departments - leb

7 Unusual Weapon

Ring Knife

8 Perspective

Excessive Force 101

Resurrecting Cold Case

Serial Homicide Investigations

By Leonard G. Johns,

Gerard F. Downes,

and Camille D. Bibles

Reducing a Guilty Suspect’s

Resistance to ConfessingBy Brian Parsi Boetig

The Motor Vehicle ExceptionBy Edward Hendrie

�

Investigators who understand and applycriminological theories may develop moreconvincing themes during interrogations,resulting in more confessions.

The NCAVC offers assistance to lawenforcement agencies investigatingseveral types of cases, including coldcase homicides.

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ISSN 0014-5688 USPS 383-310

��This is one of the exceptions to thesearch warrant requirement that allowsan officer to search all or part of a motorvehicle to the same degree as if he hada search warrant.

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August 2005Volume 74Number 8

Features

Departments

21 ViCAP Alert

Truck Driver Serial Killings

Resurrecting Cold Case SerialHomicide Investigations

By LEONARD G. JOHNS, M. S.,

GERARD F. DOWNES, and CAMILLE D. BIBLES

Aare not cleared within theyear committed.2 In cold casehomicides, investigatorsoften are forced to work withstale information and a lackof evidence.3 However, theFBI’s National Center for theAnalysis of Violent Crime(NCAVC) offers consulta-tions on the investigation of

pproximately one-third of all homicidesin the United States

“It requires a singular focus incommitting the actual crime,quite cold-bloodedly.”1

— Robert Spangler

View of Miner Spring Trail leading to the crimescene at Horseshoe Mesa, Grand Canyon,Arizona, hiked by Robert Spangler and histhird wife prior to her death in April 1993.

August 2005 / 1

2 / FBI Law Enforcement Bulletin

cold case serial homicides, aswell as several other types ofcases. The NCAVC combinesinvestigative and operationalsupport functions, research, andtraining to provide assistancewithout charge to federal, state,local, and foreign law enforce-ment agencies investigatingunusual or repetitive violentcrimes.4

Furthermore, the NCAVC’sBehavioral Analysis Unitsprovide behavioral-basedinvestigative support by apply-ing case experience, research,and training to complex andtime-sensitive crimes typicallyinvolving acts or threats ofviolence. This support includescrime, threat, and criticalincident analysis; investigative

suggestions; profiles of un-known offenders; interview,prosecutive, and trial strategies;major case management; searchwarrant assistance; and experttestimony. With the NCAVC’sassistance, a 20-year-old coldcase homicide investigation inthe Southwest was solved in2000.

Suspicious Deaths

On the morning of Decem-ber 30, 1978, deputies from theArapahoe County, Colorado,Sheriff’s Office responded tothe scene of a possible doublehomicide/suicide in a privateresidence in Littleton, Colorado.A neighbor had discovered thebodies of a 45-year-old woman,her 17-year-old son, and her

15-year-old daughter. All threehad suffered gunshot woundsfrom a .38-caliber handgun.The daughter, found partiallyclothed in her bed, had a bulletwound in her back. The son,also in bed, had been shot oncein his upper chest. The mother’sbody lay slumped over a type-writer in the basement with abullet wound high on her fore-head. A typewritten suicide noteon the typewriter was signedwith her initial.

As often is the case in intra-familial homicide investiga-tions, detectives interviewed thesurviving spouse as a suspect.5

The husband, Robert Spangler,age 45, told investigators that hewas not home during the crime.Spangler admitted maritalproblems with his wife and thathe planned to leave her. Hedescribed leaving his houseearly that morning and findingsheriff’s deputies there whenhe returned. Spangler’s originalstory changed significantly ina subsequent interview. Twoseparate, private polygraphexaminers found his answersinconclusive to questions abouthis role in the deaths. The .38-caliber weapon used in all threeshootings belonged to Spangler,and evidence of gunshot residuewas found on his right palm. OnJanuary 3, 1979, the ArapahoeCounty coroner closed the caseas a double homicide/suicide.The sheriff’s office was unable

Special Agent Downes servesin the NCAVC’s BehavioralAnalysis Unit in the FBI’s CriticialIncident Response Group.

Special Agent Johns is assignedto the Crisis Management Unitin the FBI’s Criticial IncidentResponse Group.

Ms. Bibles is the assistant U.S. attorney for the District of Arizona.

August 2005 / 3

to overcome the coroner’sfindings, and they had ex-hausted all investigative leads;therefore, they were forced toclose the case. Most of theevidence either was returnedto Spangler or destroyed.

Seven months later,Spangler married again. He andhis second wife shared a com-mon interest—hiking in GrandCanyon, Arizona. She eventu-ally wrote a book of her experi-ences hiking the Canyon.6

Subsequently, the couple beganto have marital problems, andthey divorced in 1988.

In April 1993, Spanglerand his third wife, age 58,backpacked in Grand Canyon,Arizona. This wife was anactive aerobics instructor withfive grown children and numer-ous grandchildren from aprevious marriage. One morn-ing in April 1993, Spanglerappeared at a ranger station inthe Grand Canyon and calmlytold the ranger that his wifehad fallen to her death. Heexplained that they had stoppedto take a picture on the trail and,when he looked back, his wifewas gone.

Rangers located the thirdwife’s body approximately 160feet below the trail. The autopsyreport concluded that shesustained massive injuries,including abrasions, contusions,lacerations, and multiple frac-tures of the neck, chest, andlower extremities. Spangler

never was directly implicated inthis wife’s death because it wasruled an accident. He drewnational attention with inter-views on several televisionshows.7 As a grieving husband,Spangler discussed his wife’saccidental death and the dangersof hiking in the Grand Canyon.Spangler continued to backpack

the Canyon with a variety ofpartners several times a year.

After the death of his thirdwife, Spangler reestablishedcontact with his second wife,who moved back into hisColorado home and died of adrug overdose in 1994. Thisdeath was not investigatedby law enforcement.

Sketch depicts path that Spangler’s third wife fell after he pushed her.


The InvestigationIn January 1999, perceptive

investigators from the U.S.Department of Interior, NationalPark Service, and counties ofCoconino, Arizona, and Arapa-hoe, Colorado, linked the coldcase homicides in their respec-tive jurisdictions. They met withagents from the FBI’s Flagstaff,Arizona, resident agency andrequested assistance. An assis-tant U.S. attorney (AUSA) fromthe District of Arizona withexperience in capital murdercases, who had a personal

knowledge of the Grand Can-yon, joined the team. TheAUSA united the cases underthe umbrella of federal juris-diction as an insurance fraud/murder, and an FBI agentin Flagstaff contacted theNCAVC.

First, NCAVC officialssuggested that investigatorscomplete a subject history onSpangler, stressing that inves-tigators should familiarizethemselves with all availableinformation.8 Further, theyrecommended using an

NCAVC Behavioral Assess-ment Questionnaire wheninterviewing some of Spangler’sassociates. Early investigationrevealed that Spangler was aneducated, intelligent, andsuccessful man. A charismaticindividual, he worked in careersof human relations and publicspeaking. In addition, Spanglerspent a significant amount oftime living in different parts ofColorado and hiking the GrandCanyon. One lead set by theFBI agent resulted in an inter-view of a woman living in asmall Colorado communitywho, subsequently, contactedauthorities a few weeks afterher interview. At that time,she gave them a copy of a lettershe received from Spangler inwhich he advised her that hehad terminal cancer.

The investigative team, withconcurrence from the NCAVC,immediately approachedSpangler. A complete confes-sion was critical for prosecutionbecause of the lack of existingevidence. The investigativeteam traveled to Colorado tointerview Spangler, and theAUSA met them there to pro-vide on-site legal consultation.

Confession

In Colorado, local lawenforcement and the local FBIoffice supported investigators.Because any prosecution de-pends on the admissibility ofa confession, the investigative

During the course of investigation, Arapahoe County Sheriff’s Inves-tigator Paul Goodman (co-case agent) directed the construction of ananotomically correct trajectory model depicting the bullet path andmuzzle distance from Spangler’s first wife’s fatal gunshot wound.

August 2005 / 5

team agreed to videotape theentire interview. Spangler’sterminal cancer created specialissues for the AUSA regardingmental competence and thevoluntariness of a statement.9

For this purpose, the NCAVCprovided a telephonic interviewstrategy: a medical doctorretained by their unit analyzedSpangler’s medical records,confirmed his terminal condi-tion, and gave advice regardingcompetency issues.

Investigators approachedSpangler at home and he agreedto an interview at the localsheriff’s office. The FBI agentand the Arapahoe Countydetective initiated the actualinterview with the AUSAmonitoring it from anotherroom. The agent from theNational Park Service observedthe initial interview and partici-pated on the second day. Thefirst day of interviewing lastedabout 4 hours. Spangler be-lieved investigators when theytold him that FBI profilerswanted to study him becausehe was a unique killer. Likesome other serial murderers,his compulsion to kill evenfascinated him.10 Investigatorsconfronted Spangler with the1978 murders of his wife andchildren, the drug overdose ofhis second wife, and the murderof his third wife in the GrandCanyon. At the end of the inter-view, Spangler told investiga-tors, “Well, you’re naming one

communication link betweenSpangler and the investigators,allowing the interview tocontinue despite an overnightbreak.12 During the secondinterview, Spangler told investi-gators how, while married to hisfirst wife, he fell in love withanother woman, then shot hiswife and two teenage childrento be with her. Further, Spangler

too many, remember.”11 He left,agreeing to contact investigatorsin the morning if he wanted tocontinue the interview.

Contrary to expectations ofthe investigation team, Spanglertelephoned the FBI agent thenext morning and made anappointment to continue theinterview after breakfast.Rapport was the key

Yellow rope depicts the path that Spangler’s third wife fell (160 feet) after hepushed her from an inner wall of the Grand Canyon.


said he smothered his son witha pillow after shooting himbecause the bullet wound wasnot lethal. He strongly deniedinvolvement in the overdosedeath of his second wife andrefused to discuss the death inthe Grand Canyon because hefeared a civil lawsuit from histhird wife’s grown children.

Investigators encouragedSpangler to talk about theGrand Canyon murder by tellinghim that killing several peopleat one time did not make hima serial killer. This approachworked on Spangler; after a per-iod of silence, he said, “You’vegot your serial.”13 Spangler thendescribed how he mastermindedthe Grand Canyon murder andpushed his third wife over theedge while she faced him.

Analysis

The NCAVC officialsprovided a behavioral analysisand interview strategy directlyapplied by investigators in theSpangler case. Further, theyaccurately predicted several ofSpangler’s behaviors. Spanglerwas concerned about his publicreputation. He had been a radiotalk show celebrity and waswell respected in the commu-nity. After confessing, Spanglersent the FBI agent a letter,pleading with him to minimizethe publicity about the case. Inthis letter, Spangler argued thathe was not like other serialkillers who target people for

race or sexual orientation,correctly assessing that someserial killers target groupsthey perceive as undesirable.Spangler’s motivation to killcentered around the anticipatedgain of eliminating his wivesand children. During the inter-view, he told investigators thatkilling them was easier thandivorce. The results of this in-vestigation included Spangler’sconfession to four homicides—three were 22-year-old cases.

enforcement officer. However,the FBI’s National Center forthe Analysis of Violent Crimeoffers assistance to local, state,federal, and foreign agenciesinvestigating unusual orrepetitive crimes.

