it • i •

March 1998Volume 67Number 3

United StatesDepartment of Justice

Federal Bureau ofInvestigation

Washington, DC20535-0001

Louis J. FreehDirector

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or service.

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• IT • I •

Features

MaintainingNeighborhood Order

By Ronald W. Glensorand Kenneth Peak

CombatingTelemarketing Fraud

By Keith Slotter

Designing an IndividualizedPerformance Evaluation System

By Michael Kramer

CheckpointsBy Kimberly A. Crawford

The development of practicalmaintenance strategies is essential forsuccessful community policing efforts toyield long-term benefits.

Cooperative law enforcement efforts canexpose the hidden faces of illegaltelemarketers, which have long beenshrouded in secrecy.

Law enforcement agencies should not1 undermine the importance of peformance

evaluation by using a one-size-fits-allapproach.

Police departments should considerpotential Fourth Amendment implicationswhen establishing checkpoints to limitaccess to high crime areas.

Departments

8 Book ReviewInterviewing and Interrogationfor Law Enforcement

18 Bulletin ReportsPolice Contact with CitizensGetting Tough on CrimeDistance Learning Pilot ProgramCommunity Mediation Programs

26 Crime DataCrime Decrease

ISSN 0014-5688 USPS 383-310

Lasting ImpactMaintaining Neighborhood OrderBy RONALD W. GLENSOR, Ph.D. and KENNETH PEAK, Ph.D.

D uring the past two decades,law enforcement agenciesaround the country have

adopted the combined operationalstrategies of community-orientedpolicing and problem solving(COPPS) to address a wide range ofcrime problems and the quality-of-life issues that often surround them.Using the COPPS model, police of-ficers and citizens in communitiesof every size and demographicmakeup have joined together to ad-dress these problems in new andcreative ways.

However, despite the ever-in-creasing prevalence of community-oriented policing and a growinglitany of successful problem-solv-ing interventions, few police ad-ministrators or scholars have fo-cused on the strategic issuesinvolved in maintaining the en-hanced quality of life and sense ofcommunity safety that successfulcommunity-based policing effortsoften create. As communities acrossthe country are discovering, mainte-nance becomes a key issue after theinitial problem-solving push has

produced results. To ensure thatproblem-solving initiatives have alasting impact on communities, lawenforcement agencies should de-velop practical strategies to ensurethat community policing yieldslong-term solutions rather thanshort-term fixes.

Long-term SolutionsMuch of what has been written

about maintenance issues is fea-tured in the most important contem-porary discussions of crime and itsimpact on communities. In their

.March 1 9 9 8 / 1

landmark "Broken Windows" ar-ticle, James Q. Wilson and GeorgeKelling describe in very compellinglanguage the potential long-termimplications of leaving neighbor-hood problems unattended.1 Thepioneering work of HermanGoldstein on problem-oriented po-licing suggests that in-depth analy-ses of related incidents and the de-velopment of tailor-made responsesare keys to resolving underlyingproblems within a community.2

Goldstein's research contributed tothe development of the SARA(scanning, analysis, response, andassessment) model of problem solv-ing, which would be applied suc-cessfully by the Newport News,Virginia, Police Department in themid-1980s to address long-standingcrime problems in specific areas ofthe city.

Each of these works, and thedocumented successes of problemsolving in Newport News, helpedlay the philosophical and opera-

tional groundwork for community-oriented policing as it is currentlypracticed in departments around thecountry. However, because of theirgroundbreaking nature, they couldonly hint at the strategic issues in-volved in maintaining a problem-solving posture after the initialCOPPS interventions had takenplace.

Like a patient requiring long-term care, neighborhoods plaguedwith problems require periodic at-tention to ensure a healthy environ-ment is preserved. In recent years, agrowing number of communitiesthat developed and implementedsuccessful community-oriented in-tervention strategies have wrestledwith the problems of maintainingreduced crime levels after the initialintervention has taken place.

Law enforcement agencieshave learned that some crime prob-lems—such as gang violence anddrug dealing—tend to resurface.Likewise, certain community envi-

ronments—public housing devel-opments, high-density apartmentcomplexes, and urban centers—areprone to rapid degeneration oncehigh-impact intervention policiesterminate.

To ensure that community-ori-ented and problem-solving initia-tives have a lasting impact, law en-forcement administrators shouldinclude maintenance in the strategicplanning process. To do so effec-tively, they first must possess aclear understanding of problemsolving as a method to address com-munity problems.

Strategic Responseto Persistent Problems

Problem solving is the linchpinof COPPS. It helps agencies adoptlong-term solutions to addresscrime, fear, and disorder. TheSARA model provides the policewith a useful tool for identifying,analyzing, responding to, andevaluating crime problems andneighborhood concerns. Applica-tion of the SARA model leads offi-cers away from short-term, reactive,and incident-driven responses andmoves them toward long-term out-comes based on in-depth analysisand collaboration with citizens, mu-nicipal agencies, and others.

When formalized, the SARAmodel serves many useful purposes.These include:

• Providing documentation ofinitial intervention efforts andtheir outcomes

• Producing a record ofinterested parties, or stake-holders, both internal (specifi-cally, officers and supportstaff involved in the initial

2 / FBI Law Enforcement Bulletin

intervention projects) andexternal (including businessand property owners, resi-dents, and other city andgovernment agencies)

• Creating a database ofproblems defined by type, areaof town, time of day, and otherfactors. This informationprovides the who, what, when,where, and how of addressingongoing problems

• Developing a trainingmechanism and a record ofinformation resources for otherofficers to review and gainideas about how to addresssimilar situations.The information acquired from

the SARA process assists officerswith ongoing problem assessmentand maintenance, as well as helpingto mobilize original stakeholders toreestablish neighborhood control.The benefits of formalizing theproblem-solving process have ledmany agencies to develop com-puter-based programs to supportSARA.

Like many agencies, the Reno,Nevada, Police Department has re-lied on the SARA model to imple-ment problem solving initiativesduring the past decade. One ofthese initiatives, undertaken in alow-income residential area knownas Virginia Lake, illustrates howquickly crime problems can returnto troubling levels after an initialintervention. The case study thatfollows demonstrates the impor-tance of maintenance in any prob-lem-solving approach. It alsoshows how documenting initialefforts can speed the process of

repair by providing an agency vitalinformation about strategies andstakeholders.

CASE STUDY:VIRGINIA LAKE

In many ways, the VirginiaLake area qualifies as a classic can-didate for a problem-oriented polic-ing approach. At the time of theinitial intervention by the Reno Po-lice Department (RPD), the 1.5-square-mile area in the south

...neighborhoodsplagued with problems

require periodicattention to ensure thata healthy environment

is preserved.

patrol division was home to ap-proximately 6,600 residents. In1992, the annual per capita incomefor area residents was $12,600. Vir-ginia Lake includes five contigu-ous, high-density apartment com-plexes, each controlled by absenteeowners. The area also consists ofseveral strip-mall shopping centers,numerous retail establishments, anda large public park.

The Initial InterventionBeginning in the late 1980s,

calls for service from the VirginiaLake area increased steadily untilFebruary 1992, when two RPDbeat officers, working the swingshift (4 p.m. to 2 a.m.) in the area,decided to conduct an inquiry to

determine the extent of the prob-lems. From February to August1992, the officers developed andinitiated a problem-solving effort inthe area. During this 6-month pe-riod, the officers used periods be-tween service calls, as well as lim-ited additional time provided bytheir supervisors, to analyze theproblems and develop responses. Indoing so, the officers used theSARA model to guide and docu-ment their efforts. In the period fol-lowing the initial intervention, thisdocumentation would prove invalu-able to subsequent maintenance ef-forts in the targeted area.

ScanningScanning department records

revealed that approximately 10,000calls for service emanated from Vir-ginia Lake annually. The majorityof these calls involved domesticviolence, burglaries, disturbances,and gang-related activities. Thearea had recently experienced twogang-related homicides, the kidnap-murder of two children, and in-creased drug activity.

During interviews with the of-ficers, residents expressed consid-erable fear of crime but also relatedan underlying atmosphere of ten-sion, brought about by the influx ofgang-related graffiti, assaults, fight-ing, and shots fired. Residents alsoexpressed concern with the outwardsigns of neighborhood disorder, in-cluding abandoned buildings andvehicles, traffic problems, and un-collected refuse.

AnalysisWith the assistance of the

department's crime analyst, the

-March 1998/3

officers developed a survey and ad-ministered it to 120 business own-ers, residents, and apartment man-agers in the Virginia Lake area. Therespondents were asked to definethe area's problems, discuss theirfears, and suggest actions the po-lice, other city agencies, and resi-dents could take to address thearea's problems.

The survey produced numerousinteresting findings and uncoveredseveral problems that had not beenrevealed by other forms of crimeanalysis. For example, residents ex-pressed tremendous fear of gangbehavior and its resultant problems,such as graffiti, random gunfire,and the presence of suspiciouspersons. Residents participating inthe survey recommended organiz-ing a formal Neighborhood Watchprogram.

Business owners in the area,also expressing concern with bur-glaries and juvenile offenses, in-quired about crime prevention pro-grams and supported efforts toorganize a business watch. In addi-tion, the survey revealed that apart-ment managers neither knew norcommunicated with one another. Asa result, a number of evicted renterssimply moved from one complex toanother in the same area.

Often, the concerns expressedby tenants in one apartment com-plex differed considerably fromthose expressed by tenants in thecomplex across the street. The var-ied nature of these concerns con-vinced the officers that tailored re-sponses to specific problems wouldsucceed better than a genericcookie-cutter approach to problemsolving.

In addition to the citizen sur-vey, the department also conductedan environmental survey of thearea. Department personnel photo-graphed street intersections and re-layed the photographs to the city'sstreets department. Likewise, offi-cers videotaped abandoned build-ings for the fire department. In addi-tion, officers performed speed and

...agencies shoulddevelop practical

strategies to ensurethat communitypolicing yields

long-term solutionsrather than short-

term fixes.

traffic surveys, as well as a lightingsurvey. They also observed that thearea's landscaping consisted prima-rily of rocks, which provided readyammunition for youths who partici-pated in one of the area's favoritepastimes—throwing stones at ve-hicle and apartment windows.

Residents expressed consider-able enthusiasm about assisting thepolice department to address themany problems that confronted thearea. During an initial neighbor-hood meeting, residents, policeofficers, and other stakeholdersdiscussed the problems and pos-sible solutions. During the interven-tion period, stakeholders continuedto share their concerns and ideas

and to chart the intervention'sprogress during monthly follow-upmeetings.

ResponseWhen the officers determined

the magnitude of the problems fac-ing the area, they began to formu-late plans for tailor-made solutionsto them. Experience had shown theofficers that arresting offendersshould be considered part of thesolution; but arrests alone rarely re-sult in long-term improvements tocomplex neighborhood problems.The officers knew they would haveto explore other options.

Armed with vast amounts of in-formation and data, the officers ini-tiated a collaborative, citywide re-sponse to the area's problems. Theresponse comprised a balance ofcrime control and crime preventionefforts. The city attorney drafted agraffiti ordinance. A gang enforce-ment team worked with the beat of-ficers to target gang-related inci-dents in the area. Pressure on drugdealers and arrests increased in theapartment complexes. The city im-posed a curfew at the public park,which had become a focal point forgang activity and drug dealing. Atthe same time, the police depart-ment initiated bike and foot patrolsto complement vehicle patrolsthroughout the area. The enhancedpatrols produced immediate resultswhen officers apprehended severaljuveniles responsible for a string ofvehicle burglaries.

