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Features

Field Training
Programs
By Michael Massoni
Incorporating the adult learning style in FTO programs can close gaps in training and improve instruction.

Delivering Training Material
in a Practical Way
By Thomas L. Golden and
Paul E. Seehafer
Law enforcement instructors who incorporate effective delivery methods in the classroom help officers become ready to fulfill their duties.

Searching Cell Phones
Seized Incident to Arrest
By M. Wesley Clark
With the proliferation of cell phones in recent years, the courts have been called upon to address new applications of the search incident to arrest doctrine.

Departments

Field Training
Programs
Understanding Adult
Learning Styles
By Michael Massoni, M.P.A.

Many people think learning is simply learning. However, differences exist between an adult’s learning style and a child’s. Although adult learners are more mature and focused than their younger counterparts, instructors must have certain skills to maintain adult-learner motivation in the classroom. In the law enforcement profession, this concept impacts the relationship between the field training officer (FTO) and the trainee. To ensure effective instruction, FTOs should tailor their training to meet the learning style of recruits.¹

ONE AGENCY’S EXPERIENCE

In 2002, the chief of the South San Francisco, California, Police Department (SSFPD) recognized that his agency’s FTO program had an almost 50 percent failure rate, a serious concern because of the difficulty finding qualified recruits and the time and expense of the hiring process. He recently had attended a seminar that focused on differences in adult learning styles and thought this might provide a solution. He met with the SSFPD training manager to explore the possibility of adjusting the agency’s FTO program to address this concern. He also contacted an administrator of adult education in a local school district to assist with any necessary program-development issues.

A review of the program determined that FTOs were only trying to cover their topic, rather than focusing on how the recruits learned. This type of training was successful for some but did not work for all. Instructional styles changed from one trainer to another; they all taught in a manner comfortable to them and not the recruits, who usually faced several styles during the program. The SSFPD realized that this type of instruction caused confusion and increased the failure rate.

Photograph of Captain Massoni Captain Massoni serves with the South San Francisco, California, Police Department.

Identifying Adult Learning Styles

Adult students vary in age, life stage, and experience, and they need to be able to integrate what they learn with what they already know to retain and use the new information.² They learn verbally, visually, logically, spatially, kinesthetically, and interpersonally.³ People have a preferred learning style they use to learn most quickly and effectively. And, those who know which style serves them best can use that information to their advantage when choosing between methods.

The SSFPD developed a plan where the adult education administrator meets individually with FTOs to identify their particular learning style. Those who share the same style then assemble as a group to develop strategies pertaining to how they learn best and what makes them comfortable in a learning environment. Then, the administrator meets individually with recruits for the same purpose. He offers tactics to maximize their learning in the field training environment. Prior to starting the training phase, recruits and their FTO develop an instructional plan by using information gleaned after identifying their learning style.

Recognizing Generational Differences

SSFPD leaders held a brainstorming session to discuss the new generation of police recruits and identified several critical issues. Today, many FTOs are baby boomers and may have difficulty identifying with Generation Xers (born between 1965 and 1980) and millennials (born between 1981 and 1999),⁴ both of whom comprise the majority of new officer candidates.⁵ Generation Xers and millennials pose a new challenge for FTOs, and, by focusing on their particular learning style, the SSFPD realized it needed to refine the program further. To be successful in such an endeavor, leaders realized the importance of understanding or having some knowledge of the social and cultural components of both generations. Generally, Generation Xers and millennials have a different work ethic than their predecessors and often view their work as a job, rather than a career.⁶ And, because they have grown up in the digital age, they may expect instant feedback.

Generation Xers

As with baby boomers, certain societal events and norms impacted how Generation Xers view the world. Many are products of divorce, have parents whose employers let them go after years of dedicated service, have witnessed major challenges to the presidency, and have grown up with religious and corporate scandals. These factors have resulted in a large sense of skepticism and distrust of institutions. Many do not expect employer loyalty; therefore, they may frequently change jobs to advance professionally. Additionally, Generation Xers ushered in the era of video games and personal computers during their formative years and, as a result, are technologically savvy.

Millennials

Although many millennials still are in school, the oldest ones recently graduated from college and are entering the workforce. They have had access to pagers, cell phones, and personal computers all of their lives. Millennials are eager to learn, frequently question information, and have high self-esteem. They are collaborators and favor teamwork due to their participation in groups in school and involvement at organized sports and extracurricular activities from a young age. Most reject the notion that they have to stay within the rigid confines of a job description. Additionally, they keep their career options open. Millennials more likely make entire career changes or build parallel ones.⁷

By recognizing such generational differences, departments will find it easier to reach their audience. They can ensure that training is adjusted to meet specific needs as well.

FTO PROGRAM CHANGES

There are many ways to learn and many ways to teach; agencies should try to find the right combination and balance. The SSFPD revamped the delivery of FTO instruction to conform to effective adult learning models. Numerous performance-testing tools are available to help individuals discover their preferences in learning and working environments. FTOs receive information pertaining to learning styles of their recruits and are well versed on which one to use to provide the most valuable training. The faster FTOs identify learning style preferences, the sooner they can use specific strategies to advance trainees’ abilities to learn, recall new information, and perform better. Students gain greater self-confidence and self-respect. In addition to redesigning FTO curriculum, the SSFPD identified five key components to facilitate learning for adults.

1) Prepare the learning environment: Instructors should have all materials in place before the training session begins.

2) Activate prior to learning: Everyone learns by applying new information to what they already know. To help participants grasp new information more easily, instructors can activate, indirectly or relatively, what students already know about it. FTOs should encourage trainees to absorb their knowledge and relate it to past personal experiences.

3) Use a variety of approaches: Facilitators must appeal to the visual, auditory, and kinesthetic preferences of learners. For example, they can show a brief video for visual learners or practice strategies that involve a kinesthetic component.

4) Engage learners in dialogue: When trainees talk about what they are learning, they can relate it to their own experiences and grasp a better understanding of the material.

5) Reinforce the learning: This helps ensure that trainees remember what they learned. Learners review the material to prepare for the interaction, verbalize their understanding, and then check it with someone else, thus reinforcing the learning. As trainees talk about what they learn, FTOs should listen to how they convey the material to make sure they have a clear understanding.

Using these elements, along with a structured program of identifying learning styles and designing interventions, has significantly increased the success of the SSFPD FTO program. Those involved have observed the effectiveness of the process and its impact on trainees. Further, the failure rate has considerably decreased. Although the primary structure of the program did not change, FTOs and trainees have much more interaction with each other. One FTO recalled when he was a new trainee, “There were times I was frustrated during the training. My FTO would tell me how to do something and then criticize me when I was not able to perform the task. I now realize that if he had focused on performance of the task, my FTO training would have been much less stressful and more productive.” Commenting on the revamped program, he stated, “The training of new recruits is much easier with the new program…. I can align my training to the most effective learning style for the particular recruit.”

Recruits praise the program as easy to learn and state that it addresses their needs. Those interviewed after completing it advised that they felt comfortable throughout the training because instructors were aware of how they learned best and concentrated on that style. Program managers must remain focused on design, intent, outcomes, steps taken, and the goal. The FTO program is a one-on-one situation where trainees receive immediate feedback regarding performance. The chief expressed his satisfaction by noting, “The initial cost and time commitment to implementing this program was well worth it. The FTOs have a better sense of how to train, and the recruits feel that their needs are being met.”

Field Training Officer Viewpoints

One FTO stated that he is a much more effective trainer since the implementation of the adult learning training. He saw the trainers’ frustration when recruits could not perform critical tasks in various phases of the former FTO curriculum. The frustration has significantly diminished for both the trainer and the recruit, resulting in a more flexible learning climate.

Another was a recruit several years ago and remembered that FTOs were receptive to his needs and went out of their way to deliver training using the best method to assist his learning. Now in an FTO position, he strives to train in the most effective manner by adapting to individual learning styles and using facilitation-learning skills with strikingly positive results.

CONCLUSION

From elementary schools to college classrooms, teachers have adopted individual learning styles across the nation. After the South San Francisco Police Department reviewed its field training officer program and made specific changes, it discovered that the key to engaging students involves understanding learning style preferences and social and cultural components of the new generation of trainees. Instructors need to know what motivates adults, as well as any barriers to their learning. This relatively simple solution to a rather complex problem has resulted in a greater success rate among recruits. Further, it required minimal initial expense. Law enforcement agencies should evaluate whether incorporating the adult learning style in their FTO programs can close gaps in training and improve instruction.

