 2 3,613.50 $257.72 $85.05 $2.14 $8.54 $95.72 $524,085.74 3.18%Shots Fired 730 0.33 2 481.80 $257.72 $85.05 $2.14 $8.54 $95.72 $69,878.10 0.42%

Domestic Violence 3,255 1.25 2 8,137.50 $257.72 $322.15 $2.14 $8.54 $332.83 $1,083,349.10 6.57%Motor Vehicle

Accident 1,825 1 2 3,650.00 $257.72 $257.72 $2.14 $8.54 $268.40 $489,822.802.97%Disorderly Conduct 2,555 0.3 2 1,533.00 $257.72 $77.32 $2.14 $8.54 $87.99 $224,819.08 1.36%

Person Armed with aWeapon 401 0.42 4 673.68 $515.44 $216.49 $2.14 $8.54 $227.16 $91,091.48 0.55%

Total 60,115 122,927 $16,482,149 100.00%


23/35


plan outlining the entire cost forsalaries, materials, and equip-ment. It becomes readily appar-

ent that the percentage of thebudget allocated per modalityin figure 8 approximates thepercentage of time allocatedper modality in figure 1.

Budget SummaryOnce the department has

prepared the activity-basedbudget, it will find it useful tocreate a small budget summaryby category, which would

include salaries, materials, andequipment. The budget sum-mary will help to reconcile theindividual pieces of the budget.The total cost presented infigure 8 is $16,482,149. When

summing the categories (sala-ries, materials, and equipment)in the budget summary, the total

must equal the activity-basedbudget total. A simple pie chartof the finished budget gives a valuable perspective of how thedepartment will distribute itsfunds.

CONCLUSIONActivity-based budgeting,

an objective way to linkworkload to costs, is easy todesign. Each division of the

police department can createone to examine its operationalefficiency. Connecting all of theindividual budgets provides theorganization with a comprehen-sive picture of its operating

posture. Supervisors can use itto make adjustments in pro-cesses or shift personnel. Ad-

ministrators can employ it tocreate partnership programswith the police department. Inthis sense, it is useful to see theproportion of the activity-basedbudget allocated to each partner.The department also can use itto justify hiring and promotingpersonnel. By using acceptedindustry standards of span of control, an executive can arguein favor of hiring and promotingbased upon the volume of work.

Beyond its internal uses,activity-based budgeting hasother merits. Many grant pro-grams require one so grantorscan see where their money isbeing spent and how efficientlygrantees can administer theprograms. Activity-basedbudgeting easily can be turnedinto a performance-basedbudget by attaching perfor-mance standards. It also can beused together with bench-marking to identify best prac-tices. 19 The basic steps incorporate benchmarking includedeciding what process to bench-mark, studying the process intheir organization, identifyingbenchmarking partners, analyz-ing the processes of bench-marking partners to identify

differences that account forsuperior performance, adaptingand implementing best prac-tices, and monitoring and

Budget SummaryTotal from Figure 6. Salary Calculations Salaries $15,840,379 96.11%

Total from Figure 7 Materials Materials $128,480 0.78%and Equipment Equipment $513,290 3.11%

Total $16,482,149 100.00%


24/35

June 2005 / 23

revising. 20 In the police depart-ment example, effecting arrestsconsumes nearly 37 percent of

the activity. Benchmarkingthem could determine if a moreefficient way exists to processarrests, including new technol-ogy that reduces the effort.

Activity-based budgeting(ABB) holds [some] promise asa...solution to the faults andfrustrations of traditional bud-geting methods:1. Traditional budgets don t

identify waste. ABB ex-poses nonvalue costs.

2. Traditional budgets focuson workers. ABB focuseson workload.

3. Traditional budgets focuson division cost. ABB alsofocuses on process cost.

4. Traditional budgets focuson fixed versus variablecosts. ABB also focuses

on used versus unusedcapacity.5. Traditional budgets measure

effect. ABB measures rootcause. 21

It also provides an alterna-tive to traditional governmentbudgets; the line item may berequired by law, but nothingprevents an organization fromadopting activity-based budget-

ing to solve internal problems.After all, what is the bottomline when there is no bottomline ? Performance! 22

Endnotes

1 S.L. Riley and Peter W. Colby, Prac-tical Government Budgeting: A Workbook

for Public Managers (Albany, NY: StateUniversity of New York Press, 1991).

2 A zero-based budget begins bypreparing an operating plan or budgetthat starts with no authorized funds.For this type of budget, an organizationmust justify each activity every time itprepares a new budget.

