FBI Law Enforcement Bulletin - Nov00leb

8/9/2019 FBI Law Enforcement Bulletin - Nov00leb

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ISSN 0014-5688 USPS 383-310

Features

Departments

8 PerspectiveProfessional PoliceTraffic Stops

17 Book ReviewPolice Auditing:Theories and Practices

Runaway or Abduction? By Andr B. Simons

and Jeannine Willie

Stealing Secrets SolvedBy Thomas R. Stutler

The Microscopic SlideBy John E. Smialek, Charlotte Word,

and Arthur E. Westveer

Supreme Court Cases19992000 Term

By Sophia Y. Kil

1

11

November 2000Volume 69Number 11

United StatesDepartment of Justice

Federal Bureau of InvestigationWashington, DC 20535-0001

Louis J. FreehDirector

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. Useof 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 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 209,Quantico, VA 22135.

Editor

John E. Ott

Associate Editors

Glen BartolomeiCynthia L. LewisBunny S. Morris

Art Director

Brian K. Parnell

Assistant Art Director

Denise Bennett Smith

Staff Assistant

Linda W. Szumilo

This publication is produced bymembers of the Law Enforcement

Communication Unit,William T. Guyton, Chief.

Internet Address

[email protected]

Cover Photo

Digital Vision

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

209, Quantico, VA 22135.

Law enforcement can work withcompanies to help prevent the lossof intellectual property and the theftof trade secrets.

Law enforcement must make everyattempt to classify missing childcases appropriately.

18Microscopic slides serve as valuablereservoirs that law enforcementagencies can use in DNA testing yearsafter the commission of a crime.

Four Supreme Court decisionsof particular importance to lawenforcement are summarized.

28

23 Focus on CooperationJoint EmployeeAssistance Programs

26 Bulletin ReportsThe SEARCH ProgramTraining ProgramsNational Night Out


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November 2000 / 1

15-year-old girl disap-

peared from her home in asmall California coastal

to third parties who assist in a

child abduction,1 even throughinaction.2

Such inaction may often resultwhen law enforcement erroneouslycategorizes a child abduction as avoluntary disappearance, or a run-away. When someone reports achild missing, traditionally, law en-forcement quickly confirms oreliminates evidence of an abduc-tion. Police agencies decide easilyhow to respond to cases withclear indicators about what hap-

pened, such as dealing with a wit-nessed stranger abduction, a run-away who packs a bag and leaves anote, or a very young missing child,which police generally investigate

whatever the circumstances. Be-

tween the extremes, however, deci-sion making often proves difficult.3

When a child simply vanishes, noclear indicators may exist to suggesta voluntary or an involuntary disap-

pearance. When responding policeofficers navigate through a situationwith no witnesses, obvious crimescene, nor clues to what happened,they might find it difficult to distin-guish an abducted child from a run-away initially. A recent survey re-quested law enforcement agenciesto identify common obstacles to asuccessful investigation in a miss-ing child case.4 Fifty-eight percentof the agencies responded that thehighest ranking concern involved

Atown. Police initially classified heras a runaway. Eight months later,her abused body was discovered.Subsequent investigation revealedthat three high school-aged boys in-volved in a Satanic cult had ab-ducted, raped, tortured, and mur-dered the girl the night of herdisappearance.

In another case, a jury ordered atown to pay a family $3.8 million

because police failed to respond ad-equately to the fathers plea for helpwhen he reported his daughter miss-ing. The father stated later that theverdict presented a clear warning

Andr B. Simons

Runaway or Abduction?Assessment Tools for the

First ResponderBy ANDR B. SIMONS, M.A., and JEANNINE WILLIE


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2 / FBI Law Enforcement Bulletin

the difficulty of knowing whether achild has disappeared voluntarily.

The fact that hundreds of thou-sands of children leave their homesvoluntarily each year compoundsthe difficulty in accurately classify-ing a missing child as a runaway ora victim of abduction. National av-erages indicate approximately450,000 runaways in the United

States at any given time.5

In Cali-fornia in 1999, nearly 101,000 chil-dren left their homes voluntarily.Comparatively, only 64 witnessedabductions of children by a strangeror nonfamily member occurred. Notsurprisingly, law enforcement of-ficers may believe initially that amissing child between 13 and 17years of age has run away. Withoutobvious indicators of an abduction,such as witnesses who observed theactual kidnapping event, signs offorced entry, or a ransom note, sta-tistics indicate that the missingchild most likely has run away. This

philosophy often may cause the

responding law enforcement offi-cers to overlook evidence of an ab-duction. Such predispositions can

become particularly hazardous inlight of research indicating that incases where individuals abduct andmurder children, the population athighest risk for victimization con-sists of teenage girls ages 13 to 17.6

ASSESSING THE SITUATIONThe responding police officers

initial assessment will have a greatimpact on the outcome of the miss-ing child case. The attitude or ap-

proach that officers take in the ini-tial response to a missing child callactually may determine whether thechild is recovered and returnedhome safely, remains missing, or,worse yet, is found dead.7 No othercriminal investigation is as time-sensitive as this type of case, wherethe very life of the victim often maydepend on the swift and effectivemobilization of investigativeresources. The police agencys

administrative and investigative branches must rely on the patrolofficers assessment to determinethe most appropriate course of ac-

tion. Police agencies may jeopar-dize crucial investigative opportu-nities if they classify an abductioncase erroneously. Almost no othercrime investigation will stretch re-sources and generate public criti-cism as a missing child case. A lawenforcement agency may find itselfin the unenviable position of havingto make up for precious lost hoursor days if they mistakenly classifythe missing child as a runaway.

However, the large amount of vol-untary missing reports each yearmakes a full-scale law enforcementresponse unreasonable and inappro-

priate for all incidents.To assess a missing child report

accurately, responding officersmust explore the missing childslifestyle and behaviors. Officersmust have the motivation and avail-ability of resources necessary totake the extra time needed for suchan evaluation and to form an assess-

ment as to whether a voluntary departure proves consistent with thechilds behavior patterns.

The Parental Interview

The need to interview parentsseparately from other family mem-

bers and reporting parties remainscritical. Responding officers mayfeel reluctant to conduct separateinterviews of the parents because oftheir emotionally escalated state.Conversely, if the parents do notappear particularly concerned aboutthe childs absence, the officersmay not view separate interviews asnecessary. While they cannot

Ms. Willie serves in theMissing/Unidentified PersonsUnit, California Department ofJustice, in Sacramento,California.

Special Agent Simons, formerly apolice officer with the Portland,Oregon, Police Bureau, nowserves in the FBIs Redding,California, resident agency.


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Identify and separately inter-view close friends, school-mates, teachers, coworkers,and other significant individu-als. Again, although respond-ing officers reluctantly mayconduct separate interviews ofdistraught friends and familymembers, they must obtainindependent statements notinfluenced by other witnesses.The FBIs National Center forthe Analysis of Violent Crime

Money

Does the child have access to money or credit cards?Officers should verify if the child recently has accessed

bank accounts through ATM withdrawals or other means.Is money missing from parents or siblings? Officers alsoshould determine if the child possesses adequate skills toobtain employment and, therefore, additional money.

Transportation

Does the missing child have access to a vehicle, and ifso, is that vehicle present or absent? Officers shoulddetermine if the child is familiar with public transpor-tation, such as a public bus or train system, and conductappropriate follow-up contacts with local transportation

providers. Friends or family members unwittingly mayhave helped the child run away by providing some formof transportation.

Clothing/toiletries

Does evidence suggest that the child has packed anyclothing or toiletries? Remembering the possibility thata crime scene may exist within the childs residence,officers should attempt to verify what items, if any, areno longer present in the childs room. Missing clothes,

toiletries, makeup, medications, or other items of personalsignificance often may indicate predeparture preparations.

To successfully sustain a voluntary long-term absence, therunaway child must have access to resources that will satisfy

basic needs, such as food, shelter, and transportation.

Resources

(NCAVC) created a generalassessment form to distributeto family members and associ-ates to assist in police officersefforts to understand thechilds personality.10

Determine any history ofalcohol and other drug use.Does the child have any

particular medical conditionsor allergies? If so, are thechilds medications to treat the

existing conditions still presentin the house? The presence ofmedications that the childneeds may indicate an involun-

tary departure.

Identify and interview boy-friends/girlfriends; determinenormal dating patterns, includ-ing sexual activity. If themissing child is a postpubes-cent female, are there preg-nancy and abortion issues? Ifso, officers should considercontacting local pregnancyhealth and abortion clinics.Also, officers should familiar-

ize themselves with depart-ment policy and legal issuesconcerning confidentiality ifthey find the missing child atsuch a clinic.

Obtain and review any per-sonal writings, diaries, draw-ings, and schoolwork, includ-ing any entries into a personalcomputer or interaction withon-line computer systems orservices. A critical item often

overlooked in the missingchild call is the presence orabsence of journals/diaries.Besides the obvious insightsthat diaries may provide intothe childs state of mind, the

presence or absence of anywritten communication can

prove relevant. A child whoconsistently and regularly hasmemorialized thoughts andfeelings in writing might notdepart voluntarily withoutleaving some form of writtencommunication for people left

behind.11 Similarly, calendarsor schedules indicating

planned events may provide


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insight into the childs possiblemotivation for staying orleaving.