Endnotes

¹ For additional information, see Gregg Dwyer and Deborah L. Laufersweiler-Dwyer, “The Need for Change: A Call for Action in Community Oriented Police Training,” FBI Law Enforcement Bulletin, November 2004, 18-24.

² Ron and Susan Zemke, “30 Things We Know for Sure About Adult Learning”; retrieved from http://honolulu. hawaii.edu/intranet/committees/FacDev-Com/guidebk/teachtip/adults-3.htm.

⁴ “Workplace Generation Gap: Understand Differences Among Colleagues”; retrieved from http://www.cnn.com/ HEALTH/library/WL/00045.html.

⁵ For more information, see Craig Junginger, “Who Is Training Whom? The Effect of the Millennial Generation,” FBI Law Enforcement Bulletin, September 2008, 19-23.

⁶ Claire Raines, “Generations at Work”; retrieved from http://www.generationsatwork.com/.

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We would like to know your thoughts on contemporary law enforcement issues. We welcome your comments, questions, and suggestions about the magazine. Please include your name, title, and agency on all e-mail messages.

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Perspective
An Innovative Partnership
of Law Enforcement and
Higher Education
By Yael Hellman, Ed.D.

Today, criminal justice administration requires an unprecedented level of sophistication. Accordingly, law enforcement agencies throughout the nation encourage their personnel to pursue professional degree programs. To this end, the Los Angeles County, California, Sheriff’s Department teams with local colleges and universities to help its employees earn degrees, from the associate to the doctorate level. The agency partnered with Woodbury University in Burbank, California, to develop the innovative bachelor of arts in organizational leadership (BOL), which helps to develop leadership qualities in Los Angeles County sworn and civilian employees serving the area’s diverse communities. The curriculum provides candidates the rigorous intellectual and practical training they need to identify and meet executive responsibilities toward both colleagues and the public.

Other administrative arenas and urban areas may find the BOL a useful model to consider. Los Angeles County has over 95,000 budgeted workers representing law and justice, health care, and social services occupations; the program has graduates and current students from most of these specialties.¹ The county’s diverse sectors make it a challenging but enlightening training ground for managerial and leadership skills applicable across the United States.

Dr. Hellman is an assistant professor at Woodbury University in Burbank, California. Photograph of Dr. Hellman

PROGRAM OVERVIEW

For entry to the program, candidates must have an associate degree or 75 semester units (some coursework can be completed after admission). All students work full time and have returned to school after an average of 10 years, some as many as 25. Individuals pursue the degree for personal growth, as well as for professional or financial reasons, while juggling academic, job, and family demands.

In this personally and academically intensive program, students progress through the courses as a cohort, attending weekly 4-hour workshops, completing course material in teams and individually, and graduating as a group. In 2 ½ years, candidates complete 16 seven-week classes in sequence, each of which builds on information taught in previous courses.

COURSE CONTENT

Courses in the BOL program follow an order designed to identify and develop executive talents in students and prepare them for leadership roles in the public and private sectors. First, Leadership Theory and Practice I and II examine the history and evolving concepts of leadership, analyze elements of both successful and ineffective management, and compare leadership styles. Students scrutinize the executive qualities of a specific contemporary or historical figure. Then, they apply what they have learned about effective management by planning and directing a class discussion.

Building upon the leadership courses, the next two classes address supervisory concerns in public organizations. Critical Analysis and Decision Making considers the role of empirical analysis in developing public policy, while Leadership and Social Responsibility investigates ethical dilemmas faced in implementing such policies.

The next course, Organizational Structure: Private and Public Sectors, first uses sociological models to explore issues of diversity, structure versus openness, and personnel management (including conflict resolution and collective bargaining) in public organizations. Then, it compares these concerns with analogous ones in private-sector administration and helps class members distinguish the specific challenges of each organizational system.

After their exposure to diversity issues in the public and private sectors, candidates study Personnel Development and Organizational Culture, which covers such human resource management matters as recruiting, hiring, training, and retaining employees in a multicultural society. Then, Diversity and Organizational Culture teaches these future leaders of diverse groups to forge an inclusive climate.

As the development of any collective culture requires mutual comprehension, students next turn their attention to communication within organizations. While all BOL courses use contemporary communication theories, Leadership and Organizational Communication and Leadership and Interpersonal Communication investigate and apply the most cutting-edge research in the field. Coursework emphasizes all channels of interpersonal understanding: formal and informal communication, language and meaning theory, verbal and nonverbal communication, and the establishment of positive human relationships through communication.

Following candidates’ study of communication, Leadership and Organizational Psychology explores the art of responsible and effective employee management. Students measure the contribution of worker well-being and satisfaction to the efficiency of any organization. Next, Leading Organizational Change expands participants’ ability to establish a coherent team by introducing the skills needed to lead coworkers in an evolving agency: assessing a department’s openness to innovation, instituting new policies and protocols, and overcoming the resistance to change. And, just as change characterizes organizational life, so does employee conflict. To this end, the next course, Managing Conflict and Labor Relations, focuses on the leader’s role in handling disagreement, negotiating consensus, and building sustainable labor coalitions while advancing managerial objectives.

At this point, candidates can consider larger policy issues confronting organizational executives. Quantitative Methods I and II teach them accurate data analysis techniques for researching and evaluating products and services. The classes inculcate skills in observation and interviewing, data collection and recording, and reading and writing research reports. But, because information alone cannot produce decisions, students next learn how organizational leaders use their knowledge to envision and enact long-range projects. Accordingly, Strategic Planning and Assessment trains participants to create and develop comprehensive courses of action. Competencies practiced include documenting, implementing, and assessing the success of strategic long-term plans. Proficiency in these steps prepares students to conclude their instruction with an original capstone project.

The Capstone in Organizational Leadership course synthesizes and applies not only the material of all preceding classes but also the candidates’ considerable professional experience. Theory and practice coalesce in students’ final projects, which relate what they have learned about leadership, communication, data analysis, cultural diversity, psychology, and organizational structure to their personal and professional aims. In addition to being free from errors in mechanics and verbiage, the capstone paper must demonstrate a candidate’s ability to generate complex ideas and integrate them in a lucid thesis, using logical organization and cogent arguments. Thus, students culminate the program by displaying essential qualities of leadership: a strong sense of self, clear aims for the community, strategic skills to realize goals, and the facility to convey all of these to others. Even more important, articulating the knowledge participants have gained and the values they hold helps them implement what they have envisioned for themselves, their families, and the communities they serve.

PROGRAM
EFFECTIVENESS

BOL students present a range of experiences and needs considerably wider than those of typical university undergraduates, a fact that faculty and staff address with flexibility and sensitivity. To begin with, entering candidates have earned and financed a considerable amount of college units; thus, they receive a generous tuition reduction. Further, these adult students hold full-time jobs. Some have undergone extremely hazardous incidents at work, occasionally involving injuries to themselves or fellow department members. Others have worked field command positions, perhaps overseeing evacuations during Southern California�s wildfire season or addressing a variety of threats to public safety. And, many participants manage family-related circumstances, such as pregnancies and difficult situations involving their children. The faculty and administration of the BOL program have proved responsive to individual needs without compromising university standards. For example, two pregnant students on bed rest missed significant class time but, with faculty support, completed all requirements for graduation.

BOL enrollment has reflected the demographics of the surrounding communities. And, many of these students are the first in their families to pursue higher education or complete a degree. Woodbury�s faculty values this socially aware program and continually refines both methods and curricula to keep its instruction pertinent and accessible to all county employees.

To meet program goals, the BOL faculty instituted assessment mechanisms that illuminate participants� academic and personal experiences while pursuing the degree. During the last class session of each cohort, student surveys elicit feedback about the length, workload, and applicability of each course, as well as candidates� motivations for enrollment.

Recently gathered data revealed that 82 percent of participants approved of the length of the classes. Similarly, 90 percent of graduates found the workload appropriate. Concerning the relevance of the courses to law enforcement work, 55 percent of the students use the material almost daily, and an additional 14 percent apply the information at least weekly. Students� motivations for pursuing the degree varied. While 77 percent viewed it as a means for career improvement (e.g., promotion, transfer, or better job), most participants reported a combination of aims, including personal growth and increased leadership skills in the criminal justice and social service fields.

