ASIS CPP - Investigations P2 Flashcards
An activity, capability or resource that enhances the effectiveness or sufficiency of the investigative function
Force Multiplier
3 Important force multipliers in investigations
- Liaison
- Online information sources
- Intelligence information
Liaison
- Primarily a proactive medium
- Joint Task Forces (JTF’s) represent a highly-structured form of liaison
Sources - Types of Evidence
Interviewees or witnesses
Subject-matter experts
Physical evidence
Electronic evidence
Public records
Surveillance results
Open sources
In the corporate environment, most credible information on losses, sexual harassment and other reportable incidents comes from employee tips
Sources
Which are among the least accurate forms of investigative information?
Eyewitness Accounts
Information obtained in undercover operations come from three sources?
- The operative
- Employee (subject( interviews
- Witness interviews
2 Types of witnesses
Fact witness
Opinion witness
Investigative objectives tend to be _____ to the short-term expectations of the project?
Tactical
Specific
Relative to the timeliness of an investigation it is important to
- Open an investigation as soon as possible
- Complete an investigation as quickly as possible
- Avoid closing an investigation prematurely
The most important reasons for beginning an investigation as quickly as possible following the report of an incident or allegation are:
- The value of physical or electronic evidence diminishes rapidly
- Witnesses provide the best information when the incident is fresh in their memory
Formal documentation is among the first things to be neglected when caseloads increase
Management Responsibilities
Management should consider the purpose of the investigation at the:
- Case Level: sets the context within which the investigation will be conducted & helps keep focused
- Strategic level: Dictates the necessary planning, organizing equipping staffing & preparation
What is the main objective of Investigator Responsibilities?
For any preliminary investigation is to determine what crime or violation exists
Objective
Obtain information & evidence to be presented in a factual, final report to senior management can take appropriate action
Legal matters in investigations must be considered for two reasons:
- Protect the company against liability
- Ensure an appropriate conclusion if the case goes to court or another legal forum
The objective of the Report
Enable the reader to readily understand what the investigator did, why, & what resulted
5 basic steps of report writing
- Gather facts
- Record the facts immediately
- Organize the facts
- Write the report
- Evaluate & edit the report if necessary
Types of Investigative Reports
- Initial report (soon after the case is opened)
- Progress report (normally every 30 days)
- Special report (focused on unusual action may be supplemental to the progress report
- Final report (most important)
Who is the primary collector of relevant evidence
The Investigator
What is critical to the credibility of the investigator
Preparing for a court appearance or deposition
Surveillance can be broken down into three broad categories
- Physical (i.e. human observation or tracking)
- Psychological (i.e. behavioral analysis)
- Data (e.g. technical or electronic)
The interview is a process of gathering information
- “information interview” (non-accusatory) (Deming) or “general interview” (POA)
- “Administrative interview” (simple, unstructured, all interviews other than the subject) (Ferrara)
- Investigative & behavior - provoking questions to develop information
- When the interviewees become a subject target or the accused person in the interview it becomes on interrogation
An interrogation is the questioning of an accused or suspect person
- “Confrontational interview” (accusatory, highly-structured) (Deming & POA)
- “Investigatory interview” (complex, structured process focused on the subject (Ferrara)
- A monologue by investigator offering psychological justification) for the wrongful behavior
Hostages form an emotional bond with their captors
Stockholm Syndrome
A persistently-held belief in another person such that the belief becomes reality
Pygmalion Effect
Experienced interviewers frequently finish introducing other persons present by inviting them to spend a few minutes with the interviewee
Yes Conditioning
“Floating Point” Strategy
- Continuously re-evaluating a hypothesis as information is obtained allows an investigation to adjust questions accordingly
- Inexperienced investigators often neglect the skill of listening when interviewing suspects
- Active listening includes attentiveness, concentration acceptance, detachment and patience
- Interviewers must be able to assess facts previously established in the light of information provided by the interviewee
What is the most prized talent of an investigator?
The ability to obtain information through questioning
Skilled interviewers must be:
Patient
Persistent
Prepared
What is the most important factor of a successful interview?
The ability of the interviewer to establish a favorable rapport with the interviewee
What sets the tone of the interview?
Demeanor
A negative attitude translates into negative results
The value of each interview or interrogation is based on…
The investigator’s knowledge, skills in eliciting information, and ability to evaluate the veracity of the information obtained
Investigations that include searches must comply with what?