Departments should solicitthe NCAVC’s assistancethrough NCAVC coordinatorsin their local FBI field offices.Services are provided on-site,telephonically, and at theNCAVC’s offices located nearthe FBI Academy. As demon-strated in this investigation,behavioral analysis assistancefrom the NCAVC may help lawenforcement officers resolvecold case homicides, bringingclosure to horrendous crimes.

Endnotes

1 Quote by Robert Spangler, printed in

Robert Scott, Married to Murder (New

York, NY: Kensington Publishing Corp.,

2004), introduction.2 U.S. Department of Justice, Federal

Bureau of Investigation, Crime in the

United States, 1999 (Washington, DC,

2000), 201; retrieved on April 6, 2004,

from http://www.fbi.gov/ucr/99cius.htm.3 For the purpose of this article, the

authors define a cold case homicide as one

where all investigative leads have been

exhausted.4 See the NCAVC’s Web site at http://

www.fbi.gov/hq/isd/cirg/ncavc.htm.5 Charles Patrick Ewing, Fatal

Families: The Dynamics of Intrafamilial

Homicide (Thousand Oaks, CA: Sage

Publications, 1997), 8.6 Sharon Spangler, On Foot in the

Grand Canyon: Hiking the Trails of the

South Rim, 2nd ed. (Boulder, CO: Pruett

Publishing, 1989).

Spangler plead guilty in federaldistrict court in Arizona to thefirst-degree murder of his thirdwife, and he admitted killinghis first wife and two children.He was sentenced to life impris-onment without parole, dyingof cancer while in federalprison.

Conclusion

Investigating cold casehomicides constitutes one of themost frustrating duties of a law

...NCAVC’s BehavioralAnalysis Units

providebehavioral-based

investigativesupport....

”

“

The views and opinions expressedby the authors do not necessarilyreflect those of the U.S.Departmentof Justice.

7 Gary Scheige, American Journal’s

Death Valley (1993); and National

Public Radio’s Morning Edition

(Washington, DC, 1993), transcript

number 1230-1235.8 Robert K. Ressler, et al, “Interviewing

Techniques for Homicide Investigations,”

FBI Law Enforcement Bulletin, August

1985, 27.9 Confessions are presumed to be

involuntary. The prosecution must prove

that a confession is voluntary, even if there

is no Miranda violation. See, Mincey v.

Arizona, 437 U.S. 385 (1978).10 Robert M. Spangler, interview by

FBI Special Agent Leonard G. Johns;

Arapahoe County Detective Paul E.

Goodman, Jr.; and U.S. National Park

Service Special Agent Beverly L. Perry,

September 14-15, 2000, videotape. For

additional information, see Robert K.

Ressler, et al, “The Split Reality of

Murder,” FBI Law Enforcement Bulletin,

August 1985, 11.

11 Ibid., (Spangler). (The authors

believe that Spangler referred to the drug

overdose death of his second wife when he

made this comment.)12 Supra note 8.13 Supra note 10 (Spangler).

August 2005 / 7

Ring Knife

This metal blade is attached toa ring. It commonly is used to cutstring on packages and hay bales.Law enforcement should remaincognizant of subjects possiblyusing such unusual dangerousweapons.

Unusual Weapon


eing assaulted or killed in the line of dutyrepresents a reality faced by every law

enforcement officer who pins on a badge, and ithappens every day. For the 10-year period from1993 through 2002, 706 officers were feloniouslyslain in the line of duty in the United States and itsterritories, including 70 who died on September11. Every 5 days, an officer is murdered. In 2002,58,066 were assaulted in the line of duty, an aver-age of 160 every day.1

On a daily basis, officers also face the reality ofthe occasional allegation of excessive force leviedwhile making arrests, detaining people, and neu-tralizing dangerous situations. The entertainmentand media industries, which I refer to collectivelyas the “entermedia,” often prefer to use the termpolice brutality when describing allegations of ex-cessive force. After all, it is more entertaining and

evokes more emotion. Plaintiffs’ attorneys some-times use this expression as well, even though itrarely is applicable and too often paints a distorted,premature, and inaccurate picture of competentofficers simply doing their jobs. As a law enforce-ment officer for 42 years, I know that most peopledo not understand the dynamics that come intoplay when officers use force, and they know verylittle, if anything, about the subject. All they haveis what the entermedia reports, and, unfortunately,the entermedia’s knowledge of the dynamics oftenprove inadequate.

Research has indicated that less than one-halfof 1 percent of all police encounters (.0361 per-cent) involve the use of physical force and, in themajority of cases where officers use force, it isreasonable, lawful, and appropriate.2 In Graham v.Connor, the U.S. Supreme Court established onemajor test for determining whether an officer usesappropriate physical force—whether the force isreasonable in light of the facts and circumstancespresent.3 The Court also ruled that the reasonable-ness of a particular use of force must be judgedfrom the perspective of a reasonable officer on thescene, rather than with the 20/20 vision of hind-sight. Most important, the Court ruled that themeasure of reasonableness must consider allow-ances for the fact that officers often are forced tomake split-second decisions in tense, uncertain,and rapidly evolving circumstances and that suchfactors are important in determining the amount offorce necessary in a particular situation.

In Smith v. Freland, the Court even went on tosay, “We must avoid substituting our personal no-tions of proper police procedure for the instanta-neous decision of the officer at the scene. We mustnever allow the theoretical, sanitized world of ourimagination to replace the dangerous and complexworld that policemen face every day. What consti-tutes reasonable action may seem quite different tosomeone facing a possible assailant than to some-one analyzing the question at leisure.”4

B© Digital Stock

Perspective

Excessive Force 101By Dan Montgomery, M.S.

Levels of Force

When law enforcement officers find it neces-sary to use physical force, they typically employ orshould employ what I like to call the use-of-forcespectrum. This concept is simple to understand notonly from a law enforcement training standpointbut from a lay perspective as well. It involves fivegraduated alternative levels of force used to com-pel compliance.

1. The goal of level one force is to simplypersuade someone to do something. Themeans to achieve this is verbal dialogue(e.g., advice, warnings, requests, and orders).An officer who tells someone to stay in hisvehicle, warns a person to take his hands outof his pockets, or orders an individual not tomove is using level one force.5 Purely verbalin nature, it does not involve any hands-onapplication.

2. The goal of level two force is to achievecompliance and involves actual physicalcontact, including physically escorting orcarrying someone from point A to point B.An officer who takes someone by the arm,escorting him to a different location, orcarries a demonstrator from one place toanother is using level two force. For example,if an individual interferes with a crime sceneand refuses an officer’s orders to stay back,the officer would be justified in escalatingthe force to level two and physically escortingthe person away from the scene.

3. The goals of level three force are complianceand control using compression techniquesor control devices. Compression techniquesinclude wrist locks, arm bars, physical controlholds, and the use of pressure point controltactics. Control devices consist of such toolsas handcuffs, restraints, pepper spray, ca-nines, Tasers, and stun guns. For example,an individual escorted at the level two stagesuddenly starts resisting efforts to take him

away. At this point, the escorting officer nowis justified in increasing the level of forceused to level three to get the subject to com-ply and to bring him under control. Using anyof the techniques or devices available in levelthree is acceptable.

4. The goal of level four force is self-defenseand can include personal and impact weap-ons. Officers frequently are assaulted, so, todefend themselves and prevent or neutralizesuch attacks, they resort to personal weapons(e.g., hands, fists, and feet) to hit or kick. Or,they can use impact weapons, such as batons,flashlights, and kinetic energy projectiles(e.g., shotguns that fire beanbag rounds orrubber bullets). In the level two example, ifthe individual starts hitting and kicking theofficer, the officer would be justified in usingany of the tools listed in level four to defendhimself.

Chief Montgomery headsthe Westminster,Colorado, Police

Department.

August 2005 / 9

5. Last, the goal of level five force is to stopsomeone. To accomplish this, officers canemploy deadly force, which includes theuse of a firearm, another deadly weapon, ora roadblock. All of these forms of force arepotentially lethal. If the escorted individual inthe level two stage grabs the officer’s batonand starts striking him, or he moves towardthe officer preparing to strike him, in thiscase, the officer would be justified in escalat-ing to level five and using deadly force tostop the imminent threat. Or, if the demon-strator in level two manages to obtain a gunor knife and attacks or is about to attack theofficer, the use of deadly force would bejustified.

The Decision-Making Process

Officers constructively should weigh the cir-cumstances of each case, respond accordingly, anduse a level of force objectively reasonable andappropriate at the time. They may find themselvessuddenly thrust into a dangerous situation where ahigh level of force immediatelyis justified, or, as a physical en-counter escalates over a periodof time, they may have to elevatethe levels of force used to main-tain control of the situation.

If officers lose these encoun-ters, offenders may hurt eitherthem or someone else or take anofficer’s firearm. If that happens,the result may be an armedoffender, a wounded or deadofficer, or an injured or dead citi-zen. No fair fight exists when itcomes to a physical encounter between an officerand someone who needs to be controlled and sub-dued. The officer must prevail and use force rea-sonable and appropriate to compel compliance,even if it takes two or more officers to subdue and

neutralize an out-of-control individual. People gethurt in one-on-one confrontations, especially whensomeone violently resists or fights.

Most law enforcement officers are honest, ethi-cal, and hardworking individuals, and part of theirjobs involve the use of force—it is inevitable.When officers use force or when bruises or otherinjuries are visible on individuals in such circum-stances, more often than not, officers have appro-priately employed the use-of-force spectrum.In these situations, concerned citizens shouldask, “Was the force used reasonable given thetotality of the circumstances?”

Unreasonable Force Issues

Statistically, approximately 10 percent of ex-cessive force complaints by citizens are valid.From my experience, generally four reasons existwhy the use of force by officers may be unreason-able and, therefore, excessive and inappropriate.

1. Inadequate training: Law enforcement offi-cers expose themselves to dangerous situa-tions if they do not continually receive in-

service use-of-force trainingfrom their agencies or if theydo not apply the use-of-forcespectrum as a decision-makingtool. For the employing agency,the civil risk is enormous aswell. Continual use-of-forcetraining is absolutely essential.

2. Accidental application:Occasionally, while involved ina physical altercation, an officeraccidentally may apply forcethat, in most circumstances,would be considered unaccept-

able. For example, an officer who defendshimself with a baton in a fully involved levelfour force application appropriately attemptsto strike the suspect’s forearm. The suspectsuddenly moves, and the baton strikes his

“

”

...generally fourreasons exist whythe use of force by

officers may beunreasonable....


August 2005 / 11

neck, causing injury. Normally, a neck strikewith a baton would be inappropriate. But, inthis situation, because of the sudden move-ment, the neck strike was an accident, whichoccasionally can happen in highly chargedsituations.

3. Adrenalin overload: Sometimes, officers may“lose it,” and, because of the adrenalin over-load, the heat of the moment, the anxiety, andthe combat-like atmosphere, the officer mayapply too much force given the circum-stances. This occasionallyhappens in pursuit situa-tions where, after a long,dangerous chase,adrenalin overload takesover when the pursuitcomes to a conclusion,and the suspect is ar-rested. The civil risk hereis enormous and, again,officers receive thetraining to understand theemotional and physicaldynamics that occur inthese highly-chargedsituations.