3 D. Maddox, Budgeting for Not-for- Profit Organizations (New York, NY:John Wiley and Sons, 1999).

11 C.D. Hale, Police Patrol: Operationsand Management (New York, NY: JohnWiley and Sons, 1981).

12 Ibid., 163.13 Any portion of an hour is calculated

as such. For example, 20 minutes iscaptured as .33 hours and 47 minutes as.783 hours.

14 In budgeting, modalities are theattributes (i.e., major activities) beingexamined. In this case, they are the typesof calls for service.

15 In budgeting, acuity is the distinctdetail, the calculations that comprise thebudget.

16 Due to rounding, some numbers maynot add to totals shown in the figures orreferred to in the text of this article.

17 The effective strength of the patrolforce is how many officers are on duty ata given time. Supra note 11, 167.

18 Supra note 1, 54.19 In public sector application, the term

benchmarking features the identificationof a point of reference for comparison ormeasurement purposes. With a benchmark,public officials can measure the perfor-mance gap between where they are andwhere they want to be and can track theirprogress in closing the gap. D.N.Ammons, A Proper Mentality forBenchmarking in Gerald J. Miller,W. Bartley Hildreth, and Jack Rabin,

Performance-Based Budgeting (Boulder,CO: Westview Press, 2001), 419-429.

20 Ibid., 423.21 T. Pryor, Integrated Cost Manage-

ment Systems, Inc., What Happened to ABB? (2004); retrieved on December 23,2004, from http://www.icms.net/news-18.htm .

22 P.F. Drucker, Managing the Nonprofit Organization: Principles and Practices (New York, NY: HarperPerennial, 1990).

The author thanks Dr. Gerald Miller,Rutgers Graduate School of Public Administration, for inspiring this article.

4 Ibid., 228.5 Ibid., 20.6 I.S. Rubin, The Politics of Public

Budgeting: Getting and Spending, Borrowing and Balancing , 4th ed. (NewYork, NY: Chatham House, 2000).

7 Both definitions retrieved on August31, 2004, from http://m-w.com .

8 Police Executive Research Forum, Police Department Budgeting: A Guide for Law Enforcement Chief Executives(Washington, DC, 2002).

9 J.R. Greene, Tim S. Bynum, and GaryW. Cordner, Planning and the Play of Power: Resource Acquisition AmongCriminal Justice Agencies, Journal of Criminal Justice 14 (1986): 529-544.

10 Supra note 8, 2; and AaronWildavsky, The Politics of the Budgetary

Process , 3rd ed. (Boston, MA: LittleBrown and Company, 1979), 63-126.

In lean fiscal times,agencies generally reduce training and equipment budgets.


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n June 18, 2001, a man collecting cansalong Old Stage Road, near the intersec-

Unidentified Homicide Victim

O

ViCAP Alert

tion of Pecan Road in Jackson County, Missis-sippi, discovered a dead body wrapped in black plastic sheeting on the shoulder of the road. Thelocal law enforcement authority, Jackson CountySheriffs Office, was contacted and responded tothe crime scene. The area was processed and thebody was recovered and transported to the hospitalmorgue for examination.

The AutopsyAn autopsy revealed that in addition to being

wrapped in black plastic, the body was bundled inbed linens and carpet. Nylon rope was tied around

the victims head, upper torso, waist, and feet. Thebed linens were soaked with blood that had dried.There was a fresh, close gunshot wound to the righttemple, which contributed to the victims cause of death. During the autopsy, authorities obtained thevictims known fingerprints. The FBI and U.S.Department of Homeland Security examined thefingerprints with negative results.

The VictimThe victims body is that of a stocky white

male, believed to be of Hispanic origin, around 28to 36 years old, approximately 5 feet 5-1/2 inchestall, weighing between 225 and 250 pounds, withclose-cut, dark brown hair with a small amount of

Tattoo from rightback shoulder of

victim.

Tattoo rendering

from left forearmof victim.


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gray. A number of tattoos and scars were recorded.The victim has a pierce scar on the left earlobe, anindent scar in the center of his forehead, a C

shaped scar in his left eyebrow, a scar on the leftside of his nose, and a possible gunshot scar on hisleft wrist. A tattoo of the name John is written infine script in the clavicular region of his right upperchest; a black outlined tattoo, 9 by 4 inches, of apeacock is on his right upper back; and an oldEnglish script letter E or F is on his left fore-arm. Evidence and investigative efforts suggestthat the victim may have been involved withnarcotics distribution. The victims NCIC numberis U540002695 and his fingerprint code is17131116141713101713.