To guarantee the continued applicability of course material to law enforcement, faculty members also solicited candidates’ proposals for new classes and have adopted several. For example, participants’ recommendation that the curriculum broaden to include private-sector organizations inspired the addition of the Organizational Structure: Private and Public Sectors course. Other suggestions have enriched the existing curriculum and tied it more closely to students’ career paths. Balancing these innovations, however, the BOL retains its core substantive and methodological features, continuing to integrate a broad range of social sciences into a focus on leadership and to provide a coherent sequence of courses to guide cohorts of candidates.

Bachelor of Arts in Organizational
Leadership Course Sequence

1. Leadership Theory and Practice I
2. Leadership Theory and Practice II
3. Critical Analysis and Decision Making
4. Leadership and Social Responsibility
5. Organizational Structure: Private and Public Sectors
6. Personnel Development and Organizational Culture
7. Diversity and Organizational Culture
8. Leadership and Organizational Communication
9. Leadership and Interpersonal Communication
10. Leadership and Organizational Psychology
11. Leading Organizational Change
12. Managing Conflict and Labor Relations
13. Quantitative Methods I
14. Quantitative Methods II
15. Strategic Planning and Assessment
16. Capstone in Organizational Leadership

ALUMNI SUCCESS

Participants have found the BOL valuable. The program treats candidates as multifaceted human beings whose education draws on and increases their professional and personal accomplishments.

The vast majority of BOL enrollees master the program requirements. Since the first cohort in the fall of 2002, 90 percent of students have completed the program. Of those who have earned the degree, approximately 25 percent received promotions or won transfers to leadership positions of their choice. And, they cite the program as a crucial component in achieving their goals. Both the graduation rate and the rewards of degree completion provide evidence that the BOL enhances the leadership abilities and professional development of its students.

CONCLUSION

Woodbury University’s Bachelor of Arts in Organizational Leadership has proven its worth both to employees of Los Angeles County and to the varied groups they serve. The BOL helps students by honing the executive and diplomatic talents they need to guide organizations in a complex, diverse society and, thereby, also benefits the community.

This successful program serves as a model for other localities and institutions. Criminal justice organizations should consider using similar training programs to define and develop the qualities of their leaders in today’s complex environment.

Endnotes

¹ http://www.lacounty.info

Increasing Officer Retention
Through Educational Incentives
By Mark J. Terra

Photograph of police officer's hat, Law Enforcement Books and a college diploma

In recent years, many law enforcement agencies have faced increased officer turnover and, at the same time, find it harder to recruit qualified applicants.¹ One study determined that 33 percent of employees have considered leaving their current employer. Many felt trapped and planned on changing jobs within the next 2 years.² Moreover, departments are pressured to find qualified individuals to replace baby boomers reaching retirement age. Hiring and training officers requires a great deal of resources. After developing a system that effectively screens for qualified applicants, employers must find ways to retain them.

RETENTION STRATEGIES

Employers should ask employees to define expectations for their new job. Often, motivations other than salary come into consideration.³ Many employees state during exit interviews that they are leaving for a better-paying position. Leaders should personally meet with them and ask questions to clarify whether that is the real reason.⁴ In a healthy job market, an unhappy employee will leave for a 5 percent salary increase, but it will take a 20 percent increase for a happy employee to leave. Some situations occur where employees would not leave for anything less than 30 percent because their present position fulfills them.⁵ Exit surveys have identified several reasons why individuals choose to leave employment.⁶ The most common was a perceived limited potential for professional growth, characterized as a lack of hope in the present position. Others included a lack of respect or support from supervisors; compensation-related issues pertaining to the individual’s value or worth; boredom in the present position, indicating a lack of competence or fulfillment in the work; the perception that supervisors lack leadership skills; and issues related to the employee’s work hours (e.g., inflexible schedule, not enough overtime, or an undesirable shift.)⁷

Photograph of Special Agent Terra Special Agent Terra supervises three resident agencies within the Seattle, Washington, FBI office.

Training and Education

Some law enforcement agencies find that an ongoing professional development program increases job satisfaction.⁸ To be successful in a constantly changing occupation, employees must increase their skills. If they work for an organization that does not provide such benefits, they will go elsewhere to find them.⁹ Training for officers of all ranks should continue throughout their careers. One survey of FBI new agent trainees who were former police officers questioned why they had left their departments. Many responded that they wanted more opportunities for professional growth.¹⁰

Agencies seeking to increase their training should ensure that instruction addresses current issues. Historically, police training devoted minimal attention to developing officers’ communication abilities. Instead, most centered on practical skills, such as search and seizure, firearms, defensive tactics, arrest procedures, and traffic enforcement.¹¹ Community policing, employed by many departments, increases the contact officers have with the public and requires additional instruction in interpersonal interaction, ethnic diversity, drug and alcohol awareness, and domestic violence.¹²

Traditionally, much of the training officers receive has been structured in a lecture format. This delivery method needs to change as well.¹³ Instructors should incorporate more self-directed learning into their training.¹⁴ Many departments serving communities of 250,000 residents or more have begun embracing new technologies in their training and have increased classroom and field requirements from 1,280 hours in 1990 to 1,480 hours in 2000.¹⁵ During this same period, the number of large departments that augmented their education requirements for entry-level officers grew from 19 percent to 37 percent for some type of college, and departments requiring a 2-year degree increased from 6 to 14 percent.¹⁶

Conversely, many U.S. law enforcement agencies have 25 or fewer officers.¹⁷ Their limited budgets require them to creatively address training needs. Oftentimes, these departments must send officers to an outside training facility and incur the costs of lodging.¹⁸

Some law enforcement organizations have formed partnerships with higher education institutions to offer instruction to their officers. In 1997, the Phoenix, Arizona, Police Department initiated a graduate program with a university where officers could earn a master’s degree in leadership in 2 years.¹⁹ The agency also offers its officers almost $4,000 per year in tuition reimbursement as part of their compensation package.²⁰

In Miami County, Ohio, the basic police academy operates from a community college campus. Students attend the academy and, upon completion, earn 16 semester credit hours toward an associate degree.²¹ In 2003, several small departments in Oregon joined forces, forming a partnership with a community college that provides instructors to teach criminal justice academic subjects. Agencies involved provide subject-matter experts to teach practical skills. Students particularly like these courses because instructors use actual cases, resulting in a more realistic educational experience. Many of the courses are offered on the Internet, and students can apply the credits toward an associate degree or transfer them to 4-year degree programs.²²Instructors cover such areas as crime scene/intelligence analysis and administrative/research/ statistical analysis. Officers can take these online lessons when off duty and access them on the Internet from anywhere, eliminating the need for them to travel to a particular location. The cost to attend these courses is minimal, which allows officers from departments with limited training budgets the ability to take them. The Oregon program has proven successful with students from the United States and Canada employed by agencies at the local, state, and federal levels.²³

Another way to increase job satisfaction is to offer educational incentives. Agencies, such as the Redmond City, Washington, Police Department, pay up to 100 percent of tuition for officers pursuing a degree.²⁴ The Prince William County, Virginia, Police Department offers incentive pay (in addition to tuition reimbursement) to officers who possess an advanced degree.²⁵

Several federal agencies provide various types of training to local and state agencies. For example, the FBI invites local law enforcement officials to train at the National Academy in Quantico, Virginia. They also conduct regional training on numerous law enforcement topics throughout the United States. The Federal Law Enforcement Training Center in Glynco, Georgia, offers instruction in such areas as money laundering and postblast training.

Many law enforcement administrators fear that extending educational opportunities to officers will increase turnover because, with education, officers will increase their job mobility.²⁶ They also believe employees with postsecondary degrees will become frustrated with the bureaucratic idiosyncrasies of their organization and leave. Further, some leaders question the organizational loyalty of individuals who do not think they progress through the ranks as quickly as they should, causing employees to become disenchanted, thus increasing the potential for leaving.

A study conducted in Australia addressed whether education affects employee turnover. The Queensland Police Service (QPS), an agency of 7,000 officers, covers 715,000 square miles in the northeast part of the country. Prior to the study, QPS management introduced a plan to increase the professionalism of the organization by placing an emphasis on postsecondary education among its officers. They initially surveyed 1,111 officers who had a length of service from 5 to 9 years and had graduated from the academy between 1991 and 1994. Data obtained from 1,036 of the initial group did not show any statistical relationship between turnover and individuals with degrees or without.