With guidance from the policedepartment, landlords and tenantsfrom the five apartment complexesestablished a resident council; resi-dents and business owners launched


Neighborhood and Business Watchprograms. Apartment managers re-ceived landlord-tenant training andbegan to exert friendly pressure onone another to proactively addressproblems on their properties. Themanager of one complex initiated alatchkey program to keep youngstudents busy after school.

The beat officers also coordi-nated efforts to address environ-mental issues as another means ofcrime prevention. The local powercompany evaluated and correctedarea lighting problems. The resi-dent council, working with localsalvage yards, initiated a program toremove abandoned vehicles. Resi-dents and apartment managerslaunched a cleanup campaign. Thecity's parks department and resi-dents jointly cleaned, painted, andrepaired the park facilities. Apart-ment managers arranged to havepyracantha shrubs planted aroundfences to make them more formi-dable crime barriers. The city razedabandoned buildings and a commu-nity service organization purchasedrecreational equipment and trans-formed a vacant lot into a neighbor-hood park.

AssessmentEffective assessment of a prob-

lem-solving initiative actually be-gins in the analysis stage, when thepolice department collects baselinedata on the extent of the problems ina targeted area. As the VirginiaLake intervention drew to a close,the beat officers evaluated theoverall effectiveness of their effortsand determined whether any re-maining issues required additionalanalysis or responses. They based

their outcome evaluations on bothquantitative and qualitative data, in-cluding calls for service, reportedcrimes, and results from citizensurveys.

The officers compared calls forservice data from February to Au-gust 1992 to figures for the sameperiod in 1991. The comparison re-vealed significant decreases in rob-beries, assault and battery offenses,assaults with a deadly weapon(ADW), commercial and residentialburglaries, and vehicle thefts duringthe months of the intervention. Asoften occurs when communitiesmobilize against crime and citizentrust in the police to respond grows,reports of disturbances, destructionof property, domestic violence,shots fired, and suspicious personsincreased moderately during theintervention.

In a follow-up survey, area resi-dents expressed less fear of crime,cited an improved physical environ-ment in the neighborhood, andpointed with satisfaction to ongoingself-help efforts, as the residentcouncil continued meeting on aregular basis. The reductions in

serious criminal activity and callsfor service, coupled with improve-ments to physical environmentalconditions throughout the area andthe development of citizen-basedorganizations, led to a gradual re-duction of the beat officers' efforts,as the police department returnedcontrol of the neighborhood to itsresidents.

FLEETING SUCCESSIn the year following the police

department's concentrated pres-ence in Virginia Lake, conditions inthe area began to worsen. Whilerobbery, ADW, and vehicle theftrates continued to fall, the numberof family disturbances, assault andbattery offenses, reported prowlers,and residential and vehicle burglar-ies increased significantly.

In 1994, two years after the po-lice department's intervention ef-forts, conditions deteriorated fur-ther. Crimes against personsincreased sharply. ADWs spiked(up 500 percent from 1991 levels),as did robberies and reports of sus-picious persons in the area. Com-mercial burglaries increased 44

March 1998/5

percent over 1991 figures. Resi-dents expressed a heightened senseof fear, particularly because of re-curring gang-related activities inthe neighborhood.

Because of the serious down-turn in conditions in the area, theresident council recontacted the twoofficers who had initiated the 1992intervention efforts. However, be-cause the officers had since beenreassigned to specialized units else-where, there was little they could doto assist the council. While the newbeat officers assigned to the neigh-borhood and their supervisors wereconcerned about the declining stateof the neighborhood and sought toimprove conditions, they were un-familiar with the area's history. Theattrition of area residents and apart-ment managers also had a negativeimpact on ongoing maintenance andproblem-solving efforts in the area.

Eventually, by using informa-tion contained in the originalproject file, the beat officers wereable to reclaim the neighborhoodand reestablish a network of part-nerships with the resident council,apartment managers, businesspeople, and other city departmentsand government agencies. After re-newed police concentration in thearea, a new assessment of the crimeproblem revealed that crime andcalls for service data for many of thetargeted offenses had returned tothe reduced levels achieved duringthe original intervention effort.

Still, some problems persisted.Commercial, residential, and ve-hicle burglaries continued to risesignificantly, as did reports ofprowlers. During the renewed

intervention efforts, over 80 shotswere fired in the area—a 453 per-cent increase over 1991 figures. Re-ports of family disturbances greatlyexceeded their 1991 levels.

Some criminologists mightview these increases as "randomnoise"—changes in criminal activ-ity that occur routinely in economi-cally deprived areas. However, an-other characterization might be thatthe increased crime levels for

11...agencies shouldwork to maintain

reduced crime andfear levels bycontinuing to

assess and respondto emergingproblems.

certain offenses reflect, at least tosome degree, the reduction of po-lice-citizen maintenance efforts inthe area. This indicates that certainneighborhood conditions can leadto increased crime and disorder andthus demand greater maintenanceefforts from stakeholders. The po-lice department must continue toexplore ways to address these ongo-ing problems.

Maintaining the Initial SuccessThe Virginia Lake case study

demonstrates a central truth aboutproblem-oriented policing: Lawenforcement cannot engage in

intensive crime control and preven-tion efforts and then become essen-tially inactive in a particular "hotspot." Problems once brought undercontrol quickly can return. There-fore, law enforcement agenciesmust identify those areas and crimeconditions where problems areprone to recur and implement thenecessary mechanisms to sustainproblem-solving efforts. To ensurea lasting impact, agencies shouldplan for a long-term approach whenimplementing community-orientedproblem-solving responses.

Document EffortsLaw enforcement agencies

should document their problem-solving efforts using the SARAmodel. If possible, officers shouldcomputerize documentation—suchas using automated databases fortracking and retrieving informationby type, area, officer assignments,shift, and other factors. Keepingthis important information readilyaccessible will help ensure thatmaintenance efforts will continueeven if the personnel involved in theoriginal intervention effort are as-signed elsewhere. Agency adminis-trators should develop methods toperiodically update the originalproject file. Information should in-clude the names of new stakehold-ers—such as incoming apartmentmanagers—as well as updatedcrime figures and service call datafor the targeted area.

Train All PersonnelAgencies should train all per-

sonnel—sworn and support—inCOPPS methodologies and develop


administrative systems to ensurethat officers and supervisors under-stand the history and status ofproblems in the areas to which theyare assigned. To accomplish thisagencywide, commanders mightconsider posting, in a conspicuousplace such as the patrol briefingroom, a list of projects by area andofficers involved.

Keep Other Agencies InvolvedAdministrators also should

keep municipal agencies that tookpart in any initial intervention ini-tiatives informed and involved inongoing efforts to maintain an en-hanced quality of life in the tar-geted area. The police departmentsin Newport News, Virginia, andSan Diego, California, formedanalysis advisory committees thatserve as vehicles for monthlymeetings between police andother government agencies to dis-cuss and monitor ongoing problem-solving efforts.

Keep Stakeholders InformedLikewise, administrators

should ensure that beat officerskeep concerned citizens groups—landlord-tenant associations, Busi-ness and neighborhood Watches,and neighborhood advisory groups—informed about ongoing effortsin target areas. The continued in-volvement of such groups repre-sents an essential element in anyongoing crime control effort.

CONCLUSIONCrime is a dynamic force. That

is, it tends to respond and adapt to

changing environments. Therefore,an effective response to crime alsomust be dynamic. When law en-forcement agencies mobilize for ashort-term blitz of activity directedat specific crime problems in par-ticular neighborhoods, they oftenrealize impressive initial results.But, without ongoing maintenance,conditions in troubled areas canquickly deteriorate to a level as bad,or worse, than those that originallyprecipitated the intervention.

Therefore, agencies should ap-proach problem solving as a long-term commitment. After the initialintervention has reversed a down-ward spiral, law enforcement agen-cies should work to maintain re-duced crime and fear levels bycontinuing to assess and respond toemerging problems. To do so, beatofficers and administrators shouldmaintain regular liaison with com-munity leaders, business groups,and other municipal agencies. Lawenforcement administrators shouldview the success of any initial prob-lem-solving intervention effort notas the end of the agency's efforts inthe targeted area but as the begin-ning of a renewed and ongoingrelationship. -••

Endnotes1 J.Q. Wilson and G. Kelling, "The Police

and Neighborhood Safety: Broken Windows,"The Atlantic Monthly, March 1982, 29-38.

2 H. Goldstein, Problem-oriented Policing(New York: McGraw-Hill, 1990).

Wanted:Photographs

T he Bulletin staff isalways on the lookout

for dynamic, law enforce-ment-related photos forpossible publication in themagazine. We are interestedin photos that visually depictthe many aspects of the lawenforcement profession andillustrate the various taskslaw enforcement personnelperform.

We can use either black-and-white glossy or colorprints or slides, although weprefer prints (5x7 or 8x10).Appropriate credit will begiven to contributing photog-raphers when their workappears in the magazine. Wesuggest that you send dupli-cate, not original, prints aswe do not accept responsibil-ity for prints that may bedamaged or lost. Send yourphotographs to:

Brian Parnell, ArtDirector, FBI LawEnforcement Bulletin,FBI Academy, MadisonBuilding 209, Quantico.VA 22135.

Interviewing and Interrogation for LawEnforcement by John E. Hess, published byAnderson Publishing, Cincinnati, Ohio, 1997.

There is an abundance of material that sug-gests techniques for conducting effective inter-views and interrogations. Interviewing and Inter-rogation for Law Enforcement is a new resourcethat offers much valuable insight for veteran andnovice investigators alike.

The presentation is crisp, comprehensive, andwell organized. Readers will appreciate that thedelivery also is refreshingly efficient—every wordcounts, and at 109 pages, the book easily can beread in one sitting. Despite the wealth of informa-tion presented, however, the tone is conversationaland direct. In fact, like any good interview, thebook reads like a conversation with a purpose.

The author, a former FBI special agent, whospent 12 years as an instructor at the FBI Acad-emy, draws upon his considerable experience—both as a field investigator and as an instructor—toimpart the kind of practical advice all investigatorswish they had received before their first investiga-tions. Equally important, he uses his gift as astoryteller to relate many of the lessons he learnedfrom officers who attended the FBI NationalAcademy courses that he taught. Indeed within thefirst several pages, readers quickly feel that theyare learning from some of the most talentedpractitioners in the field.

The book is divided into three sections,consisting of three chapters. The first sectionfocuses on interviewing. In a particularly interest-ing chapter on demeanor, the author discusses theattributes of adopting an at-ease and confident airduring interviews. A comparison of the interviewstyles demonstrated by two fictional law enforce-ment officers—Deputy Barney Fyfe and Lieuten-ant Columbo—serve to reinforce many of thepoints the author makes. Much of what the authorshares about interviewing is commonsense advicemade more compelling because it is presented inthe form of case studies, anecdotes, and quotes.Among the many memorable statements, "Think ofeach interview as a first date and leave nothing tochance."

The second section deals with detectingdeception. Much of the discussion focuses on theability of investigators to recognize the "symp-toms" of dishonesty by posing leading questions tosubjects and noting changes in their demeanor.This section also summarizes what investigatorsshould look for in nonverbal behavior and dis-cusses the study, and practical value to interview-ers, of neurolinguistics.