Determine any history of

running away, discontent withhome life, or suicidal ide-ations. Has the child disap-

peared voluntarily on prioroccasions? Officers shouldnote the last time the child ran

away and the length of timespent away. Did the child go tofriends, other family members,or a runaway shelter? Officers

should determine what enabledthe child to run away success-fully, or conversely, what

prevented the child fromsustaining a long-term ab-sence. What happened that

prompted the childs departurein prior absences? Officersshould determine if the childexhibited any runaway ges-

tures, such as staying out allnight, threats to leave, or other

behaviors that violated clearexpectations from parents orcaregivers. Officers shoulddetermine the existence of any

n June 1997, 16-year-old Mary Roberts (name

has been changed) disappeared from a small

Case Example

Imountain skiing community in northern Califor-nia. The towns crime rate is low, and residentsgenerally leave their doors and windows open inthe summer to take advantage of the cool moun-tain breeze. After living in the town for only 1year, Mary reportedly was yearning for the

bustling activity of Los Angeles, her hometown.At approximately 10 p.m. one night, Mary

was walking home alone through the quietstreets. She had just broken up with her boyfriendand was upset. Mary walked around the neigh-

borhood, talked with a friend, then started to head

home. Her walk was only a few blocks, and mostof the dark streets were empty. Without a sound,without a witness, and without a trace, Marydisappeared. She has never been found.

Local law enforcement officials initiallyclassified Mary as a runaway. She had, in recentweeks, spoke of leaving town and returning toLos Angeles where family members still lived.

Her friends knew she was heartbroken overtroubles with her boyfriend. Final exams atschool were looming as Mary struggled with herstudies. It seemed reasonable to think that,

perhaps, Mary had just decided to leave.After 2 weeks had passed with no contact

from Mary, investigators developed a sense thatMary had not disappeared voluntarily. An

assessment of Marys residence failed to yield

evidence of any preparation or packing. Investi-gators examining Marys bedroom discoveredher favorite purse, which family membersidentified as an item Mary never left homewithout. After looking at Marys availableresources, investigators discovered that she didnot have access to a vehicle, nor did she haveaccess to any money to fund a departure fromthe area. In creating a victimology for Mary,officers realized that she probably did not havethe survival skills or psychological stamina toengineer a long-term absence successfully.People knew Mary was afraid of the dark, so it

seemed unreasonable that she would choose thenighttime for an exit. Interviews with familymembers and friends revealed that Mary hadnever attempted a voluntary departure before.The investigation began to focus on Marysdisappearance as an abduction. As investigatorsquickly discovered, 2 weeks of lost time createdsubstantial investigative problems: witnessesrecollections were dulled, no trail existed forscent-tracking dogs to follow, and any potentialcrime scenes had been contaminated. Even morefrustrating, the investigators realized that Marysinitial runaway classification possibly had

provided additional time for her abductors tofurther conceal evidence of the crime. This caseremains open and unsolved.

November 2000 / 5


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prior suicide attempts orgestures by the child andconsider the possibility that thechild has disappeared as aresult of a self-inflicted injury.

These observations will assistofficers in crafting the childsvictimology, which will indicatewhether the child had the motiva-tion and capability of leaving vol-untarily. If the victim assessmentsuggests that these two factors donot exist, officers seriously mustconsider the possibility that an ab-

duction has occurred.

Scene Assessment

In a survey of police agencies,approximately 93 percent of lawenforcement officers responding toa missing child call state that theyusually interview the parents orguardian in person. However, only41 percent routinely would searchthe childs home.12 A search of themissing childs residence can pro-vide a preliminary assessment with

useful information to officers.Upon arriving at the childs resi-dence or last known location, offi-cers must remember that the entirehouse may prove a potential crime

The FBIs National Center for the Analysis of Violent Crimehas published a manual entitled Child Abduction Response

Planan investigative tool for first responders and investi-

gators. Law enforcement agencies can request a copy bycontacting the NCAVC coordinator at their local FBI fieldoffice.

Additionally, the National Center for Missing and ExploitedChildren (NCMEC) has published an investigative resourceguide entitledInvestigators Guide to Missing Child Cases.Agencies can contact NCMEC at 1-800-THE-LOST.

Investigative Resources

scene and they should take all nec-essary steps to prevent the destruc-

tion of evidence. Officers can makesome important observations. Theycan note the presence or absence ofobvious signs of disruption, such asforced entry. How did the offenderand the victim enter and exit thehouse? If the house appears disor-derly or in disarray, officers shouldcompare this with the childs per-sonal living space and determine ifthis remains consistent with the waythe room appears now. Officers

should note any dramatic changesin the childs room that coincidewith the departure, which may indi-cate predeparture preparation oran attempt by an abductor to con-ceal evidence. Officers should at-tempt to verify if any of the childsclothing or toiletries are missingthat would indicate packing or

preparation. If officers or familymembers cannot find any suchitems missing nor evidence of pack-ing, officers must consider the pos-

sibility that the child may have beenabducted.

Has the child left any commu-nication for discovery by parentsor guardians? This may include

written letters, voice mail mes-sages, and computer messages. Lawenforcement officers should con-sider all modes of communication

available to the missing child, in-cluding their access to on-line chatrooms and communication withothers via the Internet.

While the initial response logi-cally may include an examinationof the childs room, responding of-ficers also should consider an ex-amination of the parents room orother areas of the house. If no itemsappear missing from the childsroom, are items missing from other

areas of the house that may provideadditional resources?Officers should attempt to com-

pile and examine a list of knownassociates or family members thatthe child most likely would seekassistance from. Should those asso-ciates or family members be un-aware of the childs whereabouts,officers must consider this as part ofthe childs lack of available re-sources and once again contemplatethe possibility that someone has ab-

ducted the child.

Time Factors

How long does a runaway childtypically stay away from home, andhow does the passage of timeinfluence the classification of amissing child case? The CaliforniaDepartment of Justices Missing/Unidentified Persons Unit has re-

ported the following trends in run-away returns:

Time Frame Percent Returnedwithin 7 days............50 percent7-14 days..................30 percent14-30 days................17 percent30+ days.....................3 percent

-


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November 2000 / 7

These statistics indicate that themajority of runaway children can-not sustain an absence for more than2 weeks. In general, the longer the

absence, the greater the likelihoodthat an individual has abducted thechild or that the child has fallenvictim to a violent crime. If the childhas a history of running away, offi-cers should determine the length oftime the child remained missingduring previous absences. If thelength of time in the current absencegrossly exceeds previous absences,officers should consider the currentdisappearance a deviation from nor-

mal behavior patterns.Responding officers alsoshould note the amount of time thattranspired between the last knownsighting of the missing child andwhen the parents or guardianalerted authorities. While 24 hoursor more may indicate apathy or ne-glect, this time frame also can per-

petuate the common misconceptionthat an individual must be missingfor 24 hours before law enforce-ment can respond. The responding

officers should construct a time lineidentifying the parents activitiesduring this window. This time linehighlights family dynamics andclarifies the parents potential rolein the childs disappearance.13

CONCLUSION

Given the extraordinaryamount of time and resources anabducted child case can drain froma police department, law enforce-ment agencies should take measuresto ensure that they do not label anabduction as a runawayan errorthat can cripple the subsequent in-vestigation. This mistaken labeling

often may occur during the initialresponse, where the patrol officerstruggles to assess the circum-stances of a missing child report

appropriately. While the statisticssuggest that a majority of missingchildren have run away, overlook-ing indicators of an abduction can

jeopardize attempts to locate themissing child and expose law en-forcement agencies to civil liability.Although the large number of run-away cases makes a large-scale re-sponse impractical in every circum-stance, police officers have theresponsibility of examining each in-

dividual case with a critical, in-formed eye, and as the evidence in-dicates, they should always err onthe side of caution.

Finally, law enforcement agen-cies must provide their patrol offi-cers with adequate resources andtraining that will allow for a thor-ough assessment of the facts. Re-search indicates that when policeagencies pursue missing child caseswith vigor, child recovery outcomesimprove.14 In spite of the often am-

biguous nature of the missing childreport, law enforcement officers

should make every attempt to assessthe situation accurately in an effortto classify the missing childappropriately.

Endnotes1 For purposes of this article, the term child

is used when referring to anyone under 18 yearsof age.

2Guidelines and Curriculum for HandlingMissing Person and Runaway Cases,Sacramento, CA: California Commission onPeace Officer Standards and Training, 1989.

3 U.S. Department of Justice, Office ofJuvenile Justice and Delinquency Prevention,National Incidence Studies of Missing,

Abducted, Runaway, and Thrownaway

Children in America (Washington, DC, 1990),97.