The Fourth Amendment to the US Constitution
An admission obtained by a private citizen who conducts an interrogation in violation of due process but otherwise follows constitutionally prescribed conduct may be admissible
The court recognized union employees’ rights to representation at investigatory interviews that the employee reasonably believes might result in discipline
The Weingarten Rule
In 2000, the NLRB expanded Weingarten & held that the right to representation at investigatory interviews applies equally to union & nonunion employees
but then…
In 2004, the NLRB ruled that non-unionized employees are not entitled under Sect. 7 of the NLRA to have a coworker accompany them to an interview with their employer, even if the employee reasonably believes that the interview might result in discipline
Interview Planning & Preparation
The most critical preparatory action before an interview is to become thoroughly familiar with the case information
Key factors in Interview Planning
Location
Time factors
Questioning order
Questions to ask
Persons present
The choice of interview site depends on
- Nature & phase of the investigation
- The apparent involvement of the interviewee
- The issue of interviewee confidentiality
- The desired level of formality
Where should uncooperative witnesses be interviewed?
In the security office or interview room
Interview Environment
- The subject should face the interviewer an witness should be seated to the side
- The interview should not be conducted at a desk or table
- The distance between the subject and the investigator should be about five feet
- The subject should always have a clear path to the room’s exit
- Interview only one subject at a time
- Interviews should be conducted quickly after an event, to capture fresh recollections
Priority of Interviews (in order)
- Persons not likely to be available later
- Persons believed to have the most pertinent information
- Persons likely to be hostile
- The offender or offending group
Documenting the Interview
Prepared notes are acceptable if the interviewer does not refer to them regularly during the interview
In interviews, the two types of questions generally asked are open & closed
- To put an interviewee at ease, the beginning of the interview should contain “closed” questions
- In the primary’s phase of an interview a narrative type of questioning should occur (“open”
What kind of question allow for an unlimited response from the witness in his or her own words, thereby generating a greater amount of unsolicited information
Open-ended
The interviewer should avoid making any promise or guarantee explicit or implied that:
- Is illegal
- Cannot be confirmed by the client or senior management
- Cannot be fulfilled
What may invalidate confessions or statements and may call for civil or criminal action
Coercion
Duress
Psychological constraint
Verbal abuse
Threats
Intimidation
What must be understood by the interviewee?
That they are free to leave the interview location
Most cases are solved with information developed during interviews and the subsequent efforts to corroborate or disprove interview findings
Four formats of a written confession
- A statement was written by the suspect
- A statement authored by the interrogator but read & signed by the suspect
- The statement took down by a secretary or stenographer & transcribed into a typed document for the suspect to read and sign
- Recorded statement (studio video) by the suspect
What must be done for a written statement or confession to be credible & admissible in US Court?
It must be given voluntarily be trustworthy. and include the following essential information
What is the best closing strategy for an interview?
Asking if there is anything to add & if he or she be called again
Reid Technique - 4 objectives of the interview
- Obtain valuable facts
- Eliminate the innocent
- Identify the guilty
- Obtain a confession
Verbal responses include both spoken words & gestures that serve as word substitutes other verbal cues are
Tone
Pitch
Speed
Clarity
Non-verbal Responses Include
Body movements
Position changes
Gestures
Facial expressions
Eye contact
What is responsible for more than half of the information & meaning of a message communicated ina conversation
Non-verbal Behavior
The Truthful Person
- Makes general sweeping denials
- Offers unqualified, direct, & spontaneous answers
- Exhibits a reasonable memory
- Responds to questions in a rational manner & a clear tone of voice
Deceptive Person
- Offers very specific denials
- Avoids realistic words
- Makes seemingly irrelevant comments
- Gives delayed, evasive, or vague answers
- Exhibits an unusually poor, selective, or remarkable memory
- Qualifies answers or uses religion or oaths to support statements
- Speaks in an irrational fragmented mumbled or subdued manner
A Truthful Person
- Sits upright but not rigid
- Positions himself or herself in front of the questioner
- Leans towards the questioner when making a point
- Appears relaxed & casual
A Deceptive Person
- Slouches or leans back in the chair
- Sits unnaturally stiffy
- Sits off to the side, not directly in front of the questioner
- Pulls elbows close to side arms folded & locked in front with legs crossed
- Exhibits rapid & erratic posture changes
Nonverbal behavior accompanies a deceptive response in an attempt by the guilty suspects to relieve anxiety
- Distraction behavior
- Displacement behavior
Shifts in body posture, bringing a hand to the face, crossing the arms, etc…
Distraction Behavior
Picking the lint off clothing, pacing, repetitious fast movement, etc…
Displacement Behavior
No single word or nonverbal behavior automatically means a person is lying or telling the truth
Activities suggesting deception
- Significant posture change
- Grooming gestures & cosmetic adjustments
- Supportive gestures
Which are a primary source of information & most critical aspect of an investigation?