Unusual Weapon

June 2005 / 25

Alert to Law EnforcementLaw enforcement agencies should bring this

information to the attention of all crime analysis

units, officers investigating crimes against per-sons, and narcotics units. Also, the offenders fin-gerprint profile should be provided to local andstate laboratories for comparison purposes. Anyagency requiring additional information or a copyof the fingerprint card should contact DetectiveSergeant Ken McClenic of the Jackson CountySheriffs Office, Pascagoula, Mississippi, at 228-769-3063 or at [email protected] ;or Crime Analyst Glen W. Wildey, Jr., of the FBIsViolent Criminal Apprehension Program (ViCAP)Unit at 703-632-4166 or [email protected] .

FM Radio This unusual weapon is a

functional FM radio with earphones that is worn on a belt butalso conceals a gun. Law en-forcement officers should beaware of the possible threat of this object.

Submitted by John F. Brannigan, a retired law enforcement officer and weapons concealment instructor.


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ince Miranda v. Ari- zona ,1 the U.S. SupremeCourt has remained

steadfast in its position thatfor a defendant to waive theprivilege against self-incrimina-tion, the government mustestablish that the defendantdid so knowingly, intelligently,and voluntarily. Miranda heldthat any statement arising fromcustodial interrogation of asuspect is presumed to beinvoluntary and, therefore,inadmissible unless the policefirst provide the suspect with

four specific warnings: the rightto remain silent; that any state-ments may be used againstthem; the right to have anattorney present during ques-tioning; and that an attorneywill be appointed if he can notafford one. 2 Notwithstandingthese warnings, the Court stillcould find the statement inad-missible if the Court concludesthat the defendant did notwaive those rights knowingly,intelligently, and voluntarily.In June 2004, the U.S. SupremeCourt, once again, declared

that condition as nonnegotiablewhen it handed down its deci-sion in Missouri v. Seibert. 3

This article addresses thevalidity of a waiver provided bysuspects who have just beensubjected to a two-tiered inter-rogation tactic used in Seibert wherein an unwarned interroga-tion precedes the Mirandawarnings and waiver and aconfession is obtained. Thearticle also discusses the factorsthat a court considers whendetermining whether suspects,subjected to this two-tiered

S

Legal Digest

The Supreme Court Brings

an End to the End Run Around Miranda By LUCY ANN HOOVER, J.D., LL.M.

Comstock Images


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June 2005 / 27

approach, waived their Mirandarights knowingly, intelligently,and voluntarily. Finally, the

impact the U.S. SupremeCourt s decision will have onthe two-tiered interrogationtactic, sometimes referred toas the ask first, warn latertactic, is addressed.

Missouri v. Seibert :The Two-TieredInterrogation Strategy

In Missouri v. Seibert ,Patrice Seibert, the defendant,was a mother of five sons, oneof whom, Jonathan, age 12, wasstricken with cerebral palsy.When Jonathan died in hissleep, Seibert was fearful thatshe would be charged withnegligence once the investigat-ing authorities discoveredJonathan s body covered in bedsores. To avoid criminal culpa-bility, she conspired with hertwo eldest sons and two of theirfriends to set fire to their mobilehome, leaving Jonathan s bodyinside. However, she also wasconcerned with how she wouldexplain leaving young Jonathanalone and unattended.

The answer was to leaveDonald Rector, a teenager whowas mentally ill and living withthe Seibert family, in the mobilehome with Jonathan. The medi-

cation that Rector was takingusually made him sleepy; there-fore, the Seibert family countedon Rector being sound asleep inhis bed when they set the fire.To them, the murder of young

Donald Rector seemed like theperfect way to destroy anyevidence of their neglect of Jonathan. 4

Seibert was arrested laterfor her role in this crime andtransported to the police stationfor questioning. Once at thepolice station, the arrestingofficer began to questionSeibert without advising herof her Miranda rights andreceiving a waiver. The officerwho arrested Seibert and inter-viewed her testified that hepurposefully refrained fromadvising Seibert of her Mirandarights even though he knew hewas engaged in a custodialinterrogation. The officer

testified that he made a con-scious decision to withhold

Miranda warnings, questionfirst, then give the warnings,and then repeat the questionuntil he got the answer previ-ously given. 5 This was aninterrogation technique that the

officer had been taught. As a result, he was just follow[ing]instructions. 6

The officer testified thatafter Seibert was brought to thepolice station, he questioned herfor approximately 30 to 40minutes prior to advising her of her rights under Miranda . Thus,the questioning was outside of

Miranda . During this time,Seibert admitted that she knew that Donald [Rector] was meantto die in the fire. 7 Seibert wasthen afforded a 20-minutecoffee and cigarette break. 8 Thesecond round of interrogationwas conducted by the samepolice officer and in the sameroom. However, this time, thepolice officer gave Seibertthe Miranda warnings and

obtained a signed waiver of rights from her. 9

The second round of ques-tioning began by referring to thefirst round of questioning andthose statements obtained

Special Agent Hoover is a legal instructor at the FBI Academy.