4 J.J. Collins, M.E. McCalla, L.L. Powers,and E.S. Stutts, The Police and MissingChildren: Findings from a National Survey,(Research Triangle Park, NC: ResearchTriangle Institute, 1989), 11.

5 National Center for Missing and ExploitedChildren,Missing and Abducted Children: ALaw Enforcement Guide to Case Investigation

and Program Management(Alexandria, VA,1994), 93.

6 K. Hanfland, R. Keppel, and J. Weis, CaseManagement for Missing Children: Homicide

Investigation, Washington State AttorneyGenerals Office, 1997.

7 National Center for Missing and Exploited

Children,Investigators Guide to Missing ChildCases (Alexandria, VA, 1987), 2.8 Ibid, 6.9 Adopted from the Federal Bureau of

Investigation, Critical Incident ResponseGroup, National Center for the Analysis ofViolent Crime, Child Abduction ResponsePlan, (Quantico, VA), 15-16.

10 For more information, agencies cancontact the NCAVC coordinator at their localFBI field office.

11 Interview with Supervisory Special AgentMark Hilts, Federal Bureau of Investigation,NCAVC, March 2, 1999.

12 Supra note 3, 63. Law enforcementofficers should consult with their departments

legal advisors to ensure that any search of aresidence is legal.

13 Supra note 9, 17.14 Supra note 4, 137.

Almost no othercrime investigationwill stretch resourcesand generate public

criticism as amissing child case.


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Perspective

Professional PoliceTraffic StopsStrategies to Address

Racial ProfilingBy Grady Carrick, M.S., M.P.A.

Major Carrick serves asa Florida Highway Patrol

troop commander fornortheast Florida.

he phenomenon of targeting people of colorin traffic enforcement as a pretext to furtherT

investigation or search describes the term racialprofiling. To professional law enforcement officersand the public, racial profiling is blatantly objection-able and indefensible. Basically, it amounts to theimproper practice of selecting potential criminalsuspects because of their race or ethnicity.

The law enforcement response to racial profiling,termedprofessional police traffic stops, can ensurethat officers base their behavior on sound legalreason, safety for officers and citizens, and theaccepted standards of modern policing. The reasonfor the stop and any enforcement action of the officermust be legally and morally defensible. The mechani-cal elements of executing a professional police trafficstop aside, agencies need a comprehensive strategyfor success. To implement professional police trafficstops, agencies must adopt a three-dimensionalapproach. Organizational policy, officer training, anddata collection represent the essential ingredients of acomprehensive agency strategy.

Agency Policy

Policy formation is the process of establishing anew direction for agency philosophy or employeeconduct. Agencies must develop a well-structured

policy concerning professional traffic stops, outliningthe conduct of officers and prohibition of discrimina-tory practices. Managers, supervisors, and the entireworkforce must embrace and employ the policy.

Involving the organizational decision makers andmanagers in the policy development process ensures

that the agency leader works from complete, accurateinformation and assumptions. It also dramaticallyincreases the chance that subordinate supervisors willbuy into the new agenda. Workshop discussions on

the issue of racial profiling will elevate the level ofinformation and institutional knowledge about the

problem. Administrators can defuse potential contro-versy with officers by assuring them that the objective

of the agency is the protection of individual rights forall citizens.

Establishing policy in a potentially controversialarena, such as racial profiling, requires leadershipfrom the top of the organization. Once an agency hasestablished its direction through a well-structured

policy, the agencys leaders must bring the messagepersonally to the employees, as well as the public.Management by walking around represents a soundleadership practice and proves crucial when imple-menting a policy regarding racial profiling. Adminis-trators must demonstrate that they hold personal

convictions about the issue and welcome questions onthe topic. By taking the message to the public, theyprovide assurance that their agency will not tolerateany type of racial discrimination.

Officer Training

Integrating discussion about racial profiling intodiversity and refresher training proves beneficial.Agencies may not need to create an additional forumfor the issue, provided they adequately can infuse it


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into an existing program. Nationally, the PoliceOfficer Standards and Training Commission shouldevaluate the topic for inclusion in current diversitytraining programs required for all officers. Moreover,

the discussion of racial profiling is appropriate forboth entry-level and in-service officer training.

The body of knowledge concerning racial profil-ing is growing rapidly. Reams of information areavailable on the Internet, and many media stories arereadily obtainable. While empirical data is lacking,stories and accounts from the public can assistofficers in understanding the scope of the problemand the emotions created by racial profiling. Mostcases focus on stops to search for contraband invehicles, but the tentacles of the misconduct reachinto every aspect of life for the targeted motorist.Agencies may want to consult local chapters of the

National Association for the Advancement of ColoredPeople or the American Civil Liberties Union toobtain accounts and examples for use in training

programs.Raising sensitivity to the issue,

as well as reinforcing the agencysposition, stands as the objective ofthe training. Agencies must ensurethat a clear message is delivered toall employeesracial profiling isnot an acceptable law enforcement

practice and will not be tolerated.

Data Collection

Agencies must offer a skepti-cal public more than rhetoricconcerning their stance on theissue. Statistics comparing traffic stop demographicswith population demographics can assure the publicthat an agency does not practice racial profiling. Inshort, agencies must collect information that showsthat they do not stop a disproportionate number ofminorities. According to recent proposed federallegislation,1 traffic stop data collection should includethe

reason for the stop;

race, sex, approximate age, and ethnicity of theindividual stopped;

type of search conducted, if any;

rationale for the search;

nature of contraband recovered, if any; and

enforcement action taken during the stop (e.g.,

ticket issued or warning given).While traffic citation data can prove useful,critics argue that many stops do not result in theissuance of a citation. Notably, the questionablestops that are predicated on no articulatable reasoncannot result in enforcement action because they werenot the result of a violation occurring. Officers whouse profiling tactics typically do not give paper toindividuals they stop who subsequently turn out not to

be criminals. Therefore, agencies may find trafficticket or other statistical information a good starting

point, but may need a more comprehensive data set toprovide insight into their use or nonuse of profiles.

To obtain complete data, agencies may need tomodify their traffic citation, written warning, or fieldinterview forms. An alternative to these changes may

include having officers complete aseparate form that captures thedesired information. Either way, asnapshot of who officers arestopping is needed. Policy shouldrequire officers to document eachtraffic stop they initiate. Byrequiring data collection on allstops, agencies obtain a complete

data set and an accurate depictionof officer actions. Complete datacollection on all stops also mini-mizes the ability of unethicalofficers to hide improper conduct.

Many jurisdictions have taken the initiative tobegin tracking traffic stop statistics, including SanDiego and San Jose, California; Houston, Texas; andmany others. Two states, Connecticut and NorthCarolina, have enacted legislation that will requiresuch record keeping. Recently, the Florida HighwayPatrol, like other state police agencies, has imple-mented collection. Many other states and jurisdictions

are considering similar action.While this trend toward voluntary data collection

can result in aggregate statistics demonstrating that anagencys enforcement action is consistent with popu-lation demographics, it also can monitor individual

...racial profiling isblatantly

objectionableand indefensible.

November 2000 / 9


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performance. At the officer level, agencies can usethis data to ensure that individual officers do not basetheir enforcement on racial profiles. Using this two-

pronged data analysis, agencies can address ad-

equately any issues that arise concerning racialprofiling.

Conclusion

Both state and federal lawmakers continue toconsider legislation prohibiting racial profiling. Thisissue concerns every community, and law enforce-ment must recognize these concerns. Citizen percep-tions regarding professional police practices mayrequire agency modification of policy, additionaltraining, and statistical monitoring. While the topic ofracial profiling often proves uncomfortable for lawenforcement, ensuring that appropriate measures arein place reduces some of the anxiety that accompaniesthe issue.

Besides a well-structured policy and effectivetraining, reliable data can bolster agency prohibitionof such practices and arm law enforcement officials

with the facts necessary to assure their communitiesthat they do not employ racial profiling. Voluntarycollection of traffic stop data is an attractive route foragencies who may undertake collection on their own,

or as part of a broader program among multipleagencies. A systematic and standardized approach isdesirable, implemented at the state level where

possible. Uniformity allows for a larger data set thatwill increase reliability and validity in the statisticsderived.

The highly visible function of police patrol andtraffic enforcement mandates professionalism intraffic stops. By implementing a strategy that ad-dresses racial profiling, agencies move closer to

professionalism. Moreover, implementing a programfor professional police traffic stops can protect and

strengthen the bond of trust between the public andthe police.

Endnotes1 Traffic Stop Statistics Act of 1999, U.S. Senate Bill 821, 106th

Congress, April 15, 1999.


T heFBI Law Enforcement Bulletin staff invitesyou to communicate with us via e-mail. OurInternet address is [email protected] .

We would like to know your thoughts oncontemporary law enforcement issues. We

welcome your comments, questions, andsuggestions concerning the magazine.

Please include your name, title, andagency on all e-mail messages.

Also,the Bulletin is availablefor viewing or downloading on anumber of computer services,as well as the FBIs home page.The home page address ishttp://www.fbi.gov.