CONCLUSION

The law enforcement profession constantly changes. New trends in a multiethnic society have occurred, and such public safety challenges as terrorism have emerged. Departments need to be able to hire and retain adaptable and productive officers. Researchers have found that job satisfaction serves as a key component in retention. With the baby boomer generation retiring and the increased demands for public safety, agencies are finding intense competition for qualified applicants.

Many leaders believe that most individuals leave their position for an increase in salary, but employees have other reasons, such as the lack of training and educational opportunities, as well. Research has shown that if agencies offer these incentives, job satisfaction, as well as agency loyalty, will increase.²⁷ Further, departments will have better-skilled officers handling the ever-increasing challenges of the profession. A variety of methods, ranging from offering in-service training to helping officers obtain advanced degrees, can accomplish this objective. Leaders must see the value of this initiative, make a firm commitment, and look for innovative ways to offer such benefits. Agencies can find financial assistance from various means, such as federal aid. Further, by conveying the importance of retention strategies to officials who fund the organization, administrators demonstrate quality leadership skills to their employees.

Future research identifying which specific educational incentives increase officer retention should be conducted. Results from this research could better direct organizations toward methods that allow them to accurately allocate their training resources. “In the end, it is important to remember that we cannot become what we need to be by remaining what we are.”²⁸

Endnotes

¹ W.D. Orrick, “Calculating the Cost of Police Turnover,” Police Chief 69, no. 10 (2002): 100-103.

² S.A. Schmidt, “Employee Turnover: Plan to Fend Off This Profit Killer,” DVM: The Newsmagazine of Veterinary Medicine 36, no. 10 (2005): 34.

³ Orrick.

⁴ For additional information, see Steve Gladis and Suzi Pomerantz, “Executive Coaching for Law Enforcement,” FBI Law Enforcement Bulletin, February 2008, 18-23.

⁵ Leigh Branham, The 7 Hidden Reasons Employees Leave (New York, NY: Amacom, 2005).

⁶ Ibid.

⁷ Ibid.

⁸ M.D. Bowman, P.M. Carlson, R.E. Colvin, and G.S. Green, “The Loss of Talent: Why Local and State Law Enforcement Officers Resign to Become FBI Agents and What Agencies Can Do About It,” Public Personnel Management 35, no. 2 (2006): 121-136; retrieved on January 31, 2008, from http://www.entrepreneur.com/ tradejournals/article/160542379.html.

⁹ “Develop a Retention Strategy,” Training and Development 59, no. 2 (2005): 12.

¹⁰ Bowman, Carlson, Colvin, and Green.

¹¹ M. Birzer, “Police Training in the 21st Century,” FBI Law Enforcement Bulletin, July 1999, 16-19.

¹² Ibid.

¹³ For additional information, see Craig Junginger, “Who Is Training Whom? The Effect of the Millennial Generation,” FBI Law Enforcement Bulletin, September 2008, 19-23; and Gregg Dwyer and Deborah L. Laufersweiler-Dwyer, “The Need for Change: A Call for Action in Community Oriented Police Training,” FBI Law Enforcement Bulletin, November 2004, 18-24.

¹⁴ Birzer.

¹⁵ U.S. Department of Justice, Bureau of Justice Statistics, Education and Training Requirements for Big City Police Officers Increase, Starting Salaries Remain Flat, (May 12, 2002); retrieved on January 24, 2008, from http://www.ojp.usdoj.gov/ bjs/pub/press/pdlc00pr.htm.

¹⁶ Ibid.

¹⁷ M.J. Hickman and B.A. Reaves, U.S. Department of Justice, Office of Justice Program, Bureau of Justice Statistics, Local Police Departments, 2003 NCJ 210118 (Washington, DC, 2006); retrieved on January 5, 2007, from http://www.ojp.usdoj.gov/bjs/pub/pdf/ lpd03.pdf.

¹⁸ Kurt R. Nelson, “Police Education for the 21st Century,” FBI Law Enforcement Bulletin, July 2006, 14-16.

¹⁹ S.M. Hennessy and P.B. Moore, “Phoenix PD Takes Higher Education Seriously,” Police Chief 66, no. 11 (1999): 26-28.

²⁰ Police Officer Salary and Benefits; retrieved on January 4, 2007, from http:// www.phoenix.gov/police/pdjob4.html.

²¹ Miami County, Ohio, Sheriff’s Office Basic Peace Officer Academy Training; retrieved on September 29, 2006, from http://www.edison.cc.oh.us/Business/ PeaceOfficer.htm.

²² Nelson.

²³ Ibid.

²⁴ Redmond City, Washington, Police Department; retrieved on January 4, 2007, from http://www.ci.redmond.wa.us/ insidecityhall/police/police.asp.

²⁵ Prince William County, Virginia, Police Department; retrieved on September 29, 2006, from http://www.pwcgov.org/ default.aspx?topic=040036003250003861.

²⁶ D. Jones, L. Jones, and T. Prenzler, “Tertiary Education, Commitment, and Turnover in Police Work,” Police Practice and Research 6, no. 1 (2005): 49-63.

²⁷ Ibid.

²⁸ Branham.

Unusual Weapon
Scissors

These pictures depict scissors that have a plastic sheath covering metal blades. The scissors’ handles are composed of plastic. Law enforcement officers should be aware that offenders may attempt to use this dangerous unusual weapon.

Police Practice
The Community Immersion Program
Building Relationships
By Jeff Adickes

Photograph of police officer on a bicycle with citizens at a community carnival

Austin, the state capital of Texas, straddles the Colorado River and boasts many thriving businesses and educational institutions. However, the city views its dynamic, multifaceted population as its greatest resource. The Austin Police Department (APD) shares the city’s appreciation of diversity and strives to reflect this value at every level. It stresses to employees the importance of diversity, tolerance, and human and civil rights and understands that successful policing entails partnering with the citizens of the community. To this end, in 2004, APD developed the Community Immersion Program in cooperation with the people of Austin to help the agency weave its new officers into the fabric of the community. The program requires prospective officers to engage citizens on a personal level, learn the history and values of the city’s people, and, perhaps most important, share with their colleagues what they have learned. Interaction with the citizens of Austin helps officers appreciate and become part of the community as they build relationships with the people they serve.

HISTORY OF THE PROGRAM

APD serves a city that, like any community, holds its public servants to high standards. In fulfilling one basic expectation, officers must understand and respect the citizens they serve. To this end, the department has faced a challenge in that a large number of its officers and recruits live outside the greater-Austin area. Thus, APD began recognizing the need to ensure that its personnel obtain the knowledge they need to provide effective police service and protect the quality of life enjoyed by the community. APD strives for mutual understanding between its officers and citizens as this enables true community policing.

APD realized that its officers would need some sort of training to help them properly serve Austin’s multifaceted population—all segments of it. Unfortunately, diversity education in APD and other law enforcement agencies has proven difficult due, perhaps, to both the methods of and the impetus for the training. The agency wanted its personnel to see such a learning opportunity as important and exciting.

The department searched outside sources for a program to meet its needs and purposes but did not find one suitable, certainly not a product capable of teaching its officers about values unique to Austin. During this search process, citizens began to tell APD through advocacy groups, community meetings, and the media that they wanted a stronger connection to the agency and increased understanding by officers of their values. They expressed interest in helping APD teach its officers about Austin. The department accepted the offer, recognizing that the community knows best what it needs and serves as the most powerful tool available to impact the agency’s attitudes, beliefs, and ideals. APD understood that learning about Austin directly from community members would encourage understanding between officers and citizens, leading to better service.

Input from the Community

APD has an open-door policy that allows community members to tour the campus, observe training, interact with cadets and staff members, and provide input. Many groups and individuals, including interested and concerned citizens, students, and secular and faith-based community leaders, have accepted this offer. Recently, an editorial writer for the local daily newspaper spent many weeks observing cadet training and prepared a multipart series about how the department and the community built several officers. During this process, the agency learned a great deal more about what the community wants from its police.

