FBI Law Enforcement Bulletin
June 2006 Volume 75 Number 6
United States
Department of Justice
Federal Bureau of Investigation
Washington, DC 20535-0001
Robert S. Mueller III
Director
Contributors’ opinions and statements should not be considered an endorsement by the FBI for any policy, program, or service.
The attorney general has determined that the publication of this periodical is necessary in the transaction of the public business required by law. Use of funds for printing this periodical has been approved by the director of the Office of Management and Budget.
The FBI Law Enforcement Bulletin (ISSN-0014-5688) is published monthly by the Federal Bureau of Investigation, 935 Pennsylvania Avenue, N.W., Washington, D.C. 20535-0001. Periodicals postage paid at Washington, D.C., and additional mailing offices. Postmaster: Send address changes to Editor, FBI Law Enforcement Bulletin, FBI Academy, Madison Building, Room 201, Quantico, VA 22135.
Editor
John E. Ott
Art Director
Denise Bennett Smith
Assistant Art Director
Stephanie L. Lowe
This publication is produced by members of the Law Enforcement Communication Unit, Training and Development Division.
Internet Address
leb@fbiacademy.edu
Cover Photo
© Daniel Goodrich, Newsday
Send article submissions to Editor,
FBI Law Enforcement Bulletin,
FBI Academy, Madison Building,
Room 201, Quantico, VA 22135.
Suffolk County's Crisis Action Team
By Stuart K. Cameron
The Crisis Action Team has made the Suffolk County Police Department better
prepared for both civil unrest situations and homeland security responsibilities.
The Routine Activity Theory
By Brian Parsi Boetig
Understanding and applying the routine activity theory can help agencies ensure
the safety of their citizens and communities.
The "Special Needs" Exception to the
Warrant Requirement
By Martin J. King
The “special needs” exception applies to searches and seizures
conducted without individualized suspicion for the purpose of minimizing a
risk of harm.
Police Practice
Youth Alcohol Enforcement
Leadership Spotlight
Visionary Leadership
The system centers on rap-idly mobilizing personnel from disparate commands into a unified, organized, highly effective disorder-control unit. Commanded by a lieutenant, the field force has six to eight individual squads, each comprised of a sergeant and seven officers, that respond as a highly disciplined and cohesive disorder-control force. The Suffolk County Police Academy in-formed recruits about the concept during their initial training and offered courses for newly promoted sergeants at its super-vision school. Additionally, the department provided in-service classes for volunteers, both officers and sergeants, interested in becoming field-force trained. The department also acquired the necessary equip-met for the newly formed Mobile Field Force, as well as a van for storage and transportation.
Fortunately, Suffolk County, similar to most American communities, did not experience a lot of civil unrest and the field force was not needed for that purpose. Instead, the department adapted the mobilization and leadership concepts for various large, personnel-intensive events wherein officers from many commands worked together, such as sniper patrols, forest fires, an airliner crash, and the mutual-aid response to New York City after the tragic events of September 11, 2001. The initial training proved adequate, but, as time passed and the Los Angeles riots faded into history, officers and supervisors received little additional train-in and few exercises were con-ducted. While the field-force concept was sound, the continued implementation dwindled, primarily due to the lack of an ongoing training program and poor equipment quality.
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Deputy Inspector Cameron commands the Special Patrol Bureau of the Suffolk County, New York, Police Department |
After September 11, the New York City Police Depart-met invited officers from the Suffolk County Police Department and representatives from surrounding agencies to participate in the New York Metropolitan Counterterrorism Incident Response Committee. One of the first assignments given to all of the agencies was to conduct an after-action review of their mutual-aid response to New York City and to supply the results to the committee. Among the many positive elements that came out of this process was the formation of the Field Force Review Committee to examine the status of Suffolk County’s Mobile Field Force. The committee looked at the concept both within the department, the primary law enforcement agency for five of the western townships with several independent town and village departments serving subsets of citizens, and through-out the entire county, comprised of a total of 10 townships located on the eastern end of Long Island with a population of close to 1.5 million.2
When the committee began its review process, the department considered over 1,000 of its officers as field-force trained and equipped. The department believed that it would benefit from having such a large number of officers trained because it could mobilize a field force from on-duty personnel with minimal over-time costs. Despite these perceived advantages, the department faced a major dilemma. Could it successfully train and sufficiently equip over 1,000 officers for their newly expanded roles involving both the traditional civil unrest control responsibility coupled with the new homeland security onus?
As the review process progressed, the realization that the September 11 attacks had forever altered police work was beginning to sink in. Reacting to the times, law enforcement personnel intensified their commitment to prepare for a potential response to attacks against America involving weapons of mass destruction (WMD). Civil unrest could be coupled easily with or caused by an attack of this nature. Was the department’s training and equipment up to the task?3
After much debate, the department opted for a smaller, well-equipped, and highly trained force. As a period of transition would occur, the department felt that it should differentiate between the new force and the old Mobile Field Force. Hence, the Crisis Action Team (CAT) was born. The department decided to purchase up-to-date, reliable equipment and to conduct the best training possible, coupled with frequent refresher training and exercises. After all, how could it expect a group to remain unified and well-disciplined without continual training? CAT personnel would receive training in conventional field-force techniques combined with WMD.
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Training for all CAT personnel in awareness-level courses will be ongoing and include several on homeland security issues . |
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The CAT concept fills a void between sector patrol officers and specialized sworn personnel in the department’s Emergency Service Section. Consisting of about 40 people, this section includes the department’s SWAT, hazardous materials response, and technical rescue units, along with its bomb squad. While this requires a great deal of training initially, it proves beneficial when it comes to providing homeland security. Whereas some police departments may have needed to increase cooperation between their bomb squads and hazardous materials units to prepare for the threat of a dirty bomb, Suffolk County had these capabilities combined in one unit. Multifaceted threats became a little less challenging because officers were multidisciplined and crosstrained.
The CAT concept allows these specialists to concentrate their efforts on jobs that require the advanced level of training that they possess. As a force multiplier, CAT adds depth to the department because it pro-vides an intermediate level of trained people. Specialists can be quickly depleted, especially when required to work at a task below their level of training. As in the previous Mobile Field Force, street officers pulled from the seven precincts and marine and highway patrol bureaus would comprise CAT. The department specifically did not include highly specialized personnel from its Special Patrol Bureau to keep them at the jobs requiring their advanced skills and abilities. But, having command staff from these specialized areas involved in the setup and oversight of CAT proves invaluable because they fully grasp the limitations of this concept and its associated training. These individuals can keep CAT from exceeding its appropriate roles and responsibilities. CAT is not a SWAT team, a bomb squad, or a hazardous materials response unit, but, rather, a group that allows personnel from these entities to work more effectively and efficiently.
The department decided that CAT personnel would receive refresher training in conventional Mobile Field Force concepts to bring everyone up to the same competence level, regardless of when the academy had initially trained them. It instructed precincts to select their best personnel for assignment to CAT. The Field Force Review Committee recommended that training and equipment be given only to enough people to staff three complete field forces, about 56 people for each. The department attempted to equally divide these individuals among the precincts and squads to ensure the best possible availability of personnel at all times. During the initial 2-day training courses, students learned about the field force’s newly expanded role and that it would be a strictly volunteer duty. Having a wholly volunteer force comprised of interested and motivated personnel constitutes a huge asset.