The BulletinsE-mail Address


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November 2000 / 11

n January 1997, Ted HongVictor Lee attended a meet-ing at Avery Denison, one of

manufactures and sells pressure-sensitive products2 in Taiwan,Malaysia, Singapore, the UnitedStates, and the Peoples Republic ofChina.3 Avery Denison estimatedits lost at over $50 million.

Within U.S. borders, the FBIhas assumed the role of understand-ing and dealing with the problem ofstealing secrets. The economy isshifting steadily from one based ontangible goods to one based on in-

formation, commonly referred to asintellectual property. The UnitedStates produces much of theworlds intellectual property andremains the primary target ofeconomic espionage. The most

frequently targeted industries in-clude aerospace, biotechnology,computer hardware and software,transportation technology, defenseand armaments technology, energyresearch, basic research, and la-sers.4 Estimates of losses from eco-nomic espionage in the UnitedStates range from almost $2 billionto $240 billion per year.5

Prior to 1996, state and federallaws did not address economic es-

pionage specifically, or in particu-lar, the theft of intellectual prop-erty, in any systematic manner.6

But, federal law enforcement hasa new weapon in its arsenal touse against industrial thievesthe

Ithe largest manufacturers of adhe-sive products in the United States,where he and others learned of a

binder containing confidential in-formation on the companys plansfor the Far East. Later, closed-cir-cuit television showed Lee gainingaccess three times to the file drawerwhere the binder was kept, and

wearing gloves once, when he re-moved it from the office for a fewminutes.1 Confronted by FBI agentsin March 1997, Lee admitted that hehad provided confidential informa-tion to Four Pillars, a company that

Stealing Secrets SolvedExamining the EconomicEspionage Act of 1996By THOMAS R. STUTLER

Digital Stock


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Economic Espionage Act of 1996, acomprehensive federal criminalstatute that helps law enforcementinvestigate economic espionage and

punish criminals and spies in an un-precedented manner.

BEHIND THE LAW

On May 9, 1996, FBI DirectorLouis J. Freeh testified to Congressthat individuals or organizationsfrom 23 different countries were

conducting economic espionage ac-tivity against the United States.Long-time political and military al-lies target the United States and, insome cases, take advantage of theirconsiderable legitimate access toU.S. sources to collect sensitive in-formation. Experts have identifiedforeign nations involved in 21 per-cent of incidents concerning intel-lectual property loss where theyknew the nationality of the perpe-trators.7 Some countries maintain amilitary alliance with the UnitedStates and use their intelligence ser-vices to simultaneously target U.S.technologies. In cases not involving

a foreign government or a company,the perpetrator of the theft hada trust relationship with thecompany, such as an employee orformer employee, retiree, contrac-tor, vendor supplier, consultant, or

business partner.Since the signing of the Consti-

tution, corporations to Congresshave sought hard to protect peoplewho create ideas and punish peoplewho steal ideas, regardless of

whether they are competitors orspies. Many companies do not haveresources to pursue a defendant,and some are confounded by situa-tions involving foreign defendantsor those with no assets. In otherinstances, companies have declinedto pursue legal remedies to avoidthe discovery process because itwould force the disclosure of thesensitive information they sought to

protect. History has shown that thesecurity and survival of a nation de-

pends on how well it keeps secrets.8

The development of trade secrets,also known as proprietary eco-nomic information, represents an

integral part of economic well- being in the United States. More-over, the nations economic inter-ests are a part of its national security

interests. Thus, threats to theeconomy jeopardize the nations vi-tal security interest. Congress re-mains committed to stopping theoften-elusive adversary, as evi-denced by its efforts in this area.

Unlike patents, copyrights, andtrademarks, no federal trade secretsstatute existed. On October 11,1996, the President signed the Eco-nomic Espionage Act,9 which gavethe U.S. Department of Justice the

authority to prosecute cases bothdomestically and internationally inthe area of economic espionage.Thus, the theft of trade secrets be-came a federal criminal offense.This echoes the civil view thattrade secret protection is an impor-tant part of intellectual property thatis of growing importance to thecompetitiveness of American in-dustry. The future of the nation de-

pends in no small part on the effi-ciency of industry, and the

efficiency of industry depends in nosmall part on the protection of intel-lectual property.10 Finally, long-standing civil remedies that recog-nize the value of intellectual

property now have a twin in thecriminal world.

Previously, most federal crimi-nal enforcement in this area usedthe Interstate Transportation of Sto-len Property Act (ITSP),11 the mailfraud statute,12 or the fraud by wirestatute.13 Agencies used mail andwire fraud statutes on a limited ba-sis because they required use ofmail or interstate communications.Also, the U.S. Supreme Court

Finally, long-standingcivil remedies thatrecognize the value

of intellectualproperty now have

a twin in thecriminal world.

Special Agent Stutler serves in the FBIsOakland, California, resident agency.


14/35

November 2000 / 13

essentially negated the use of theITSP Act in intellectual propertycases by holding that the elementof physical goods, wares, or mer-

chandise in sections 2314 and 2315is critical. The limitation which this

places on the reach of the ITSP Actis imposed by the statute itself, andmust be observed.14 With littlechance that other courts would ruledifferently to expand the ITSPActa 1930s vintage lawto in-clude intellectual property, Con-gress enacted the Economic Espio-nage Act of 1996, which effectively

provides a unique and independent

means to combat economicespionage.

UNDERSTANDING THE LAW

The Economic Espionage Actcreates a new crime of wrongfullycopying or otherwise controllingtrade secrets, if done with the intenteither to benefit a foreign govern-ment, instrumentality, or agent, orto disadvantage the rightful ownerof the trade secret and for the eco-nomic benefit of another person.

The law applies to conduct occur-ring in the United States, and toconduct occurring outside theUnited States provided that the of-fender is either a U.S. citizen orresident alien, an organization sub-stantially owned or controlled by acitizen or permanent resident, or anorganization incorporated in theUnited States or that an act in fur-therance of the offense was com-mitted in the United States.

As intangible assets, such asintellectual property and tradesecrets, became increasinglyimportant to a companys survival,Congress expanded Title 18 with

two sections: Section 1831, Eco-nomic Espionage, and Section1832, Theft of Trade Secrets, whichtogether form the Economic Es-

pionage Act of 1996. In an effort to protect corporate equities fromspies, as well as criminals, Con-gress punishes them both under thislaw.

What Is Economic Espionage?

Economic espionage expandson concepts related to industrial es-

pionage. It includes activity by for-eign governments that might use theclassic espionage apparatus to spyon a company, and ranges from be-havior such as two U.S. companies

attempting to uncover each others bid proposals to the disgruntledformer employee who leaves thecompany with a computer diskettefull of engineering schematics.15

The Economic Espionage Actprohibits the taking, copying, or re-ceiving of trade secrets without au-thorization. Section 1831 prohibitsanyone from doing so for the ben-efit of any foreign government,foreign instrumentality, or foreignagent. Interestingly, Section 1832deals with domestic theft and

requires an economic benefit,which recognizes that the foreignentity necessarily might not receivean economic benefit. The Economic

Espionage Act is not intended toapply to innocent innovators or toindividuals who seek to capitalizeon the personal knowledge, skill, orabilities they may have developed.16

The statute is not intended to pros-ecute employees who change em-

ployers or start their own compa-nies using general knowledge andskills developed while employed.However, Congress purposelycriminalized the act of individuals

who leave their job and use theirknowledge about specific productsor processes in order to duplicatethem or develop similar goods forthemselves or a new employer tocompete with their formercompany.

An earlier version of the statutecontained language that exemptedknowledge, experience, training orskill that a person lawfully acquiresduring their work as an employeefrom coverage under the act. Some

commentators speculate that bysubjecting employees and their sub-sequent employers to potentialcriminal liability in this area, thelaw will hamper the mobility of em-

ployees and have a chilling effecton this mobility, in part responsiblefor the vibrancy of the Americaneconomy and substantially condu-cive to the stability of the nationsdemocracy. Perhaps in recognitionof this, the U.S. Attorney Generalstated that the Attorney GeneralsOffice must review all complaints

brought under this act for the 5years following its enactment in1996.17

The economy isshifting steadily fromone based on tangiblegoods to one based

on information....


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What Are Trade Secrets?

Two key concepts used in theEconomic Espionage Act involvethe requirement that the economic

information involved is a secret inthe legal sense and that the owner ofsecret information takes reasonablemeasures to keep it a secret.18 Previ-ously, the courts were reluctant toregard intellectual property as tan-gible goods to have protection un-der federal criminal law. In the stat-ute, Congress uses terms usuallyassociated with ownership of tan-gible property. A proprietary secretfor purposes of the economic espio-

nage law applies to information notgenerally known to the public or the business, scientific, or educationalcommunity in which the ownermight seek to use the information.19

What ConstitutesReasonable Measures?