The department routinely holds commander’s forums in which it encourages people to meet with law enforcement personnel and discuss their needs and desires. APD recently sponsored a series of open forums in which civilians participated in discussions to help the department learn more about their needs. The agency spoke with various community leaders and advocacy groups to share their values regarding training, communication, and bridge building. APD also scoured the media (e.g., visual, print, radio, and foreign language) to determine the mood of the community regarding these issues.

APD’s trainers are enthusiastic students themselves. They have used the vitality and richness of the Austin community to learn what citizens, individuals, and groups expect from officers. The department has learned a great deal in this way: the most powerful message being that the community wants its police to understand and appreciate what makes Austin unique, which, of course, is its people.

Certainly, in developing and implementing the program, APD has found it important to have the support of not only the community but the department. From the first proposal, all levels of leadership, including the chief, have provided their encouragement. The agency also has backed the program with the necessary time and resources. Such support proves critical to the program’s credibility and success.

OPERATION OF THE PROGRAM

In the morning, instructors continue to reinforce values introduced during cadet class. These include abandoning stereotypes and biases, recognizing culture beyond ethnicity, understanding how cultures are learned, and building social capital and public trust.

During the day, cadets participate in classroom discussions and complete group exercises. They also are introduced and assigned to their teaching groups. A critical part of the program entails student involvement in experiential learning activities, which include groups of cadets miming a nonethnic culture until the class can guess the group represented. Also, cadets view the Community Immersion video, filmed in Austin and produced by APD staff; identify as many cultures in the short film as possible; and present their findings to the class. These assignments allow students to examine issues, such as whether people learn cultures or are born into them and why the agency’s diversity should reflect that of the community. Officers look at how they may appreciate and benefit from other cultures, as well as what the citizens gain.

In the afternoon, instructors introduce the Community Immersion project to the officer candidates. With a better understanding of the importance of appreciating differences, students form 8 to 10 groups that reflect as much diversity as possible. Also, instructors encourage the students to evenly disperse persons with technical expertise (e.g., software and video downloading). Each self-selected group then must explain to the instructors and audience members how their group met the criteria. Then, APD personnel assign each group a culture (e.g., those with disabilities or from ethnic or socioeconomic groups) chosen from among those who may have felt disenfranchised in the community in the past.

Over the next 4 days, each group of students conducts extensive research on the assigned culture in preparation of an oral and video presentation they give to the public during days 6 and 7. They also prepare an 8- to 10-page paper describing what they learned and how they met their learning objectives. APD staff members expect students to research their assigned culture specifically as it exists in Austin. Further, they must rely exclusively on the community when conducting their research. Cadets may refer to staff members only when seeking help with the use of the academy-issued video equipment or when requesting the presence of an APD officer while visiting an unsafe area.

The video presentation must feature participation by all group members and meet all key learning objectives. The video must feature an interview of six social or political leaders from the assigned culture. Cadets also conduct and film 10 on-the-street interviews with citizens of Austin, asking such questions as What are your expectations of me, a new police officer, over the next 23 years? What does our department do well with regard to your culture? and How can we do a better job interacting with your culture?

This fieldwork offers many benefits, the most important being the time that students spend in the community. It has the biggest impact on them as individuals and serves as effective diversity education because the cadets have positive experiences with cultures they may never have known or interacted with positively in the past. During these experiences, students confront their preconceived attitudes, biases, and stereotypes. Doing this with their peers encourages openness and emotional growth. Cadets have consistently praised this fieldwork.

During the final 2 days, students give their presentations about their assigned cultures to fellow cadets, staff members, invited guests, and the public. APD personnel choose a venue—usually rented conference space linked to a university— that reflects the expectation that students conduct professional presentations. Since the inception of the Community Immersion Program, the quality of these presentations has shown how the cadets have benefitted from the program and internalized ownership of the information about their community.

APD invites the public through different media outlets. The agency considers community support during the course and at the presentations critical to the success of the program. The feedback from citizens is vital in reinforcing the desired values of how officers should serve others. The credit for the success of this program really goes to the citizens who have participated and lent their support.

PRAISE FOR THE PROGRAM

From the beginning, APD understood that risk always accompanies the development and implementation of a program, particularly an unprecedented one, designed to encourage change. How would the community respond? The department? The media? Political leaders? And, attempts at extensive dialogue with these groups did not prove as informative as the agency had hoped. The department understood that taking risks and failing to build bridges could damage its relationship with the community. However, the success of the Community Immersion Program quickly alleviated those fears.

Throughout this process, the citizens of Austin have volunteered their input, support, and praise. Overall, the cadets have encountered open arms from the community. And, APD has received positive feedback from community leaders. The program has helped officers to develop not only partnerships with citizens but lasting relationships.

Of course, the department has volunteered many of its resources. Hosting 70 or more students for 7 classroom days is a huge commitment by an agency and a good measure of its dedication. Further, APD has demonstrated its excitement with the program by approving purchases of technical equipment (e.g., video cameras and components) and renting high-end professional venues for presentations to the community.

From the beginning, the agency has provided its strong support in many ways. For instance, the chief of staff has discussed the program at city council meetings. Additionally, APD has issued press releases and invited political, media, and community leaders to participate in the program.

Cadets who have participated in the program have offered positive comments and said that they learned important lessons. One cadet working with persons with physical disabilities stated, “We’ve noticed that people often go unnoticed. They don’t want people to feel sorry for them. They want people to know they can lead a normal life, just with different obstacles.” Another cadet said, “For me, exposing myself to these cultures, I’m becoming more aware of their customs and traditions, which will only help me in the end.”

The program has gotten enthusiastic coverage by the media. And, it has earned formal recognition. For instance, APD received a certificate of recognition from the International Association of Chiefs of Police Civil Rights Committee. APD has greatly appreciated the support and recognition the program has acquired.

CONCLUSION

Recruiting, mentoring, and educating officers to serve a diverse and unique community presents a challenging but rewarding mission for any police department. The Community Immersion Program, designed by and intended for the city it serves, has helped the Austin Police Department build bridges and establish partnerships in the community. While the program is not a panacea, it represents the pinnacle of a value system the agency conveys to officers from the day they are recruited through the day they retire.

APD seeks to ensure protection of the human rights of Austin residents by training and mentoring its new officers in a variety of ways. However, the Community Immersion Program has a unique organic quality that not only teaches about value systems but builds bridges of understanding and develops lasting relationships with the people whose rights officers swear to protect. It has a powerful effect in that it requires participants to immerse themselves in a portion of the community, engage in dialogue with members of that group, learn about these individuals’ motivations and values, and then teach what they have learned to their peers. In this manner, the program becomes not just an educational process but the beginning of relationships between officers and citizens.

Wanted:
Notable Speeches

The FBI Law Enforcement Bulletin seeks transcripts of presentations made by criminal justice professionals for its Notable Speech department. Anyone who has delivered a speech recently and would like to share the information with a wider audience may submit a transcript of the presentation to the Bulletin for consideration.

As with article submissions, the Bulletin staff will edit the speech for length and clarity, but, realizing that the information was presented orally, maintain as much of the original flavor as possible. Presenters should submit their transcripts typed and double-spaced on 8 ½- by 11-inch white paper with all pages numbered, along with an electronic version of the transcript saved on computer disk or e-mail them. Send the material to: Editor, FBI Law Enforcement Bulletin, FBI Academy, Law Enforcement Communication Unit, Hall of Honor, Quantico, VA 22135, or to leb@fbiacademy.edu.

Delivering Training
Material in a Practical Way
By Thomas L. Golden, M.Ed., and Paul E. Seehafer, M.S.

Estimates show that the amount of information in the world doubles every 7 years.1 Certainly, such a figure causes a domino effect on training delivered to members of the law enforcement community and, just as important, how that instruction is conveyed.

To accomplish effective training, law enforcement instructors must ensure that the delivery environment is three-dimensional. First, they must have thorough and current knowledge of the topic at hand to ensure their credibility. Next, they must continually hone their instructional delivery methods. Attending and graduating from a reputable instructor-development course proves an effective way to enhance instructional skills. Finally, instructors must assess attendee retention of delivered material to justify the necessity of the training.

Managers and leaders realize that the biggest asset of any agency is its people. And, those employees need to know what is expected of them, as well as how to carry out those expectations. Most agencies use mission statements and guiding principles as building blocks from which they develop specific instructions and briefings. The message and the messenger must be in sync to successfully convey the thought. Communication in all venues requires confidence, courage, and effective public speaking skills.