4. Retribution: Sometimes,a situation occurs wherean officer decides to “take care of business”and administer what I call “curbside justice.”Although rare, these scenarios do happen.Such actions are not simple mistakes of themind but of the heart. Agency heads shoulddeal with these officers quickly and severely.It is never the job of officers to punish people,and those who do so need to be criminallyprosecuted.

When deciding whether or not to file criminalcharges against officers for excessive force (usu-ally in the form of assault or official misconductcharges), prosecutors have a proof standard, and,

to be successful in their prosecution, they mustprove the case beyond a reasonable doubt. Thiscan be a difficult standard to meet at times, and,consequently, prosecutors often decline to filecriminal charges. Instead, they may defer to theemploying law enforcement agency for the impo-sition of administrative sanctions (e.g., correctiveactions, written reprimands, suspensions withoutpay, demotions, and employment terminations). Insuch circumstances, managers need to prove theadministrative case by a preponderance of the evi-

dence (at least a 51 percentor higher probability that theofficer in question did violatepolicy and procedure and useforce excessive in nature).And, managers must be con-vinced that if imposed, admin-istrative sanctions will sur-vive a personnel board hear-ing, civil service commissionhearing, or judicial review. Incases where the officer’sproperty rights are involved(e.g. suspension without pay,a demotion, or an employmenttermination), huge civil con-sequences can occur. Law en-forcement officers have con-stitutional rights, too, and

managers simply cannot impose disciplinary sanc-tions capriciously.

Understanding the standard of proof for acriminal prosecution and for the imposition of anadministrative sanction is crucial. When prosecu-tors and administrators decline to take action be-cause of standard-of-proof problems, public out-cries often happen, which can prove painful foreveryone.

Conclusion

Law enforcement officers face dangerous situ-ations every day. Moreover, they often have only a

© Digital Stock

limited amount of time in any encounter to decidehow much force to use. Most people do notthoroughly understand the legal and practical dy-namics involved in use-of-force situations. Fur-ther, they may not know about the use-of-forcespectrum that officers use in their decision-makingprocess. An understanding of this concept mayassist citizens analyzing use-of-force situationsand questioning whether the force that the officerused was reasonable given the circumstances.

Unfortunately, sometimes officers use inap-propriate and excessive force. But, by providingadequate training, helping circumvent accidents

from happening, handling adrenalin overload, andrenouncing retribution, agencies can help ensurethat their officers are prepared for the dynamics ofany highly charged situation.

Endnotes1 U.S. Department of Justice, Federal Bureau of Investigation,

Law Enforcement Officers Killed and Assaulted, 2002 (Washing-

ton, DC, 2003).2 International Association of Chiefs of Police, Police Use of

Force in America, 2001.3 490 U.S. 386 (1989).4 954 F.2d 343 (6th Cir. 1992).5 For clarity purposes, the author employs masculine pronouns

throughout the article.


T he Bulletin invites criminal justice professionals to submit reviews of recentlypublished nonfiction books they have read on topics relative to their field of

expertise for possible inclusion in its Book Review department. The magazine pub-lishes only positive reviews of between 350 and 500 words or 1½ to 2 pages double-spaced. As with article submissions, the Bulletin staff will edit book reviews for style,length, clarity, and format.

Book reviewers should include two or three compelling points that the authormakes, along with the complete title of the work; the names of the authors or editors;and the publishing company, city and state, and publication date. As a guide, thestaff suggests that reviewers examine book reviews in past issues of the Bulletin toacquaint themselves with the magazine’s requirements. Reviewers should submit theirbook reviews typed and double-spaced on 8½- by 11-inch white paper with all pagesnumbered. Reviewers should include an electronic version of the review saved oncomputer disk. Send book reviews to:

Editor, FBI Law Enforcement BulletinFBI AcademyMadison Building, Room 201Quantico, VA 22135telephone: 703-632-1952e-mail: [email protected]

Wanted:Book Reviews

nvestigators can increasetheir success in the interro-gation room by applying

criminological theories ofdeviance, which attempt toexplain the roots of criminalbehavior. The theories attributedeviant behavior to a multitudeof spiritual, biological, andsocial factors. Investigatorsconducting interrogations canapply these principles in aneffort to reduce a suspect’sresistance to being truthful by

exploiting centuries of socialscience research. Possessing abasic understanding of thetheories and how to practicallyapply them during an interroga-tion can improve investigators’abilities to facilitate a guiltysuspect’s transition from denialto admission.

THEME-BASEDINTERROGATION

An interrogation is a criticalcomponent in nearly every

criminal investigation. Obtain-ing a confession during aninterrogation increases thelikelihood of a conviction incourt1 and, in many cases, isthe only means to successfullyresolving an investigation inthe absence of other evidence.2

Investigators initially mustcontrol and direct the conversa-tion during interrogations. Infact, interrogations are less of aconversation than a monologueby investigators in which they

I

Reducing a Guilty Suspect’sResistance to ConfessingApplying Criminological Theoryto Interrogation ThemeDevelopmentBy BRIAN PARSI BOETIG, M.S.

August 2005 / 13


provide suspects with accept-able reasons to confess. Thesepermit the suspect to maintainsome dignity in light of hisillicit behavior; they clearthe suspect’s conscience fromexperiencing overwhelmingguilt or shame, except in thosecases where little, if any, exist.3

The interrogator acts more as an“understanding mediator, ratherthan an adversary.”4

The investigator presentsthe acceptable reasons to con-fess, usually in one of threenonexclusive and nonexhaus-tive categories: rationalizations,projections of blame, and mini-mizations. Collectively, thesecategories often are referredto as themes, approaches, orarguments. Rationalizationsoffer suspects the opportunityto make their crimes appearsocially acceptable, or withinreason, based on the circum-stances at the time of the

incident.5 Projections of blamedistance suspects from appear-ing solely responsible for thecrime by transferring partialblame to someone or somethingelse, such as victims, peers,society, or intoxicants. Finally,investigators can try to reduce,or minimize, the heinous natureof the crime so it produces lessguilt or shame for the suspect.The themes do not provide legalexcuses for the crimes but,rather, moral and ethical jus-tifications. Suspects will reducetheir initial resistance toconcealing the truth if theyaccept the justifications. Priorto employing the interrogationtactic using the theme-drivenapproach, investigators shouldfamiliarize themselves withdepartmental policy and lawsapplicable to the use of deceitin their respective jurisdictions.Also, theme-driven interroga-tions can be highly persuasive

at times, and the investigatorshould review current literatureconcerning the psychologicaleffects of confessions and falseconfessions.

The themes presented byinvestigators to suspects are asvaried as the crimes and thepeople who commit them.Investigators develop thesethemes based on the theoriesand opinions they form as towhy the suspect committed acrime gained through interviewswith him, additional evidencecollected throughout the case,experience, and training—formulating them without everscrutinizing scholarly theoriesof deviance. However, mostthemes mirror a criminologicaltheory or a combination ofseveral. By studying the exist-ing theories perfected by soci-ologists over the past couple ofcenturies, inexperienced inves-tigators can pursue avenuesfor theme development whileseasoned investigators canrefine their existing interroga-tion skills. Although they mustconsider certain factors whendetermining which theme touse, investigators will find thatthe one which the suspect ismost receptive to proves suc-cessful. Signs of receptivityvary immensely but includeboth nonverbal behaviors andgestures, such as becomingmore attentive or nodding inagreement to the interviewer’stheme, and verbal cues,

“

”

The themespresented by

investigators tosuspects are as

varied as the crimesand the people

who commit them.

Special Agent Boetig is an instructor in the Law EnforcementCommunication Unit at the FBI Academy.

August 2005 / 15

including agreeing with theinterviewer and contributingto and validating the theme.Themes that work with somesuspects will not always do sowith others. Having a prolificinterrogation theme repertoirewill assist investigators in be-coming successful more often.

CRIMINOLOGICALTHEORIES

Criminological theories, theproduct of centuries of thoughtthat often fuse formal researchwith common beliefs, offerscientific explanations for theexistence of deviant behavior.Some theories conceptualizecertain aspects of deviancewhile selectively ignoringothers.6 For this reason, thestudy of criminological theorywill present theories withoverlapping and even contra-dicting perspectives. This doesnot affect investigators usingthem to develop interrogationthemes because any theory thatpresents the illicit behavior asreasonably acceptable to thesuspect constitutes a useful tool.

Classical Perspective

The classical perspectivealleges that criminal behaviorinvolves a rational, calculatedchoice to achieve the maximumamount of pleasure with theminimum amount of pain.Everyone seeks these hedonisticdesires, so, to prevent totalchaos within a society, laws

are enacted to define acceptablebehavior. The laws, serving asa social contract between thegovernment and its citizens,provide reasonable punishmentsfor breaches of the social con-tract that, in effect, will deterdeviant behavior. When sanc-tions are inadequate, suspectscan rationalize criminal activitybecause the benefits simplyoutweigh the punishment ifcaptured.7

occurs when gas prices rise.Thousands of other peoplemake this decision every daybecause of the high cost ofgas and the low likelihood ofcapture and prosecution. In thistheme scenario, investigatorspresent the classical perspectiveas simple economics.

Projections of blame shouldfocus on the criminal justicesystem not taking the suspect’scrimes seriously enough. In thisinstance, the investigator shouldadvance the projection with thebelief that the suspect would noteven have considered stealingthe gas if a harsher punishmentexisted.

Further, minimizationsaddress nearly the same issueas projections. In this case, theinvestigator can minimize theimportance for the police andcourts to apprehend and pros-ecute violent offenses, ratherthan insignificant propertycrimes.

Rational Choice Theory

People choose to do whatis in their best self-interest—the foundation of the rationalchoice perspective. Althoughsimilar to the classical perspec-tive, three distinct componentscomprise this theory. First, thecriminal must rationalize thatthe illicit behavior is in his bestinterest. Although more accept-able or legal means exist toachieve the same goal, suchas working hard, the criminal

Developing themes basedon the classical perspectivefocus on the suspect’s perceivedvalue of the social contract.Investigators may rationalizea crime merely by explainingto the suspect that the deviantact was logical behavior thatanyone in his position wouldhave done because the rewardoutweighed the possibility ofcapture and prosecution. Forexample, investigators canrationalize driving away withoutpaying for gas by telling thesuspect that this commonly

”

In the interrogationroom, investigators

quite easily canexploit the social

condition theories.

“


concludes the deviant method asthe most appropriate. In further-ance of obtaining the goal, theoffender must determine thespecific focus (or modus oper-andi) of the illicit behavior.Criminals have to choosewhether to commit a residentialburglary to satisfy financialneeds or an act of vandalismto revenge a scorned lover.Their reasoning, motivations,and methods differ based on theself-interest fulfilled. If some-one wanted to satisfy a financialneed, committing an act of van-dalism or sexual assault wouldnot satisfy self-interest. Finally,once an individual selects toattain his goal through deviantmeans and chooses the specificcrime, he then needs to analyzethe criminal involvement, whichincludes deciding to commitcriminal acts and either remain-ing involved or stopping thecriminal behavior, all rationalchoices he has to make.