New equipment purchases began, including air purifying respirators (APRs), basic duty uniforms, high-quality boots, and protective helmets with face shields capable of closing over the new APRs. The department replaced all of the metal insignia with embroidered patches as an added safety precaution. CAT supervisors decided to augment riot shields with blunt-force body armor, both for added protection and its imposing appearance. The focus shifted more toward officer safety than ever before.
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All participating agencies act as equal partners, providing whatever assets they can spare and sharing command and control responsibilities . |
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A new trailer replaced the old field-force van. CAT super-visors felt that a trailer would require far less maintenance than a vehicle and be more reliable, even after long idle period. Extensively customized, the trailer contains a generator, a heating and air conditioning unit, shelving, and a work station to enable its use as a remote command post.
Because CAT would have an expanded role as a home-land security prevention and response team, much additional training would prove necessary. All supervisors of the rank of lieutenant or higher attended a course for hazardous materials technicians and numerous other antiterrorism and WMD classes. Some supervisors also completed instructor development training to acquire the proper certification to instruct fellow CAT personnel.
As an additional margin of safety, two officers from each of the three squads became COBRA officers, a concept based upon these officers obtaining advanced training so that they can serve as safety officers and advisors for their respective squads.4 Like the supervisors, the COBRA officers also instruct their fellow CAT members. Having CAT personnel serve as instructors offers a twofold benefit: 1) other team members have greater confidence in these officers’ skills, knowledge, and abilities during field deployments and 2) serving as instructors reinforces the material learned and keeps these personnel current. Moreover, it makes the team independent and self-reliant, thereby not depleting assets from other specialized commands during CAT training. Also, the team can schedule and implement its own training at the most beneficial times because it does not depend on the availability of outside instructors.
Once most of the super-visors and COBRA officers received their training, it came time to prepare the rest of the personnel. This included a variety of courses, such as basic instruction in the use and limitations of the APR mask under field conditions, a 1-hour block on improvised explosive de-vices, the opportunity to drive the emergency vehicle operations circuit while wearing an APR, and individual training for a few selected personnel on the gas grenade launcher. The idea of training officers to operate a vehicle while wearing an APR came from participating in several homeland security exercises. One involved using a bus to move officers from the staging area to the drill site after they had donned their masks. While this proved adequate for the exercise, the department did not want officers to hesitate to drive while wearing a mask if it became necessary during an actual incident. Training for all CAT personnel in awareness-level courses will be ongoing and include several on homeland security issues. Those designated as shotgun officers attended a specific 1-day tactical shotgun course. It included firing the weapon while wearing an APR, which was an eye opener for many officers unfamiliar with the process. Most found it very challenging just to sight and aim the firearm with the mask in place. They soon realized why the department chose an APR that offered three filter attachment points when they had to relocate the filter to the other side of the mask to properly sight their weapons.
CAT training is open to allied law enforcement agencies
because of the benefits inherent in sharing training with others,
both on an individual and an agency basis. Individually, officers
from other departments generally leave better prepared to deal
with crisis situations they may personally encounter. On an agencywide
basis, officers return home with an idea of what Suffolk County
is doing, which proves useful in preparing their own organizations
to deal with crisis situations and also in coordinating efforts
whenever work is performed together. The team also benefits from
this interagency cooperation by culling innovative ideas from
other agencies. The department has found that the more exposure
it has to what others are doing, the better it can gauge and adapt
the effectiveness of what it is doing. Quite often, the adage
of not reinventing the wheel works well. Simply seeking out and
borrowing someone else’s best practices, much
as the department did with the Mobile Field Force, proves extremely
helpful.
© Daniel Goodrich, Newsday
Once the Field Force Review Committee examined the department’s use of the Mobile Field Force, it turned its attention to the other agencies in the county. The review committee recognized that during most large scale incidents, a certain amount of self-dispatch and self-response occurs among first responders, which can cause confusion and, at times, hamper operations. Realizing this and the fact that the only official mutual-aid request from New York City to Suffolk County after September 11 had come to the Suffolk County Police Department, the committee thought that a more coordinated response should be developed.
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CAT is both proactive and reactive as it serves to prevent, detect, deter, and mitigate them myriad of threats facing Suffolk County in the 21st century . |
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An assortment of law enforcement organizations within Suffolk County agreed to form the Suffolk Coordinated Law Enforcement Response Group (SCLERG), which facilitates all law enforcement agencies within the county to respond as one unified assemblage.
The format used to bring these diversified personnel together was the tried and tested Mobile Field Force. Most officers had attended the Suffolk County Academy where many received instruction in field-force mobilization procedures and became familiar with the command and control aspects. SCLERG responds both internally to handle issues within the county and also externally as a mutual-aid resource. It serves as a way to mobilize a large number of patrol personnel for a general law enforcement assignment and is not intended specifically for civil unrest control. All participating agencies act as equal partners, providing what-ever assets they can spare and sharing command and control responsibilities.
SCLERG has held several drills, starting with simply mobilizing personnel and progressing to a mock mutual-aid response outside the county. At present, 29 federal, state, county, town, and village organizations participate in SCLERG. Several departments have successfully commanded the overall force during previous drills, and personnel from a variety of agencies have smoothly integrated into the group. These drills and exercises have served to reintroduce and reinforce the adapted field-force concept and have assisted in overcoming numerous issues, not the least of which was inter-operable communications. The SCLERG concept also has transcended the drills and improved the everyday coordination and cooperation between these agencies.
SCLERG has benefited both the Suffolk County Police Department and all of the allied agencies. The department now can share the burden of a protracted deployment, both for personnel and equipment, and can access specialized equipment, such as refueling trucks and large buses owned by the sheriff’s department, that it does not possess. All of the allied agencies have the ability to officially participate in an effective way during a large mobilization. The effort has eliminated self-response from within the law enforcement ranks of Suffolk County. Any external agency requesting mutual aid from Suffolk County law enforcement organizations now will obtain help from one unified force with interoperable communications and preestablished command and control. Suffolk County law enforcement personnel will arrive prepared to effectively go to work immediately.
The Crisis Action Team has made the Suffolk County Police Department better prepared for both civil unrest situations and homeland security responsibilities. Employing an all-hazards approach, the team offers great utility and flexibility for responding to both man-made and naturally occurring events. The concept of training patrol officers to a higher level has an added benefit. These officers, spread throughout the precincts, provide additional protection on a daily basis while they go about their normal duties.
© Daniel Goodrich, Newsday
Undoubtedly, they also will share some of their acquired knowledge with their coworkers. The CAT concept has given the department a reliable, flexible, and effective method to mobilize trained personnel in a timely fashion.
CAT is both proactive and reactive as it serves to prevent, detect, deter, and mitigate the myriad of threats facing Suffolk County in the 21st century.
Moreover, when used in conjunction with specialized emergency service personnel and the Suffolk Coordinated Law Enforcement Response Group, it offers an excellent overall response matrix. In short, specialized emergency service officers can focus on the epicenter, CAT personnel can secure the perimeter, and SCLERG participants can handle all other necessary law enforcement duties.
1 Charles Rappleye, “Fear Itself Keeping Democracy Safe from the Streets,” LA Weekly, August 17, 2000.
2 A combination of the New York State Police and
several town and village departments serve the five eastern townships.
With the exception of New York State Police personnel, the Suffolk
County Police Academy trained most of these officers.