Public speaking is most people’s number one fear.² But, some instructors take it for granted. The fundamentals of most platform-skill practices recognize the three types of learner: visual, auditory, and kinesthetic.³ Combining information both visually and audibly with an exercise tends to maximize the learning process.

Instructors can achieve effective presentation skills by adopting several proven tips for successful public speaking.⁴ They should know the room, audience, and material; relax and turn nervousness into positive energy; visualize themselves giving the speech; realize that attendees want them to succeed; avoid apologizing; concentrate on the message, not the medium; and gain experience. By using these renowned methods and adding practicals, videos, and other aids, instructors can capture the visual, auditory, and kinesthetic characteristics of learners.

Technology issues pose a unique challenge for today’s instructors. Knowing students’ background−their job experience or particular interests−provides the instructor with a valuable tool to capitalize on during a presentation. Upon identifying the average skill level of attendees, the presenter faces teaching those who fall outside the parameters. Some instructor-development schools advocate teaching to the lowest common denominator, while others pursue a more middle-of-the-road philosophy. Often, technical programs recommend and sometimes require specialized classes as a prerequisite for admission. For example, attendees must either possess specific technical certifications or complete an online exam as a measure of competency.

Additionally, instructors may encounter a new breed of adult learners who either hinder or enhance the classroom experience. “Early adopters” choose to purchase or use relatively new technology before the mass market fully embraces it. Such individuals might possess a strong need for the technology or have the ability to overcome barriers to adopting it. Additionally, they may be more prone to incorporating the technology into their day-to-day lifestyle. Early adopters can be an excellent source of reference information regarding current technology.

Some training venues have extremely advanced facilities and stationary equipment. Tremendous personnel growth has occurred since the events of 9/11, resulting in creating and refurbishing training facilities. With this growth comes state-of-the-art equipment, rather than overhead and slide projectors. Instructors must have fundamental computer knowledge to navigate modern equipment within various academies. Too often, the typical instructor possesses limited computer skills and either requires technical assistance from the audience or becomes flustered in the event of an equipment malfunction. This impacts the flow of material and disrupts the entire learning experience. To reduce the potential for problems, instructors should carry a backup of their presentations on flash drives and disks, as well as their personal computer’s hard drive. They should have more than superficial knowledge of their laptop computer and a basic understanding of their presentation software, including document modification options. In addition, backup batteries for the remote presenter and laser pointer should be maintained within their travel kit. Instructors also should consider time allotments for classes. Time becomes a consideration in the use and deployment of such equipment. As Stephen Covey professes, “Put first things first and begin with the end in mind.”⁵ Instructors should take the time to envision all possible techniques to use to facilitate a thorough and applicable class. In law enforcement and, particularly, information technology training, the use of investigative technical equipment poses significant challenges to both instructors and students.

Further, instructors often have to add sensitivity and classifications. They may have to teach topics inherently more complex than the traditional ones taught in the police academy. For example, they may cover new topics in technology and a host of legal and technical issues related to digital evidence, Internet investigations, and computer crimes, all of which can create anxiety in the nontech-savvy learner.

Instructors must minimize students’ psychological block in preparing to learn new material. For example, they can help students establish a relationship between themselves and the subject matter by explaining the real-world application for the training or the equipment and its benefits to the end user. During one particular training session, students received instruction on how to operate a piece of technical equipment, but they had no idea of why or when to deploy the device. Subsequently, a practical example explaining its application during a surveillance operation enabled students to better understand the device’s potential. Additionally, the use of static displays of inert devices, such as obsolete technical hardware, old cell phones, personal digital assistants (PDAs), and computers, that allow the student to see, touch, hold, feel, and manipulate in presentations ensures that key points and topics are adequately and thoroughly conveyed. Instructors can use this technique to familiarize search warrant personnel with identifying digital storage devices that could contain documentary evidence of the ongoing criminal activities. To demonstrate the storage capacity of key chain or flash memory drives, instructors can draw a comparison between the drives and a box of the more popular floppy disks, enabling students to quickly understand the significance and potential investigative benefits in seizing the items at a crime scene.

Moreover, detailed, high-resolution slides of the actual products that identify particular features, such as ports and connections, convey a sense of realism to the attendee. Search engines can provide instructors with an infinite source of images suitable for use in presentations. Web connections provide students with a lifelike graphic display and assist with the transmission of information regarding the item and its capabilities.

Finally, an adequate amount of functioning models for the classroom requires additional preparation on the part of the instructor. Static or nonfunctioning devices also can foster the teaching and learning processes.

Conclusion

Law enforcement instructors face unique challenges in today�s technological world. The wide array of students� backgrounds can affect comprehension levels. Therefore, instructors should determine which delivery method to use based on various factors. They can enter the classroom better prepared when they know specific information about the individuals they will teach. By following some fundamentals of presenting and addressing technological changes, instructors can ensure that they arm today�s law enforcement officers with the knowledge and skills to complete their mission to protect and serve.

Endnotes

¹ S.B. Merriam and R.S. Caffarella, Learning in Adulthood (San Francisco, CA: Jossey Bass, 1999).

³ For more information, see Ralph C. Kennedy, �Applying Principles of Adult Learning: The Key to More Effective Training Programs,� FBI Law Enforcement Bulletin, April 2003, 1-5.

⁵ S.R. Covey, The 7 Habits of Highly Effective People (New York, NY: Simon and Schuster, 1989).

Special Agent Seehafer serves in the Office of Investigative Technology/ST, Lorton, Virginia, DEA.

Bulletin Honors

The Dallas, Texas, Police Department Memorial was dedicated on April 11, 2001. It commemorates the officers who have died in the line of duty while serving the Dallas community. The canopy section of the memorial has the officers� badge numbers cut through it. As the sun shines through those cutouts and crosses the sky, the badge numbers move across a patchwork of pavement sections from all corners of the city. During National Police Week, city and department officials, a large contingent of Dallas officers, and representatives from other area law enforcement agencies gather to honor these brave individuals who gave their all for the safety of the citizens of Dallas.

Searching Cell Phones
Seized Incident
By M. Wesley Clark, J.D., LL.M.

The January 1997 issue of the FBI Law Enforcement Bulletin contained the article “Searching Pagers Incident to Arrest.” The use of pagers now is on the decline, but cell phones seemingly are everywhere. It is the rare arrestee today who is not found in possession of a cell phone. This article addresses the legal authority for an officer to search a cell phone incident to arrest.

Unlike the constantly evolving state of technology, the general state of the law regarding searches incident to arrest is settled and well understood. “A person validly arrested may be searched without a warrant. There does not need to be any indication that the person arrested possessed weapons or evidence. …[P]robable cause for the search is not required. The lawful arrest, standing alone, authorizes a search.”¹ A search is not incident to an arrest, however, unless “it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.”² The reasons justifying such a search are “1) to seize weapons to protect the arresting [law enforcement personnel]; 2) to prevent destruction of evidence; and 3) to prevent escape.”³

Consistent with the rationale behind the search incident to arrest, officers are permitted to search both the arrestee’s person and the areas under the arrestee’s immediate control. The latter is sometimes referred to as the area into which an arrestee could conceivably lunge, i.e., the “area from within which [the arrestee] might gain possession of a weapon or destructible evidence.”⁴ Importantly, “[u] nlike searches of the person, searches of possessions within an arrestee’s immediate control cannot be justified by any reduced expectations of privacy caused by the arrest.”⁵ In other words, if an item “not immediately associated with the person of the arrestee” is removed from the arrestee’s immediate control such that any search thereafter would be 1) “remote in time or place from the arrest” or 2) not subject to exigent circumstances (e.g., possible destruction of evidence), it can no longer be searched by law enforcement as incident to the arrest.⁶

With the advent of technology and the proliferation of personal electronic devices, particularly cell phones, courts have been called upon to address the application of the search incident to arrest doctrine to items discovered on the person of the arrestee unimagined at the time. Recent technological developments have led to the consolidation of personal communication devices into one. Today, it is less likely that officers will encounter pagers. Instead, when taking someone into custody, officers are likely to discover only one device, the cell phone, performing multiple functions, such as phone capability, texting, e-mailing, and Internet browsing.