As the title of the theorysuggests, the most prominentinterrogation tactic for thistheory is rationalization. Awoman can rationalize vandal-izing her ex-boyfriend’s car asacceptable behavior based onthe circumstances at the time,such as his failure to returnphone calls or too quicklybecoming romantically involvedwith another woman. Becausethe focus of the rational choicetheory is centered on self-interest, projecting the blame

on anything else is appropriateto reduce the suspect’s feelingsof guilt. The investigator mightblame the boyfriend for notgiving the offender a chance toreconcile the relationship or fortreating her poorly during theseparation. Finally, the inves-tigator can minimize thewoman’s shame by acknowl-edging her righteousness indeciding to stop committingcriminal acts before the situa-tion became out of control.

most of the early biologicalperspective’s validity andmethodology, this angle still canprove a useful basis for themedevelopment. Around the turnof the 20th century, CesareLombroso theorized that certainpeople were born criminals andpossessed such distinguishingcharacteristics as enormousjaws, prominent canines, andhooked noses, along with otherabnormal intercranial features.These characteristics werethought prevalent in criminals.Shortly after Lombroso, EarnestHooten concluded that crimi-nals were “organically inferior”and these weaknesses causedan inability to interact withsurrounding environmentstandards; therefore, they wereforced to submit to a life ofdeviant behavior.9 Even later,some researchers thought thatdeviance was hereditary orbased on the possession ofadditional X or Y chromo-somes.10 Contemporary devel-opments in the biologicalexplanation explore the fieldsof genetics, biochemistry, endo-crinology, neuroscience, immu-nology, and psychophysiologyfor understanding deviantbehavior.11

A suspect might feel com-forted by an explanation of hisgenetic predispositions todeviance because of a preexist-ing condition, reducing hisfeelings of guilt because hemight believe that he had little

The investigator should suggestthat her choice to refrain fromfurther acts of vandalism oreven violence makes theincident rather mundane andinsignificant.

Biological and PsychologicalExplanations

The biological and psycho-logical explanations surmisethat deviance is associated witha physical or mental abnor-mality or sickness.8 Despitescientific evidence countering

August 2005 / 17

control over his inferior biologi-cal makeup. To that end, crimi-nals can blame uncontrollablebiological factors or corruptedfamily bloodlines, rather thanrationalized, premeditatedthoughts or other self-fulfillingreasons. To make the crimemore acceptable, the investiga-tor can minimize the suspect’sdeviant actions by explaininghow he has seemingly over-come overwhelming naturalcircumstances and, despite hav-ing the uncontrollable propen-sity to commit more crimes, hehas show considerable restraint.

Social ConditionExplanations

Social condition explana-tions differ from the biologicaland psychological ones bycorrelating individual criminalbehavior to social conditions,including poverty, disparateeducational opportunities, un-employment, and class struc-ture.12 Further, crime exists as aresult of imperfections in socialconditions, and, because manyof these afflictions strike lower-income areas, it tends to festeritself in these environments.

The anomie perspectiveexplains that the presence ofdeviance is the result of weak-ening social structures duringthe transitions of societies; thenatural, cohesive forces thatmaintain order are destroyed associeties change. People’s aspi-rations and desires outweigh

that which society can returnto them, resulting in a state ofnormlessness. The Great De-pression, an example of a soci-ety in transition, had abundantchaos and crime because of thedisruption in the normalcy ofsociety.

Even while not in transition,each society has goals thatcitizens desire to achieve.Power, wealth, and prestigebased on hard work all representpart of the American dream;

the American dream as soembedded in the culture thatnobody could be faulted fortaking whatever means neces-sary. They easily could projectthe blame on the high expecta-tions and demands placed onthe suspect by his family despitean assiduous work ethic. Fur-ther, they could hold the com-pany responsible for underpay-ing the suspect. Regardingminimizations, the investigatorscould suggest that engaging inproperty crimes to obtain theAmerican dream offers a muchmore acceptable route thancommitting violent crimes.

Social Process Theories

Interactions among families,peer groups, and other socialinstitutions drive the socialprocess theories. Perhaps, thelearning theories prove the mostsuccessful concepts for project-ing blame because they examinethe interactions among peoplethat occur in everyday life.Despite this common thread,sociologists have explored theinteractions from three differentperspectives: social learning,social control, and labeling.

Social learning theoriessuggest that people are inher-ently good and learn all of theirvalues and behaviors, eitherpositive or negative, dependingon their social interactions thatnot only teach the behaviorsbut also reinforce them.13 Forexample, parents often guide

however, some people neverattain these goals no matter howhard they work. And, evenworse, society rewards success-ful achievement of the goalsdespite the manner in whichpeople obtain them. Therefore,if deprived of these goals, it canlead to a disregard of the rulesto increase a person’s ownsuccess.

In the interrogation room,investigators quite easily canexploit the social conditiontheories. To rationalize a corpo-rate embezzlement, they canpresent evidence of obtaining

Two distinct routesof demonization canoccur—temptationand possession.“

”


children to stay away from the“wrong crowd,” evidence of thealmost universal acceptance ofthis theory’s perspective.

Social control theoristsbelieve that all people have aninnate desire to break the lawbut social forces overcomethem. Sociologist TravisHirschi14 suggested that threesocial forces prevent peoplefrom committing crimes. First,their attachment to otherscauses them to respect theiropinions (e.g., not doing some-thing deviant in fear of disap-pointing a spouse, parents, ora boss). Second, a commitmentto order keeps people on arighteous path. If an individualplans on becoming a police offi-cer in the future, his avoidanceof deviant behavior becomes adriving force. Third, engagingin legal activities reduces the

time available for illegal activi-ties, possibly the foundation forthe phrase “idle hands are thedevil’s workshop.”15

Finally, the labeling theory,also called the societal reactionperspective, suggests that thecriminal justice system itselfproduces criminal behavior.Once “labeled” a criminal,whether formally or informally,a person begins to act like one.The focus of this theory is notsolely on the criminal but,rather, the behavior andattitudes of the police, lawmakers, and other societalinstitutions.

Unique to the learningperspectives within the milieuof structured interrogations,rationalizations for the crimesare part of the criminal’s learn-ing process.16 Rationalizationsprotect a suspect from the

“moral claims of the conven-tional world.”17 Investigatorsshould develop interrogationthemes based on the suspect’sown techniques used to neutral-ize his deviant behavior. Of-fenders learn to deny injuringanyone, which permits them toadmit their choice to engage indeviant behavior yet minimizeits magnitude. Criminals willproject the blame on victims byeither claiming they deservedthe act or that they actuallywere not victims at all (e.g., thesubject of a tax evasion casebelieving that the governmenthad been “stealing from him forall these years”). Appealing tohigher authorities are attemptsby the suspect to rationalize thebehavior as done on behalf ofothers, rather than narcissisti-cally motivated. The murderof a sister’s spouse would bejustified as “done for the fam-ily,” rather than based on anintense dislike for the personor other selfish motivations. Inthese instances, offenders offerinvestigators learning theoriesfor projections of blame on thepeople that taught them to becriminals, such as siblings,peers, parents, and fellowinmates.18

Demonic Perspective

The demonic perspectiveposits that demons or Satancause people to commit deviantacts, and it employs the notionof supernatural forces of good

August 2005 / 19

and evil battling against oneanother. These explanationsmanifested out of early society’s“need to explain away aberrantbehavior.”19 Two distinct routesof demonization can occur—temptation and possession.

Temptation involves theattraction into criminal behaviorthrough the seductive entice-ments of evil. Although theafflicted person still has theability to choose between goodand evil, the temptations by theevil forces prove too powerfulto suppress. Despite the fact thatthe demonic perspective repre-sents the oldest known explana-tion for deviant behavior, it stillcan have a powerful impact intheme development. Investiga-tors can apply the demonictemptation perspective bydrawing a parallel between thebiblically based story of Adamand Eve’s temptation by the evilserpent and the suspect’s crime.For example, the investigatorcould suggest to a theft suspectthat his actions were consistentwith the natural tendencies ofhuman beings. The temptationsof evil, no matter how big orsmall, often are too great toresist. This approach attemptsto rationalize the behavior asnatural and commonplace. Theinvestigator can project blameon the existence of original sinor the actions of Adam and Evefor initiating the deviant act. Tominimize the crime, the investi-gator can convince the suspect

that his actions were minoroffenses in comparison with theegregious acts committed byothers directed at defying God(e.g., explaining that the sus-pect’s theft from his employerpales in comparison with othercases the investigator workedwhere subjects stole fromchurches and schools).

perspective to understand be-cause suspects can allude to itduring interviews.

CONCLUSION

Investigators can use crimi-nological theories of devianceduring the structured interroga-tion process to develop themesto present to the suspect thatwill reduce moral and ethicalconsequences of admittinginvolvement in a particularcriminal behavior. The authorhas not presented every theoryof deviance, but merely pro-vided a snapshot of a fewtheories, many of which investi-gators subscribe to in their ownpersonal beliefs despite neverhaving specifically attributedthem to an established crimino-logical theory.

The examples of themesderived from these theories onlyoffer a starting point for inves-tigators cultivating themes.Learning and understandingthe theories generated throughsociological research willenhance the skills of all investi-gators in developing and pre-senting convincing themes tosubjects in the interrogationroom. Furthermore, any tacticor approach used by an investi-gator must pass constitutionalmuster, and confessions derivedfrom the approach must bevoluntary and not the productof government overreachingto have value in the criminalprosecution.

Demonic possession, thebelief that evil has pervaded thebody, offers the investigatoropportunities to develop themesof complicity between the evilforces and the suspect; how-ever, demonic possession maycreate grounds for an insanitydefense for the suspect. Theoffender’s ability to distinguishbetween right and wrong is acritical element during legalproceedings and, therefore,investigators should discuss thedemonic possession perspectivewith prosecutors prior to usingit in the interrogation room.It proves an important

…any theory thatpresents the illicit

behavior as reasonablyacceptable to the

suspect constitutesa useful tool.

“

”

Endnotes

1 R.A. Leo, “Inside the Interrogation

Room,” Journal of Criminal Law and

Criminology 86, no. 2 (1996): 266-304.2 F.E. Inbau, “Police Interrogation: A

Practical Necessity,” Journal of Criminal

Law and Criminology 89, no. 4 (1999):

1403-1412.3 For illustrative purposes and to main-

tain clarity, the author employs masculine

pronouns for subjects in most instances.4 D.E. Zulawski and D.E. Wicklander,

Practical Aspects of Interview and

Interrogation, 2nd ed. (New York, NY:

CRC Press, 2002).5 Ibid.6 S. Pfohl, Images of Deviance and

Social Control: A Sociological History

(New York, NY: McGraw-Hill, 1994).7 H.W. Mannle and J.D. Hirschel,

Fundamentals of Criminology, 2nd ed.

(Englewood Cliffs, NJ: Prentice Hall,

1998).8 Ibid.9 J.E. Jacoby, Classics of Criminology,

2nd ed. (Prospect Heights, IL: Waveland

Press, 1994).10 J. Samaha, Criminal Justice, 6th ed.

(Belmont, CA: Wadsworth, 2003).11 D. H. Fishbein, “Biological Per-

spectives in Criminology,” retrieved on

January 16, 2005, from http://

www.criminology.fsu.edu/crimtheory/

fishbein.ht.12 Supra note 10.13 R.L. Akers, Deviant Behavior:

A Social Learning Approach, 3rd ed.