The book's third section focuses on interroga-tions. The three chapters in this final section lay astrong groundwork for conducting sound interro-gations. The author explains effective ways tomake an accusation, deliver the "sales pitch," avertdenials, and ensure that a subject is listening. Thediscussion also stresses the importance of finerpoints that help lead to confessions—such asestablishing trust with a subject and conveyingcompetence during interrogations. As it doesthroughout the book, attention to detail comesthrough in the form of some thoughtful housekeep-ing advice, in this case suggestions for setting upthe interrogation room and using props duringinterrogations.

Each chapter concludes with a suggestedreading list that reflects the author's broad graspof the subject matter. The lists provide suggestionsespecially helpful to readers interested in learningmore about such concepts as the cognitive inter-view, nonverbal communication, effective listen-ing, and neurolinguistics.

A common myth pervades law enforcementthat effective interviewers are born, not made.This book has as much merit for seasoned investi-gators as it does for those who have never con-ducted an interrogation before. The book provideseasy-to-use techniques that any investigator couldadopt to enhance their skills in these areas. Inter-viewing and Interrogation for Law Enforcementshould be required reading for all recruits anddetectives.

Reviewed byDeputy Chief Polly Hanson

Metro Transit Police DepartmentWashington, DC

Hidden FacesCombating

Telemarketing FraudBy KEITH SLOTTER, CPA

"And the grand prize is...$25,000 in cold... hard...cash! There are only fivepeople left in our holidaybonus bonanza, and itlooks to me like you're ontop! I hope you can affordan addition to your one-cargarage, because you'regoing to need it!"

H ow many times does thephone ring at dinnertimewith claims like this from

overzealous telemarketers trying tolure a purchase in exchange forpromised riches and award win-nings? Worse, how many people doyou know who have been taken inby these schemes?

"Telemarketing" was a termcoined by telephone companies inthe mid-1970s indicating a way topromote sales through phone solici-tation. Con artists quickly learned

that selling and promoting over thephone offered a new wrinkle onage-old customer swindle schemes.By promising cash, cars, jewelry,and other prizes, unscrupuloustelemarketers have fleeced millionsof people out of their hard-earnedsavings. Many victims are the eld-erly—folks who normally closedeals on a handshake, but have beenconned out of their retirement nesteggs in exchange for cheap trinkets.

Illegal telemarketing schemeshave one common element.

March 1998/9

Whether the products offered forsale are pens, vitamins, water puri-fiers, lottery winnings, or invest-ments, illegal telemarketers prosperby promising customers an array ofvaluable prizes—big rewards thatnever come.

Overtime, illegal telemarketinghas become an international prob-lem, with new and varied operationsspringing up throughout the UnitedStates, Canada, and Europe. To puttoday's problem into perspective,one must examine how illegaltelemarketing operations, called"boiler rooms," operate and howthey developed.

INSIDE THEBOILER ROOM BUSINESS

To trace the inner workings ofan illegal telemarketing operation,one must understand the language,as well as exactly how and whybusiness is conducted the way it is.Most boiler rooms operate in six

stages—solicitation, sales, verifica-tion, collection, shipping, and cus-tomer service. Each stage dependson the others for success.

SolicitationNo boiler room can prosper

without a core base of victims andcontinuous new prospects. Tele-marketers solicit potential custom-ers in two ways—either inbound oroutbound. Inbound systems usuallyinvolve a bulk mailer of some sort,often a card or certificate, notify-ing prospects that they have won aprize or business opportunity andrequesting that they call the com-pany within the next 24 or 48 hours.This deadline creates a sense ofurgency that a big award might bemissed if the offer is not actedupon immediately. Mailers result inabout a 5 to 7 percent responserate for most boiler rooms. Out-bound systems use the cold-callingapproach—telemarketers get on

By promising cash,cars, jewelry, and

other prizes,unscrupulous

telemarketers havefleeced millions ofpeople out of their

hard-earned savings.

Special Agent Slotter serves inthe FBI's New Haven, Connecticut, office.

the phone and pitch their promo-tions through unsolicited initialcontact.

Regardless of which system isused, all telemarketers rely onleads. These phone professionals donot pick names out of the phonebook; they operate from lead lists—hundreds of names and telephonenumbers that boiler room ownerspurchase from lead brokers, usuallyon a weekly basis. Lead lists iden-tify likely prospects, often thosewho have been victimized recentlyby other telemarketers. A boilerroom owner might pay anywherefrom 5 cents to 5 dollars per name,depending on the likelihood of asale. Most boiler rooms exclusivelysolicit out-of-state victims in orderto avoid the risk of personal con-frontation in the future.

SalesAs the heart and soul of any

boiler room, sales personnel do notall do the same job. They are lo-cated in various rooms inside thecompany depending on their func-tion. Many salespeople at all levelsoperate using a written pitch, usu-ally drafted by the owner or roommanager. However, most phonerepresentatives are given wide lati-tude in price negotiations and whatthey can say and promise a victim.

Front RoomThe front room is where the

new, less experienced salespeople,sometimes called "fronters," work.They generally contact new pros-pects from their lead lists and offerthe customers products and awardswith relatively low prices, usually


between $299 and $599. They aremanaged separately and segregatedfrom the more advanced operators.

No Sale RoomThis room houses salespeople

who refuse to take no for an answer.Once the fronter has failed in asale, the lead is forwarded to the NoSale Room, where a more experi-enced telemarketer takes a secondcrack at it. This telemarketer feignsmisunderstanding and incredulitythat the customer is not taking ad-vantage of the opportunity being of-fered and usually says somethinglike this:

"Frankly Mr. Jones, myassociates and I are completelyconfused, and we're not surewhat to do about it. Whatyou're telling us is that youdon't want your prize—thatwe should just forget about itand send it off to some otherlucky customer? I don't thinkyou realize what you havecoming to you."Sometimes these salespeople,

or "no salers," try to explain awaythe cost of an award or product byclaiming that the fee simply coversthe costs associated with the prize,such as shipping, insurance, andtaxes.

Reload RoomA boiler room lives or dies

through the success of its reloadroom, the established phoneprofessional's turf. These sales-people, called "reloaders," usehigh-pressure tactics and an assort-ment of bogus promises to convincepast victims that they should buy

again. Ironically, these victims arethe easiest to pitch because theytend to spend more and more moneyin hopes of eventually winning thatbig prize or at least breaking even.Reloaders fuel those hopes with liesand unkept promises about granderpromotions and newfound riches ifthe victim will just play along onemore time.

Reload orders often total thou-sands of dollars apiece and repre-sent the bulk of the company's il-licit income. Seasoned reloaderscommonly earn well over $100,000in commissions annually.

VerificationVerifiers recontact customers

shortly after a sale has been com-pleted. They review the promotion,awards, and price with the custom-ers. More important, they attempt todiffuse the misrepresentationsmade by the sales representatives.Verifiers also secure arrangementsfor the victims to pay for the bogusproducts.

CollectionTo circumvent the problem of

buyers' remorse, telemarketersneed to ensure that customers paythem as quickly as possible. Thetwo most common methods of pay-ment are checks sent via overnightdelivery and demand draft authori-zations. The verifier secures thecustomer's address and arranges forthe overnight courier to pick up thecheck as soon as possible, with allcharges to be paid by the boilerroom. By using check debits or de-mand drafts, telemarketers also canarrange for the direct electronictransfer of funds from a victim'sbank account.

Because of the instability andillegality of most boiler room op-erations, telemarketers generallycannot obtain bank merchant ac-counts for credit card sales. Someowners misrepresent the nature oftheir businesses to secure such ac-counts, but once banks determinethat the companies' profits are gen-erated exclusively through phone

March 1998/11

sales, they quickly shut down theaccounts.

ShippingAlso known as the "back end,"

most telemarketers initially get intotrouble at this point. It is one thingto lie over the phone to induce asale; it is another thing to lie overthe phone and then not ship the cus-tomer anything, not even the leastvaluable award. Many financiallystrapped owners, to their detriment,resort to nonshipment when busi-ness gets hectic. Reliable shippingminimizes customer complaints,which, in turn, reduces the threat oflaw enforcement intervention.

Incidentally, most illegal prizerooms operate on a 10 to 1 prin-ciple; that is, they award a prizecosting one-tenth of the amountpaid. There even have been cases inwhich boiler rooms awarded vic-tims vacation packages that con-sisted of nothing more than travelcertificates the boiler room boughtin bulk for pennies apiece.1

Customer ServiceThis task requires a special tal-

ent and also might be called cus-tomer harassment or customer in-timidation. Once victims realizethey have been duped, the customerservice representative (CSR) musteliminate the problem using anytactics necessary. The CSR usuallyis an old-time telemarketer who ei-ther belittles and berates customersinto submission or, through an end-less series of delay tactics andempty promises, wears the com-plainants down until they eventu-ally give up. Only the most persis-tent customers or the threat of law

enforcement action actually elicits arefund.

HISTORY OFTELEMARKETING

The first major illegal telemar-keting company was Fifty StatesDistributors. This company beganoperations in 1975 in Las Vegas andeventually spread out across thewest. Fifty States sold advertising

Secrecy isthe key to

illegaltelemarketing

success.

specialty products or "ad specs"—usually pens, key-chains, or refrig-erator magnets with a company'sembossed name and logo—to busi-nesses throughout the country. Theowner of Fifty States, BarrySchrader, soon learned that hisphone representatives could sellmore products by offering custom-ers a watch or other jewelry trinketalong with their orders.2 Thissimple gesture eventually evolvedinto the 1-in-5 scheme, which hasbecome a staple of illegal prizeroom operations.

In the 1-in-5 scam, telemarket-ers guarantee that customers willreceive one of five prizes—with thetop award being an automobile orother lucrative item, all the waydown to the least valuable prize,often represented to be a television,

VCR, or stereo. In fact, the leastvaluable award is buried some-where in the middle, and, thoughrepresented to be valuable, it usu-ally consists of worthless jewelry,artwork, or costly and restricted va-cation packages. Everyone gets thisaward—except for the few custom-ers who have spent thousands andthousands of dollars chasingdreams concocted through craftysalesmanship. Of course, before be-coming eligible for an award, thevictim must purchase something,often a product with a true valuedifficult for amateurs to determine.The first rule of illegal telemarket-ing is that no one gets more thanthey pay for.

Fifty States, which employedmore than 300 salespeople at itspeak, eventually was raided andshut down in 1979. Unfortunately,former managers and salespeoplespread across the country to starttheir own scam operations, such asCypress Creek Promotions in FortLauderdale, Florida, NationwideMarketing in San Diego, California,and Pioneer Enterprises in Las Ve-gas, Nevada, which at one time wasthe largest boiler room in the UnitedStates.

EARLY LAWENFORCEMENT EFFORTS

Secrecy is the key to illegaltelemarketing success. Telemarke-ters, by nature, shun outsiders. Theyfeel secure in defrauding peoplethroughout the country with thecomfortable detachment of neverhaving to meet their victims face toface. Telemarketing companies areequally wary of law enforcement,and their operations are primed for


quick relocation, as required. Aboiler room owner easily can set upan office without any overhead con-cerns, needing only office space,desks, and phones, all under thecover of an innocuous name, oftenwith the words "marketing" or "pro-motions" in the title.

Further complicating lawenforcement's efforts at investigat-ing boiler room operators, most em-ployees, from the owner to the low-est level salespeople, use aliases, or"phone names," to insulate them-selves from suspicion. Tracing analias involves extensive police sur-veillance and cumbersome recordsreview, often without success.