Mr. Clark is a senior attorney in the Domestic Criminal Law Section, Office of Chief Counsel, DEA. Photograph of Mr. Clark

In early 2007, the U.S. Court of Appeals for the Fifth Circuit decided whether a federal agent could search a cell phone incident to arrest. In United States v. Finley,⁷ the defendant was arrested by DEA, and, during a search incident to his arrest, a DEA special agent (SA) found a cell phone in Finley’s pocket. The phone was not searched until after the agent had driven Finley to a cohort’s residence where DEA and the local police were in the process of executing a search warrant. The SA “searched through the phone’s call records and text messages,” and several of the latter seemed to the SA “to be related to narcotics use and trafficking,” the meaning of which he effectively explained during the course of his trial testimony.⁸

Citing a case holding that the search of a pager seized incident to an arrest was lawful,⁹ the Fifth Circuit upheld the SA’s exploitation of the information on Finley’s mobile phone. “The district court correctly denied Finley’s motion to suppress the call records and text messages retrieved from his cell phone[,]”¹⁰ said the appellate panel. The fact that the search of the phone did not occur at the precise moment and place of Finley’s arrest did not concern the court.

The court did not reveal how long after Finley’s arrest his phone was searched nor did the panel indicate how far he was driven before the text messages were retrieved.¹² The court determined that as the cell phone was found on the person of the arrestee, the search of the phone need not have occurred at the moment of the arrest, provided it was searched incident to the arrest as time permitted. The fact that the phone was not searched immediately upon the arrest did not change the validity of the search.

Finally, there was no explanation regarding whether incoming text messages would, at some point, overwrite previously existing text contained in the phone. If such were the case, an exigency would exist, thus providing additional rationale in support of a search incident to an arrest. The Finley court, however, did not go looking for exigent circumstances to justify exploration of the phone’s text messages, holding simply that “[i]t is well settled that ‘in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.’”¹³

In United States v. Pena,¹⁴ the cell phone appears to have been taken from the defendant not at the instant time of arrest but rather during booking¹⁵ —a search that the U.S. magistrate judge nevertheless determined was incident to Pena’s arrest. The case did not discuss the time and distance from the point of arrest to booking nor was there any mention of any exigency which also would have weighed in favor of the somewhat contemporaneous search incident to Pena’s arrest. The court, without elaboration, simply concluded that the “cellular phone” (as opposed to a specific kind of data, e.g., address book phone numbers or text messages, that might be contained therein) “should not be suppressed.”¹⁶

In United States v. Brookes,¹⁷ the court upheld the search incident to arrest of a cell phone and the retrieval of phone numbers from it. The court based its reasoning on a prior decision that allowed the retrieval of numbers from a pager seized incident to arrest¹⁸ and also here allowed the investigative use of numbers stored on the defendant’s cell phone. “Because the search of a ‘person’ has been held to include a person’s wallet or address book, the Court [in the earlier decision] found that the search of the defendant’s pager was a search of his ‘person’ and thus was valid.”¹⁹ Because the phone numbers in the instant case were obtained soon after the defendant’s arrest, “the Court shall not suppress the...cell phone or the recording of the numbers stored therein.”²⁰

In United States v. Zamora,²¹ the defendant argued, among other things, that the search of his cell phone incident to arrest was improper because law enforcement did not first secure the phone and then seek a search warrant. In other words, there were no exigent circumstances justifying the immediacy of the search. The district court was unimpressed, noting that

This understanding led the court to conclude that the search of the phone incident to the arrest was proper because “[i]t was the function and limitation of the cell-phone technology which motivated the investigating agents to conduct an immediate search of the phones, rather than seek a warrant,”²³ and that, therefore, such concerns were sufficiently “legitimate” for the warrantless search that actually occurred. “The arrests...being proper, so were the searches incident to their arrests, and exigent circumstances otherwise authorized the seizure of the cell phones and the search of their electronic contents.”²⁴ The court’s reasoning suggests that if incoming calls did not, in fact, overwrite data previously stored in the phone, the district judge would not have upheld a warrantless search and seizure of the information contained therein.

Highlighting the uncertainty in this area is a recent federal district court decision in which a federal judge suppressed the results of a warrantless search of a cell phone seized incident to arrest. In United States v. Park,²⁵ a district court judge concluded that a search of a cell phone conducted while booking the arrestee into jail roughly 1½ hours after the arrest violated the Fourth Amendment.

The judge ruled that delay between the arrest and the search rendered acquisition of information contained in the phone not “roughly contemporaneous with the arrests.” Even so, the warrantless phone search would have been salvageable if one could consider retrieval of the mobile to have resulted from a search of the person or the person’s clothing as opposed to a search of a possession, such as a suitcase or briefcase, within the arrestee’s immediate control. The district judge ultimately concluded that the seized cell phone fell into the last category.²⁶ While it is necessary and appropriate to take possession of the items of property on the arrestee as part of the routine booking process and account for this property consistent with “standard police department procedure,”²⁷ examining the contents of the phone would exceed the permissible scope of this authority. As the court noted, had the contents of the cell phone been examined pursuant to such an articulated, routine booking practice, this would not have been sufficient to save the day (or the data) because the “purpose of a booking search is to create an inventory” that the officers could have satisfied “simply by listing defendants’ cell phones as items on the booking forms.”²⁸

In addition to the court’s view that the search and retrieval of the data was not within the permissible scope of a search incident to arrest, the court also expressed concern with the extension of such a broad warrantless search authority in this context. The court commented on how today’s mobile phones are similar to small computers and thus capable of containing much more significant information than could be found within items more routinely and historically searched incident to arrest, such as address books, pagers, purses, and wallets.

The district court thus renounced the reasoning in the Fifth Circuit’s decision in Finley, discussed above, and instead determined that “unlike the Finley court,...for the purposes of Fourth Amendment analysis cellular phones should be considered ‘possessions within an arrestee’s immediate control’ and not part of ‘the person.’”³⁰ Once such an item is removed from the arrestee’s immediate control, there is no danger that evidence will be destroyed or that the seized item will contain or be used as a weapon. At the end of the day, “possessions within an arrestee’s immediate control have Fourth Amendment protection at the station house unless the possession can be characterized as an element of the clothing, or another exception to the Fourth Amendment requirements [such as a booking search] applies.”³¹

The government might have helped its position by explaining how the phones’ seizure and examination prevented the destruction of evidence, such as by 1) the targets themselves and possibly by 2) overwriting occasioned by incoming communications. Of particular concern with respect to the preservation of evidence is the ability that service providers offer to some customers enabling them to remotely destroy data on their cell phones.

Subsequent to both Finley and Park and considering both of those opinions, the Ohio Court of Appeals had occasion in State v. Smith³² to review a set of facts analogous to those in the two earlier opinions. The defendant, Smith, was searched incident to his arrest and a cell phone was recovered from his person. The phone was later examined with helpful results (call records and stored phone numbers) just before Smith was booked into jail. Although the record did not make clear whether the phone was searched at the scene of the arrest or at the police station when the evidence was being secured, the distinction did not matter because even if the search of the phone had occurred away from the arrest scene, it was “substantially contemporaneous” with the apprehension.³³ The July 2008 Smith decision found Finley to be more persuasive than Park and upheld the trial court’s order that Smith’s motion urging suppression of the information gleaned from the phone be denied. The Smith court followed the Finley reasoning that the cell phone was an item found on and part of the defendant’s person and rejected the Park determination that such an instrument is a possession “within an arrestee’s immediate control.” However, the court did draw the line at the retrieval of certain information, deciding to suppress incriminating photos that the police also found on Smith’s phone because it concluded that the police lacked sufficient grounds to search for pictures.³⁴

The concurring judge posited an additional rationale for upholding the trial court’s ruling adverse to the suppression motion, “A reasonable police officer could conclude that there might be a limit to the number of previous phone numbers contacted on the cell phone, and that failure to obtain those numbers promptly might result in their becoming purged from the cell phone’s memory as new calls came in,”³⁵ thus supporting the rise of exigent circumstances permitting retrieval of the data without waiting to secure a search warrant.