(Belmont, CA: Wadsworth, 1985).14 T. Hirschi, Causes of Delinquency

(Berkley, CA: University of California

Press, 1969).15 Supra note 10.16 M.S. Gresham and D. Matza,

“Techniques of Neutralization: A Theory

of Delinquency,” American Sociological

Review 22, (1957): 664-670.17 Supra note 6.18 Supra note 16.19 T. Szasz, Insanity: The Idea and Its

Consequences (New York, NY: Wiley,

1987).


Wanted:Notable Speeches

he FBI Law EnforcementBulletin seeks transcriptsT

of presentations made by crim-inal justice professionals forits Notable Speech depart-ment. Anyone who hasdelivered a speech recentlyand would like to share theinformation with a wideraudience may submit a trans-cript of the presentation to theBulletin for consideration.

As with article submis-sions, the Bulletin staff willedit the speech for length andclarity, but, realizing that theinformation was presentedorally, maintain as much ofthe original flavor as possible.Presenters should submit theirtranscripts typed and double-spaced on 8 ½- by 11-inchwhite paper with all pagesnumbered. When possible, anelectronic version of the tran-script saved on computer diskshould accompany the docu-ment. Send the material to:

Editor, FBI LawEnforcement BulletinFBI AcademyMadison Building,Room 201Quantico, VA 22135telephone: 703-632-1952,e-mail: [email protected]

August 2005 / 21

n the beginning of 2004, law enforcementofficers (LEOs) across the United States iden-

remained unidentified until late 2004, was lastseen at the Flying J truck stop in Sayre, Oklahoma.The victim is believed to have been carrying ablack and tan backpack and an Igloo brand soft-sided cooler bag, bright blue in color. She was lastseen wearing a plaid shirt, pants, and either a greensweater or sweatshirt.

The Flying J’s video shows the victim talkingwith an unidentified truck driver between 2 and2:30 a.m. The victim’s nude body was recoveredlater that day around 8:15 a.m, 80 miles from theFlying J truck stop.

Alert to Law Enforcement

Law enforcement agencies should bring thisinformation to the attention of all crime analysisunits, officers investigating crimes against per-sons, and missing persons units. Any agency withinformation on the Vickie Helen Anderson casemay contact the Gray County Sheriff’s Office at806-669-8022 or Sergeant Bart Bivens of theTexas Rangers at 806-665-7168. Any agency withvictim or suspect information for the truck driverserial killings ongoing investigation may contactCrime Analyst Jayne M. Stairs of the ViolentCriminal Apprehension Program (ViCAP) at 703-632-4168 or [email protected].

Itified a pattern of homicides involving the killingof prostitutes who worked in and around truckstops. These killings have taken place over a num-ber of years and initially involved the states ofOklahoma, Texas, Arkansas, Mississippi, Penn-sylvania, and Indiana.

Over the last year, the FBI, local, and statelaw enforcement agencies have met for joint caseconsultations, resulting in the identification ofseveral potential suspects. Time lines have beencompiled on 10 suspects so far, with severalmore in progress. These time lines, which covernearly the entire United States, are available toLEOs who have homicide victims meeting thefollowing description: prostitutes working fromtruck stops, hitchhikers, transients, unidentifieddead bodies, and any other victims at riskwhere the suspect is likely to be a long-haul truckdriver.

Victim Vickie Helen Anderson

On October 16, 2003, the body of Vickie HelenAnderson was recovered along the shoulder of thewestbound entrance ramp of Interstate 40 in GrayCounty, Texas (near McLean). The victim, who

Truck Driver Serial Killings

The Gray County Sheriff’sOffice welcomes anyinformation regarding theidentity of the truck drivershown in this video clip.

Vickie Helen Anderson

ViCAP Alert

Legal Digest

here is a presumptionthat a search conductedunder the authority of a

and the fact that the mobility ofvehicles present an inherentexigency.4

In addition to the motor ve-hicle exception, there are otherexceptions to the search warrantrequirement that allow an offi-cer to search all or part of amotor vehicle. Those exceptionsallow officers to 1) search thepassenger compartment (but notthe trunk) of a suspect’s vehicleincident to his arrest;5 2) friskthe passenger compartment (butnot the trunk) of an automobilefor weapons upon reasonablesuspicion that a weapon maybe there;6 3) inventory an im-pounded vehicle, including

items in the trunk, pursuant tostandardized agency regula-tions;7 or 4) search a motorvehicle upon the consent of theperson who has the actual orapparent authority and controlover that vehicle.8 While theselisted exceptions can be appliedto motor vehicles, they are notlimited in their application tomotor vehicles, as is the motorvehicle exception.

Probable Cause

To search under the motorvehicle exception, an officermust have probable cause. TheSupreme Court has stated that“probable cause is a fluid

The MotorVehicleExceptionBy EDWARD HENDRIE, J.D.


Tsearch warrant is reasonable.1

Conversely, a search conductedwithout a search warrant ispresumed unreasonable.2 Thepresumption of unreasonable-ness can be rebutted throughan applicable exception to thesearch warrant requirement.One of those exceptions isknown as the motor vehicleexception. The U.S. SupremeCourt has ruled that if an officerhas probable cause to believethat evidence or contraband islocated in a motor vehicle, hemay search the area of thevehicle he reasonably believescontains that evidence withouta search warrant to the samedegree as if he had a warrant.3

The scope of the search islimited only by what the officerhas probable cause to search forand may encompass the entirevehicle, including the trunk.The motor vehicle exception isbased upon the reduced expec-tation of privacy that citizenshave in their motor vehiclesbecause of the pervasive regula-tion to which they are subjected

© Scott Whittemore

concept—turning on the assess-ment of probabilities in particu-lar factual contexts—not read-ily, or even usefully, reduced toa neat set of legal rules.”9 Prob-able cause is not a “one size fitsall” standard. In fact, probablecause is a range that occupies azone10 that is assessed under thetotality of the circumstances.11

The seminal motor vehicleexception case is Carroll v.United States.12 The Carrolldecision illustrates just how lowthe probable cause standard iswhen conducting a warrantlesssearch under the motor vehicleexception. In Carroll, federalprohibition agents acting under-cover had negotiated for thepurchase of illegal whiskey inGrand Rapids from the twodefendants, Kiro and Carroll.The sale was never consum-mated. Approximately 1 weeklater, the agents saw Kiro andCarroll traveling toward Detroitin the same car they used todrive to the undercover negotia-tions. More than 2 months later,the agents once again saw thedefendants driving in the sameautomobile from the Detroitarea toward Grand Rapids. Theagents knew that at the time, theDetroit area was an activecenter for bringing illegal liquorinto the United States. Believ-ing that Kiro and Carroll weresmuggling a load of illegalliquor from Detroit to GrandRapids, the agents stopped thevehicle. The agents conducted a

warrantless search of the ve-hicle and found illegal liquorhidden beneath the upholsteryof the seats. The U.S. SupremeCourt approved of the warrant-less motor vehicle search inCarroll because the agents hadprobable cause.

One of the often-overlookedbut rather significant findingsby the U.S. Supreme Court inCarroll was that the probablecause in that case was clear. TheU.S. Supreme Court stated:

[I]t is clear the officers herehad justification for thesearch and seizure. Thisis to say that the facts andcircumstances within theirknowledge and of whichthey had reasonably trust-worthy information weresufficient in themselves towarrant a man of reasonablecaution in the belief thatintoxicating liquor was

being transported in theautomobile which theystopped and searched.13

In Chambers v. Maroney,14

a service station was robbed bytwo armed men. At about thetime of the robbery, two teenag-ers noticed a blue station wagoncircling the block in the vicinityof the gas station and laterspeed away with four peopleinside, one of whom was wear-ing a green sweater. The stationattendant recounted that one ofthe robbers was wearing a greensweater and the other waswearing a trench coat. A de-scription of the car and robberswas broadcast over the policeradio. Within an hour, a lightblue compact station wagoncarrying four men was stoppedby the police approximately 2miles from the gas station. Oneof the passengers was wearinga green sweater, and there was

August 2005 / 23

“

”Special Agent Hendrie, DEA Legal Section, is alegal instructor at the DEA Training Academy.

To search underthe motor vehicle

exception,an officer musthave probable

cause.

a trench coat in the car. Theoccupants of the car werearrested. The money, guns, andother incriminating evidencefrom the robbery were foundinside the car during a laterwarrantless vehicle searchconducted at the station. TheU.S. Supreme Court found thatthere was probable cause toarrest the suspects and probablecause to search the vehicle.The Court approved of the latervehicle search under the motorvehicle exception.

Scope of the Search

The scope of a search underthe motor vehicle exceptionis limited to the areas in thevehicle where the evidence orcontraband could reasonably belocated. For instance, supposean officer has probable cause tobelieve that a suspect is carryinga suitcase full of illegal drugs,and the officer sees the suspecthail a cab and put the suitcasein the trunk of the cab. If thesuspect is detained by theofficer before he gets in the cab,the officer would have probablecause to believe that the drugsare in the suitcase put in thetrunk but not anywhere else inthe cab. Under the motor ve-hicle exception, therefore, theofficer would only have author-ity to search the trunk becausehe would lack probable causeto believe that any contrabandor evidence would be foundelsewhere in the taxicab.15

In the more usual case, anofficer would be in a situationwhere he has found contrabandor other evidence of a crime inthe passenger compartment of avehicle. In such a case, it wouldbe reasonable for the officer tobelieve that other contraband orevidence could also be in thetrunk of the vehicle.16 Forexample, in Commonwealth v.Moses,17 the Supreme Court ofMassachusetts ruled that drugsand a gun found in the passen-ger compartment of a vehicle

presence of the drugs in the pas-senger compartment. The sameinference can be drawn fromfinding a gun in the passengercompartment of the vehicle. Agun found in the passengercompartment of a motor vehiclewould support an inference thatother weapons, ammunition, orcontraband could be in the trunkof that vehicle.18

Personal-UseAmount of Drugs

It should be noted that somecourts are of the view that thepresence of a personal-useamount of drugs in the passen-ger compartment of a motorvehicle would only give theofficer probable cause to searchthe passenger compartment butnot the trunk. For example, inWimberly v. Superior Courtof San Bernardino County19

officers stopped a motorist fordriving erratically. The officersapproached the stopped vehicleand saw a smoking pipe nextto12 round seeds on the floorof the vehicle. The officerssmelled the odor of burntmarijuana emanating frominside the car, and upon exam-ining the pipe, they found burntmarijuana residue in the pipebowl. The officers searched theinterior of the car and found aplastic bag containing a smallquantity of marijuana in thepocket of a coat. The officersused the car keys to open thetrunk of the car where they


during a frisk for weapons gavean officer probable cause tobelieve that more drugs orweapons could be in the trunk.Ordinarily, an officer would notbe permitted to search the trunkwhile frisking the automobilefor weapons. However, once thedrugs were found in the passen-ger compartment of the vehicleduring the initial frisk, thesearch of the trunk was permit-ted under the motor vehicleexception based upon the prob-able cause arising from the

”

The Court approvedof the later vehicle

search underthe motor vehicle

exception.