Prior to 1990, most law en-forcement investigations were his-torical in nature. Federal agents andlocal detectives were challenged topore over thousands of documents,including sales orders, payrollrecords, shipping receipts, purchaseorders, telephone toll records, andbank account information, to recon-struct company operations. Addi-tionally, cases only could be solvedby contacting and interviewing hun-dreds of victims across the country,making successful telemarketinginvestigations at all levels of lawenforcement very rare.

Boiler room operators simplycan pack up and move to anothercounty or town, leaving pursuersperplexed. Part of the problem isthat the boiler room community hasits own language and way of doingbusiness. Investigators attemptingto thwart boiler room operatorsquickly learned that without thor-ough knowledge of boiler roomlingo and behavior, their limited un-derstanding of such operations im-mediately would compromise their

proactive investigative efforts.Many of these barriers ultimatelytoppled in the early 1990s with theFBI's Operation Disconnect, whichgave law enforcement one of itsfirst real glimpses inside the boilerrooms of America.

OPERATION DISCONNECT

After the FBI, state attorneysgeneral throughout the country,and innumerable police depart-ments suffered years of investiga-tive frustration, the FBI solicitedthe services of a former boiler roommanager, who guided agentsthrough this intricate and secretiveworld. With this intelligence, theFBI's Salt Lake City office initiatedundercover operation Bo Deal,which subsequently evolved intonational Operation Disconnect. In

Disconnect, undercover agentsposed as distributors of a computer-ized lead service, promising con art-ists profits far beyond what theywere raking in already. This tech-nique enabled agents to gain first-person admissions of illicit salestactics and to understand boilerroom machinations fully. Duringthis undercover operation, investi-gators developed so-called hot testsin which agents, posing as custom-ers, purchased products and re-corded the fraudulent pitches andunkept promises of telemarketersthroughout the country.

Many federal and local lawenforcement agencies, along with18 FBI field offices, participatedin the March 1993 takedown,resulting in raids of 79 boilerrooms and the arrest of 300

March 1998/13

subjects nationwide.3 AlthoughDisconnect was a one-time opera-tion, the methodology used inthis investigation established asolid foundation for law enforce-ment to combat illegal boilerrooms in an effective, proactivemanner.

PROACTIVETELEMARKETINGENFORCEMENT

In the wake of Disconnect,many telemarketers became evenmore secretive and suspicious intheir business dealings. Law en-forcement quickly learned, how-ever, that the bonds of secrecy anddistance, so implicitly cherished byboiler room operators, could be ef-fectively used against them. Whilephone professionals depend on de-ception and trickery for success,they never can be completely sureto whom they are speaking on theother end of the line. The challengefor law enforcement is to exploitthis vulnerability and put investiga-tors into the position of customerswithout arousing suspicion.

Operation Disconnect's suc-cess led the FBI's Miami divisionand the Fort Lauderdale Police De-partment to combine forces in 1994in Operation Sunstroke. Together,they developed a strategy to placeagents and detectives consistentlyin the role of victims, allowing fordirect evidence of illegal salestactics. Over time, a twofold sys-tem involving cooperating wit-nesses (CWs) and fictitious leadshas developed.

First, cooperating witnesseswith previous boiler room experi-ence are sent into suspected illegal

telemarketing companies to seekemployment. The CWs typicallyare trained by boiler room person-nel in all phases of the operationand usually sit in on calls made byother employees. All activity in theboiler room is recorded, and the lawenforcement agency reimbursesvictims upon takedown for anyactual sales made by the CW. Theevidence associated with this part ofthe investigation can be obtained ina matter of days.

The key to combatingtelemarketing crimesis communication—

both among lawenforcement agencies

and withincommunities.

Second, fictitious leads are cre-ated and inserted into the boilerroom. Telemarketers maintain anunquenchable thirst for new leadsor "fresh paids," victims who havepurchased from other telemarketersand likely will buy again. Leads,take many forms, often consistingof index cards, computer sheets,and previous sale orders. By creat-ing their own leads, usually in theform of supposedly old sale orders,law enforcement officials can placethemselves in the victim's hotseat. Standard sale order forms canbe purchased from a businesssupply store or duplicated fromprevious searches and seizures.Once the form is completed with the

fictitious information and submit-ted to the boiler room, investigatorscan expect a call in a matter of days.

The next investigative step is toovercome the interstate aspects oftelemarketing and create the illu-sion that the law enforcement vic-tim actually is located in a farawaystate. One way to set the stage is towork in tandem with another lawenforcement agency out of state.For a relatively low cost, eachagency can establish one or moretelephones in its office space withcalls forwarded permanently to theother agency. For instance, in Mi-ami, the FBI and the Fort Lauder-dale Police Department set up fivetelephones with recording equip-ment. Through cooperative effortswith other FBI and law enforcementoffices, the phones in Florida wereconnected to phones in Atlanta,Dallas, Los Angeles, New York,and Chicago. Those phones wereplaced in permanent call forwardstatus so that if, say, a telemarketerin Miami called a lead in Atlanta,the call automatically bounced tothe phone bank in Fort Lauderdale.By replicating this strategy, law en-forcement agencies can make phonesolicitors believe they are conduct-ing interstate sales when the investi-gators might be literally right nextdoor.

To complete the scenario suc-cessfully, all law enforcement per-sonnel involved in the investigationneed to be briefed on case objec-tives, phone personas, how to elicitincriminating information, and themechanics of arranging for thepurchase and receipt of productsand prizes—usually through amail-drop arrangement. Once law


enforcement personnel make apurchase, the phone typically con-tinues to ring with reloaders solicit-ing more money and, eventually,with other boiler rooms that havepurchased the leads from the initialtarget.

Following Miami's success, theFBI in San Diego coordinated na-tional Operation Senior Sentinel. Inaddition to investigators from mul-tiple agencies, this initiative alsosolicited the services of retired lawenforcement personnel and mem-bers of the American Association ofRetired Persons (AARP) to pose as

victims. To date, Senior Sentinel ef-forts have led to the arrests ofover 1,000 boiler room subjectsnationwide.4

CRIMINAL INNOVATIONSEven with the successes of Dis-

connect, Senior Sentinel, and hun-dreds of similar local law enforce-ment operations, telemarketingcontinues to thrive. Canadian au-thorities, in particular, have wit-nessed explosive growth in illegaltelemarketing during the past 3years.5 In addition, new variationson these schemes continue to arise.

Some of the most popular includerecovery schemes, so-called rip-and-tear operations, and investmentschemes.6

Since operation Disconnect,telemarketers have discovered amore insidious way of defraudingcustomers. Phone professionals,posing as recovery and liquidationspecialists, promise customers areturn of their lost monies in ex-change for an additional fee thatsupposedly covers court costs andother legal expenses. These con art-ists often claim to be working hand-in-hand with law enforcement

Common Terms Used in the Telemarketing Trade

Dropping Mail: The process of bulk-mailing promotional materials (usually awardnotification letters or cards), enticing potentialcustomers to call the boiler room to claim theirprize.

Lay Down: An easy sale. A customer whois so excited about the promotion, he/she is aneasy target for the salesperson.

Catalog Rebuttal: A phony catalog. Manytelemarketers instruct customers to send inphotographs of themselves with their awards.Customers are told the pictures will be pub-lished in the telemarketing company's catalog.This rebuttal lends an air of legitimacy to thedeal even though no such catalog is everpublished.

In the Ether: When a salesperson is able toexcite a potential customer about the awards orprizes they may have won, the customer is saidto be "in the ether." The customer is thenbrought "out of the ether" upon hearing the

actual terms and conditions associated withthe winnings.

Gimme Gift: The trinket or low-valueprize that all customers receive, regardless ofthe extravagant prizes that were promised.Typical "gimme gifts" include cheap jewelry,travel certificates, and phony artwork.

Misreps: Misrepresentations, lies, andexaggerated statements made by the salesper-son to close the sale.

Mooch: A sucker. In short, the idealcustomer.

Spiff: An incentive or bonus given by thecompany to a salesperson who has had anespecially successful day on the phone.

Takeover (TO): When one salespersonpasses a customer on to another sales repre-sentative to try to wear the buyer down andclose the deal. The second seller is usuallyfresher and often will try a different tact toelicit a sale.

March 1998 /15

authorities and prey on the victims'ultimate desire to recoup the lossesthey incurred, perhaps from thevery telemarketers now promisingto help.

To help avoid detection, an-other set of telemarketers, known asrip-and-tear operators, often workout of a basement or office facilitywith a month-to-month leasearrangement. Their goal is to de-fraud as many customers in as shorta time as possible with no intentionof fulfilling customer orders orawarding prizes. They just take themoney and run.

A new wave of sophisticatedtelemarketing has emerged in thefraud arena. These phone profes-sionals claim to be investment spe-cialists, often referring to them-selves as brokers or investors andtheir businesses as independentsales offices, or ISOs, rather thanboiler rooms. They offer high-priced investments in stocks, bonds,and new business opportunitiesand might go so far as to furnishprospective victims with phonyregistration and prospectus papers.Despite their air of profession-alism, their schemes are no more

legitimate than the rip-and-tear op-erators' ploys.

CONCLUSIONThe key to combating telemar-

keting crimes is communication—both among law enforcement agen-cies and within communities. Bysharing investigative and intelli-gence information, law enforce-ment at all levels can defy the inter-state aspects of these crimes. Forexample, the Boiler Room TaskForce in San Diego maintains acomprehensive tape library consist-ing of thousands of recorded


telemarketing conversations thatare available for law enforcementuse. Nearly 200 recorded victimconversations are added to this col-lection weekly. Additionally, Fed-eral Express, headquartered inMemphis, Tennessee, has estab-lished its own initiative againstboiler rooms that use their deliveryservices. The cooperation and testi-mony of Federal Express officialsin these matters has proven invalu-able in bringing many of thesecriminals to justice.

Finally, the public, particularlythe elderly population, depends onlaw enforcement to educate themabout the pitfalls of dealing with

boiler rooms and the commonschemes to which they might be-come susceptible. Most of Amer-ica's elderly population grew up inan era when trustworthiness wasthe norm and a person's word washis bond. They find it hard to com-prehend that salespeople could liein such a straightforward and outra-geous fashion, and they are so em-barrassed by their losses they find itdifficult to report these crimes.

With the impact of proactiveboiler room investigations andother intensified law enforcementefforts, former telemarketing hot-beds like Las Vegas, Texas, southFlorida, and southern California,

have seen significantly reduced ille-gal telemarketing activity. With co-operative efforts and a commitmentto addressing the problem, law en-forcement can continue to exposethe hidden faces of illegal telemar-keters around the world. -•-Endnotes

1 Operation Sunstroke, FBI, MiamiDivision, 1994.

2 Warren Rupp, former manager, FiftyStates Distributors, interview by author.

3 Economic Crimes Unit, Financial CrimesSection, FBI Headquarters, Washington, DC.

4 Ibid.5 National Fraud Information Center, A

Project of the National Consumer's League,Washington, DC, 1996.

6 Supra note 3.

Bulletin Reports

Fo//ce Contact with CitizensNearly 45 million U.S. residents have

face-to-face contact with law enforcementofficers annually, estimates a report from theNational Institute of Justice (NIJ) and theBureau of Justice Statistics (BJS). Police Useof Force, by Lawrence A. Greenfeld, PatrickA. Langan, and Steven K. Smith, with RobertJ. Kaminski, represents the second annualreport to Congress on the use of excessiveforce by law enforcement officers.