Department interrogation practices

should continue to reflect the fundamental principles announced by the U.S. Supreme Court in Miranda and

its progeny.


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outside of Miranda . Seibertconfirmed that during the initialround of questioning, they had

been discussing the events thatoccurred on the day of the fire.Following a few more questionsthat were rhetorical confirma-tions of admissions made in theprior unwarned confession, thepolice officer asked, [Pa]trice,didnt you tell me that [DonaldRector] was supposed to die inhis sleep?

Seibert answered, If thatwould happen, cause he wason that new medicine, youknow.

Finally, the police officerasked, The Prozac? And itmakes him sleepy. So he wassupposed to die in his sleep?

Seibert simply said, Yes. 10Seibert was convicted of

second-degree murder. The trialcourt suppressed Seiberts firststatement because she had not

been advised of the Mirandawarnings prior to her custodialinterrogation, but allowed hersecond statement to be usedagainst her, relying on the U.S.Supreme Courts ruling inOregon v. Elstad .11 The lowercourt held that this secondround of statements was admis-sible because she was advisedof her rights, and she provided asigned waiver. The Courtreasoned that the problem withher unwarned first statementhad been rehabilitated byadvisement of the Mirandarights prior to her secondstatement. The Missouri

Supreme Court disagreed,concluding that this tacticviolated Miranda, and the

government appealed to theU.S. Supreme Court. 12The U.S. Supreme Court,

agreeing with the MissouriSupreme Court, expressedconcern about an interrogationstrategy that endorses an inten-tional deprivation of Miranda

noticed a growing trend of suchpractices. 16

Despite what scholars

deemed a growing trend, theSupreme Court appreciated thenotion that it is not the case, of course, that law enforcementeducators en masse are urgingthat Miranda be honored only inbreach. 17 Concluding, in fact,that [m]ost police manuals donot advocate the question-firsttactic, because they understandthat Oregon v. Elstad involvedan officers good faith failure towarn. 18

Elstad and ItsEvolution into anInterrogation Tactic

The U.S. Supreme Courtheld that Seiberts waiverwas not effective because of theunwarned interrogation justprior to providing her the

Miranda rights. The Supreme

Courts ruling in Seibert re- jected an interpretation of itsholding in Oregon v.Elstad which seemed to promote theconcept that the mere recita-tion of the littany suffices tosatisfy Miranda in every con-ceivable circumstance. 19 TheU.S. Supreme Courts holdingin Elstad gave rise to whatevolved into an approach toconducting interrogations thatbecame somewhat popular andwas used in Seibert v. Missouri ;that is, holding off on advisingsuspects of their Miranda rightsuntil after obtaining an incrimi-nating statement or confession.

The U.S. Supreme Court...expressed concern about a

strategy that endorses an intentional

deprivation of Mirandarights....

rights, recognizing that[a]lthough we have no statis-tics on the frequency of thispractice, it is not confinedto...Missouri. 13 The SupremeCourt found that the strategyof withholding Miranda warn-ings until after interrogating anddrawing out a confession waspromoted not only by his owndepartment but by a nationalpolice training organiza-

tion....14

Moreover, the justicesnoted that [t]his training isreflected in the reported casesinvolving deliberate question-ing after invocation of Mirandarights 15 and that scholars have


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June 2005 / 29

In Seibert , the U.S. SupremeCourt took the opportunity todistinguish between the interro-

gation situation in Elstad andwhat occurred in Seibert .Concerned with an approachthat implicitly encouraged

Miranda violations, the U.S.Supreme Court ruled that thepractice of conducting two-tiered interrogations, sometimesreferred to as beachheading, 20violates the purpose of

Miranda .In Elstad , law enforcement

officers went to the home of aburglary suspect to take himinto custody. The suspectsmother answered the door andled the officers to the suspect,who was in his bedroom. Priorto the arrest, one of the lawenforcement officers waited forthe suspect to get dressed andaccompanied him to the livingroom while the other officer

asked the suspects mother tostep into the kitchen where headvised her that they had awarrant for her sons arrest ona burglary charge. The officerwho remained in the livingroom with the suspect testifiedthat he sat down with Mr.Elstad and asked him if he wasaware why [they] were there totalk to him. He stated that hehad no idea.... The officer thenasked him if he knew a personby the name of Gross, and hesaid yes, he did, and also addedthat he heard that there was arobbery at the Gross house. Itwas at this point that the officer

told Mr. Elstad that [he] felt[Elstad] was involved in that.Mr. Elstad then looked at [the

officer] and stated, Yes, I wasthere. 21The suspect then was

transported to the police station,waived his Miranda rights, andprovided a full confession.Counsel for the defendant, in amotion to suppress, argued thatthe confession in response tocustodial interrogation at thepolice station was tainted bythe unwarned statement madein the suspects living room.