“

found several pounds of mari-juana and hashish in a suitcasein the trunk. The CaliforniaSupreme Court ruled that theofficers had probable cause tosearch the passenger compart-ment of the vehicle upon ob-serving the marijuana seeds inclose proximity to the smokingpipe on the floor of the vehicle.The court, however, also ruledthat the erratic driving, theobservation of the marijuanaseeds adjacent to the smokingpipe, the odor of burnt mari-juana, the burnt residue in thepipe, and the small quantity ofmarijuana secreted in the jacketindicated only that the defen-dants were casual users ofmarijuana. The court deter-mined that it was not reason-able for the officer to infer thatcasual drug users would haveadditional contraband hiddenin the trunk. Because the courtfound that the officers did nothave probable cause to searchthe trunk, the court suppressedthe evidence found in the trunk.

The Wimberly decisionrepresents a minority of courts.In most courts, if there is physi-cal evidence of drugs found inthe passenger compartment ofthe vehicle, even if it is only apersonal-use amount, that willbe sufficient to establish prob-able cause that more drugscould be found in the trunk ofthat vehicle.20 For example, inUnited States v. Turner,21 a U.S.Park Police officer stopped a

motorist for failing to displaya front license on his vehicle.When the defendant rolleddown the window of the ve-hicle, the officer noticed astrong odor of burnt marijuana.The driver produced a tempo-rary registration but could notproduce a driver’s license. Theofficer saw torn pieces of cigartobacco in the defendant’s lapand on the floor at his feet. Theofficer knew that marijuanausers often hollow out cigars

information that he was amarijuana user and that therewas not sufficient evidence toestablish probable cause thatthere would be more drugs inthe trunk of the vehicle. TheU.S. Court of Appeals for theDistrict of Columbia Circuitdisagreed with the defendant’sargument and ruled that therewas probable cause to believethat the defendant would haveadditional drugs in his trunk.

Odor of Marijuana

In Turner, the officer no-ticed the smell of burnt mari-juana, but there was also otherevidence of marijuana use bythe driver that gave the officerprobable cause to search thetrunk. The smell of burntmarijuana emanating from thepassenger compartment of avehicle in and of itself is usuallysufficient to establish probablecause to search the passengercompartment for the source ofthe odor.22 However, the odor ofburnt marijuana alone is gener-ally not viewed by the courts assufficient to establish probablecause to search the trunk of avehicle.23

For example, in UnitedStates v. Nielsen,24 an officerpulled over the defendant forspeeding and subsequentlysmelled the odor of burntmarijuana coming from theopen window of the defendant’svehicle. The officer obtainedconsent to search the passenger

August 2005 / 25

and use them as a receptacle forsmoking marijuana. The officeralso observed on the floordirectly behind the driver’s seata clear plastic bag of greenweed-like material, which hebelieved to be marijuana. Theofficer asked for the keys to thecar, which he used to open thetrunk. The officer searched thetrunk where he found $825 insmall bills and a 62-gram chunkof cocaine base. The defendantargued that the officer only had

© Mark C. Ide


compartment of the vehicle butfound nothing there that couldhave been the source of themarijuana odor. A criminalrecord check revealed that thedriver had been arrested for amisdemeanor marijuana offenseapproximately 15 years earlier.The officer then removed thekeys from the ignition andopened the trunk of the vehicle.Inside the trunk, the officerfound approximately 2 kilo-grams of cocaine. The U.S.Court of Appeals for the TenthCircuit ruled that the odor of themarijuana alone was not suffi-cient to establish probable causeto search the trunk of the motorvehicle.

The Nielsen court wasconcerned with the credibilityof the uncorroborated detectionby an officer of the mere odorof burnt marijuana in a motorvehicle. The Nielsen courtstated, and most courts agree,that if there is evidence thatcorroborates the odor of burntmarijuana, the corroboratedodor would be sufficient toestablish probable cause tosearch the vehicle’s trunk. Thecorroboration could be as sim-ple as finding a marijuana cig-arette in the car or in the posses-sion of the driver.25 The Nielsencourt distinguished between thedetection of the smell of mari-juana by an officer and thedetection of drugs by a traineddrug-sniffing dog. The courtstated that a drug dog with agood track record for reliability

would not require corroborationto establish probable cause tosearch the trunk of a vehicle.26

The corroboration of themarijuana odor does not haveto be in the form of physicalevidence. In State v. Ireland,27

officers pulled over the defen-dant because he was drivingwith his headlights off. Theofficers ultimately determinedthat the driver was driving on asuspended license. The officersarrested the driver and searchedthe vehicle incident to his arrest.

opening the trunk they foundan unspecified number ofmarijuana plants.

The driver was found guiltyof drug trafficking under statelaw, and he appealed his con-viction. The defendant arguedthat because the detection of themarijuana odor in the passengercompartment was not supportedby any corroborating evidenceof the presence of marijuana,there was not probable cause tosearch the trunk of the vehicle.The Supreme Court of Maineruled that the odor of marijuanawas corroborated by the furtivebehavior of the owner of thevehicle in denying that she hada key to the trunk when, in fact,there was a key readily availablein the passenger compartmentof the vehicle. Her false state-ment suggested that moremarijuana would be found inthe trunk of the vehicle.

The above cases deal withthe issue of the odor of burntmarijuana. When, however, theodor detected by the officer isthe odor of fresh, unburnedmarijuana, courts have notrequired additional evidence tocorroborate the presence of themarijuana before an officer maysearch the trunk of the vehicle.28

Motor Vehicle

The term motor vehicle forpurposes of the motor vehicleexception is a term of art, whichhas not been limited to ordinaryautomobiles. In California v.Carney,29 the U.S. Supreme

As they searched the vehicle,they detected a burnt marijuanasmell under the driver’s seat.There was a passenger in the carwho indicated that she ownedthe car. One of the officersasked the owner if there wasanything in the trunk. Sheresponded that there was noth-ing in the trunk and that she hadno key available to open thetrunk. The officers in due timefound the trunk key inside thepassenger compartment. Upon

”

The corroborationof the marijuanaodor does not

have to bein the form of

physical evidence.

“

August 2005 / 27

Court applied the motor vehicleexception to a motor home. InCarney, a DEA agent receiveduncorroborated information thata motor home was being usedby someone to exchange mari-juana for sex. Several DEAagents set up surveillance inthe area of the motor home indowntown San Diego andwatched as the defendantapproached a youth. The youthaccompanied the defendant tohis motor home parked in anearby parking lot. The agentsobserved the defendant and theyouth close the window shadeson the motor home. The agentskept the motor home undersurveillance for 1 hour and 15minutes until the youth exitedthe motor home. The agentsstopped the youth and talkedwith him, at which time, theyouth admitted that he hadreceived marijuana in return forsex. The youth agreed to returnwith the agents to the motorhome and knock on its door.When the defendant stepped outof the motor home, the agentsidentified themselves as lawenforcement officers. One of theagents entered the motor homeand observed marijuana, plasticbags, and a scale of the kindused to weigh drugs. Thedefendant was arrested, and theagents impounded the motorhome. A subsequent search ofthe motor home at the policestation revealed additionalmarijuana in the cupboards andrefrigerator.

The defendant pleaded nolocontendere to the drug charges,and he was placed on probation.He appealed the order placinghim on probation. The Califor-nia Supreme Court reversedhis conviction, holding thatthe expectation of privacy ina motor home was more likea dwelling and, therefore, thesearch without a search warrantdid not fall within the motorvehicle exception.

public highways, motor homesare subject to pervasive regula-tion. The Court stated thatsimply because the vehicle inthis case was a motor home didnot mean that it was not subjectto a warrantless search underthe motor vehicle exception.30

The Court stated:

To distinguish betweenrespondent’s motor homeand an ordinary sedan forpurposes of the vehicle ex-ception would require thatwe apply the exception de-pending upon the size of thevehicle and quality of its ap-pointments.... We declinedtoday to distinguish between“worthy” and “unworthy”vehicles which are either onthe public roads and high-ways, or situated such thatit is reasonable to concludethat the vehicle is not beingused as a residence.31

The Court, however, madea distinction between a readilymobile motor home parked in apublic parking lot and a motorhome that is being used as aresidence at a campsite.32

We need not pass on theapplication of the vehicleexception to a motor homethat is situated in a wayor place that objectivelyindicates that it is beingused as a residence. Amongthe factors that might berelevant in determiningwhether a warrant wouldbe required in such a

The U.S. Supreme Courtreversed the judgment of theCalifornia Supreme Court andruled that the search of themotor home was reasonableunder the Fourth Amendmentbecause the motor home was areadily movable motor vehicleand the expectation of privacyin a motor vehicle is signifi-cantly less than in a home oroffice. The reduced expectationof privacy in the motor homewas due, in part, to the fact that,like all automobiles that arecapable of traveling on the

© Mark C. Ide


circumstance is its location,whether the vehicle isreadily mobile or instead,for instance, elevated onblocks, whether the vehicleis licensed, whether it isconnected to utilities, andwhether it has convenientaccess to a public road.33

In addition to automobiles andmotor homes, courts haveapplied the motor vehicleexception to trucks,34 trailers35

pulled by trucks, boats,36 houseboats,37 airplanes,38 and eventhe sleeping compartments oftrains.39

Emergency

The ready mobility of avehicle is viewed by the U.S.Supreme Court as an inherentexigency that is always presentwhen conducting a motorvehicle search.40 The federalrule is that it is not required thatthere be an additional separateemergency for the application ofthe motor vehicle exception. InPennsylvania v. Labron,41 theU.S. Supreme Court explained,“If a car is readily mobile andprobable cause exists to believeit contains contraband, theFourth Amendment thus per-mits police to search the vehiclewithout more.”42

States, however, are freeto be more restrictive of policeconduct as a matter of state law.In some states, police conductthat is permitted under theU.S. Constitution may not be

allowed under their state consti-tutions. In that regard, somestate courts have limited theapplication of the motor vehicleexception under their stateconstitutions to circumstanceswhen there is a separate emer-gency.43 Those state courts re-quire some showing by the statethat the exigencies of the cir-cumstances made it impracti-cable for the police to obtaina search warrant before they

on an interstate highway toMaryland. The officers waitedthe 13 hours for the defendantto drive past them on the high-way before stopping his vehicleand conducting a warrantlesssearch of the vehicle for thedrugs. Upon searching thevehicle, the officers found thebag of crack cocaine for whichthey were looking. There wasno exigency in the case. Theofficers had ample time toobtain a search warrant duringthe 13-hour wait. The U.S.Supreme Court, nevertheless,determined that the stop andsearch of the vehicle was validunder the motor vehicle excep-tion because the motor vehicleexception does not require aseparate exigency to justify avehicle search.

Dyson was a case wherethe officers had plenty of timebefore seizing the car to get awarrant. What if officers law-fully seize a car and have ampleopportunity to obtain a warrantafter the seizure? In the previ-ously discussed case of Cham-bers v. Maroney,46 the policehad the vehicle secured andclearly had an opportunity toobtain a search warrant. TheU.S. Supreme Court ruled thatit was lawful for the police tosearch the motor vehicle at thestation house after the vehiclewas seized. With the vehiclein police custody, there wasno risk that the vehicle or itscontents would disappear. The

searched the car. Most statecourts, however, follow thefederal rule and do not requirean emergency when applyingthe motor vehicle exception.44

The nonemergency applica-tion of the motor vehicle excep-tion is best illustrated by theU.S. Supreme Court case ofMaryland v. Dyson.45 In Dyson,Maryland police officers hadprobable cause and 13 hoursadvance notice that the defen-dant would be driving a vehiclecontaining crack cocaine north

”

Most state courts,however, follow the

federal rule anddo not require

an emergency whenapplying the motorvehicle exception.