BJS surveyed 6,421 residents age 12 orolder, allowing for extrapolation of thefindings to the entire U.S.population. For example,of the 6,421 respondents,1,308 had face-to-facecontact with the police,representing 44.6 millionpeople nationwide. Themost common reasons forthe contact includedseeking assistance fromor providing assistance tothe police, falling victimto or serving as a witnessto a crime, and receivinga traffic ticket. Men,whites, and individuals intheir 20s were more likelyto have contact withpolice, with teens mostlikely to have a police-initiated encounter andseniors most likely toinitiate contact them-selves.

Fourteen people saidthe police hit, pushed, orchoked them: threatened

them with a flashlight; restrained them with apolice dog; threatened or actually sprayedthem with chemical or pepper spray; threat-ened them with a gun; or used some otherform of force against them. Of the 14, tenadmitted that their own actions may haveprovoked the police to threaten or use force.

For a copy of this report, call the BJSClearinghouse at 1-800-732-3277 or the fax-on-demand system at 301-519-5550. Thisreport also is available on the BJS home pageat http://www.ojp.usdoj.gov/bjs/.

Getting Tough on CrimeSince the early 1980s, a get-tough-on-crime approach has led to

unprecedented growth in the size of federal and state prison popula-tions. Between 1980 and 1995, prison populations grew from about330,000 to over 1.5 million people. Have mandatory prison sentencesfor both violent and nonviolent offenders proven effective? Notaccording to a crime policy report from The Urban Institute. AuthorsJames P. Lynch and William J. Sabol argue that public cries for toughsentences were based on faulty beliefs that the justice system wasbeing too lenient on violent criminals. Sentencing reforms haveindeed increased the number of incarcerated violent offenders withviolent criminal histories. At the same time, nonviolent offenders withlittle or no criminal histories have paid the price, as well. Moreover,the number of prisoners with ties to legitimate institutions—shown tolower the risk of criminal behavior—has increased. Incarceratingthese "socially integrated offenders" may not only be unnecessary butalso may prove unwise, as reducing their ties to legitimate institutionsmay make them prone to criminal behavior. Imprisonment also maydecrease their wage-earning ability, weaken their family structure,and limit their community's ability to fend off crime.

Overall, the increase in the number of incarcerated violentoffenders did not translate to a substantial decrease in violent crime.And, the authors warn, a zero-tolerance approach to drug crimescould yield zero crime-control benefits for less serious offenders whotypically have short criminal careers.

For a copy of this report, Did Getting Tough on Crime Pay?,contact The Urban Institute at 202-857-8687.

Distance Learning Pilot Program

In November 1996, the OperationalTraining Unit (OTU) in the FBI's NationalSecurity Division (NSD) became the first FBIentity to deliver in-service-caliber training toits employees via distance learning. Consist-ing of written materials, videotapes, andcomputer-based training, Introduction toCounterintelligence became the first phase ofa training course given to newly assignedforeign counterintelligence (FCI) specialagents. The second phase of their trainingrequired travel to the FBI's training academyin Quantico, Virginia, for a one-week, 40-hour basic counterintelligence in-service. TheFBI previously had provided both phases ofthe training in one 2-week in-service at theAcademy.

Evaluation of the pilot distance learningcourse concluded in June 1997 and wasformalized in the OTU report, Evaluation of

Community Mediation ProgramsIn a community where numerous people of diverse cultures

come together, conflict seems inevitable. Community mediationrepresents one way to resolve disputes, whether they are minorsquabbles between next-door neighbors or potentially violentrivalries between youths. According to Community MediationPrograms: Developments and Challenges, over the past 20years, hundreds of mediation programs have emerged across thenation. This National Institute of Justice (NIJ) publication, byDaniel McGillis, provides a comprehensive look at communitymediation and covers a broad range of topics, including thehistory of mediation, approaches to dispute resolution, guide-lines for establishing programs, and the assessment of media-tion, to name a few. A portion of one chapter discusses thepolice department's role in community mediation programs. Toorder a copy of this publication, NCJ 165698, contact NIJ'sNational Criminal Justice Reference Service, Box 6000,Rockville, MD20849-6000, 800-851-3420, or access the homepage at http://www.ncjrs.org.

Pilot Distance Learning Course: InteractiveMultimedia Instruction & Simulation Pro-gram. The report reveals that agents foundthe class enjoyable and beneficial to theirjobs. Many requested that additional coursesbe developed using the same method. Moreimportant, the evaluation revealed that theagents scored, on average, 20 percentagepoints higher on the posttest than on thepretest. In fact, their performance improvedso much that the problems had to be mademore complex to adequately challenge them.

The pilot distance learning course alsorevealed significant increases in productivity.Agents completed the equivalent of 40 hoursof residential training in an average of 15hours, a 63 percent reduction in training time.That means that OTU can train 457 agents inthe time it took to train 25 agents usingconventional platform classroom instruction.

Finally, the pilot distance learningcourse saved the FBI $1,170 peragent for each 40-hour coursetaught via traditional methods.Ultimately, savings will increaseas agents no longer travel to theFBI Academy for basic FCItraining.

In short, OTU's pilot distancelearning course demonstrates thatdistance learning can be a viable,cost-effective training alternativefor law enforcement agenciesregardless of size. For a copy ofthe report, contact Patricia M.Boord, FBI Academy, NSD/OTU,Jefferson Building, Quantico, VA22135.

Designing an IndividualizedPerformance Evaluation SystemA Values-Based ProcessBy MICHAEL KRAMER, M.A.

Many police agencies findeffective employee per-formance evaluation an

ongoing struggle. Some view em-ployee performance evaluation asone of the useless trappings of bu-reaucracy. Others see value inevaluation but provide little or notraining for the participants. Someagencies perform evaluations butdo not make the process meaningfulor constructive. Still other agenciesaddress the issue simply by adopt-ing a canned system from someother source.1

Employee performance evalua-tion, though, plays a crucial role inproviding superior service to thegeneral public. Public service agen-cies have an obligation to the citi-zens they serve to continuallyevaluate and improve performanceon both an organizational andan individual level. A formal per-formance evaluation system pro-vides the means to accomplishthese goals. In addition, perfor-mance evaluation gives employeesfeedback about their work andprovides administrators with a

credible, defensible instrument onwhich to base personnel decisions.Finally, performance evaluationsare an ideal way to communicateand reinforce organizational values.By addressing all of these issues, afirst-rate system helps to maximizeemployee performance and im-prove service delivery.

To achieve these objectives,however, the performance evalua-tion system must meet thespecific needs of the individualorganization. Police departmentsnot only should use formal


evaluation procedures but alsoshould seriously consider develop-ing their own, individualized evalu-ation systems. This article presents10 steps for creating such a system.By following these steps, a depart-ment of any size or mission can tai-lor an evaluation process to meet itsneeds.

The Benefits of anIndividualized System

Individualized performanceevaluation systems are appropriatesimply because each agency isunique. From small, rural police de-partments to federal agencies, lawenforcement organizations differ bysize, mission, geography, fundinglevels, community expectations,political environment, and othercharacteristics. Significant differ-ences can exist even between agen-cies that, on the surface, appear verysimilar. Still, some police agenciesadopt a one-size-fits-all approach toperformance evaluation systemsmerely because it seems to be aneasy way to address the issue. How-ever, the easiest way to solve aproblem is not necessarily the mosteffective.

Police agencies sometimescopy what other departments aredoing, without first asking why.While an agency may not want toreinvent the wheel for every admin-istrative issue, some concerns arecritical to the operation of theagency and, as such, require indi-vidualized treatment. Effective per-sonnel performance evaluation rep-resents one such issue.

In general, individual attentionis appropriate for an issue wheneverthe potential benefits substantially

outweigh the required expendi-tures. For a minimal resource in-vestment, any department can cre-ate its own evaluation system.Further, this design process allowseffective evaluation that does notcompete with the constant demandsof a functioning department. Afterall, the primary job of a police de-partment is performance, not per-formance evaluation.

No two departments are likelyto produce exactly the same systemwhen using this approach. It ismeant to be flexible because no twodepartments have the same needs.The values one agency deems im-portant will differ from those of an-other. In the final analysis, whatmatters most is that the systemworks for a particular agency.

Step 1: AdministrativeDirection and Support

The success of any projecthinges on the support of agencyadministrators. In this case, agency

administrators serve three vitalfunctions. First, they must initiatethe process. Someone at the top ofthe organization must commit to de-signing an effective performanceevaluation process.

Second, agency administratorsmust provide the broad, overall ob-jectives that the initiated changewill accomplish. These objectivesserve as guidelines to produce a sys-tem compatible with the organiza-tional mission and goals.

Finally, administrators mustprovide adequate support in theform of such resources as time,money, space, and equipment to al-low the process to succeed. In doingso, agency administrators demon-strate their commitment for theproject. As important, administra-tors must accept the results. Other-wise, the employees who put theirtime and energy into designing theevaluation system only to findtheir hard work and ideas ignoredor rejected will develop negative

March 1998/21

attitudes toward the administrationand the system.

Step 2: Committee FormationFor some people, the word

"committee" has a negative conno-tation. Most people can relate atleast one horror story that resultedfrom the time they served on a com-mittee. Fortunately, the adage oftenapplied to committee work, "pa-ralysis by analysis," is not inevi-table. With the right personnel andenough structure and direction,committees have decided advan-tages over top-down managementdecision making.

First, committees enrich the de-cision-making process by drawingupon the expertise and creativity ofthe department's most valuable re-sources, its people. In addition, thecommittee approach gives employ-ees ownership over the outcome, orproduct, which builds commitmentand loyalty to the product. Membersof the committee become commit-ted sellers of the system, rather thanreluctant buyers. Additionally,most employees appreciate and en-joy having input into new policiesor systems that will affect themdirectly.

The motivational level of thecommittee members goes a longway in determining the eventualsuccess or failure of the project.Ideally, the agency leader shouldselect a competent, knowledgeablechairperson who understands themission of the department and theobjectives of the process. The chair-person also should possess goodorganizational skills and be ableto keep the committee from bog-ging down. The other committeemembers need not be experts on

performance evaluation, but shouldbe knowledgeable, positive, moti-vated employees. The chairpersoncan select members or ask for vol-unteers, keeping in mind that mem-bership on the committee will entaila significant time and work commit-ment. In addition, to lend insightand credibility to the project, everyrank as well as every area of theorganization—e.g., patrol, detec-tive bureau, communications,etc.—should be represented on thecommittee.

A valid, fairevaluation

system requiresmeasures and

standards.

Step 3: Introductory TasksThe first order of business for

the newly formed committee is tobecome familiar with the generalprinciples of performance evalua-tion. The committee chairpersonshould obtain resources on the sub-ject and disseminate them beforethe first official work session togive committee members a chanceto review the information. The par-ticipants also should come to thefirst session with a list of valuesthey believe ensure the success ofthe organization and its employees.These values should be broadenough to apply to every person inthe organization. Later, the commit-tee will pare them down.

The chairperson should assignsuch tasks before every session.While some people will fail to com-plete the assignments, everyoneshould at least think about the is-sues involved before meeting.Work sessions will prove more pro-ductive when committee membershave a chance to prepare.