3 One
of the first things the department did was examine all of the field-force
respirators. When it issued these, the worst potential result of
a mask failure would have involved officers receiving a face full
of riot control agent and the necessity to back off the skirmish
line. Suddenly, no acceptable failure rate existed because inadequate
protection in a toxic WMD environment could have far graver consequences.
Qualified personnel examined these masks and found that some had
expired filters and others were torn or dry-rotted. This was not
the equipment that the department wanted for its personnel. It recalled
all of the masks and sought reliable, high-quality replacements.
4 COBRA refers to chemical, ordnance, biological,
and radiological issues and signifies that these individuals have
received enhanced WMD training to act as safety officers and technical
advisors.
Communities across the United States continue to see the epidemic of underage drinking grow. Various factors, such as peer pressure and a national media that emphasizes the allure of alcohol and downplays its negative effects, help explain why it has become so widespread.
In Missouri, we have a teenage drinking problem that mirrors the national trend. Statistics reported that 87 percent of high school students have experimented with alcohol.1 In fact, 56 percent of young people will have tried it by the 8th grade2— this figure becomes even more alarming when considering that individuals who have their first drink at age 13 have a 47.3 percent chance of becoming alcohol dependent during their lives.3 And, binge drinking is not just a significant problem among college students—one report indicated that 11 per-cent of 8th graders, 22.5 percent of 10th graders, and 30.2 percent of 12th graders have engaged in this behavior in the past 30 days.4
Representing over 20 percent of all alcohol-dependent people,5 underage drinkers do not consider the consequences. Abuse of this drug has devastating effects. For instance, it can contribute to depression and suicidal behavior among teens, hamper their ability to earn a high school diploma, or, perhaps, lead to an early death.
Such an alarming situation presents a challenge and demands an urgent response from the law enforcement community. In addressing the problem in Greene County, Missouri, we initiated an innovative project—Youth Alcohol Enforcement.
OUR RESPONSE
In 2002, I continued to observe a disturbing trend of alcohol overdoses among our young people and underage drinking parties in rural areas of the county. As with other law enforcement agencies, we responded with traditional tactics. Deputies would arrive at the location and make a grand entrance. Teens would scatter, often leaving their vehicles and friends behind. Officers then would attempt to locate the host of the party or who they determined to be an adult. Deputies would issue a stern warning that if they had to return to the residence, someone, if not everyone, would go to jail. The officers then would make the individuals pour out any remaining alcohol. Making a criminal case based on possession proved difficult.6 And, because of their inability to follow up due to varied shifts and calls for service, deputies could not see the results of any juvenile referrals they had made.
I reviewed the majority of the reports we generated and determined which ones I should assign to an investigator for further action. Many pertained to responses to large disturbances and assaults involving youths and alcohol. Some referred to deputies handling medical calls in which a minor overdosed. I was sending detectives out regularly to follow up on these cases and refer them to juvenile authorities for action plans.
In analyzing the problem, I spoke with uniformed deputies and had them determine how minors obtained alcohol. The most common methods included having an older friend buy it, purchasing from various liquor retailers in the county, soliciting adults to make the purchase, and, in other cases, receiving it from parents hosting underage drinking parties.
In June 2002, we formed a relationship with Community Partnership of the Ozarks and a small group of teenage students committed to curbing alcohol and cigarette consumption by minors. Detectives began by attending a pizza party with these youths and then interviewing them. We decided to attempt a series of liquor store compliance checks. Community Partnership of the Ozarks obtained a small grant to pay off-duty detectives to assist in this process. I obtained a list of every retailer in Greene County and sectioned them into four zones, assigning a team of two detectives to each one. We mande green and red flyers for distribution during this process. Establishments that passed compliance test by not selling to one of the volunteers received a green one, which stated that, as a reward, a public service announcement recognizing their compliance with the law would run in the local newspaper. Stores that sold to one of the youths received a red flyer advising them of the potential consequences and that they were on notice for selling to a minor.
In August 2002, we started our program, Youth Alcohol Enforcement. A grant awarded to the Greene County Sheriff’s Department, Springfield Police Department, Greene County Prosecuting Attorney’s Office, and Community Partnership of the Ozarks paid for overtime money for detectives to participate. Also, the Greene County prosecuting attorney provided a letter of immunity for volunteers involved in the investigations. This program has proven effective in our fight against underage drinking throughout the county and features several components.
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Our officers have seen measurable results in their battle against the dangerous epidemic of teenage drinking. |
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Proactive Enforcement
In one phase of the program, we conduct proactive enforcement on retail stores, as well as clerks, that sell alcohol to minors. Detectives, using a divided list of establishments in Greene County, accompany groups of young volunteers. They watch the teens enter stores to attempt a purchase. If a sale occurs, the volunteer brings the alcohol to a detective who secures it as evidence. Then, the other officer issues a summons to the clerk. Not only does a criminal case result by the store incurs a violation of its liquor license.
Compliance Checks
Another effort involves bar and restaurant compliance checks. In these instances, detectives enter establishments that serve alcohol and watch customers approach waitresses and bartenders to attempt a purchase. Then, in suspicious situations, officers confront buyers and check identification. If minors were served, the detectives issue a summons and seize the alcohol. Also, we submit a report to licensing authorities.
Badges in Business
Another operation places our detectives in stores where they watch clerks identify customers and ensure they sell only to adults. When offenders present fake identification or a minor attempts to make a purchase, detectives identify themselves, collect the appropriate evidence, and either issue a summons or make an arrest. This program benefits both law enforcement agency and the retail establishment as both gain additional familiarity with each other's roles in preventing juveniles.
Patrol Efforts
Detectives also patrol frequent party locations in the county to look for gatherings of underage drinkers. Using unmarked cars, they can avoid discovery until it is too late for the offenders. While conducting these types of patrols, our officers have discovered that once they identify themselves, the youths scatter. Detectives surround the party and uniformed deputies occupy the road area. We have found that the most difficulty part of these operations is to catch minors with the alcohol in their hands. 7 Detectives make more cases by interviewing each attendee and obtaining written statements. Generally, youths are truthful; most have not had frequent contact with law enforcement and usually cooperate. After the interviews, detectives have suspects point out the container of alcohol that they possessed or drank from. Then, the officers seize the container, obtain a sample, and submit it to the crime laboratory for testing. We then ask suspects to complete a voluntary written statement; most provide a detailed one.
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The success of this project has depended on not only our dedicated officers but the community.... |
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Stings and Stakeouts
In our youth-contact stings, detectives sit in undercover vehicles while waiting for minors to approach them. Some do and, after a short conversation, will ask the officers to purchase alcohol for them. Then, the detectives identify themselves and issue the suspect a summons.
Detectives also stake out retail liquor stores to watch for illegal customer activity. We routinely observe cars with multiple youths inside pulling into these parking lots. Through binoculars, our officers watch money change hands before only one of the passengers enters the store, thereby arousing suspicion that no one else in the car is of legal age. Then, after watching the individual leave the establishment, give change, and perhaps, distribute the alcohol, we feel that reasonable suspicion exists and that a vehicle stop and further investigation are justified.
After making the stop, detectives separate the parties and interview them. Usually, we have found that the car consisted of young people who paid the sole adult passenger to buy for them. We send these cases to a special prosecutor who works with us. The adult buyer is not offered a plea and receives the full fine and costs, along with a conviction. On their first offense, the juveniles are mandated to attend a diversion program on alcohol abuse. For second offenses, they also receive the maximum fine and punishment. These deterrents help ensure the success of the program.