- Interviews with victim
- Witnesses
- Informants
- Confidential informants
A person who has been involved in a physically debilitating situation should be interviewed briefly on the event’s crucial aspects before being allowed to rest
A person who is physically debilitated or psychologically stressed should not be subjected to a lengthy interview
Who should be questioned as to alcoholic beverages consumed within the last 24 hrs & 95 to any medication taken
The Interviewee
The interviewer should begin with broad; general questions & then become more specific
Witness Interviews
Several principles underlie the interviewing of a cooperative witness
- Maintain or reestablish rapport
- Personalize the interview by treating the witness as an individual
- State expectations
- Ask open-ended questions
- Avoid interruptions
- Allow pauses
Preparation begins long before litigation with an accurate & timely capture of facts & impressions of the incident in a report or notes
The testimonial evidence the security professional will be presenting in court is called “parol” or “spoken word” and the attorney will want to make sure it supports the case
Produce all tangible evidence
Duces Tectum
The legal process, where attorneys and/or judge ask questions to determine candidates’ sustainability to be on the jury
Voir dire
Theft and Fraud
- Most frequent & costly forms of dishonesty
- the most common motivation for an individual to commit an internal theft is one of economics or profit
- Employees may be an organization’s greatest threat second only to competition
- 30% of business failures result from employee theft with over one half of them failing in the first 3 years of their existence
Theft & Fraud
- Occupational fraud is a growing industry in which most perpetrators are first-time offenders
- US organizations lose to 6% of their annual revenues to fraud
- Small businesses suffer disproportionately larger losses than large businesses
- More than 2 million shoplifter apprehensions are made every year
- They are only a fraction of the estimated 200 million annual shoplifting incidents
Theft & Fraud (cntd…)
- Various studies estimate employees steal over a billion dollars a week from their employees
- Some employees will steel to “the extent the organization will allow”
- In the retail industry, up to 70% of losses are perpetrated by employees
- For every dollar lost to shoplifting, employees, steel another $15
Theft & Fraud (cntd..)
- In the foodservice industry, employee theft imposes a 4% tax an every customer dollar spent
- A serious form of embezzlement in the workplace is fraudulent cash disbursements
- Employees also steal time
Employee Theft & Fraud
Theft on the job is not necessarily correlated to external factors or influences; employees who are satisfied with their jobs are less likely to steel
What significantly affects individual employee attitudes toward theft
Peer Pressure & Attitude
Theft is usually perpetrated by what kind of employees
Those with Access
The greater opportunity for theft the greater the chance it will occur; the greater the chance of detection, the less likely employees will steel
Employees who steel…
are frequently involved in another counterproductive workplace activities
Red Flags of Employee Theft
- Secretive relationships
- Missing documents
- Indicators of substance abuse
- Irregular hours of operation or building entry
Primary Contributors to Employee Theft
- Lack of supervision
- Lack of effective processes
Bi-modal Distribution
- A small number of employees take large amounts of property
- The vast majority of those who steel take only small amounts
Two methods of theft committed by managers
- Embezzlement
- Defalcation
The fraudulent appropriation of property by a person to whom it is entrusted
Embezzlement
Misappropriation of trust funds or money held in a fiduciary capacity
Defalcation
Joseph Wells motivations for Fraud
- Financial pressures (gambling, drugs, living beyond one’s means, unexpected medical bills)
- A desire to be (or appear to be) successful
- Greed (predominant factor)
How is the opportunity for fraud created?
Through the absence or weakness of internal controls
Employees involved in theft have usually been involved in other misconduct
What is not an insurance against theft?