Step 4: EvaluationDesign Process Explanation

To open the first work session,the committee chairperson shouldexplain the steps involved in theevaluation design process. Doing soprovides employees with a sense ofpurpose and direction and givesthem confidence that their workwill have meaning. The chairpersonshould explain the committee's ob-jectives and discuss any guidelinesto which members must adhere.Along these lines, while generaltimetables can help the committeestay on track, specific deadlinesmay cause some people to feelrushed and give the impression thatspeed is more important than sub-stance. To encourage greater par-ticipation and more thoughtful re-sponses, the chairperson shouldavoid imposing unnecessary timeconstraints.

Step 5: Values IdentificationOnce committee members un-

derstand the design process, theycan begin to address the needs of theorganization. The list of values thateach person constructed earliercomes into play now. One at a time,the group members define and de-fend the values on their list. In do-ing so, the process draws upon eachgroup member's unique perspectiveand role in the organization.


Next, to make the system morecredible, the committee shouldsupplement its expertise with that ofoutside sources. These sources caninclude a departmental missionstatement, code of conduct, or oathof office; the results of a communitysurvey or empirical research stud-ies; standards established by orga-nizations such as the Commissionon Accreditation for Law Enforce-ment Agencies or the InternationalAssociation of Chiefs of Police; andother evaluation systems. Anydocument or person that the com-mittee can use as an example oforganizational values will enrichthe decision-making process.

After devising a list based on allof the available resources, the com-mittee should employ an objectiverating system to determine which ofthe values will merit evaluation andbecome performance dimensions.A system that allows all participantsto have equal input and provides aclear target score works best. To dothis, the committee could devise ascale to rate each value and estab-lish a cutoff score. For example, thecommittee may decide to rate val-ues from 1 to 5 and eliminate anyvalue that scores below a 3.5, al-though committee members whofeel strongly about a particularvalue could lobby to save it. Com-mittee members could write downtheir scores and give them to thechairperson for tabulation, or mem-bers could switch papers with theirpeers, then read the scores aloud.Any method that encourages mem-bers to express their honest opin-ions without any pressure or fear ofreprisal from other members shouldbe employed.

For Further Reading

G. Alpert and M. Moore, "Measuring Police Performance inthe New Paradigm of Policing," in Performance Mea-sures for the CriminalJustice System (Washington DC:U.S. Department of Justice, Bureau of Justice Statistics.1993), 109-140.

B. Anderson and J. Flynn, "Seven Deadly Sins in PersonnelAssessment Strategies," Journal of Police Science andAdministration 11, no. 1 (1983): 4-7.

D. Bradley and R. Pursley, "Behaviorally Anchored RatingScales for Patrol Officer Performance Appraisal: Devel-opment and Evaluation," Journal of Police Science andAdministration 15, no. 1 (1987): 37-45.

P. Dorfman, W. Stephan, and J. Loveland, "PerformanceAppraisal Behaviors: Supervisor Perceptions andSubordinate Reactions, " Personnel Psychology 39(1986): 579-595.

M. Kramer, "Effective Law Enforcement PerformanceEvaluations," The Police Chief November 1995, 26-33.

W. Lawther, "Successful Training for Police PerformanceEvaluation Systems," Journal of Police Science andAdministration 12, no. 1 (1984): 41-46.

K. Love, "Accurate Evaluation of Police Officer Perfor-mance Through the Judgment of Fellow Officers: Fact orFiction?" Journal of Police Science and Administration 9.no. 2(1981): 143-149.

W.F. Walsh, "Performance Evaluation in Small and Me-dium Police Departments: A Supervisory Perspective,"American Journal of Police 9, no. 4 (1990): 93-109.

Before moving on to the nextstep in the process, the committeemust commit to specific values anddefine each one. For example, thecommittee may decide that the de-partment values and should evalu-ate attendance and leadership. Thecommittee then defines attendanceas "being present for scheduled as-signments." Leadership might be

defined as "the demonstrated abilityand willingness to make decisionsand to set good, positive examplesfor others."

Step 6: InitialSystem Development

At this point, the committeeneeds to develop a few critical pa-rameters for the system, such as the

March 1998/23

length of the evaluation period andthe rating scale the system will use.Deciding these issues will establishthe framework for the specific mea-sures and standards used to evalu-ate the agreed-upon performancedimensions.

Step 7: Measures and StandardsA valid, fair evaluation system

requires measures and standards.Without them, employees will notknow how to attain appropriate rat-ings. Employees must know, priorto being evaluated, how to achievethe desired scores.

The committee should begin byattempting to set objective mea-sures and standards for each perfor-mance dimension. Objective mea-sures are clear cut; they arebacked by well-defined and well-documented criteria. How manydays was the employee absent?Did the employee attend trainingclasses? Objectivity is importantto fair evaluation because iteliminates the opportunities forrater bias, which occurs when therater allows inappropriate or unre-lated opinions to influence theevaluation.

The measure for attendancemight be the number of hoursmissed during the rating period dueto personal illness or injury. Next,the committee identifies specificstandards that employees must meetto attain certain ratings. For ex-ample, missing 0-8 hours might gar-ner an employee an excellent rating;9-16 hours, good; and 17-32 hours,average. The specific standards willdepend on the initial guidelines es-tablished in step six, along withwhatever expectations of perfor-mance the committee develops. The

committee could, for example,check the department's attendancerecords over the previous 2 or 3years for a realistic guide.

In short, the committee shouldidentify a departmental value, con-vert it to a simple, well-defined per-formance dimension, and then fur-ther clarify it through specificmeasures and standards. However,a department may find it difficult tocreate objective measures and stan-dards for some performance dimen-sions. Those dimensions that do notlend themselves to objective evalu-ation either must be eliminated, or

...employeesshould feel vestedin the system andcare about their

evaluations.

subjective measures and standardsmust be established for them. Incontrast to objective measures,subjective measures require thatraters make judgments based onknowledge, experience, and systemguidelines.

Is it better to have fewer, com-pletely objective dimensions? Orshould the agency include subjec-tive dimensions to evaluate employ-ees in as many areas as possible? Inthe end, committee members mustanswer these questions and decidewhat is best for their department.The Bainbridge Township PoliceDepartment maintains a system of

14 performance dimensions. Threevalues—attendance, professionaldevelopment, and policies and pro-cedures—are objective. The re-maining 11, which include such di-mensions as integrity, leadership,and teamwork, are subjective.

Subjective performance dimen-sions still require measures, in theform of behavioral examples, andspecific standards. Behavioral ex-amples need not be all-encompass-ing, but they are important becausethey 1) help raters recognize the be-haviors associated with each di-mension; 2) let those people beingrated know what is expected; and3) reduce the opportunities for raterbias contamination.

For example, the committeemay decide that leadership shouldbe evaluated. Failing to establishobjective measures and standardsfor this dimension, the committeemust turn to subjective ones. Tomeasure this performance dimen-sion, the committee would haveto develop a list of behavioralexamples.

Leaders . . .• Set positive examples for

others in their personal andprofessional conduct

• Readily accept responsibility

• Give credit to others whencredit is due

• Use their powers of persuasionin a positive and constructivemanner

• Are actively involved in, andmake constructive contribu-tions to, organizational goals.

These statements do not defineleadership. They merely demon-strate a few positive, observable


examples. Evaluators should con-sider other relevant behavior ob-served during the evaluation period.

Like their objective counter-parts, subjective performance di-mensions also require specificevaluation standards. For example,an employee who demonstrates thequalities associated with leadershipat least 90 percent of the time mightachieve an excellent rating. A goodrating might require meeting thestandards between 75 and 89 per-cent of the time; average, less than75 percent of the time.

The inclusion of behavioral ex-amples and standards does noteliminate the need for subjectivejudgments. It simply providesenough structure so that given theproper training, raters can reducethe amount of bias introduced intothe process. In addition, the specificbehavioral examples and standardsused will depend on performanceexpectations that exist within eachindividual department.

Some departments may wish toestablish separate measures andstandards for different units of theorganization. For example, the mea-sures and standards for a K-9 of-ficer might differ from those for amember of the SWAT team. InBainbridge Township, dispatchershave different safety standards thanpatrol officers do. For simplicity'ssake, however, departments shouldmaintain the same standards for allemployees whenever possible.

Step 8: SystemDevelopment Finalization

After defining performance di-mensions and setting measuresand standards for each one, the

committee must determine exactlyhow the system will operate. Thatis, the committee must decide:

• What types of evaluation willthe department use, for ex-ample, peer, supervisor,subordinate, or self?

• Who will evaluate whom?

• How often will evaluationinterviews take place ?

• What will be discussed?

• What type of training willemployees need to operate thenew system?

• What documentation will thenew system require?

• Who will design any newforms deemed necessary?

The committee must determine theanswers to these questions to re-move any ambiguity in the new sys-tem. Members of the committeemust understand, and have confi-dence in, the new system beforemoving on to the next step. Other-wise, they might be hesitant toinclude meaningful incentives de-signed to make the system relevant.

Step 9: System RelevanceThe term "system relevance"

refers to how integral the new

system will be to the daily opera-tions of the department. In otherwords, employees should feelvested in the system and care abouttheir evaluations.

Ideally, the committee shouldestablish a system of incentives thattie directly to performance. Other-wise, the entire system can becomeirrelevant. Each department willhave to consider its own unique cir-cumstances regarding what it cando. State and local ordinances, aswell as union contracts, may pro-hibit certain actions. In the end,meaningful incentives will dependon the creativity of the committee.Without meaningful incentives,however, the system will not realizeits full potential.

Step 10: Program EvaluationMeasuring the impact and ef-

fectiveness of an organizationalprogram, policy, system, or proce-dure remains essential to itscredibility. Without evaluation, ad-ministrators cannot state, withany certainty, that their programswork. When important decisionsor taxpayer dollars are at stake,public service administrators mustshow that they are using theorganization's resources efficientlyand effectively. Program evalua-tion provides the evidence admin-istrators need to make informeddecisions.

Formal program evaluationrequires recalling the originalobjectives of the endeavor and se-lecting appropriate ways, such as adepartment survey, to determine ifthe department is making progresstoward those objectives. If so, howmuch? If not, why not? Is the

March 1998/25

observed progress due to the newsystem, or is it attributable to someother factor? At what cost has thisprogress been made? Is this cost ac-ceptable? Program evaluation an-swers these questions and makesthe system defensible. Administra-tors also can use the informationthey gain through program evalua-tion to improve the system.

ConclusionPerformance evaluation re-

mains essential to keeping a cadre

of dedicated, hardworking employ-ees. Because every organization isunique, law enforcement agenciesshould create individualized, effec-tive performance evaluation sys-tems. The values-based processstarts with general objectives fromthe department administration, nar-rows them down to clearly definedvalues, then determines measuresand standards to illustrate these newperformance dimensions. A sched-ule of incentives can make thesystem an integral part of the

organization's daily operations. Fi-nally, the system itself is evaluatedto ensure that it accomplishes itsgoals. By following this method, apolice department can produce adefensible and credible evaluationsystem.

When employees feel their hardwork counts for something, theystrive to do their best. A carefullyconstructed evaluation system canmake it happen. +

Crime Data

Crime Decreases

T he nation's law enforcement agenciesreported a 4 percent decrease in serious

crime during the first 6 months of 1997 whencompared to figures reported during the sametime period of the previous year, according topreliminary FBI Uniform Crime ReportingProgram figures.