We have found that our efforts through Youth Alcohol Enforcement have proven a resounding success. Our officers have seen measurable results in their battle against the dangerous epidemic of teenage drinking. For example, in a recent 1-year period, we worked 1,022 hours of overtime. During this time, we issued 153 citations or arrests for minors in possession of alcohol, 163 for supplying intoxicants to minors, 104 for driving while intoxicated, and 335 for other criminal violations. We consistently have seen similar results.
In one tragic case, we responded to a home in rural Greene County in reference to a deceased male juvenile. Upon investigation, we determined that he had overdosed on alcohol and died after a party at the home. Detectives tracked down the adults and minors responsible for supplying the alcohol to him. We discovered that the adult female resident had allowed several drinking parties in the past. This case gained significant media attention for some time and highlighted our mission to prevent such needless deaths. As a result, we obtained more support to continue our efforts, along with assurance for a grant renewal when our funding became low.
CONCLUSION
Alcohol abuse among young people continues to be a serious nationwide epidemic. In response, our department continues to see the need for effective proactive police work in the community. I believe that Youth Alcohol Enforcement has proven successful. The statistics speak for themselves. And, we have seen a reduction in the number of liquor stores that sell to minors. The success of this project has depended on not only our dedicated officers but the community, including the retail business owners who have taken an active role in the prevention of sales to minors.
1 National Alcohol Beverage Control Association, Best Practices for Underage Drinking Prevention (Alexandria, VA 1997).
2 Community Partnership of the Ozarks, Underage Drinking in Missouri (Springfield, MO, 2002)
3 Center for Science in the Public Interest, Youth and Alcohol (Washington, DC, 1999)
4 Supra note 2.
6 Until August 2005, authorities in the state of Missouri had to build cases on physical possession; consumption alone was insufficient.
7 States differ in their recognition of possession by consumption.
eveloped
over 50 years ago, the routine activity theory has remained
at the forefront of crime analysis and prevention efforts.
The model addressed crime analysis from a different perspective
than most theories preceding it by exploring the convergence
of the crucial components of crime at specific locations in
space and time without regard to the motivation of the deviant
act. Despite receiving criticism for the routine activity theory’s
simplistic approach,1 many
researchers applied it to various criminological studies from
stalking to narcotics trafficking. Understanding the theory
can assist law enforcement administrators in comprehending
existing research and aid in developing crime control models
to address specific crime issues.
In 1979, Lawrence Cohen and Marcus Felson provided a new perspective on the criminological outlook on crime.2 While most extant theories at that time focused primarily on criminals and their motivations and environment, the routine activity theory simplified concepts generally taken for granted by criminologists; it took the focus away from the criminal and redirected it toward the criminal act. Cohen and Felson readily admitted that although the routine activity theory was not a new idea, existing academic criminal research frequently overlooked it.3
During the decades preceding the routine activity theory, the pendulum of research began to focus on criminal acts, rather than broad social causes of crime. A new breed of classical thinkers sought “workable solutions to the problem of crime” to replace the scientific and theoretical perspectives of offenses in the 1970s.4 Studies published during those years explored residents’ actions aimed at the reduction of access to offenders, distance of homes from the central city, and the presence of criminals who accounted for property layout and human activity around homes.
The routine activity theory sought to fulfill shortcomings in existing models that failed to adequately address crime rate trends since the end of World War II. The U.S. Census Bureau (Bureau) reported on social and economic trends in metropolitan areas prior to and after the war. Criminologists focused on the same social and environmental issues measured by the Bureau and correlated them to crime rates. When criminological theories were applied to the Bureau’s data in 1960, they would have indicated a reduction in crime as social and economic conditions improved, but the crime rate data actually showed increases in crime according to the FBI’s Uniform Crime Reports. Without focusing on crimes, existing deterministic research, which took into account all social and economic factors, failed to explain this deviance between the criminological theory and the Bureau’s data. Felson, along with other researchers at this time, addressed the issue through crime-specific analysis,5 which encompassed the social disorganization occurring in metropolitan areas (e.g., the increase of married females in the workforce, unattended homes during workdays and vacations, and collegiate attendance among other new or changed social patterns). These social changes were examined and associated with crime rates, rather than the effects on criminals.
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Special Agent Boetig is a supervisor in the FBI's San Francisco Division |
The routine activity theory explains how changes in daily patterns or activities of social interaction, such as employment, recreation, educational endeavors, and leisure activities, affect differences in crime rates. It examines crimes as events, occurring at “specific locations in space and time, involving specific persons and/or objects.”6 Three crucial components necessary for predatory crimes are motivated offenders, suitable targets, and the absence of capable guardians.7 The lack of any one of these would prevent a predatory crime. As communities evolve, routine activities of the citizens also change. These societal adjustments cause the convergence of the three primary components to either increase or decrease in certain spaces and at particular times; therefore, changes in the crime rates occur independent of societal or behavioral conditions that motivate offenders.8
The analysis identifies predatory crime (the focus of the routine activity theory) as an illegal act consisting of direct physical contact between an offender and a victim (e.g., rape, robbery, residential burglary, and theft). It also classifies damaging or stealing an object also as predatory. The definition inherently excludes such nonpredatory crimes as possession of illegal contraband or public intoxication. The motivated offender must have the willingness and ability to commit predatory crimes. Although previous criminological research heavily relied on motive, the routine activity theory only analyzes the presence and actions of an offender. While people conduct routine activities, motivated offenders select their targets based upon the perceived value, visibility, accessibility, and inertia of the objective. For example, expensive and moveable items, such as automobiles and portable laptop computers, have a higher risk of theft than washing machines and desktop computers because of the suitability of stealing them.
Offenders or victims can use technological and organizational advances of society to increase their abilities to carry out predatory crimes or defend against them. Offenders may use weapons in the commission of an offense, but victims also may use them as a deterrent. Automobiles, highways, and telephones also provide additional opportunities for offenders to thrive and victims to react. The ability of people to take evasive actions or possess protective tools, such as a weapon, also can reduce their potential for victimization.
When a motivated offender identifies a suitable target, the presence or absence of a capable guardian becomes a determining factor in the actual commission or deterrence of a criminal event. While law enforcement officers and security guards represent obvious protectors, research has neglected the notion of the unwitting citizen assuming an important role in guardianship with no bias toward the presence or absence of illegal acts. For example, a person at home during the workday may provide a form of guardianship over a neighbor’s unoccupied house. A motivated offender may choose not to burglarize a home despite the presence of a suitable target (e.g., visible cash inside the house) because he fears the neighbor might cause his capture.9 Further, capable guardians are not always people. Burglar alarms, video cameras, and other threats of exposure or capture can function as guardians, although their capabilities vary.
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The
model has |
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The theory also examines the extent of capable guardian-ship in groups of people and at certain locations as lone individuals usually are more likely to be victimized.10 This additional guardianship occurs even if the group was assembled as a routine activity (e.g., a social function) with no intention of serving as a protective force, or guardian, for the group.