The dissenting judge, finding that the search had not been “substantially contemporaneous” with Smith’s arrest, preferred the logic of Park and concluded that “the modern cellular phone is increasingly akin to a modern personal computer.” This compels the conclusion that it “should be placed in the more protected category of possessions within the immediate control of the accused” for which, “[o]nce contemporaneity [with the arrest] is lost” and “the justifications for a valid search incident to arrest [no longer] have... meaning[,] [t]he police should obtain a search warrant, just as they would when they seize a personal computer from an accused.”³⁶

Conclusion

The weight of the case law supports the warrantless retrieval of text messages, call histories, and stored numbers, as well as names and addresses from a cell phone seized incident to arrest if the information is culled at a not too remote time and distance from the point of apprehension (such as at the police station or place of booking/detention). However, some are of the opinion that such searches are outside the scope of the search incident to arrest. Given the uncertainty, officers should consult with the appropriate prosecutor’s office to determine if case law in their jurisdiction follows the rationale in the Finley or Park decision. Technology and the law in this are still developing. Recognizing this uncertainty, officers may find that erring on the side of caution and securing a warrant when practicable is in the best interests of the investigation. Of course, if time is truly of the essence, an understanding that a delay in conducting the search of the phone would run the risk of data loss from incoming communication traffic, such as by overwriting or purging, may provide a legal theory in support of the search.

Endnotes

¹ James Cissell, Federal Criminal Trials § 2-5(a) (6th ed. 2003). A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which established the authority to search, and...in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment. United States v. Robinson, 414 U.S. 218, 235 (1973).

² Id. at § 2-5(a)(4). A full discussion of what constitutes a valid search incident to an arrest is outside the scope of this article.

⁴ United States v. Chadwick, 433 U.S. 1, 14 (1977)(quoting Chimel v. California, 395 U.S. 752, 763 (1969)). Chadwick was abrogated on other grounds, California v. Acevedo, 500 U.S. 565 (1982).

⁶ “Once law enforcement officers have reduced…personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.” Id. at 15.

⁷ 477 F.3d 250 (5th Cir.), cert. denied, __ U.S. __, 127 S.Ct. 2065 (2007). A cell phone cannot be searched incident to a “reasonable suspicion” stop, i.e., a detention permitted by Terry v. Ohio, 392 U.S. 1(1968), see United States v. Zavala, No. 07-20200, 2008 WL 3877232 (Aug. 22, 2008 5th Cir.).

⁹ United States v. Ortiz, 84 F.3d 977 (7th Cir.), cert. denied, 519 U.S. 900 (1996)(because incoming pages erase existing ones or stored pages can easily be destroyed, it is “imperative” that pagers be searched incident to arrest to preclude destruction of evidence); United States v. Stroud, 45 F.3d 438 (9th Cir. 1994) (unpublished)(reasonable expectation of privacy destroyed by seizure incident to arrest plus potential destruction of evidence by incoming pages constituted exigent circumstances); United States v. Chan, 830 F. Supp. 531 (N.D. Cal. 1993)(expectation of privacy in pager destroyed by search incident to arrest).

¹² Note that call records and text messages are generally stored in a cell phone’s physical memory. In some instances, however, such as when the phone is out of network range, text messages may be temporarily stored by the provider until such time as the phone comes within range, at which point the text messages will be pushed to the cell phone. If the text messages are in storage with the service provider, then the provisions of 18 U.S.C. § 2703, part of the Stored Communications Act, would apply, thus necessitating, depending on the circumstances, a search warrant, less-than-probable-cause court order, or subpoena. If text messages are in storage with the service provider for 180 days or less, a search warrant is required. 18 U.S.C. § 2703(a). If they are held longer by the carrier, then a search warrant, subpoena (administrative, grand jury, or trial), or court order may be employed. 18 U.S.C. § 2703(b).

¹⁵ “Booking” or inventory searches are outside the scope of this article. See, generally, Florida v. Wells, 495 U.S. 1 (1990); Colorado v. Bertine, 479 U.S. 367 (1987); and Illinois v. Lafayette, 462 U.S. 640 (1983).

²¹ No. 1:05 CR 250 WSD, 2006 WL 418390 (N.D. Ga. 2006). For other cases upholding the examination of a cell phone searched incident to arrest, see United States v. Young, 278 Fed.Appx. 242 (4th Cir. 2008)(unpublished)(search of text messages on cell phone incident to arrest justified to preclude possible deletion); United States v. Santillan, No. CR 07-2015 TUC JMR, 2008 WL 3190032 (D. Ariz. Jul. 14, 2008)(search only of call histories roughly contemporaneous with arrest; Park, infra note 25, distinguished); United States v. Curry, No. 07-100-P-H, 2008 WL 219966 (D. Me. Jan. 23, 2008)(cell phone searched at police station ½ hr. after arrest was “substantially contemporaneous” therewith hence incident to arrest); United States v. Dennis, Cr. No. 07-008DLB, 2007 WL 3400500 (E.D. Ky. Nov. 13, 2007)(Finley, supra note 7, followed; call history log on cell phone validly obtained as incident to arrest); United States v. Urbina, No. 06-CR-336, 2007 WL 4895782 (E.D. Wis. Nov. 6, 2007)(distinguishing Park, infra note 25, search of cell phone “immediately” after arrest and limited to address book and call history held incident to arrest where significant purpose of search was to preclude deletion of evidence); United States v. Mercado-Nava, 486 F. Supp. 2d 1271 (D. Kan. 2007)(citing Finley, supra note 7, search of cell phones immediately upon arrest for stored numbers of incoming/outgoing calls upheld); United States v. Espinoza, No. 06-40130-01-JAR, 2007 WL 1018893 (D. Kan. Apr. 3, 2007)(citing Finley, downloading all sent and received phone numbers at location away from point of arrest within 1 hour 15 minutes after apprehension but before booking held proper); United States v. Cote, No. 03CR271, 2005 WL 1323343 (N.D. Ill. May 26, 2005) (search of cell phone incident to arrest for call log, phone book, and wireless Web inbox “analogous” to searches of wallets and address books; fact that actual examination of mobile device was 2½ hrs. after arrest at police station was irrelevant); United States v. Parada, 289 F. Supp. 2d.1291 (D. Kan. 2003)(search of cell phone incident to arrest proper as inventory search; exigent circumstances occasioned by deletion/overwriting justified accessing numbers of received calls).

²⁵ No. CR 05-375 SI, 2007 WL 1521573 (N.D. Cal. May 23, 2007). This decision appears to fly in the face of United States v. Edwards, 415 U.S. 800 (1974), a decision the Park court cites (search incident to arrest may properly be conducted later and away from arrest location at place of detention; subsequent laboratory examination results of seized items also admissible). For a decision similar to but slightly before Park, see United States v. LaSalle, Cr. No. 07-00032 SOM, 2007 WL 1390829 (D. Haw. May 9, 2007)(search of cell phone at DEA office location away from point of arrest and 2 hours 15 minutes to 3 hours 45 minutes after apprehension held not “roughly contemporaneous with arrest”).

²⁶ Reviewing Ninth Circuit and Supreme Court case law, the district judge observed that whereas a wallet would be considered part of an arrestee’s clothing, neither a purse nor a suitcase nor a briefcase would be. Id at *7. The district judge reached her conclusion after having been presented by the government with case law in addition to Finley, albeit unpublished, holding the opposite: that retrieval of data from a cell phone seized from an arrestee and searched “later” constituted a search of the person, e.g., United States v. Brookes, No. CRIM 2004-0154, 2005 WL 1940124 (D. V.I. Jun. 16, 2006). Unfortunately, the facts reported in the court’s opinion do not clearly reflect that the cell phone was taken from Park’s person. The court even noted that “the record is ambiguous, and somewhat conflicted, regarding exactly when and how officers searched defendants’ cellular phones.” Park, 2007 WL 1521573 at *1.

²⁸ Id at *11. See also United States v. Wall, No. 08-60016-CR-ZLOCH, 2008 U.S. Dist. LEXIS 103058 (S.D. Fla. Dec. 22, 2008).

³⁰ The district judge also found that the facts in Finley were distinguishable because there the appellate panel found that the search was “substantially contemporaneous” with the arrest whereas here such was determined not to be the case. Id at *8. In point of fact, however, the delays before the cell phone searches in both cases were probably somewhat equivalent.

³¹ Id at *7, quoting from United States v. Monclavo-Cruz, 662 F.2d 1285, 1291 (9th Cir. 1981)(search of purse at station house an hour after arrest was not incident to arrest)(internal quotation marks omitted; explanation supplied).

³³ The Ohio court quoted from Finley, supra note 7. See text accompanying note 5, supra.

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

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