An Index of violent and property crimes isused to measure serious crime. Violent crimedecreased 5 percent and property crime fell 4percent during the first half of 1997.

In the category of violent crime, murderand robbery both dropped 9 percent; aggra-vated assault fell 3 percent; and forcible rapedeclined 2 percent. Among the propertycrimes, arson decreased 9 percent; motorvehicle theft and burglary both dropped 5

percent; and larceny-theft declined 4percent.

Serious crime decreased in all of thegeographic regions. Declines recorded include6 percent in the northeast, 5 percent in boththe midwest and west, and 3 percent in thesouth.

All of the nation's cities showed a declinein serious crime for the 6-month period, withthe largest population groups, cities over250,000, recording the largest decline, 6percent. The decreases reported by suburbanand rural county law enforcement agencieswere 3 and 1 percent, respectively.

Source: FBI Uniform Crime Reporting Program,press release, "Crime Trends, 1996 versus 1997,"November 23, 1997.


Legal Digest

CheckpointsFourth Amendment Implications ofLimiting Access to High Crime AreasBy KIMBERLY A. CRAWFORD, J.D.

Photo © Mark Ide

I n the February issue of theFBI Law Enforcement Bulle-tin, the Legal Digest article

discussed the need for innovativeapproaches to combat gang vio-lence. Specifically, the article ad-dressed the use of gang loiteringordinances and gang injunctions.1

In keeping with that theme, this ar-ticle discusses the Fourth Amend-ment implications of another inno-vative approach to combatingviolent gang crime—the use ofcheckpoints to limit access to highcrime areas.

THE WATSONAVENUE PILOT PLAN

In the summer of 1992, theWatson Avenue Special Operationwas instituted in the Soundviewneighborhood of the Bronx in aneffort to stem the tide of a recentrise in drug activity and drive-byshootings in the area. The operationcalled for the cordoning of an 8block area and the use of vehiclecheckpoints to screen all individu-als attempting to drive into the area.Officers operating the checkpointswere instructed to stop every ve-hicle entering the area and deter-mine the driver's association withthe neighborhood. Only residents,drivers of commercial vehicles.

drivers of vehicles dropping offsmall children, or visitors to the lo-cal church were permitted to enterthe area. Officers were further in-structed to allow drivers to avoidthe checkpoints by driving around

the cordoned area or parking theirvehicles and entering on foot. Thecheckpoint was operated on arandom basis, 6 hours a day, 3days a week, for a period of 3weeks.2

March 1998/27

Carefully establishedand operated

checkpoints can be aneffective temporarymeasure to give-

police departments thetime they need to

reestablish control ofthe area.

Special Agent Crawford is a legalinstructor at the FBI Academy.

THE CHALLENGEIn September of 1992, Winfred

Maxwell, a retired New York Citypolice officer attempting to visithis daughter who lived in theSoundview neighborhood, wasstopped at the Watson Avenuecheckpoint and asked for identifica-tion. What happened thereafter is amatter of dispute.

According to Maxwell, he ad-vised the officer at the checkpointthat he was a retired police officerand that his license and registrationwere in a pouch along with a regis-tered handgun. When Maxwellreached for and opened the pouch,the officer, observing the handgun,drew his own service weapon andordered Maxwell out of the vehicle.Although he complied with theofficer's orders, Maxwell allegesthat he was thrown to the ground,beaten, and subjected to racial epi-thets before being arrested andcharged with assault, resisting ar-rest, disorderly conduct, and harass-ment. In a subsequent jury trial,Maxwell was acquitted on allcharges.

Following his acquittal, Max-well brought a civil action againstthe city of New York, the policedepartment, and several named in-dividuals, claiming that his civiland constitutional rights were vio-lated by his encounter with thepolice at the checkpoint.3 Many ofthe issues raised in Maxwell's civilsuit centered around disputedfacts that ultimately must be re-solved by a judge or jury afterhearing testimony in the matter.Resolution of the legality of thecheckpoint stop itself, however, re-quired only an interpretation ofexisting Fourth Amendment4 caselaw and was resolved by the courton the defendants' motion for sum-mary judgment.5

THE SITZ ANALYSISWhen determining the legality

of the checkpoint in question, thedistrict court in Maxwell necessar-ily began with a review of theUnited States Supreme Court's de-cision in Michigan Department ofState Police v. Sitz6 In Sitz, the Su-preme Court was confronted with,

and upheld, the constitutionality ofa highway sobriety checkpoint.

The Court in Sitz began by ac-knowledging that all checkpoints,which by definition involve a "gov-ernmental termination of freedomof movement through means inten-tionally applied,"7 constitute sei-zures under the Fourth Amendmentand must, therefore, be reasonable.In determining the reasonablenessof a checkpoint, the Court found itnecessary to balance the serious-ness of the problem addressed bythe checkpoint and the ability of thecheckpoint to have an impact onthat problem against the "objective"and "subjective" intrusions onseized individuals.

Applying this test to the sobri-ety checkpoint at issue in Sitz, theCourt concluded that no one couldquestion the seriousness of thedrunk driving problem on thenation's highways and that check-points are a reasonably effectivemethod of addressing the problem.On balance, the Court found that theobjective intrusion, measured bythe "duration of the seizure and theintensity of the investigation,"6 aswell as the subjective intrusion,gauged by the "fear and surpriseengendered in law-abiding motor-ists by the nature of the stop,"9 wereboth minimal.

When evaluating the subjectiveintrusion of the sobriety check-point, the Court observed that thefear and surprise experienced bymotorists would be minimized bythe fact that motorists could see thatall vehicles were being stopped andthat officers were in uniform anddisplayed visible signs of their au-thority. Combining this fact withstatistical data indicating that


stopped motorists were detained anaverage of 25 seconds, the Courtconcluded that the sobriety check-point was reasonable and, therefore,constitutional.

APPLICATIONOF THE SITZ ANALYSISBY THE DISTRICT COURT

The federal district court inMaxwell v. City of New York10 had adifficult time applying the Sitz bal-ancing test. The court reviewed sta-tistical data regarding drive-byshootings, drug sales, and othercriminal activity in the Soundviewneighborhood and determined thatthere was, in fact, a serious prob-lem. However, the court found in-sufficient undisputed facts to permitan intelligent assessment of the ef-fectiveness of the checkpoint incombating the problem.

When attempting to evaluatethe effectiveness of the checkpointin question, the court defined itsgoal as measuring the "degree towhich the seizure advances the pub-lic interest."11 Recognizing that theSupreme Court has "made it clearthat an in-depth statistical examina-tion of a checkpoint's 'effective-ness' is not warranted,"12 the courtnevertheless found that there mustbe some means, "beyond the sub-jective evaluations by neighbor-hood residents,"13 of measuringwhether the checkpoint reasonablyadvanced its stated purpose.14 Al-though it was undisputed that nodrive-by shootings had occurredduring the operation of the check-point, the court found insufficientinformation to measure the impactof the checkpoint on other criminalactivity in the neighborhood."Without a fuller picture of how the

checkpoint affected a broad spec-trum of crime," concluded thecourt, "the proper balancing testcannot be performed."15 Because ofits perceived inability to performthe Sitz balancing test without a fur-ther finding of facts, the districtcourt denied the defendants' mo-tions for summary judgment on theissue of the constitutionality of thecheckpoint.

APPLICATION OF THE SITZANALYSIS BY THE COURTOF APPEALS

On review, the United StatesCourt of Appeals for the SecondCircuit was asked to reconsider theconstitutionality of the checkpointat issue in Maxwell}6 Applying thesame balancing test as the districtcourt, the court of appeals consid-ered identical factors but reached adecidedly different conclusion.

...the courtconcluded that the

checkpoint wasreasonably believed

to be an effectivemethod of

addressing therecent rise in

crime....

First, the court of appeals ac-cepted without hesitation the seri-ousness of the crime problem inthe Soundview neighborhood.Next, the court considered the ef-fectiveness of the checkpoint andobserved that to satisfy this prong of

the Sitz balancing test, the check-point need only be a reasonablemethod of addressing the crimeproblem, not necessarily the mosteffective method.17 Moreover, thecourt pointed out that the criticalpoint in time for determiningwhether a method of deterringcrime is reasonably effective is at itsimplementation, not after the fact.Noting that similar checkpoints hadbeen effectively used in the past bythe New York City Police,18 thecourt concluded that at the time ofimplementation the checkpoint wasreasonably believed to be an effec-tive method of addressing the recentrise in crime in the Soundviewneighborhood and no further statis-tics regarding the actual decline incriminal activity were necessary tocomplete this element of the balanc-ing test.

On the other side of the scale,the court weighed the objective andsubjective intrusion caused by thecheckpoint. Objectively, the intru-sion was minimal because the in-tended duration and intensity of thecheckpoint seizure were extremelylimited. The court focused on thefacts that only motorists seeking en-try into the barricaded area werestopped and that the stop itself wasspecifically designed to be brief andaimed solely at ascertaining themotorist's affiliations with the cor-doned area. Consequently, the courtconcluded that the "request for evi-dence of a legitimate reason to enterthe barricaded area was not signifi-cantly intrusive."19

The court similarly dispatchedwith the subjective analysis. Notingthat the Watson Avenue SpecialOperation plan called for the stop-ping of all vehicles seeking entry

March 1998/29

into the effected area, the courtfound that there would be "littleconcern that the stop would gener-ate 'fear and surprise' "20 on the partof stopped motorists. All factorsconsidered, the court of appealsconcluded that the checkpoint inquestion passed the Sitz balancingtest and granted defendant's motionfor summary judgment. The UnitedStates Supreme Court subsequentlyrefused Maxwell's request for re-view and the dismissal granted bythe court of appeals was permittedto stand.21

LIMITING ACCESS ANDTHE FOURTH AMENDMENT

Apart from the legality of thecheckpoint seizure, the court of ap-peals in Maxwell briefly consideredthe question of whether individualssimply denied access to high crimeareas would have legitimate claimsunder the Fourth Amendment forunreasonable seizures. Althoughnot an issue the court had to decidein Maxwell, this question is note-worthy because of its potential forargument in future cases where in-dividuals are stopped lawfully at acheckpoint and then refused theright to enter.

When considering this issue,the court first pointed out that theFourth Amendment only prohibitsunreasonable searches and seizures.Because officers turning individu-als away at a checkpoint are not"intruding into a reasonable expec-tation of privacy," no search hasoccurred.22 Similarly, the Maxwellcourt suggested that turning indi-viduals away from a high crime areadoes not significantly restrict theirfreedom of movement and, thus,does not constitute a seizure. In

reaching this point, the court notedthat individuals who are turnedaway at a checkpoint are "free to goanywhere in the world"23 except therestricted area and arguably are not"seized" in terms of the FourthAmendment.24 However, even ifcourts conclude that no FourthAmendment seizure is involved inthe simple denial of access to a par-ticular area, departments contem-plating the use of checkpointsshould be mindful that any evidenceof discriminatory or arbitrary deni-als of access would likely give riseto serious challenges to the legalityof the checkpoints on other consti-tutional grounds.

...turning individualsaway from a high

crime area does notsignificantly restrict

their freedom ofmovement....

LESSONS LEARNEDThe checkpoint stop of the ve-

hicle at issue in Maxwell was ulti-mately found to pass constitutionalmuster. However, both the districtcourt and the court of appeals dis-cussed certain aspects of thecheckpoint that were deemed con-troversial or potentially problem-atic. Although none of these aspectsproved fatal, any police departmentconsidering the use of checkpointsto limit access to high crime areasshould pay close attention to these

issues in order to lessen the likeli-hood of successful legal challenges.