the station house confessionderived from the officersexchange with the suspect,

should be suppressed because Miranda warnings had not beenprovided during the initialexchange at the house. Thelower court held that once theinitial Miranda violation oc-curred, all that followed wastainted, including the stationhouse confession and, therefore,inadmissible. The lower courtreasoned that [r]egardless of the absence of actual compul-sion, the coercive impact of theunconstitutionally obtainedstatement remains because in adefendants mind it has sealedhis fate. 23

The Supreme Court agreedwith the lower courts recogni-tion that [i]t is this [coercive]impact that must be dissipatedin order to make a subsequentconfession admissible. 24 The

Court identified two of the mostimportant factors to consider indetermining whether thatcoercive impact has beendissipated as: the lapse of timeand change of place from theoriginal surroundings. 25 TheCourt stated that it has nevergone so far as to hold thatmaking a confession undercircumstances which precludeits use perpetually disables theconfessor from making a usableone after those conditions havebeen removed. 26 Moreover, the

Elstad Court continued, [t]hereis a vast difference between thedirect consequences flowing

Despite compliance with Miranda at the station house,the defense argued that once thecat [was] out of the bag, 22 anyefforts of law enforcement torehabilitate or save an alreadytainted admission were point-less. The defense argued thatthe law enforcement officerscomment that he felt theyoung man was involved in theburglary was an elicitationakin to interrogation. Accord-ingly, the statements, including

PhotoDisc


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from coercion of a confessionby physical violence or thedeliberate means calculated to

break the suspects will and theuncertain consequences of disclosure of a guilty secretfreely given in response to anunwarned but noncoercivequestion, as in this case. 27

Based upon this reasoning,the U.S. Supreme Court re-

jected with the lower courtsreasoning in Elstad and foundthat the purpose of the pause inthe burglary suspects livingroom, where he first acknowl-edged being at the scene of thecrime, was not to interrogatehim but, rather, to inform hismother of the reason for thearrest. The Court characterizedthe police officers failure towarn as an oversight thatmay have been the result of confusion as to whether thebrief exchange qualified as

custodial interrogationormay simply havereflectedreluctance to initiatean alarming police procedurebefore [an officer] with [theyoung mans] mother. 28

The Supreme Court alsofound that there was no indica-tion of coercion by the policeofficers at the time the suspectadmitted his presence at thescene of the crime. Further, thatthe issue of coercion goes to theheart of Miranda . The constitu-tional protection ensures, thatno person shall be compelledin any criminal case to be awitness against himself. The

Court recognized that a simplefailure to administer the[ Miranda ] warnings with no

indication of behavior on thepart of the law enforcementofficer that could be interpretedas coercion, compulsion, oran effort to undermine the

Miranda warnings and obtain awaiver. The police officer con-ducting the interrogation in

Seibert admitted that he made aconscious decision to withhold Miranda warnings. The statedpurpose of this practice was toafford the police officer the timeand opportunity to establishrapport with suspects in aneffort to get them to open upand make admissions or fullconfessions. According totraining, once the suspect haslet the cat out of the bag, theinterrogating officer shouldprovide the Miranda warningsand ask the suspect for awaiver. The government arguedthat once Miranda rights areprovided and waived, state-ments should be admitted inthe subsequent prosecution.

The U.S. Supreme Courtrejected that line of reasoning inSeibert because its primary

concern was one of abuse.Moreover, because the object of such a practice was to questionfirst, Mirandize later, the Courtreasoned that it fundamentallyrender[ed] Miranda warningsineffective by waiting for aparticularly opportune time togive them, specifically, afterthe suspect has already con-fessed. 31

The Courts opposition toa practice that renders the

Miranda warnings ineffective isa reaffirmation of the Mirandaruling in 1966 in which itheld that incommunicadointerrogation of individuals in a

suspects ability to exercise hisfree will should not keep outa statement that otherwise isvoluntary. 29 Suppressing post-warning state

FBI Law Enforcement Bulletin - June05leb

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Transcript of FBI Law Enforcement Bulletin - June05leb