A trade secret requires that theowner of the information must havetaken reasonable and active mea-sures to protect the informationfrom becoming known to unautho-

rized individuals. Thus, if ownersfail to attempt to safeguard their

proprietary information, no one canbe rightfully accused of misappro-priating it.

The term reasonable measuresis not defined specifically, but areading of the House Report indi-cates that, while owners of informa-tion must take reasonable steps tokeep the information secret, ownersdo not have to exhaust every con-

ceivable means to keep the informa-tion secure. Thus, reasonablenesswill vary from case to case and de-

pend upon the nature of the infor-mation in question.

CONFIDENTIALITY ISSUES

Congress recognized the needto preserve the confidential andvaluable nature of trade secrets.

Therefore, the Economic EspionageAct contains a provision that autho-rizes the court to issue orders duringlegal proceedings consistent withthe requirements of the FederalRules of Criminal and Civil Proce-dure, the Federal Rules of Evi-dence, and all other applicable laws.The House Judiciary Committee

pointed out that without such a pro-vision, owners may be reluctant tocooperate in prosecutions for fear

of further exposing their trade se-crets to public view, thus furtherdevaluing or even destroying theirworth.

reluctant to issue protective ordersout of concern for the defendantsright to a fair trial, companies mightdevelop reluctance to bring com-

plaints under this statute in fear thattheir secrets will suffer even

broader exposure.

PUNISHMENT

The Economic Espionage Actof 1996 punishes criminals andspies in an unprecedented manner.It authorizes substantial sentencesfor individual and organizationaldefendants and can include finesand forfeiture penalties. Individuals

may receive fines of up to $500,000and an imprisonment sentence of upto 15 years for economic espionage

benefitting foreign entities andfines of up to $5 million and impris-onment for up to 10 years for thetheft of a trade secret.21 Organiza-tions may receive fines up to $10million for economic espionage andup to $5 million for the theft of atrade secret.22 Additionally, a courtmay require defendants to forfeitany property or proceeds to the

United States obtained as the resultof the violation of the law as man-dated in the Comprehensive DrugAbuse Prevention Control Act of1970.23 This statute defines prop-erty subject to forfeiture not only as

property derived directly or indi-rectly from the offense, but alsoproperty used, or intended to beused, in any manner or part, to com-mit, or to facilitate the commissionof such violation.24

Some individuals argue that,unlike copyrights or patents, tradesecrets are not defined clearly andmay represent very broad and gen-eral business methods or ideas that

Because courts only recentlyhave begun to test this provision ofthe statute, it remains too early totell how it will be implemented inactual practice, but it could provea serious problem in cases where

the secret to be protected is one ofthe central issues.20 The criminaldefendant has the right to a publictrial with all pertinent facts placed

before a jury. Should courts prove

The EconomicEspionage Act

of 1996 punishescriminals and spiesin an unprecedented

manner.


16/35

November 2000 / 15

affect wide parts of a business orentire industry. Large forfeiturescould result based on the theft of asingle idea. Similarly, the second

provision, which allows forfeitureof property used in any manner tofacilitate violations, could subjectan entire international computernetwork to forfeiture because onecomputer was used. Such broaddefinitions of forfeitable propertymay have a stifling effect on lawful

business behavior because of therisk of consequences from a minorviolation.25

Additionally, the statute allows

the U.S. government to apply for aninjunction against a person commit-ting a violation of the Economic Es-

pionage statute. The individual vic-tims and private parties have thetraditional injunctive relief avail-able in state courts.

THE ROLE OF LAWENFORCEMENT

The Economic Espionage Actof 1996 expands the FBIs criminalinvestigative jurisdiction and en-

hances its existing counterintelli-gence responsibilities. At present,the FBI investigates approximately270 criminal violations and is thelead counterintelligence agency inthe United States, responsible forsafeguarding the nation againstthe threat posed by foreign intelli-gence services. In the counterintel-ligence world, the FBI thwarts ef-forts through a variety of means,such as identifying threats, stoppingsuch operations through court-authorized electronic or physicalsurveillance, and recruiting mem-

bers of foreign intelligence serviceas double agents.26

State and local law enforcementofficials understanding of theEconomic Espionage Act helps be-cause oftentimes they receive the

first call from a victim companysuffering a loss or theft of intellec-tual property. An understanding ofthe bigger picture aids initial ef-forts to collect evidence. For in-stance, a police officer respondingto a trespasser sifting through gar-

bage cans on private property mighthave the only law enforcement op-

portunity to uncover a widespread

by police officers, detectives, andcorporate security personnel re-mains invaluable for tracking anduncovering schemes to commit

economic espionage.29

RECOMMENDATIONS

Due to the nature of economicespionage, violations do not occuron a daily basis. Nor do these viola-tions occur typically in plain viewlike most white collar crimes, suchas fraud, money laundering, em-

bezzlement, and advance feeschemes. Law enforcement discov-ers most economic espionage viola-tions through the use of criminalinformants, cooperating witnesses,and victims. Liaison with corporatesecurity personnel also may lead todeveloping cases in this area.

Federal, state, and local au-thorities are working together to in-crease the awareness and threat ofeconomic espionage. Many agen-cies take a proactive approach, suchas the FBIs ANSIR program thatfocuses on intellectual property by

promoting the existence of the Eco-

nomic Espionage Act, while somedepartments offer case studies forcorporate entities to digest.

On a day-to-day basis, local lawenforcements understanding ofthis violation advertises the law tothe general public and corporations.The increasing popularity of usinge-mail and Web sites and conduct-ing business over the Internet re-sults in companies becoming vic-tims repeatedly without everknowing it. Oftentimes, the corpo-rate world does not consider secu-rity until after a company incurs aloss. Education remains one of thekeys to success.

dumpster diving effort by a busi-ness competitor or foreign entity tocollect intelligence.27 Trespassersof this nature often have multipleidentifications,28 a vehicle nearbycontaining more trash collectedfrom other companies, and a timeschedule to deliver trash to a centrallocation. Trespassers who claimthey recycle for money usually donot know the location of the recy-cling center. Information, such asnames, times, locations, and vehicledescription information developed

Digital Stock


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CONCLUSION

The days of catching the spyor the criminal sneaking boxes orfolders out the door in a briefcase

no longer exist. Today, enoughinformation to fill a public libraryeasily fits on a CD-ROM or can goundetected over the Internet in sec-onds at the push of a button. Lawenforcement and security personnelwho investigate economic crimesshould realize that victims of eco-nomic espionage, both individualand corporate, reluctantly may dis-close information or work with lawenforcement on these matters.

Companies answer to shareholders,consumers, and investors and,therefore, often make their deci-sions not with concern for reportingillegal criminal activity but ratherwith reference to how disclosurewill affect the bottom line and mar-ket share. Companies may believethat becoming involved in this sortof criminal prosecution literallycould prove counterproductive. Ul-timately, they have to protect them-selves and often only with the help

of law enforcement.Fortunately, the loss of intellec-

tual property is no longer just a civilmatter and, therefore, law enforce-ment should not treat it as one. TheEconomic Espionage and Theft ofTrade Secrets Act of 1996 providesa powerful and viable tool for lawenforcement to protect individualsand corporations, while seriously

punishing spies and thieves.

Endnotes1United States of America v. Pin Yen Yang

et al., Criminal No. 97 CR 288 (N.D. Ohio,September 4, 1997).

2 For example, pressure-sensitive productsinclude address and mailing labels designed topass through all types of printers withoutadversely affecting the adhesive backing of thelabel.

3 Supra note 1.4 Senator Specter, Congress, U.S. Senate,

speaking on the Economic Espionage Act of1996 to the Select Committee on Intelligence ofthe U.S. Senate and the Subcommittee onTerrorism, Technology, and GovernmentInformation of the Committee on the Judiciaryof the U.S. Senate. 104th Cong., 2nd Session,S12208 (daily ed. October 2, 1996).

5

See, e.g., Peter J. G. Toren, TheProsecution of Trade Secrets Thefts UnderFederal Law, 22Pepperdine Law Review 59,at 62 (1994) ($1.8 billion) and Sam Perry,Economic Espionage: The Corporate Threat,($240 billion) available from http://the-south.com/USInternational/econ.html;

accessed September 11, 2000.6 State law did not adequately fill the gaps

left by federal law. While the majority of stateshave some form of civil remedy for the theft ofproprietary economic information (tradesecrets), either by recognizing a tort for themisappropriation of the information or byenforcing contracts governing the use of theinformation, these civil remedies often are

insufficient. House Report 104-788, 104thCong., 2nd Session (September 16, 1996).

7 Richard J. Heffernan, Dan T. Swarthwood,Trends in Intellectual Property Loss Survey,

American Society of Industrial Security,(Arlington, VA: March 1, 1996).

8 Economic Espionage Act of 1996, 104thCong., 2nd sess., H.R. 104-788 (September 16,1996).

9 18 U.S.C. 1831 (Economic Espionage)and 18 U.S. C. 1832 (Theft of Trade Secrets).

10Rockwell Graphic Systems, Inc., v. DEVIndustries, 925 F.2d 174, 180 (7th Cir. 1991).