Stated Purposeof the Checkpoint

The stated purpose of thecheckpoint is critical to the court'sapplication of the Sitz balancingtest. First, the stated purpose of thecheckpoint must purport to advancethe public's interest in resolving aserious problem in the community.Furthermore, the checkpoint mustbe considered a reasonably effec-tive method of addressing the prob-lem. Consequently, departmentsconsidering the use of checkpointsshould carefully craft a statement ofpurpose that can be supported bystatistical or anecdotal data demon-strating the seriousness of the per-ceived problem. Although sta-tistical data is not necessary todemonstrate the effectiveness of thecheckpoint, the collection of suchdata could be extremely effective inforestalling legal challenges in thisarea.

Instructions to OfficersOperating the Checkpoint

Because the objective and sub-jective intrusions engendered by thecheckpoint are judged in large partby the instructions given to the of-ficers at the checkpoint, these in-structions should be clearly wordedand put in writing. The instructionsshould limit the objective intrusionby strictly limiting the duration ofseizures at the checkpoint andcurtailing the officers' investiga-tions to only what is necessary toserve the stated purpose of thecheckpoint, such as checking iden-tification and determining associa-tion with the restricted area. The


subjective intrusion should be mini-mized by taking steps to diminishthe fear and surprise engendered bythe checkpoint. As noted by thecourt of appeals in Maxwell, stop-ping all cars is one way of accom-plishing this goal.

Limiting Discretion of OfficersManning the Checkpoint

Although it is impossible tocatalog in advance every circum-stance that might arise at a check-point and to "provide a litmus test toresolve them,"25 carefully craftedinstructions can address and giveguidance on many of the commonissues that are likely to surface. Forexample, in Maxwell, the instruc-tions given the officers "allowed allresidents and commercial vehiclesto enter, as well as persons droppingoff little children or visiting thechurch."26 Even though the courtcommented that these instructionswere "as detailed as reasonably pos-sible,"27 it is important to note thatthe constitutional validity of theseinstructions was not directly at is-sue in Maxwell, and other courtshave not addressed the issue. Moredetailed instructions should begiven regarding predictable situa-tions, such as elderly or disabledindividuals wishing to enter the areafor legitimate reasons. Carefullycrafted instructions that limit of-ficer discretion to the greatest ex-tent possible will give the officersoperating the checkpoint the confi-dence to handle their assignmentswiftly and effectively28 and reducethe likelihood that courts will findthe police action unconstitutionalbased on the potential for arbitraryenforcement.

Posting Signs or GivingOther Advance Notice

The court of appeals in Max-well found that posted signs werenot necessary to avoid engenderingfear and surprise in motoristsstopped at the Soundview neighbor-hood checkpoint because motoristscould see that all cars were beingstopped. However, the court's ratio-nale may not apply to every check-point under review. For example, ifa checkpoint is set up on a lightlytraveled road where drivers do nothave the advantage of seeing othercars being stopped, drivers may besurprised or fearful of what is hap-pening when they are stopped. Theentire issue can be avoided by post-ing signs or giving other advancenotice.

No Automatic Search AuthorityThe court of appeals in Max-

well found that checkpoints consti-tute seizures but they are lawful un-der the Fourth Amendment if thesocietal interest advanced by thecheckpoint outweighs the intrusionon the individuals stopped. Thecourt was able to reach this conclu-sion because, under the Fourth

Amendment, seizures need only bereasonable to be lawful. The same isnot true for searches.

To be lawful, searches must beconducted pursuant to a warrant orone of the narrowly drawn excep-tions to the warrant requirement.29

Because officers manning check-points will not have warrants tosearch the vehicles stopped, nosearch can be permitted unless thefacts of the particular stop give riseto one of the warrant exceptions.Thus, a search may be justified un-der the vehicle exception if, duringa stop, officers make plain-view ob-servations that give them probablecause to believe that there is evi-dence or contraband in the ve-hicle.30 Or, more simply, officerscould ask for voluntary consent tosearch a stopped vehicle.31 In eithercase, the searches may be justifiedunder exceptions to the warrant re-quirement but are not automaticallyjustified as part of the stop.

Keep Traffic Congestionto a Minimum

One of the factors that courtsconsider when engaging in the Sitzbalancing test is the length of the

March 1998/31

delay generated by the checkpoint.In New Jersey v. Barcia,32 for ex-ample, a sobriety and drug check-point was thoughtlessly placed onthe New Jersey side of the GeorgeWashington bridge. The checkpointtied up over 1 million cars for ap-proximately 4 hours. In order tokeep delays to a minimum, check-point locations should be carefullyselected to avoid causing massivetraffic congestion, and sufficientpersonnel should be assigned to thecheckpoints to ensure swift, effi-cient handling of all stoppedvehicles.

Further DetentionsRequire Reasonable Suspicion

The court of appeals in Max-well was careful to point out thatthe initial stop of motorists at acheckpoint "need not be based onreasonable suspicion of particulardrivers."33 However, "the deten-tion of a particular driver beyondthe initial stop may require satisfac-tion of an individualized suspicionstandard."34

Submit a Written Plan forPrior Legal Opinion

Any department contemplatingemploying checkpoints to limit ac-cess to high crime areas should sub-mit a written plan to its legal depart-ment or legal advisor for priorreview. By doing so, the departmentwill force itself to put the entire planin writing and will allow for anyadjustments to the plan that may berequired by nuances in state or locallaws.

CONCLUSIONDrive-by shootings, drug traf-

ficking, and gang related violencehave seen a dramatic rise in the

United States. In order to com-bat such criminal activity, policedepartments may have to takesome innovative steps. Establishingcheckpoints to limit access to highcrime areas is one such step. How-ever, Maxwell is the only federalcourt decision addressing FourthAmendment implications of usingcheckpoints, and other related is-sues, such as refusing access, havenot been resolved by the courts.Carefully established and operatedcheckpoints can be an effectivetemporary measure to give affectedneighborhoods a much-needed re-prieve and police departments thetime they need to reestablish controlof the area. Ultimately, the extent towhich courts find such checkpointsconstitutional may depend on howcarefully departments adhere to thelessons learned from the Maxwelldecisions. •

Endnotes1 Lisa A. Regini, "Combating Gangs: The

Need for Innovation," FBI Law EnforcementBulletin, February 1998, 25-32.

2 Maxwell v. City of New York, 102 F.3d664, 666 (2nd Cir. 1996), cert, denied 118 S.Ct. 57 (1997).

3 As a remedy for the alleged violations,Maxwell claimed injunctive and declaratoryrelief as well as monetary damages.

4 Maxwell also claimed that his constitu-tional rights to intrastate travel and to associatefreely were violated. These claims weredismissed by the district court and were notmade part of the appeal.

5 The court determined that Maxwell lackedstanding to seek injunctive and declaratoryrelief.

6 110 S. Ct. 2481 (1990).7 Id. at 2485.8 Id. at 2486.9 Id.10 1995 WL 244501 (S.D.N.Y. 1995)11 Id. at 6, quoting Sitz 110 S. Ct. 2490.12 Id. at 7.13 Id.uId."Id.

16 102 F.3d 664 (2nd Cir. 1996), cert,denied, 118 S. Ct. 57(1997).

17 In Sitz, the Supreme Court held that the"choice among ... reasonable alternativesremains with the governmental officials whohave a unique understanding of, and aresponsibility for, limited public resources,including a finite number of police officers."110 S. Ct. at 2487. See also, Brouhard v. Lee,125 F.3d 656, 660 (8th Cir. 1997).

18 125 F.3d at 667.19 Id.20 Id.21 118 S. Ct. 57 (1997). The Supreme Court

refused to review the grant of summaryjudgment ordered by the court of appeals. Theorder of summary judgment, which was basedon the finding by the court of appeals that thedefendants were entitled to qualified immunity,pertained only to the legality of the checkpointseizures. The Maxwell case did not directlyaddress the constitutionality of police refusingentry to a vehicle after a lawful checkpoint stop.

aKatz v. U.S., 389 U.S. 347 (1967).23 102 F.3d at 668 n.2.24 In Maxwell, individuals denied access at

the checkpoint simply could park their vehiclesand walk into the restricted area. However, thatplainly would be problematic for the individualswith disabilities and elderly which highlightsthe importance of ensuring that objectivecriteria for denying access are as minimallyintrusive as possible to accomplish the purposefor the checkpoint.

25 102 F.3d at 668.26 Id."Id.28 In Maxwell, a strong dissent was filed by

Senior Circuit Judge Oakes on the grounds thattoo much discretion was given to the officeroperating the Soundview checkpoint.

29Katz v. U.S., 389 U.S. 347 (1967).30 California v. Acevedo, 111 S. Ct. 1982

(1991).31 Officers should be instructed to ask for

consent only under exceptional circumstancesand if to do so will not significantly increase thedelay time of motorists stopped at thecheckpoint.

32 228 NJ. Super. 267, 549 A.2d 491 (NJ.Super. 1988), affd 562 A.2d 246.

33 102 F.3d at 668.3iId.

Law enforcement officers of other thanfederal jurisdiction who are interested inthis article should consult their legaladvisors. Some police procedures ruledpermissible under federal constitutional laware of questionable legality under state lawor are not permitted at all.


The Bulletin Notes

Law enforcement officers are challenged daily in the performance of their duties; they face eachchallenge freely and unselfishly while answering the call to duty. In certain instances, their actionswarrant special attention from their respective departments. The Bulletin also wants to recognizetheir exemplary service to the law enforcement profession.

At the Bedford County, Tennessee, SheriffsDepartment, a subject who was awaiting processingafter his arrest on local charges suddenly jumped twostories from an open window. He then fled on footthrough the city of Shelbyville and dove into the nearbyDuck River. As the subject drifted downriver, policeofficers tracked him along a steep embankment over-looking the river. As he approached a section of rapids,the subject pleaded with officers to shoot him. BedfordCounty Sheriff Clay Parker and FBI Special Agent

Special Agent Poff Richard Poff slid down a steep, rocky ravine into thecold, deep, and swift current of the river. Together, they apprehended the subject midstream beforethe current carried him into the rapids. It was subsequently learned from Virginia authorities that thesubject was a suspect in a homicide. The brave actions of Sheriff Parker and Special Agent Poffprevented the subject's injury or possible death.

Sheriff Parker

While on routine patrol, Officer Michael Hogan of the Mascoutah,Illinois, Police Department was dispatched to a construction site where it wasreported a man had suffered a possible cardiac arrest. Officer Hogan arrivedprior to the ambulance and joined other construction workers who were tryingto revive the victim. He immediately administered CPR. Within minutes, thevictim began breathing and was transported to the hospital where he fullyrecovered. Officer Hogan's swiftresponse and CPR training savedthe construction worker's life.

Officer Hogan

Nominations for the Bulletin Notes should be basedon either the rescue of one or more citizens orarrest(s) made at unusual risk to an officer's safety.Submissions should include a short write-up(maximum of 250 words), a separate photograph ofeach nominee, and a letter from the department'sranking officer endorsing the nomination. Submis-sions should be sent to the Editor, FBI Law Enforce-ment Bulletin, FBI Academy, Madison Building,Room 209, Quantico, VA 22135.

Patch Call

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