A fourth component, the existence or absence of a handler, modified the routine activity theory.11 This reworking attempted to build upon the earlier model where the presence of motivated offenders simply was assumed. The handler component involves a two-step process. First, social bonds are developed in society. Second, someone with a relationship to the potential offender exercises control over that person to adhere to the social bonds. The term motivated offender became likely offender.12 This subtle change reflected the rational choice concept within the framework of the routine activity theory. Where the application fell short of an explanation on why criminals become motivated, the rational choice concept filled this void.13
While some have criticized the routine activity theory,14 others have relied upon it to address a multitude of crime-related topics. Scholars, re-searchers, and practitioners throughout the world use the theory as an approach to the study of crime and to provide foundations for crime prevention and forecasting. The model has steadily continued to attract attention and support in many criminological areas,15 including predatory crimes as outlined in the original theory and others not included in the original model’s design.
In a series of books geared toward criminal justice students and researchers, as well as loss prevention practitioners and other interested parties, Felson applied the routine activity theory to explain and prevent crime.16 In addition to predatory offenses, he expanded the theory’s usage to address fights, illegal markets, and white-collar crime and presented suggestions for a technique known as situational crime prevention, the analysis of unique characteristics associated with crime problems to arrive at prevention solutions.17 Combining the routine activity theory with situational crime prevention was used later to explore crime within the business environment and in local communities.18
Within the study of victimology, the routine activity theory has been applied quite often. The example of a burglar entering an occupied home with the intent to steal but, instead, finds a woman to rape is a “malicious serendipity” of the routine activity theory.19 Researchers used the theory to counter the “rape supportive culture” belief and show that not all women have the same risk of sexual assault based on their repetitious activities.
Victimization is characterized as less random and more spatial and temporal as outlined by the routine activity theory.20 Researchers have used college campus safety as the setting for applying the routine activity theory, mainly for victimization studies. Applying the model to the rates of criminal victimization on campuses, they concluded that residents provide a continuous supply of suitable targets, especially with their abundance of portable goods.21 College students generally lack suitable guardians and engage in risky lifestyles, such as partying and consuming alcohol and other drugs.22 One study expanded the topical area of guardianship to explore those who make efforts to decrease their individual-level protective behaviors and why they do so.23 The research sampled a college campus population and found that a general fear of crime was not a significant influencing factor, but, rather, specific, objective knowledge of both the potential exposure to likely offenders and the characteristics of the surrounding area caused changes in the routines of probable victims.24 For example, a university police department should advise students of specific problem areas (In the past 3 months, two attempted sexual assaults have occurred at the parking deck near the library after dark.) instead of generalizing that threat across the entire campus (Two attempted sexual assaults have taken place on campus in the past 3 months.). Although the threat of sexual assault does exist across campus, the general fear is not as productive as specific information in influencing students’ behaviors.
Researchers also have applied the routine activity theory to stalking.25 While the topical areas run concurrent with several others, such as college crime26 and victimization,27 studies have used the application to model stalking incidents, vulnerabilities, and its likelihood.28 Similar to other types of victimization, the prevalence of stalking on college campuses often relates to the stable presence of suitable targets and the lack of capable guardians. Researchers applied the routine activity theory to determine that college women become suitable targets based on their routine and daily activities. The research sought to identify the lifestyle habits of stalking victims to give some predictive value to the likelihood of becoming a stalking victim.29 Researchers also applied the theory to the analysis of international drug control policy in the Netherlands, an application far from any use considered in the original theory development. They contended that in an attempt to develop drug control policies, the Dutch have become too far-reaching in their policy development and reviewing and reformulating policy based on the more simplistic routine activity theory could prove useful.30 A similar argument also was presented several years after the research regarding the Netherlands applying the routine activity theory to explain the country’s narcotic problem.31
An attempt to understand conflict that occurs in everyday life drew upon the fundamental elements of the routine activity theory. Researchers formed a parallel between conflict and routine activity and expressed the importance of the analysis, citing that the integration of the two elements can “interact in a criminal case.”32
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Researchers
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The routine activity theory was reformulated by marrying it with the theoretical concepts of several other criminological theories, including situational crime prevention, the control theory, self-control, and social disorganization. The reformulated theory was principally designed to describe the use of civil remedies to prevent crime,33 and, though lacking empirical support, it proved useful for initially analyzing the effect of civil remedies.34
Law enforcement agencies can address specific crime issues within their respective jurisdictions by applying the routine activity theory as a framework for analyzing a problem and planning an intervention. Analyzing includes collecting and examining data about the problem, describing its history, evaluating potential causes, reviewing previous interventions, and identifying stakeholders and offenders.35 The routine activity theory assists in all of these analytical processes. Once agencies analyze the problem and identify its causes, they efficiently and effectively can begin setting goals and objectives to achieve an outcome and design, implement, monitor, and evaluate programs or policies to address the problem, reducing the likelihood of the convergence of the three main components needed for a crime to occur.
A city experienced an increase in daytime residential burglaries in a particular district. An analysis of the problem by the city’s police department explored the three components of the burglaries that, according to the routine activity theory, must exist. The arrest reports in the few solved cases indicated that the motivated offenders were primarily juveniles between the ages of 13 and 17. A review of the incident reports and follow-up interviews with the burglarized homeowners revealed that most burglaries happened on weekdays between noon and 5 p.m. During this time, all patrol units not responding to specific calls were required to be positioned in the city’s school parking lots and at school crossings. No residences with alarm systems (or signs indicating the presence of one) were targeted. Often, several neighboring homes were burglarized on the same day. These crime characteristics represented the level of capable guardianship (or lack of it) during the criminal events. The suitable victims in this scenario were the actual items taken, not necessarily the owners of them (although most people generally think of owners as the victims). The items reported taken from the homes were normally small and easily transportable, including liquor, cash, CDs, and small electronic devices. Many of the homes’ interiors often were needlessly vandalized as well.
After the department analyzed the routine activity theory’s three components of the crime problem, it designed an intervention program. Ac-cording to the model, the absence of any one of the components of a crime sufficed in preventing that crime.
Therefore, assessing each component of the crime assisted in developing different
action plans to use individually or together to develop preventive
measures. The motivated offenders in the burglaries appeared
to be juveniles, rather than professional burglars, based on
the arrests made in the recent past, the less valuable nature
of the victims (items stolen), and the senseless vandalism
perpetrated at the scene.
© PhotoDisc
Also,
the burglaries appeared to occur in a period coinciding with
lunch and after-school periods. To reduce the convergence of
these motivated of-fenders with suitable targets (items in the
residences), the department could initiate strict truancy enforcement
programs, work with the schools to better track students leaving
campus during the lunch period, and develop after-school programs.
If the handler component of the theory is considered, law enforcement
could work to implement programs to exercise influence over the
juveniles to refrain from engaging in delinquent or illegal
behavior, including initiatives to create mentorship or work
programs for at-risk youths, parental notification of the burglary
problem through community meetings, or even media releases.
In this example, the capable guardians included police officers, school officials, neighbors, and residential alarm systems, as well as residents simply being at home (which is not an option for many people who must leave their residences to go to work). Such efforts as creating a Neighborhood Watch with residents who remain home during the day, suggesting the installation of residential alarm systems, reminding residents to lock their doors, and increasing law enforcement patrols in the neighborhoods during peak burglary periods can increase the capable guardianship.
Reducing the suitability of the victims posed the most difficult task in this scenario because few citizens will purchase less valuable property just to decrease the likelihood of theft (many people do reduce the suitability of their cars being stolen by driving older, less attractive cars), and the government has little input in the legal personal possessions of citizens. To reduce the suitability of the victims (items taken), police could provide information through pamphlets or community meetings to residents re-minding them to secure valuables within their homes (not clearly visible from open windows) and not leave large sums of cash there. While ensuring that doors are locked acts as a capable guardian, it also hard-ns the target by making it more difficult to actually take.