11 18 U.S.C. 2314.12 18 U.S.C. 1341.13 18 U.S.C. 1343.14United States vs. Brown, 925 F.2d 1301

(10th Cir. 1991).15 Supra note 8.16 Supra note 8.17 21 U.S.C. 853.1818 U.S.C. 1839. The term owner, with

respect to a trade secret, means the person orentity in whom or in which rightful legal orequitable title to or license in the trade secret is

reposed.19 Supra note 8.20 See U.S. v. Kai-Lo Hsu, 982 F. Supp.

1022 (E.D. Pa. 1997) 20, cited as example.21 21 U.S.C. 1831 and 1832.22 Ibid.23 21 U.S.C. 853.24 21 U.S.C. 853(a)(2).25 Leslie G. Berkowitz, The Economic

Espionage Act of 1996: An Experiment inUnintended Consequences? 26 ColoradoLawyer12 (December 1997).

26 Speech by Howard M. Shapiro, formerGeneral Counsel, FBI, at a Cornell Law Schoolforum sponsored by the Criminal Justice

Society, October 18, 1994.27 Dumpster diving is the act of goingthrough someones trash to get informationabout them. As a general rule, trash on the curbhas no expectation of privacy while trash onprivate property does.

28 More than five false identifications maybe a violation of federal law under the Fraudand Related Activity to IdentificationDocuments (FRAID) Act, 18 U.S.C. 1028.

29 The FBI uses the Awareness of NationalSecurity Issues and Response (ANSIR) programto communicate with industry, provideadvisories and alerts on topics such aseconomic espionage, and present unclassifiedbriefings to corporate security personnel

nationwide. For more information or to make areferral, contact the FBI ANSIR coordinator atthe local FBI field office, or accesswww.fbi.gov.

Law enforcementdiscovers mosteconomic espionage

violations throughthe use of criminal

informants,cooperating witnesses,

and victims.


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November 2000 / 17

Book Review

Police Auditing: Theories and Practicesby Allan Y. Jiao, Ph.D., Charles C. Thomas,Springfield, Illinois, 1999.

Police Auditingfocuses primarily ontheories and practices in law enforcementauditing. It provides a comprehensive viewof auditing by examining empirical standards,

procedures, and practices and evaluations ofconducting and responding to such audits.

Developing and maintaining positivechanges in law enforcement departments thateliminate gaps in performance and enhanceinterface with technology and the communityare stressed inPolice Auditing. These improve-

ments help managers develop their short- andlong-range strategies and operational planningefforts. This book does not cover accounting

practices and is not a summary of a scientificresearch report.

The book provides law enforcement withvarious auditing methods to assist police depart-ments in becoming more efficient, effective,and financially competent. It accomplishes thisthrough a model for planned change and policeauditing that incorporates certain interrelatedelements applicable to police auditing, regard-less of a departments mission and size.

This book examines eight components ofimplementing auditing changes that will giveshape and direction to a law enforcementagencys vision and culture. Some examplesof these include coping with external/internal

pressures, closing performance gaps, meetinggoals and objectives, and developing solutionsand alternatives. These points will aid adminis-trators in developing a systematic and compre-hensive review in improving their departments.

The author served as a member of a munic-ipal budget review task force and as chairman

of a city public safety committee that evaluatedlaw enforcement responses to various audit

recommendations. These credentials allow himto draw upon his research and practical auditexperience at the city level and from govern-mental and international departments to providevaluable information, in a systematic approach,to the entire law enforcement community. Heidentifies outstanding demonstrated audit proce-dures and methods of improved audit effective-ness and integrates them throughout the book.

In the chapter titled Variety Police Au-dits, the author makes a relevant point that lawenforcement auditing is not tied just to financialrecords involving allocation and expendituresof the budget and grants. The audit must address

the total aspects of all law enforcement opera-tions that compose and interface with the booksidentified elements that will ultimately providelocal residents and merchants with a safer livingand business environment.

The author ends each chapter with anabstract to help auditors prepare an executivesummary for distribution throughout lawenforcement oversight offices and their organi-zation and improve overall audit performance.When police auditors and department managersapply the procedures described inPolice

Auditing, the benefits can lead beyond the

basics of just reviewing and documenting andaid them in completing a variety of otherdepartment goals. Police executives, supervi-sors, accountants, audit team members, depart-ment trainers, citizen review board members,and academic personnel should addPolice

Auditingto their intended reading list.

Reviewed byLarry R. Moore

Certified Emergency ManagerInternational Association

of Emergency ManagersKnoxville, Tennessee


19/35


etectives of the BaltimoreCounty, Maryland, PoliceDepartment began pursu-

The

MicroscopicSlideA PotentialDNAReservoirBy JOHN E. SMIALEK, M.D.,CHARLOTTE WORD, Ph.D., andARTHUR E. WESTVEER, M.L.A.

Ding a lead in a sexual-assault homi-cide case, which had remained un-solved for 19 years. In an effort toidentify DNA evidence from thevictim, officers requested the mi-croscopic slides, made during theautopsy, from the chief medicalexaminers office. Because the pro-

cess of extracting DNA results inthe loss of cellular material on theslide, the medical examiner photo-graphed and delivered the slides,through the proper chain of cus-tody, to the Baltimore County Po-lice Department, who, subse-quently, delivered them to anationally recognized DNA labora-tory. In turn, the laboratory staffextracted sufficient DNA from theslides to produce a satisfactoryDNA profile to assist in solving thecase.

DNA, also known as a geneticfingerprint, exists in biologicalmaterials (e.g., blood, semen,skin cells, bone, saliva, and

perspiration). Individuals leaveDNA evidence on many items, suchas cigarette butts, facial tissues, andeyeglasses. Law enforcement offic-ers only need a few cells from anindividual to recover DNA.

DNA testing has identified per-petrators years after they have com-mitted a crime.1 Evidence retainedin adjudicated cases may exoneratean individual accused wronglyand identify the true perpetrator.DNA material from homicide

investigation scenes provides valu-able evidence. Therefore, law en-forcement officers must inform in-vestigators when DNA materialexists and obtain, secure, and pre-serve the DNA evidence properly.

Obtaining and Securing

DNA MaterialEvidence obtained decades ago

can contain forensically valuableDNA material. However, environ-mental factors that exist at a crime

PhotoDisc


20/35

November 2000 / 19

Dr. Word serves as a forensiclaboratory deputy director fora private firm in Germantown,Maryland.

Dr. Smialek, the chief medicalexaminer for Maryland, headsthe Forensic Pathology Division,Department of Pathology, Schoolof Medicine, at the University ofMaryland in College Park.

Mr. Westveer is a violentcrime specialist in theBehavioral Science Unitat the FBI Academy.

scene (e.g., heat, sunlight, moisture, bacteria, and mold2) can affectDNA and render it useless. If not

properly obtained and secured,

DNA evidence can degrade. Offi-cers should ensure that DNA evi-dence remains dry and at room tem-

perature and secured in paper bagsor envelopes, sealed and labeled

properly. Officers should neverplace DNA evidence in plastic con-tainers, direct sunlight, or the trunkof a car.

When identifying, obtaining,and handling DNA evidence, offi-cers must ensure that they do not

contaminate the material. Contami-nation occurs when the evidencecomes in contact with anotherindividuals body fluids through ac-tions, such as sneezing, coughing,or touching. Contamination be-comes a critical issue because to-day, laboratories use the poly-merase chain reaction (PCR)

technique to replicate DNA. Thistechnique involves extracting DNAfrom a small evidence sample andthen replicating it through a com-

plex operation of repeated heatingand cooling cycles and exposure toan enzyme. Because each cycledoubles the quantity of DNA, ex-

perts can replicate the original ex-traction several million timeswithin a short period.3 But, the PCR

process cannot distinguish betweenDNA from a suspect and anothersource. Therefore, any substantialcontamination to the DNA materialwill result in a confusing result.

Biological material may con-tain hazardous pathogens that cancause potentially lethal diseases.Law enforcement officers alwaysshould contact their laboratory per-sonnel or evidence collection tech-nicians when they have questionsabout obtaining or securing DNAevidence. After officers follow

careful procedures to obtain and se-cure DNA material, they must takeappropriate steps to preserve and

process DNA evidence correctly as

well.