“

August 2005 / 29

U.S. Supreme Court, nonethe-less, ruled that it was not neces-sary to obtain a search warrantto search the vehicle.47

In Texas v. White,48 officersarrested a suspect who hadattempted to pass a fraudulentcheck at a bank. An officer wascalled and, upon his arrival atthe scene, directed the defen-dant to park his vehicle. At thatpoint, the officer and one of thebank employees saw the suspectstuffing something between theseats of his car. Ultimately, thepolice arrested the suspect,seized his car, and drove himand his car to the station house.After bringing the suspect tothe station house, the officersrequested consent to search hisautomobile, but the defendantrefused. The officers thensearched the automobile any-way and discovered fourwrinkled fraudulent checks thatcorresponded to the checks thathe had attempted to pass earlierat a bank. The defendant wasconvicted for attempting to passa forged instrument, but hisconviction was overturned bythe Texas Court of CriminalAppeals. The Texas court ruledthat the search that turned upthe checks was unlawful be-cause the police failed to obtaina search warrant as required bythe Fourth Amendment.

The U.S. Supreme Courtoverturned the Texas court’sdecision. The Supreme Courtruled that the officers were not

required to obtain a searchwarrant to search a vehicleunder the motor vehicle excep-tion, even when the vehicle isimpounded and they have timeto get a search warrant.

What if a vehicle is in policecustody and has already beensubjected to an inventory searchpursuant to standardized policeregulations? Can the policereturn to that vehicle later andsearch it again without a war-rant for evidence or contraband?

officer was a valid search underthe motor vehicle exception,even though the vehicle hadalready been subjected to aninventory search and wasimpounded.50

Containers in Vehicles

The motor vehicle exceptionpermits officers to search notonly the vehicle and trunk butalso any containers in thevehicle that could contain theevidence or contraband that isthe object of the search.51 Fur-thermore, the scope of a war-rantless search of an automobileis not defined by the nature ofthe container in which thecontraband is secreted. Rather,it is defined by the object of thesearch and the places in whichthere is probable cause tobelieve it may be found.

If officers have probablecause to search a lawfullystopped vehicle, they are justi-fied under the motor vehicleexception in searching any partof the vehicle in which theobject of the search may belocated, including containersinside the vehicle. It does notmatter who owns the item thatis to be searched. In Wyoming v.Houghton,52 the U.S. SupremeCourt approved of an officersearching a purse found in thepassenger compartment of anautomobile. The vehicle searchwas based on evidence that thedriver had drug paraphernaliaon his person and admitted he

In Florida v. Myers,49 thedefendant was arrested and hisautomobile was inventoried,seized, and secured in a lockedimpound lot. Approximately8 hours later, a police officerwho had probable cause that thevehicle contained evidence orcontraband went to the impoundlot and searched the car asecond time without a warrant.The U.S. Supreme Court ruledthat the second search by the

© Mark C. Ide


was a drug user. The officer wastold that the purse belonged to afemale passenger and not thedriver before he searched it.When the officer searched thepurse, he found drugs and drugparaphernalia inside it. TheU.S. Supreme Court upheld thesearch, ruling that the owner-ship of an object found andsearched in the vehicle isirrelevant to the legitimacyof the motor vehicle search.

Because the general rule isthat the motor vehicle exceptiondoes not require that there be anemergency, the search of themotor vehicle could be hoursand even days after the vehicleis seized. If packages are takenfrom a motor vehicle, thosepackages would also be subjectto a warrantless search underthe motor vehicle exceptionlong after they have been takenfrom the vehicle. For example,in United States v. Johns,53 theU.S. Supreme Court ruled thatDEA agents acted lawfullywhen they conducted warrant-less searches of packages 3 daysafter they took the packagesfrom a motor vehicle. The laterwarrantless searches werelawful, even though the pack-ages were securely in DEAcustody and the agents hadample opportunity to obtain asearch warrant.54 The Courtruled that the later packagesearches were reasonablebecause the agents had probablecause to search the packages

when they were seized from themotor vehicle and could havesearched them at that time. TheCourt reasoned “Inasmuch asthe government was entitled toseize the packages and couldhave searched them immedi-ately without a warrant, weconclude that the warrantlesssearch 3 days after the pack-ages were placed in the DEAwarehouse was reasonable andconsistent with our precedent

conducted without a searchwarrant are presumed unreason-able. Officers should alwaysconsider the benefits of thepresumption of reasonablenessthat accompanies a search underthe authority of a search war-rant. There are, however, well-recognized exceptions to thesearch warrant requirement thatcan rebut the presumption ofunreasonableness; one is themotor vehicle exception. If anofficer has probable cause tobelieve that evidence or con-traband is located in a motorvehicle, the officer may searchthe vehicle without a warrant tothe same degree as if he had asearch warrant. Probable causedepends on the totality of thecircumstances. If an officer hassufficient evidence to establishprobable cause for a searchwarrant, then he would havesufficient facts to search amotor vehicle without a searchwarrant.

Courts have applied themotor vehicle exception toautomobiles, trucks, trailerspulled by trucks, motor homes,boats, house boats, airplanes,and even the sleeping compart-ments of trains. The federal rulefollowed by most states is thatif an officer has probable causethat there is evidence or contra-band in a motor vehicle, it isnot required that the officer befaced with an emergency forhim to conduct a warrantlesssearch of the vehicle.

involving searches of im-pounded vehicles.”55 The Johns

court held out the possibilitythat in a given case, a delay insearching a package taken froma motor vehicle could perhapsbe unreasonable, but the defen-dants in the case before theCourt did not present any factsthat established that the delayadversely affected their FourthAmendment rights.56

Conclusion

Searches conducted underthe authority of a search warrantare presumed to be reasonable.On the contrary, searches

”

Probable causedepends on thetotality of the

circumstances.“

August 2005 / 31

© Mark C. Ide

Endnotes1 See generally United States v. Leon, 468

U.S. 897, 922 (1984); Franks v. Delaware, 438

U.S. 154 (1978).2 Mincey v. Arizona, 437 U.S. 385 (1978).3 Carroll v. United States, 267 U.S. 132

(1925). In Carroll, the searching agent started

to open up the back cushion to the rumble seat

on a roadster where illegal liquor was hidden

and in the process “did tear the cushion some.”

267 U.S. at 172 (McReynolds, J., dissenting).

See also California v. Acevedo, 500 U.S. 565

(1991).4 Pennsylvania v. Labron, 518 U.S. 938,

940 (1996) (per curiam); California v. Carney,

471 U.S. 386, 391-92 (1985).5 New York v. Belton, 453 U.S. 454 (1981).6 Michigan v. Long, 463 U.S. 1032 (1983).7 Florida v. Wells, 495 U.S. 1 (1990).8 Florida v. Jimeno, 500 U.S. 248, 252

(1991) (In dicta the Court disapproved of

prying open a locked briefcase pursuant to a

consent search of a car trunk. In the holding,

however, the Court approved of the police

opening a paper bag found in a car trunk during

a consent search.). See generally United States

v. Drayton, 536 U.S. 194 (2002); Illinois. v.

Rodriguez, 497 U.S. 177 (1990); United States

v. Matlock, 415 U.S. 164 (1974); Schneckloth

v. Bustamonte, 412 U.S. 218 (1973); Bumper v.

North Carolina, 391 U.S. 543 (1968).9 Illinois v. Gates, 462 U.S. 213, 232

(1983).10 Llaguno v. Mingey, 763 F.2d 1560 (7th

Cir. 1985) (en banc) (plurality opinion),

abrogated in part on other grounds by County

of Riverside v. McLaughlin, 500 U.S. 44

(1991).11 Illinois v. Gates, 462 U.S. 213 (1983).12 267 U.S. 132 (1925).13 267 U.S. at 162.14 399 U.S. 42 (1970).15 See California v. Acevedo, 500 U.S. 565,

579-80 (1991) (quoting United States v. Ross,

456 U.S. 798, 824 (1982)). The mere fact that

an unknown suspect has put drugs in the trunk

of a car, without more, may not be sufficient to

establish probable cause that drugs would be

elsewhere in the car. Acevedo, supra. On the

other hand, additional facts known to an officer

may change the result. For instance, if the

suspect gets in his vehicle after putting the

drugs in his trunk and an officer has informa-

tion the vehicle is regularly used by the suspect

to traffic in illegal drugs, arguably, an officer

could reasonably believe that the passenger

compartment may contain more illegal drugs or

drug records. This is the reverse of the typical

scenario. Usually, the issue is whether there is

sufficient cause to search the trunk after having

found drugs in the passenger compartment. In a

case where drugs are found in the trunk, an

officer would have probable cause to arrest the

driver and then be able to search the passenger

compartment of the vehicle incident to arrest

under New York v. Belton, 453 U.S. 454 (1981).16 See United States v. Brown, 374 F.3d

1326 (D.C. Cir. 2004) (false identification and

stolen credit card found in passenger compart-

ment gave officer probable cause to search

trunk); Whiting v. State, 725 A.2d 623 (Md.

App. 1998) (officer had probable cause to

search trunk after gun and crack cocaine smok-

ing pipe were found in passenger compartment

of car); United States v. Watson, 697 A.2d 36

(D.C. App. 1997) (marijuana cigarette and

white powder in six plastic bags banded

together found in passenger compartment gave

probable cause to search vehicle trunk).

20 E.g., United States v. Burnett, 791 F.2d

64, 65 (6th Cir. 1986).21 119 F.3d 18 (D.C. Cir. 1997).22 United States v. Staula, 80 F.3d 596, 602

(1st Cir. 1996) (odor of burnt marijuana gave

officer probable cause to search passenger

compartment of truck).23 See, e.g., State v. Schmeakeka, 38 P.2d

633, 637-38 (Idaho App. 2001). Contra, People

v. Kazmierczak, 605 N.W.2d 667 (Mich. 2000).

“[T]he smell of burned, burning, and unburned

marijuana, when immediately apparent, are

equally incriminating.” Id. at 675 n.13.24 9 F.3d 1487 (10th Cir. 1993).25 See United States v. Parker, 72 F.3d 1444

(10th Cir. 1995) (a rolled-up dollar bill with a

white powder residue and a marijuana cigarette

found on the driver were sufficient to corrob-

orate the odor of marijuana and give probable

cause to search the trunk); State v. Betz, 815

So.2d 627 (Fla. 2002) (officer had probable

cause to search trunk where he detected odor of

marijuana emanating from the car; the driver

was found to be in possession of marijuana;

and the driver was nervous and jittery).26 See also United States v. Ludwig, 10 F.3d

1523, 1527-28 (10th Cir. 1993) (dog alert

established probable cause to search trunk).