While the scenario is simple and certainly not an exhaustive exploitation of each of the routine activity theory’s components, it provides an example of how law enforcement can use the theory as a model for addressing specific crime issues. This scenario uses both the problem analysis and intervention program development stages.
Many researchers have used the routine activity theory to address crime problems, explain them, and develop preventive measures and solutions. In existence for over 50 years with only one minor alteration, the theory, with its unique applicability to a variety of criminological topics, is a resourceful model for crime-related studies.
Based on the popularity in current research, the routine activity theory will remain a tool for practitioners and a source of interest for research-ers for several more decades. Law enforcement agencies can use it as a model to address a plethora of specific crime-related problems because of its simplicity and versatility.
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An
attempt to |
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Contemporary uses highlight the seemingly illimitable potential
of the theory in addressing particular crime concerns. Law
enforcement managers can optimize the benefits of existing
research and use them to ad-dress issues in their own jurisdictions
to make their citizens and communities even safer.
1 C.R. Jeffery, “Obstacles to the Development of Research in Crime and Delinquency,” Journal of Research in Crime and Delinquency 30 (1993): 491-497.
2 See, L.E. Cohen and M. Felson, “Social
Change and Crime Rate Trends: A Routine Activity Approach,” American Sociological
Review 44 (1979): 588-608.
3 Ibid.,
591.
4 S. Pfohl, Images of Deviance and Social
Control (New York, NY: McGraw-Hill, 1994), 83.
5 M.
Felson, “The Routine Activity Approach and Situational
Prevention,” in Contemporary Criminological Theory,
eds. L. Siegel and P. Cordella (Boston, MA: Northeastern
University Press, 1997), 20.
6 Supra note 2, 589.
7 Predatory
does not imply person-onperson crime but, rather, preying
on either a person or an item. Therefore, a burglary constitutes
a predatory crime because the offender preys on the vulnerability
of the item. Some items are more vulnerable than others.
For example, it is easier to steal a piece of candy than
a washing machine.
8 Supra note 2, 604.
9 For
illustrative purposes and to maintain clarity, the author
employs masculine pronouns for subjects in most instances.
10 Further
exploration in this area of a group of people as increasing
capable guardianship is suggested to modify this concept
from the perspective of terrorist acts where larger groups
of people may actually increase the chances of victimization.
11 M.
Felson, “Linking Criminal Choices, Routine Activities,
Informal Control, and Criminal Outcomes,” in The
Reasoning Criminal: Rational Choice Perspectives on Offending,
eds. D.B. Cornish and R.V. Clarke (New York, NY: Springer-Verlag,
1986), 119-128.
12 M. Felson, Crime and Everyday
Life, 2nd ed. (Thousand Oaks, CA: Pine Forge Press, 1998),
53.
13 J.R. Brunet, “Discouragement of Crime
Through Civil Remedies: An Application of a Reformulated
Routine Activities Theory,” Western Criminology
Review 4 (2002): 71.
14 Criticisms regarding
the routine activity theory’s general lack of value
have been lodged; see supra note 1; J.L. Massey, M.D. Krohn,
and L.M. Bonati, “Property Crime and the Routine Activities
of Individuals,” Journal of Research in Crime and
Delinquency 26 (1989): 378-400. More specific critiques
of perceived research shortcomings and inadequate operationalizing
of critical factors are found in T.D. Miethe, M.C. Stafford,
and S.J. Long, “Social Differentiation in Criminal
Victimization: A Test of Routine Activities/Lifestyles Theories,” American
Sociological Review 52 (1987): 184-194; and D.W. Osgood,
J.K. Wilson, P.M. O’Malley, J.G. Bachman, and L.D.
Johnston, “Routine Activities and Individual Deviant
Behavior,” American Sociological Review 61 (1996):
635-655.
15 An Internet-based search of WebSPIRS
(SilverPlatter Information: Florida State University (n.d.),
retrieved March 10, 2004, from http://80-www.lib.fsu.edu.proxy.lib.fsu.edu:9000/
resources/criminology.html) indicated that 33 criminal
justice periodicals have published articles related to the
routine activity theory since 1980, 26 of which have been
in the last decade. A social science citation index through
ISI Web of Knowledge (Thompson ISI. (n.d.). Social Science
Citation Index, retrieved March 10, 2004, from http://isi4.isiknowledge.
com/portal.cgi/wos) revealed 35 articles related to the
routine activity theory and approach in their database since
1978.
16 Supra note 12.
17 Supra note 5, 20-25.
18 M. Felson and R.V. Clarke, Business and Crime Prevention (Monsey, NY: Criminal Justice Press, 1997); and M. Felson and R.V. Clarke, Opportunity Makes the Thief (London: Police Research Group, 1998).
19 Supra note 12.
20 E.E. Mustaine and R. Tewksbury, “Sexual Assault of College Women: A Feminist Interpretation of a Routine Activities Analysis,” Criminal Justice Review 27 (2002): 90.
21 V.A. Henson and W.E. Stone, “Campus
Crime: A Victimization Study,” Journal
of Criminal Justice 27 (1999): 295-307.
22 B.S.
Fisher, F.T. Cullen, and M.G. Turner, “Being Pursued:
Stalking Victimization in a National Study of College Women,” Criminology
and Public Policy 1 (2002): 266.
23 E.E.
Mustaine and R. Tewksbury, “College Students’ Lifestyles
and Self-Protective Behaviors: Further Consider-ations
of the Guardianship Concept in Routine Activity Theory,” Criminal
Justice and Behavior 30 (2003): 309.
24 Ibid.,
321.
25 Supra note 22; and E.E. Mustaine and
R. Tewksbury, “A Routine Activity Theory Explanation
for Women’s Stalking Victimization,” Violence
Against Women 5 (1999): 43-62.
26 Supra
notes 22 and 23.
27 Supra note 25.
28 Supra
note 22.
29 Supra note 25 (Mustaine and Tewksbury).
30 G.
Farrell, “Routine Activities and Drug Trafficking:
The Case of the Netherlands,” unpublished manuscript,
Rutgers State University of New Jersey, 1997; retrieved
January 21, 2004, from http://www.drugtext.org/library/articles/
98911.htm.
31 T. VanderHeijden, “Routine
Activities and Drug Trafficking via the Netherlands,” paper
presented at the meeting of the Institute for Human Rights
and Criminal Justice Studies, Durban, South Africa, 2001.
32 W.A.
Pridemore, “Review of When Push Comes to Shove:
A Routine Conflict Approach to Violence,” Journal
of Criminal Justice and Popular Behavior 7 (2000):
125-128.
33 Supra note 13, 73.
34 Supra
note 13, 76.
35 W.N. Welsh and P.W. Harris, Criminal Justice Policy and Planning (Cincinnati, OH: Anderson, 1999)
The Bulletin staff is always looking for dynamic, law enforcement photos for possible publication in the magazine. We are interested in photos that visually depict the many aspects of the law enforcement profession and illustrate the various tasks law enforcement perform. We can use color prints, digital photographs, or slides. It is our policy to credit photographers when their work appears in magazine. Contributors should send duplicate, not original, prints as we do not accept responsibility for damaged or lost prints. Send photographs to: Art Director |
Visionary Leadership
Where there is no vision, the people perish.