Preserving and ProcessingDNA Evidence

Today, investigators can reex-amine evidence from preservedDNA samples using newer andmore sophisticated technologiesunavailable when they obtained theevidence. For DNA evidence tomeet legal and scientific require-ments for admissibility in court, in-

vestigators must follow certain pro-cedures to preserve the DNAevidence properly and to preventdecomposition and deterioration.First, as with any evidence, agen-cies must maintain a proper chain ofcustody when handling DNA mate-rial. When transferring DNA evi-dence by direct or indirect means,


21/35

the material remains on surfaces byabsorption or adherence.4 Liquid

biological evidence (e.g., blood, se-men, and urine) absorbs into sur-faces, and solid biological evidence(e.g., hair, bones, and teeth) adheresto surfaces. The proper way to pre-serve DNA evidence depends onthe liquid or solid state and the con-

dition of the evidence.5

Medical examiners and foren-sic pathologists permanently main-tain microscopic slides that contain

biological evidence from a swab ofa body cavity taken at the time of anautopsy. Experts have extractedDNA material successfully frommedical examiners offices, hospi-tals, or rape kits.6 The critical num-

ber of sperm on a slide forsuccessful DNA testing appearsto exist in the range of at least

100.7 For example, after experts properly fix, process, and stain aspecimen of sperm on a micro-

scopic slide, this evidence retainsits DNA characteristics. But, thespecimen must remain sequesteredfrom exposure to environmental ef-fects, which could result in decom-

position and deterioration. If thematerial transferred to the slide con-tains a sufficient number of sperm,experts can use the PCR technique

to identify the males DNA profile,regardless of the time interval fromwhen they made the slide.

Smear preparation of DNA ma-terial, which includes drying by air,immersing in several liquids, andmounting on various kinds of mate-rial, does not degrade the geneticmaterial. Similarly, DNA tissues

preserved in paraffin blocks, suchas surgical specimens, often remainsuitable for PCR testing. Researchover the past 10 years has demon-

strated that tissues stored in forma-lin/formaldehyde may be suitablefor DNA testing using PCR.8

Advancing Technology

Recent efforts at the local, state,and federal levels of government toemploy advanced information sys-tem technologies emphasize the im-

portance of preserving DNAsamples. For example, the FBI cre-ated a National DNA Indexing Sys-tem (NDIS) that uses computer ap-

plications and forensic science practices to match DNA samplesacross the country.9 In this effort,scientists analyze DNA samplesand store profiles of the biologicalevidence in a computer database.Public forensic laboratoriesthroughout the United States usethese profiles to exchange and com-

pare DNA profiles electronically.10

If an electronic match results, theFBI notifies the submitting jurisdic-tion and further investigation en-sues. Additionally, the design of theFBIs Combined DNA IndexingSystem (CODIS) allows state and

The Richmond, Virginia, Police Department

investigated a homicide with little evidence andfew leads. However, investigators secured bloodand semen samples from the scene. Officersidentified a suspect, but DNA analysis exoner-ated him. Four years later, investigators exam-ined these samples again and submitted them totheir states DNA indexing system. The DNAsamples from the homicide matched samplesfrom a 20-year-old man who had a criminalhistory of rape and murder. Officers chargedthe suspect with the 4-year-old homicide.

In 1982, the Naval Criminal Investigative

Service opened a homicide case that involvedthe rape and murder of a woman, placed in thetrunk of a car and pushed into a bay. Investi-gators recovered little evidence from the sceneexcept some DNA material. This case remainedunsolved until 1995 when, with support fromnew analysis of the 14-year-old DNA, investi-gators reexamined the case and identified asuspect. Officers arrested and charged thesuspect with the rape and murder of the femalevictim.

Case #1 Case #2

Case Scenarios



22/35

local law enforcement crimelaboratories to exchange and com-

pare DNA profiles electronicallyas well. DNA samples in CODIS

represent both DNA profiles fromconvicted felons and evidence fromunsolved cases.

In many instances, administra-tive backlogs, such as processingand analyzing DNA and legal re-strictions on the collection of DNAfrom offenders, have preventedthese efforts from becoming moresuccessful. The processing of sus-

pected DNA evidence usually takes

from 3 to 7 days. However, this timeframe depends on the volume of re-quests, the availability of trained

personnel, and the number of labo-

ratories equipped to conduct thetest. Regardless of the backlogs, theadvances in DNA analysis technol-ogy and information systems tech-nology have combined to provide a

powerful law enforcement tool insolving some crimes.

Conclusion

Microscopic slides serve asvaluable reservoirs of key evidence

that investigators can use in DNAtesting years after the commissionof a crime. Efforts by law enforce-ment officers and forensic patholo-

gists to comb crime scenes for pos-sible DNA material remain crucialto solving cases. Investigators mustremember to obtain, secure, and

preserve DNA material properly, orthe evidence will not meet admissi-

bility requirements in court. Newtechnology in DNA analysis allowscrime laboratories to exchange andcompare DNA profiles, which canhelp solve crimes committed many

Identifying DNA Evidence

Source: U.S. Department of Justice, National Institute of Justice, National Commission on the Future of DNAEvidence, What Every Law Enforcement Officer Should Know About DNA Evidence, (Washington, DC, 1999).

EvidencePossible Location of DNA

on the Evidence Source of DNA

baseball bat handle, end sweat, skin, blood, tissue

hat, bandanna, or mask inside sweat, hair, dandruff

eyeglasses nose or ear pieces, lens sweat, skin

toothpick tips saliva

tape or ligature inside/outside surface skin, sweat

bottle, can, or glass sides, mouthpiece saliva, sweat

through and through bullet outside surface blood, tissue

bite mark individuals skin or clothing saliva

fingernail, partial fingernail scrapings blood, sweat, tissue

used cigarette cigarette butt saliva

November 2000 / 21


23/35


years prior to the DNA testing.Biological evidence within policedepartments, maintained with a

proper chain of custody, can assistin the successful identification ofthe perpetrator, as well as in theexoneration of a wrongly convicted

person.

Endnotes1 U.S. Department of Justice, Convicted by

Juries, Exonerated by Science: Case Studies

in the Use of DNA Evidence to Establish

Innocence After Trial, Research Report,(Washington, DC, June 1996) and Oops!We Forgot to Put it in the Refrigerator: DNAIdentification and the States Duty to PreserveEvidence, The John Marshall Law Review,25:809-836, 1992.

2 U.S. Department of Justice, NationalInstitute of Justice, National Commission onthe Future of DNA Evidence, What Every Law

Enforcement Officer Should Know About DNAEvidence, (Washington, DC, 1999).

3 U.S. Department of Justice, Office ofJustice Programs, National Institute of Justice,Automated DNA Typing: Method of the

Future, February 1997; available from

http://www.ncjrs.org/txtfiles/13102-9.txt. ;accessed November 10, 1999.

4 U.S. Department of Justice, FederalBureau of Investigation,Handbook of ForensicSciences: Evidence Examinations, availablefrom http://www.fbi.gov/programs/lab/handbook/examsdna.htm.; accessed September11, 2000. For questions concerning DNAevidence, contact the FBI Laboratory at

202-324-5436.5 Ibid.6 Based on a study by one of the authors

who recorded several successful extractions ofDNA material.

7 Ibid.8 D. Shibata, T. Namiki, R. Huguchi,

Identification of a Mislabeled Fixed Specimenby DNA Analysis, The Journal of SurgicalPathology 14(1): 1076-1078, 1990.

9 U.S. Department of Justice, FederalBureau of Investigation, The National DNAIndexing System, FBI National Press Release,(Washington, DC, October 13, 1998).

10 U.S. Department of Justice, FederalBureau of Investigation,Ensuring Public Safety

and National Security Under the Rule of Law:A Report to the American People on the Work

of the FBI, 1993-1998, available fromwww.fbi.gov/library5-year/5-year_rpt.htm ;accessed September 11, 2000.

To prevent contamination of DNA evidence, officersshould

wear gloves and change them often; use disposable instruments or clean them thoroughly

before and after handling each sample;

avoid touching the area where DNA evidence may exist;

avoid talking, sneezing, and coughing over evidence;

air-dry evidence thoroughly before packaging; and

put evidence into new paper bags or envelopes, not intoplastic bags, and never use staples.

Source: U.S. Department of Justice, National Institute of Justice,National Commission on the Future of DNA Evidence, What EveryLaw Enforcement Officer Should Know About DNA Evidence,(Washington, DC, 1999).

Contamination Precautions

Wanted:Photographs

heBulletin staff isalways on the lookoutT

for dynamic, law enforce-ment-related photos for

possible publication in themagazine. We are interestedin photos that visually depictthe many aspects of the lawenforcement profession andillustrate the various taskslaw enforcement personnel

perform.We can use either black-

and-white glossy or colorprints or slides, although weprefer prints (5x7 or 8x10).

Appropriate credit will begiven to contributing photog-raphers when their workappears in the magazine. Wesuggest that you send dupli-cate, not original, prints aswe do not accept responsibil-ity for prints that may bedamaged or lost. Send your

photographs to:

Brian Parnell, ArtDirector,FBI Law

Enforcement Bulletin,FBI Academy, MadisonBuilding, Room 209,Quantico, VA 22135.


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November 2000 / 23

Focus on Cooperation

Joint EmployeeAssistance ProgramsBy Mark Huguley, M.C.J.

I n 1997, when a young woman in Union, SouthCarolina, reported her two sons abducted, shesimultaneously helped provide the genesis of astatewide chaplaincy and, later, a full-fledged em-

ployee assistance program. The mother received a lifesentence for drowning her children to advance anextramarital affair gone bad. Numerous law enforce-ment officers from many jurisdictions worked on thiscase, which drew national attention. Union Countysheriffs deputies, State Law Enforcement Division(SLED) agents, Department of Natural Resources(DNR) officers, highway patrol troopers, and otherlaw enforcement personnel worked hard to investigatethe crime, search for the children, and recover their

bodies.