Tenure
Virtually every employee who steals has rationalized his or her dishonesty
No theft regardless how minor should be tolerated or ignored
Virtually every theft or fraud could have been prevented by better management
What are the most common form of workplace embezzlement?
Cash Disbursements
Four characteristic principles involved in internal thefts include
- Diversion: when the money stops being spent in one area of business or on a product; & starts being spent on another
- Conversion: when someone gives away or sells property that does not belong to them
- Disguise
- Divergence
The relevant facts or elements of most economic crimes are?
Motive
Opportunity
Ability (rationalization)
Most common rationalizations/myths by employers?
- Only the needy & greedy steal
- Good policies & procedures will catch most wrongdoers
- Audits identify most irregularities
- Prosecution is an effective deterrent
Most fraudsters are influenced by an opportunity to profit & a clear correlation exists between theft & opportunity
Opportunity
Employees displeased with their overall employment experience are most often those who engage in theft & other antisocial behavior at work
Job dissatisfaction
Employees are greatly influenced by the informal social controls of co-workers such as peer-group gossip, ridicule & ostracism
Social Control
Employee situational red flags for fraud
- High personal debts (medical, gambling, excessive speculation in the stock market, etc.)
- Poor credit rating or other financial difficulties
- Living beyond one’s means
- Excessive use of drugs or alcohol
- Perceived inequities (being passed over for promotion)
- Previous convictions for fraud or trust violations
- Low moral character
- Compulsive behavior
Employee opportunity red flags for fraud
- Position of trust
- Significant knowledge of key operations
- Easy rationalization of contradictory behavior
- Close association with suppliers & contractors over a long period
- Lax or remote supervision
Common elements that must be present in every fraud case
- Strong financial pressure
- Opportunity to commit fraud
- A means of justifying the fraud as appropriate
Organization situational red flags for fraud…
- Costs rising faster than revenues (profit squeeze)
- Significantly aged or excess inventories
- Extremely rapid expansion of overall business or particular lines of business
- Constantly operating in a crisis mode
- Unrealistic sales quotas or revenue targets
- Significant cash flow problems
- History of corruption in the company’s industry
- Stiff competition
- Outdating of the company’s products or services
- A high rate of turnover among key financial positions
Organizational opportunity red flags for fraud (cntd…)
- Dominant, hierarchical, & secretive management styles
- Unethical management models
- Exploitation, abuse, and poor management of employees
- Lack of employee training on the relationship between security and business success
- Lax enforcement of internal controls
- Heavy investments or losses
Organization opportunity red flags for fraud
- Line supervisors’ failure to develop on the effective loss-prevention environment
- Urgent need for favorable earnings
- Poor accounting records
- Lack of separation of responsibility for ordering and receiving
- Domination of operating & financial decisions by a single person
- Failure to establish, communicate or enforce a code of business conduct
A comprehensive model of theft & fraud prevention
Element 1: Prevention Problems
Components of prevention education include:
- Process for screening all applicants for past trust violations
- A code of business conduct that is communicated to employees, vendors & customers
- Proper accounting practices that record all the financial transactions of the business
- A clear separation of duties that limits the accessibility to key information that would allow an accounting individual to make changes in master files without someone knowing it
A comprehensive model of theft & fraud prevention
Element 1: Prevention Problems
Components of prevention education include:
- An indicator of the effectiveness of prevention efforts is the quick & accurate reporting of suspected theft & fraud
A comprehensive model of theft & fraud prevention
Element 2: Incident
Element 3: Incident Reporting
- Fostering a culture of integrity & honesty is the best practice
- The most ethical organizations (and most successful) regularly & passionately reward employees with recognition & gratitude
A comprehensive model of theft & fraud prevention
Element 4: Investigation
- Investigations are more successful when investigative roles & responsibilities are clearly defined
- The main objective of any preliminary investigation is to determine what crime or violation exists
- Under most circumstances, internal thefts & fraud investigations are conducted by in-house or private contractors & not by law enforcement
A comprehensive model of theft & fraud prevention
Element 5: Action
- Taking immediate action against theft & fraud perpetrators is one of the strongest deterrents to future losses
A comprehensive model of theft & fraud prevention
Element 6: Resolution
- Although discipline & prosecution can be effective deterrents, nothing makes a point like the payment of restitution by the perpetrator
How can organizations better prevent theft & fraud?