Proverbs 29:18
What is vision? Why is it so hard to develop a guiding vision? Why do we need one? Oversimplified, vision is the answer to, "What do we want to be ?"
Vision statements in law enforcement community are quite common and, in fact, play a vital role in setting the direction for agencies. These statements often are very helpful in orienting young women and men toward the selection of a career in policing. Most of us can remember with pride admiring the vision statements of the organization we joined. Those of us in the middle of our careers may use these guides to re-energize our commitment to the work to which we are dedicating our lives. Those finishing their public service can use them to reflect with satisfaction on the time and energy devoted to a noble profession.
As a collective, a law enforcement organization's vision statement encompasses the reason for individuals being in the organizations. They represent the best those working within it can aspire to and the image of what is expected by their community. Ideally, a well conceived vision statement is grounded in the guiding principles that the people in the organization see as their touchstones as they move through their working lives. Leaders are responsible for helping to create the vision and modeling the way toward its achievement.
Yet, it is not easy to define a vision. It takes a great deal of soul-searching to decide what an organization should stand for. Anyone who has ever participated in the process of developing a real future-oriented vision that encompasses the aspirations of a group understands the difficulties involved. However, it is important to remember an assembly or organization that does not have a sense of where it is going will not have its employees pulling in the same direction. Outside the obvious waste, this leads to poor morale and confusion.
It is incumbent for a successful agency to have a clear vision of where it is going. Of itself, it will not guarantee success, but the possibility increases if individuals in the organization collectively understand what they want to be.
The Fourth Amendment to the Constitution protects against unreasonable searches and seizures.1 To be reasonable, a search generally must be supported by a warrant issued upon probable cause.2 But, there are exceptions to this general rule.3 One such exception applies when a search serves “special government needs” beyond the normal needs of law enforcement; in which case, the search may be reasonable despite the absence of a warrant, probable cause, or even individualized suspicion.4 The U.S. Supreme Court has recognized that, in certain limited circumstances, the government’s need to discover latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting a search without any measure of individualized suspicion.5 A critical factor in the validity of suspicion less searching is the non-law enforcement nature of the special need asserted as a justification.6 General crime control programs designed to ferret out criminal activity and gather evidence must be distinguished from those that have another particular purpose, such as the protection of citizens against special hazards.7
This article examines the “special needs” exception as applied to situations in which law enforcement directly conducts searches and seizures without individualized suspicion for the purpose of minimizing a risk of harm.8 In responding to the realities of terrorism in the post 9/11 period, law enforcement may increasingly be required to adapt traditional legal authorities to confront and combat new threats.9 In creating new types of security programs to further the “war on terror,” law enforcement agencies, of course, must respect the rule of law and preserve the legal and constitutional protections that define a free society. Where the risk to public safety is substantial and real, suspicion less searches calibrated to that risk may be reasonable; for example, routine searches at airports and entrances at courts and other official buildings have long been upheld.10 The essential purpose of such security pro-grams is not to detect weapons or explosives or to apprehend those who carry them but to deter persons carrying such materials from seeking to board or enter.11 Moreover, the absence of specific threat information does not vitiate either the authority or wisdom of conducting security screening generally for all flights. When the threat is to any flight, every flight may be protected by security searches.12 Preemptive measures directed toward other likely targets also make sense given the possibility that terrorists continue to plan for large-scale attacks within the United States.13 There is no reason to believe that specific target information is necessarily, or even frequently, available before a terrorist attack. Nevertheless, where the threat is real and where there is no foolproof method of confining a search or seizure to the few who are potential terrorists, the “special needs” exception may be employed. Serious threats demand serious and effective responses.
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Special Agent King is a legal instructor at the FBI Academy. |
The “special needs” exception that has been used to uphold certain suspicion less searches and seizures is an exception to the general rule that a search must be based on individualized suspicion of wrongdoing.14 While the “special needs” exception has been recognized in random drug testing cases and a comparable standard has been applied in highway checkpoint cases, the Supreme Court is particularly reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue ordinary crime control ends. In Ferguson v. City of Charleston, the Court reviewed its prior “special needs” cases emphasizing that, in each case, the justification underlying the search was “divorced from the State’s general interest in law enforcement”15 and noting that it had never “upheld the collection of evidence for criminal law enforcement purposes.”16 Accordingly, in Ferguson, the Court concluded that the “special needs” doctrine was inapplicable to a state hospital drug abuse policy in which pregnant patients who met certain symptom criteria were given drug tests and the results were turned over to the police. Critical to the decision in Ferguson was the finding that the hospital policy was developed and enforced in conjunction with the police. Although the drug testing did have a deterrent purpose intended to reduce the incidence of cocaine-addicted mothers and newborns, the central feature of the policy was the collection of evidence resulting in a threat of prosecution designed to coerce patients into treatment. Its purpose was thus indistinguishable from a general interest in crime control and, therefore, was not within the “special needs” exception.17 In City of Indianapolis v. Edmond, the Court found that the primary purpose of the city’s drug interdiction check-point program, wherein police officers demanded the drivers’ licenses and registrations, peered into windows, and led drug-sniffing dogs around automobiles, was indistinguishable from the city’s general interest in crime control. The checkpoint program was not justified by the severe and intractable nature of the drug problem and could not be rationalized in terms of high-way safety or by its secondary purpose of keeping impaired motorists off the road.18 The Court reasoned that if a program could be justified by its lawful secondary purpose—such as deterring drunk driving— authorities would be able to establish roadblocks for virtually any purpose as long as they also included a sobriety check.
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Only
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This line of precedent makes clear that the Fourth Amendment protects against the use of suspicionless searches or seizures undertaken for the specific purpose of gathering evidence for criminal proceedings. Only a few types of searches and seizures have been recognized expressly as falling within the “special needs” exception. In the context of safety and administrative programs, the special need addressed by the governmental program must be well beyond the normal need for law enforcement or a general interest in crime control. The Supreme Court has expressly applied the “special needs” exception to support suspicion-less checkpoints, which are seizures under the Fourth Amendment, designed to address the following interests.
In Michigan Department of State Police v. Sitz,19 the Court held that the removal of drunk drivers pursuant to a sobriety checkpoint program, under which all vehicles passing through the checkpoint were stopped and their drivers briefly examined for signs of intoxication, did not violate the Fourth Amendment. The fact that approximately 1.5 percent of drivers passing through the checkpoint were arrested for alcohol impairment was sufficiently effective to justify the state’s interest in implementing the program. The purpose of the checkpoint was not to gather evidence of criminal activity but to deter drunk driving, which posed a significant public hazard.