In the aftermath of this incident, a group of lawenforcement leaders in Columbia, South Carolina,realized that such horrific trauma takes a serious tollon both veteran and rookie officers. A powerfulstatement supporting this conclusion came from one

of the DNR divers, who, though accustomed to therecovery of bodies in boating accidents, stated, youthink you get over it, but you just dont. Theseleaders formed a study group, which recommended

the establishment of a statewide law enforcementchaplaincy with a professional staff.

Establishing the Chaplaincy

Originally established as a volunteer program atSLED, the chaplaincy obtained victim assistancegrant funding with a $355,985 initial award.1 Thegrant enabled the chaplaincy to hire three employ-eestwo ordained clergy and one clinical socialworker. When the program started, it primarilysupported sworn staff members dealing with theeffects of high stress critical incidents.

SLED, DNR, and the Departments of PublicSafety (DPS) and Probation, Pardon and Parole (PPP)considered the work of the chaplaincy and decided tocontinue it as an expanded program to assist civilians,as well as sworn members of the four agencies. Eachagency realized it did not have an employee assis-tance program (EAP) and interest evolved in thatdirection. Because March 31, 2000, marked the end ofthe grant, the agencies needed a new funding source.Managers of the four agencies decided their depart-ments could support a program better collectivelythan on an individual basis.

Knowing that combined effort in a task force can

maximize the resources of participating organizations,the agencies determined that sharing the operation ofa joint employee assistance program would proveeffective. Subsequently, SLED, DPS, DNR, and PPPcommitted to establishing and maintaining an em-

ployee assistance program to advance the welfare oftheir employees and to sharing the cost of providingthis service.

Adding Employee Assistance

Five organizations signed a memorandum ofunderstanding (MOU) on January 21, 2000, to createthe South Carolina Law Enforcement Assistance

Program (SCLEAP). Four state agencies and the LawEnforcement Chaplaincy for South Carolina (LECSC)comprise the organization. The LECSC is registeredwith the IRS as a 501(c)(3) nonprofit entity, servesas a foundation, and performs related tasks for the

Richard E. Hunton Jr.


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...agencies determined

that sharing theoperation of a joint

employee assistanceprogram wouldprove effective.

SCLEAP. It has a governing board of leaders fromlocal, state, and federal law enforcement, as well as

private citizens who represent community leaderswith diverse backgrounds. The chaplaincy board acts

in an advisory capacity to SCLEAP and initiated theprocess leading to its creation.

The concept for the SCLEAP initiative is simple.Multiple agencies with a mutual need to provideemployees with special support associated withstressful duty enter into a jointly funded program. Inthe South Carolina program, participating agencies

pay an equal share to support thestaff and provide operating funds.

Implementing Duties

The SCLEAP staff has facili-tated critical incident debriefings,responded to critical incidents insupport of officers and victims,

provided pastoral care to officersand family members, and referredofficers to other professionalresources. In an incident involvinga workplace shooting, law enforce-ment chaplains provided criticalincident care follow-up andreferrals for approximately 300 witnesses. This

police-sponsored intervention greatly facilitatedrelations between police and victims/witnesses.

Winthrop University in Rock Hill, South Caro-lina, held the first interagency postcritical incidentseminar (PCIS) in conjunction with LECSC. The FBIdesigned the PCIS model to assist agents with han-dling the effects of critical incident stress.2 Thechaplaincy borrowed this concept and applied it on aninteragency basis with both state and local officersmeeting with trained law enforcement peer support-ers, mental health professionals, and chaplains.Participants received information on trauma, patternsof resolution, and field-tested coping strategies to

promote recovery and resilience.SCLEAP regularly supports DNR law enforce-

ment officers while they conduct search and rescueor search and recovery missions. In this capacity,DNR officers usually encounter family members ofthe victim who come to the scene and inadvertently

hamper operations. Chaplains intercede to comfortand control the relatives, allowing officers to dotheir work.

Similarly, SCLEAP chaplains work with the

SLED special weapons and tactics (SWAT) team tocounsel hostages and to calm family members, as wellas witnesses to serious incidents. Chaplains donarmor vests and respond to SWAT calls that involve

barricaded suspects, subjects who are mentallydisturbed, or multiple victims. The chaplains helpreassure neighbors or other individuals who show

concern about or become suspi-cious of police tactical operations.Additionally, SCLEAP chaplainsrespond to incidents of trooper-involved shootings, certain vehicu-

lar pursuits, and related incidents.Due to the size of the highwaypatrol and its parent agency, DPS,response on behalf of DPS is

becoming frequent. Likewise,support for the PPP will grow asthat agency begins to use SCLEAPservices.

Additionally, plans exist forchaplains to support officers sent

to natural disasters. During hurricanes or otherdisasters where officers leave for extended duty, theymay have concerns or worries regarding the welfare

and safety of family left at home. The chaplains willcheck on officers families who experience difficul-ties and, where possible, facilitate support to thesefamilies and report to the officers in the disaster area.

Providing Services

All services begun under the chaplaincy havecontinued under the MOU with additional onesadded. The SCLEAP provides a full-time professionalstaff, whose members have masters degrees or above,on a 24-hour, 7-day basis to assist all employees andtheir families. Also, the SCLEAP staff coordinates atrained critical incident stress debriefing and peersupport team from partner agencies. The SCLEAPstaff furnishes a confidential system of care andreferral for employees and family members to thera-

peutic resources in areas of need, such as alcohol and


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November 2000 / 25

other drug problems, mental health issues, and familyand marital counseling. They visit sick or injured

personnel and provide notification, in accordancewith procedures of each agency, to families of person-

nel who have received serious injuries or who havedied in the course of employment. Also, they act asa liaison between partner agencies and civic andreligious leaders, while providing support and assis-tance for victim advocacy services and communityrelations.

While the MOU provides the framework for theprogram, partner agencies designate members to serveon a governing committee. The partner agenciesagreed that, to ensure efficient administration, oneagency should serve as the host agency and governthe program as an official

function of that agency.The SCLEAP staff mustmeet all applicable state

personnel rules andregulations. The desig-nated representativesassemble at least annuallyto decide the course ofoperations and whetherthey should make anychanges.

The location ofSCLEAPs office space

represents an importantaspect of the program.Some employees are morelikely to seek assistance without their peers knowl-edge, therefore agencies intentionally found officespace in an area away from the four agencies. More-over, individuals involved with this program believesome employees more willingly will accept or seekassistance offered by members of the clergy, ratherthan mental health professionals. Chaplains referemployees to other counseling as appropriate, andsometimes they convince a reluctant employee toget help that they would not seek otherwise.

Another vital part of the success of the programhinges on the ability of the staff to be perceived asone of their own by each participating agencyalthough actually serving all partner agencies. The

SCLEAP staff works carefully to understand andrespect the common law enforcement experience andthe individuality of each agency. While part of auniversal brotherhood, a sense of uniqueness remains

important to the partner agencies.

Conclusion

The South Carolina Law Enforcement AssistanceProgram and its chaplain staff provides support andassistance to member agency personnel, but does not

proselytize or spread a religious message or personalagenda. The program provides alternative services foremployees and facilitates the exercise of FirstAmendment rights under proper conditions. Whenmember agencies call for support, it must be for

secular reasons, and whenan employee calls forassistance, it must be forwhatever the employeeneeds and requests. Thesetting in which theactivity takes place and the

person on whose behalfthe request for service ismade represent key issues.

Multiagency opera-tions make the mostefficient use of existingresources. This approach

proves as useful foremployee assistance

programs as it does for lawenforcement operations. The success of the joint

program depends on staff members who understandthe culture of the law enforcement organizations andthe personnel they serve.

Endnotes1 This sum includes $100,000 that funded the production of a national

teleconference on law enforcement trauma entitled The Rusting Badge.2 Vincent J. McNally and Roger M. Solomon, The FBIs Critical

Incident Stress Management Program,FBI Law Enforcement Bulletin,

February 1999, 20-25.

Major Huguley serves with the South Carolina LawEnforcement Division in Columbia.


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Bulletin Reports

The SEARCH National TechnicalAssistance and Training Program

SEARCH, The National Consortium for Justice Information and Statistics,has a National Technical Assistance and Training Program that offers on-site,no-cost technical assistance. Available to law enforcement personnel, prosecu-tors, public defenders, jail administrators, court officials, correctional officers,

probation and parole officers, and associated agencies, the technical assistanceactivities, services, and products help these entities determine system needs,establish system requirements, and design or procure cost-effective, integratedinformation and workload management systems. Projects include workingwith law enforcement agencies to impleme

FBI Law Enforcement Bulletin - Nov00leb

Documents

Transcript of FBI Law Enforcement Bulletin - Nov00leb