Cf. United States v. Williams, 69 F.3d 27, 28

(5th Cir. 1995).27 706 A.2d 597 (Me. 1998).28 State v. Wright, 977 P.2d 505, 507-08

(Utah App. 1999); United States v. Downs,

151 F.3d 1301 (10th Cir. 1998). Cf. People v.

Kazmierczak, 605 N.W.2d 667 (Mich. 2000)

(The odor of unburnt marijuana alone was

sufficient to establish probable cause to search

the trunk. Although the officer smelled the

odor of unburnt marijuana, the court ruled that

whether the odor is of burnt or unburnt

marijuana makes no difference in establishing

probable cause to search the trunk.). In State v.

Guerra, 459 A.2d 1159 (N.J. 1983), an officer

detected the odor of fresh marijuana during a

traffic stop on the New Jersey Turnpike.

Ultimately, the officer searched the trunk and

found 176.5 pounds of marijuana. The Supreme

Court of New Jersey ruled that the odor of fresh

marijuana alone was sufficient to give the

officer probable cause to search the trunk.29 471 U.S. 386 (1985).30 If, however, a camper trailer is unhitched

and not readily mobile, then it would not be

considered a motor vehicle for purposes of the

motor vehicle exception. State v. Durbin, 489

N.W.2d 655 (Wis. App. 1992). See also State v.

Kypreos, 61 P.3d 352, 357 (Wash. App. 2002).31 471 U.S. at 393-94.

17 557 N.E.2d 14, 19 (Mass. 1990). “Once

the officers discovered the cocaine and the

handgun pursuant to the protective search,

they had probable cause to search the entire

automobile, including the passenger compart-

ment and the trunk, for contraband and

weapons.” Id.18 See, e.g., United States v. Brown, 334

F.3d 1161, 1171 (D.C. Cir. 2003) (gun found

in car next to suspect, who was “tickling the

handle,” after multiple gunshots were fired in

the vicinity gave probable cause to search the

trunk for more weapons or amunition).19 547 P.2d 417 (Cal. 1976). See also

Burkett v. State, 607 S.W.2d 399 (Ark. 1980)

(roach clip and marijuana cigarette butt in the

ashtray do not establish probable cause to

search the trunk).


32 See United States v. Adams, 845 F. Supp.

1531, 1536-37 (M.D.Fla. 1994), wherein the

court held that the motor vehicle exception did

not apply to a motor home that was being used

as a temporary residence. The motor home

contained food, clothing, and other personal

effects; was hooked to an electric generator; and

was located in a rural area on a private wooded

lot owned by the defendants, from which there

was no convenient or easy access to a public

road. In addition, the defendants used other

vehicles located on the property for transporta-

tion. See also Unites States v. Matteucci, 842 F.

Supp. 442, 449 (D. Or. 1994), wherein the

court did not allow a search of a motor home

under the motor vehicle exception because it

was being used in a state park as a residence.

The motor home was snowed in at the park, and

in order for the defendants to get to a public

road, they would have to drive the motor home

down a steep hill and travel several miles in the

park. Furthermore, one of the defendants told

the officer prior to his search of the motor home

that the motor home was used as their home

because they had been “kicked out” of their

apartment several weeks earlier. In United

States v. Levesque, 625 F. Supp. 428, 450-51

(D.N.H. 1985), the court ruled that the motor

vehicle exception did not apply to a trailer that

was situated on a lot in a trailer park, under

circumstances indicating that it was being used

as a residence. The truck which towed the

trailer was only a few feet from the trailer, but

the trailer was not readily mobile because one

end of the trailer was elevated on blocks and

the trailer was connected to utilities at the

campground. It would have taken the defend-

ants three quarters of an hour to connect the

trailer and truck before they could tow it

from the trailer park. But see United States

v. Hamilton, 792 F.2d 837 (9th Cir. 1986),

disapproved on other grounds, United States

v. Kim, 105 F.3d 1579 (9th Cir. 1997) (motor

vehicle exception applied to a motor home

parked in driveway and plugged to electrical

utilities by an extension cord).33 471 U.S. at 394 n.3.34 United States v. Johns, 469 U.S. 478

(1985).35 United States v. Forrest, 620 F.2d 446

(5th Cir. 1980).36 United States v. Lee, 274 U.S. 559

(1927).37 United States v. Hill, 855 F.2d 664 (10th

Cir. 1988).38 United States v. Nigro, 727 F.2d 100,

106-07 (6th Cir. 1984); United States v.

Montgomery, 620 F.2d 753 (10th Cir. 1980).

39 United States v. Tartiglia, 864 F.2d 837,

841-43 (D.C. Cir. 1989); United States v.

Whitehead, 849 F.2d 849, 854 (4th Cir. 1988).40 Pennsylvania v. Labron, 518 U.S. 938

(1996) (per curiam).41 518 U.S. 938 (1996) (per curiam).42 Id. at 940.43 State v. Elison, 14 P.3d 456 (Mont. 2000)

(“We have consistently reaffirmed the

requirement that, in order to justify a warrant-

less search of an automobile, the State must

show exigent circumstances under which it was

not practicable to obtain a warrant.”); State v.

Gomez, 932 P.2d 1 (N.M. 1997) (“a warrantless

search of an automobile and its contents

requires a particularized showing of exigent

circumstances”); State v. Cooke, 751 A.2d 92

(N.J. 2000) (“The automobile exception applies

only in cases in which probable cause and

exigent circumstances are evident, making it

impracticable for the police to obtain a

warrant.”); State v. Harnisch, 954 P.2d 1180

(Nev. 1998) (“[T]he Nevada Constitution

requires both probable cause and exigent

circumstances in order to justify a warrantless

search of a parked, immobile, unoccupied

vehicle.”).44 State v. Werner, 615 A.2d 1010 (R.I.

1992) (“exigency is no longer a requirement of

the automobile exception”); State v. Marquardt,

635 N.W.2d 188 (Wis. App. 2001) (“Issues

concerning whether the police could have

obtained a warrant prior to searching [the motor

vehicle] are not relevant to the analysis.”); State

v. Redfearn, 441 So.2d 200, 202 (La. 1983)

(“Given that a warrantless search on the scene

would have been constitutional, the later search

at the police pound is also constitutional.”);

Commonwealth v. Moses, 557 N.E.2d 14

(Mass. 1990) (“A reasonable delay in a

warrantless automobile search does not violate

the Fourth Amendment or art. 14 [of the Mass.

Const.]”); State v. Gallant, 574 A.2d 385, 391

(N.H. 1990) (“For constitutional purposes we

see no difference between a warrantless search

conducted at the location where the vehicle is

first stopped and a subsequent warrantless

search that takes place at another location, so

long as the subsequent search is conducted as

soon as practicable and is motivated by either

safety or law enforcement concerns....The

State, however, bears the burden, as with other

circumstances justifying a warrantless search,

of proving by a preponderance of the evidence

the presence of public safety or law enforce-

ment factors requiring removal from the

location where probable cause and exigency

would have allowed a warrantless search.”);

People v. Blasich, 541 N.E.2d 40 (N.Y. 1989)

(“The justifications for a warrantless search

conducted upon probable cause pursuant to the

automobile exception do not dissipate merely

because the vehicle has been placed in the

control of the police...and the exception is

equally applicable whether the search is

conducted at the time and place where the

automobile was stopped or whether, instead,

the vehicle is impounded and searched after

removal to the police station.”).45 527 U.S. 465 (1999).46 399 U.S. 42 (1970).47 399 U.S. at 52.48 423 U.S. 67 (1975) (per curiam).49 466 U.S. 380 (1984) (per curiam).50 See also Michigan v. Thomas, 458 U.S.

259 (1982) (per curiam).51 United States v. Ross, 456 U.S. 798

(1982).52 526 U.S. 295 (1999).53 469 U.S. 478 (1985).54 See also United States v. Albers, 136 F.3d

670 (9th Cir. 1997), wherein the U.S. Court of

Appeals for the Ninth Circuit ruled that it was

reasonable for a National Park Service ranger

to conduct a warrantless viewing of videotapes

seized from the defendant’s car 7 to 10 days

earlier.55 Johns, 469 U.S. at 487.56 The Johns Court stated: “We do not

suggest that police officers may indefinitely

retain possession of a vehicle and its contents

before they complete a vehicle search. Cf.

Coolidge v. New Hampshire, 403 U.S. 443

(1971) (White, J., dissenting). Nor do we

foreclose the possibility that the owner of a

vehicle or its contents might attempt to prove

that delay in the completion of a vehicle search

was unreasonable because it adversely affected

a privacy or possessory interest. Cf. United

States v. Place, 462 U.S. 696 (1983)....

Respondents do not challenge the legitimacy of

the seizure of the trucks or the packages, and

they never sought return of the property. Thus,

respondents have not even alleged, much less

proved, that the delay in the search of packages

adversely affected legitimate interests protected

by the Fourth Amendment.” 469 U.S. at 487.

Law enforcement officers of other thanfederal jurisdiction who are interestedin this article should consult their legaladvisors. Some police procedures ruledpermissible under federal constitutionallaw are of questionable legality understate law or are not permitted at all.

Law enforcement officers are challenged daily in the performance of their duties; they face each

challenge freely and unselfishly while answering the call to duty. In certain instances, their actions

warrant special attention from their respective departments. The Bulletin also wants to recognize

those situations that transcend the normal rigors of the law enforcement profession.

Early one morning, Officer Robert Bohnstadt of the North Tonawanda,New York, Police Department responded to a fire at a small apartmentbuilding. Shortly after arrival, he was met by two firefighters; the threeentered the residence and escorted one individual to safety. Once outside,Officer Bohnstadt was advised that there could be other victims. With thefire personnel busy retrieving equipment, he entered the building alone,despite the steadily growing fire and smoke. Officer Bohnstadt located anapartment with an elderly man inside, advised him of the fire and to getready for evacuation, and checked on the other unit, at which he got noresponse. Upon returning to assist the elderly victim, Officer Bohnstadtfound the door locked. Further, because of the noise and smoke, he could

not hear or speak to use his radio to call for help for himself and the victims, now trappedupstairs by the intense heat, smoke, and flames. Officer Bohnstadt kicked in the door andentered. He then placed his patrol jacket at the bottom of the front door to slow the entrance ofthe smoke and used the individual’s phone to call dispatch to advise them of his and the elderlyvictim’s location and that there possibly was a tenant in the other apartment. He then waited withthe elderly man until fire personnel arrived. All parties in both units were brought out to safetyand subsequently received medical attention. The brave, selfless actions of Officer Bohnstadthelped save these individuals’ lives.

Officer Bohnstadt

While on patrol, Officer Christopher Lacina of the Northbrook, Illinois,Police Department observed smoke billowing from the front door of aresidence and immediately requested dispatch to notify the fire department.Knowing that it would take several minutes for assistance to arrive, OfficerLacina quickly responded to the scene and yelled to anyone inside. Afterhearing a call coming from the house, he disregarded his own safety andentered. Officer Lacina located a man lying in the bedroom and helped himoutside. The victim then explained that his wife was still in the residence.Officer Lacina immediately reentered and found the woman and her dog inthe kitchen. He then brought them outside to safety. Later, both the man andOfficer Lacina received

medical attention for their injuries. Becauseof Officer Lacina’s quick thinking and brav-ery, these individuals’ lives were saved and atragic event was minimized.

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

Officer Lacina

The Bulletin Notes

PeriodicalsPostage and Fees PaidFederal Bureau of InvestigationISSN 0014-5688

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