The interception of illegal aliens was identified as a “special need” in United States v. Martinez-Fuerte.20 It was constitutional for the Border Patrol, after routinely stopping vehicles at a permanent check-point, to refer motorists selectively to a secondary inspection area for questions about citizen-ship and immigration status, on the basis of criteria that would not sustain a roving patrol stop, and there was no constitutional violation even if such referrals were made largely on the basis of apparent Mexican ancestry. The Court concluded:
A requirement that stops on major routes inland always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens. In particular, such a requirement would largely eliminate any deter-rent to the conduct of well-disguised smuggling operation, even though smugglers are known to use these highways regularly.21
A roadblock in which officers solicited voluntary cooperation from members of the public in the investigation of a serious crime was permitted in Illinois v. Lidster.22 The roadblock at which all motorists were systematically stopped so that police could ask them for information about a recent fatal hit-and-run accident on that highway and hand each motorist a flyer requesting assistance in identifying the vehicle and driver involved in the accident was deemed reasonable by the U.S. Supreme Court. The relative public concern was grave, and the stop advanced that concern to a significant degree. The stop, which required a wait in line for a few minutes, at most interfered only minimally with liberty of the sort that the Fourth Amendment seeks to protect. Unlike the checkpoint in Edmond or the drug testing policy in Ferguson, there was no purpose to gather evidence against the person subjected to the seizure. As the Court noted:
[U]nlike Edmond, the context here (seeking information from the public) is one in which, by definition, the concept of individualized suspicion has little role to play. Like certain other forms of police activity, say crowd control or public safety, an information-seeking stop is not the kind of event that involves suspicion, or lack of suspicion, of the relevant individual.23
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For
a "special need," |
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Thus, in Lidster the Supreme Court suggested that, in addition to the specifically authorized checkpoints, there are other circumstances—public safety in particular—that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency or special hazard, relate to ordinary crime control. The existence of an emergency or special hazard combined with no practical means of addressing the emergency or hazard based on individualized suspicion brings the activity within the “special needs” exception. For example, there is support for the position that appropriately tailored roadblocks set up to prevent explosive or other dangerous devices from entering likely target areas or to catch a dangerous criminal likely to flee by way of a particular route could be conducted without individualized suspicion. As the Court observed in Edmond, “the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack.”24 Further, Justice Ginsburg has observed that “the use of bomb-detection dogs to check vehicles for explosives without a doubt has a closer kinship to the sobriety checkpoints in Sitz than to the drug checkpoints in Edmond... even if the Court were to change course and characterize a dog sniff as an independent Fourth Amendment search, the immediate, present danger of explosives would likely justify a bomb sniff under the special needs doctrine.”25
In his dissenting opinion in Sitz, Justice Stevens remarked that “permanent, nondiscretionary checkpoints could be used to control serious dangers at other publicly operated facilities. Because concealed weapons obviously represent one such substantial threat to public safety, I would suppose that all subway passengers could be required to pass through metal detectors, so long as the detectors were permanent and every passenger was subjected to the same search.”26
The first essential question to ask concerning the validity of a search or seizure under the “special needs” exception is whether there is a substantial governmental need or public interest served by the activity in question. In determining the public necessity requiring a particular type of suspicionless search, the courts have exam-i ned the nature and degree of the threat of public danger arguably necessitating the search. In the early 1970s, the courts recognized the public necessity for warrantless airport searches because of the “great threat to hundreds of people” 27 and the “enormous potential for violence”28 created by the rash of hijackings that occurred during that time. The courts found the nature of the threat created by hijackings particularly grave in terms of the potential damage to persons or property, disruption of air traffic, and complication of foreign relations.29 Similarly, in authorizing searches of court-houses and other government buildings, the courts recognized the very real threat to public safety that arose from the “outburst of acts of violence, bombings of federal buildings, and hundreds of bomb threats, resulting in massive evacuations of federal property” throughout the country.30
© Comstock Images
With respect to other public venues, in the so-called “rock concert” cases, involving searches for bottles, cans, drugs, and alcohol, the courts distinguished the airport and courthouse cases as involving unique circumstances.31 The searches in these cases were not instituted to uncover weapons or other instruments of mass violence but, rather, to find either contraband or objects that could be dangerous if broken or used as projectiles. Because the items for which the patrons were searched posed no threat of public danger equivalent to that posed by a bomb or gun, the courts have consistently held that the necessity of searching arena patrons is minimal compared with that for airport searches. Even a search for weapons has been found to be unjustified on a public necessity rationale under circumstances where the potential damage from a single individual’s weapon is not analogous to the mass destruction potential present in an airport or courthouse.32 For example, a state statute that authorized warrantless searches of all bar patrons for weapons was found to be unconstitutional because “the public necessity addressed by these laws is apparently the danger to individuals in a bar at the hands of one who is armed and intoxicated. This public purpose in no way equals such national concerns as the foreign policy implicated by hijackings, or the threat to the judicial system implicated by courthouse bombings.”33
While the Supreme Court has hinted that certain types of suspicionless searches con-ducted for the purpose of maintaining public safety might be lawful, it has thus far maintained tight control of the potentially unlimited sweep of the “special needs” standard under a broadly applied public safety rationale. Searches motivated by only a general, though certainly logical, con-cern that public events or venues where large crowds gather might be targets of an unidentified terrorist attack are problematic. Line drawing in this area is never easy and can be enormously difficult given the stakes involved. The dilemma has been described by one court as:
[Law enforcement officers] should be commended for their efforts in a difficult, often impossible job, particularly given the post September 11 environment. They are criticized when their actions appear to tilt too much in favor of public safety and infringe upon fundamental rights, and they are criticized when they do not go far enough and a tragedy results.34
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The city of Columbus, Georgia, attempted to address the public safety dilemma posed by the amorphous nature of the present danger of potential terrorist activity in Bourgeios v. Peters when it argued before the Eleventh Circuit that “[l]ocal governments need an opinion that without question, allows nondiscriminatory, low level magnetometer searches at large gatherings...post September 11, 2001, this Court can determine [that] the preventive measure of a magnetometer at large gatherings is constitutional as a matter of law.”35 The court disagreed, holding that a city policy to conduct magnetometer searches of all protesters prior to entry into the protest area located near a U.S. military-run school at Fort Benning, Georgia, violated the protestors’ Fourth and First Amendment rights.36 The court refused to extend the “special needs” exception as requested by the city, pointing out that no weapons had been found at the protest site and no protestors had been arrested for acts of violence during the group’s 13-year history.
The City’s position would effectively eviscerate the Fourth Amendment. It is quite possible that both protestors and passersby would be safer if the City were permitted to engage in mass, warrantless, suspicionless searches. Indeed, it is quite possible that our nation would be safer if police were permit-ted to stop and search any-one they wanted, at any time, for no reason at all. Nevertheless, the Fourth Amendment embodies a value judgment by the framers that prevents us from gradually trading ever-increasing amounts of freedom and privacy for additional security. It establishes searches based on evidence—rather than potentially effective, broad, prophylactic dragnets— as the constitutional norm. We also reject the notion that the Department of Homeland Security’s threat advisory level somehow justifies these searches.37
Even granting that the threat of terrorism is omnipresent simply referring to 9/11 or otherwise to a threat of terrorism generally will not, without more, provide a sufficient basis for restricting the scope of the Fourth Amendment’s protections in any large gathering of people. For example, in State v. Seglen, the North Dakota Supreme Court held, citing Bourgeios v. Peters, that warrantless pat-down searches of patrons by a state university police officer as they entered an arena to attend a hockey game were not justified by an increased threat of terrorism or violence.38 The state argued that the security needs at large arenas and sporting events are similar to airports and courthouses, especially in recent years. However, the court responded that the search could not be justified by a generally increased threat of terrorism and violence; there must be some factual basis to believe that a threat to public safety existed at the arena. “We agree with our colleagues in the Eleventh Circuit. There was no history of injury or violence in this case and nothing in the record supports a suspicionless search of all patrons by a University of North Dakota police officer.”39
For a “special need,” there must be some definitive basis for believing that