Move from a reactive to a proactive approach
What is the key to a fraud awareness program?
A continuous, well-developed & well-delivered
What type of climate should be maintained?
Trust
Honesty
Cooperation
What will significantly increase the chances of detecting vulnerabilities & systemic gaps before losses occur
Clear organizational policies procedures and practices
How can organizations prevent much internal theft & fraud?
Reducing temptation & increasing the probability of detection
Employees must feel confident that senior management will do what?
- Take issues seriously
- Will act with professionalism & discretion regarding reports made by employees
- Steadily demonstrate their resolve to handle offenders, properly at all levels of the organization
Practices that punish all employees are generally more expensive & hurt employee morale
- Draconian security methods such as searching employees at workplace exits are expensive and hurt employee morale
- Demonstrating a sincere appreciation for the individual’s contributions to the organization instills a greater sense of ownership and belonging & translate into less workplace theft
Policies & work rules must be?
Reasonable
Fair
Communicated properly
Enforced constantly
What percentage of employees responsible for 95% of workplace theft should practitioners focus on?
5%
What method can be used to deter dishonor employees & empower honest ones?
Anonymous Incident Report Systems
More occupational fraud is revealed by anonymous tips provided by employees than by all formal internal audits combined
The 3 “shuns”
Termination
Prosecution
Restitution
*the most difficult but does the victim the most good
Two prominent theories of white-collar crime
Differential accusation theory
Non-shareable need theory
Differential Association Theory
- Edwin Sutherland
- Criminal behavior is most often correlated with an individual’s association with a criminal environment; people who frequently associate with individuals who have criminal tendencies become criminals as a result of those relationships
- Criminal behavior is not inherited but learned through other people by example & verbal communications
- Individuals also learn incentives, rationalization & attitudes associated with particular crimes
- Individuals learn the psychological machinations needed to commit a crime & justify it (rationalize)
Non-shareable Need Theory
- Donal Crossey
- Defined as a violation of a position of financial trust
- Trusted persons become trust violators when they visualize themselves having non-shareable financial problems & feel they can resolve the problems by violating their position of trust
Non-shareable Need Theory
3 elements must be present before a fraud or similar crime can take place
- The perception of a non-shareable problem
- Opportunity for a trust violation
- Series of rationalizations that allow the individual to justify his or her behavior as appropriate for the situation
A compliance program should be built on?
Clear corporate policy
Purpose of a compliance program
Protect the organization against?
- Violation
- Lapses in business ethics
- Concomitant legal sanction
An effective program encourages
Enforcement
Monitoring
Employee Training
What is a key element of any compliance program?
An effective reporting mechanism
Main categories of crime relevant to asset protection
- Crimes based on unauthorized entry or presence
- Crimes based on theft
- Crimes based on force or threats of force against people
- Crimes based on damage or threats of damage to property
- Computer-related crimes
- Environmental crimes
The ultimate guide to what constitutes criminal conduct is the statutory language that describes the prohibited conduct
A misdemeanor or felony
Crime
An offense other than traffic violations that may include a sentence of 15 days to 1 yr.
Misdemeanor
An offense for which a sentence to a term of imprisonment in excess of one year may be imposed
Felony
Conduct punishable by a sentence to a term of imprisonment or to a fine as provided by a law
Offense
Criminal laws are based on a concept that prohibited conduct is a wrong against the general public, not merely a wrong against a particular person
What undermines the intent of criminal laws?
Treating crimes as though they affect only the parties involved - and not the whole community
What describes the state of mind or wrongful purpose required by criminal laws?
Mens rea (guilty mind)
What is an exception to “mens rea” requiring only negligent behavior that results in criminal inquiry without intent?
Criminal Negligence
The guilty act itself?
“Actus reus”
What are also an exception to Mens rea requiring the only completion of the criminal act?
Strict Liability
Two categories of sources of legal information
Primary source
Secondary source
In-state or federal statute or case
(a strong source of information)
Primary source
Another state’s or jurisdiction statute case or legal journal
(should not be relied upon formally)
Secondary source
What should be the last resource of legal review?
Trade Journals
The main body of criminal law is codified in?
Title 18 of the USC
An action of a legislative body that becomes a law when it is approved by the executive branch in the manner required by the constitution
Statutory Law
Acts** or **omissions are frequently defined as criminal even if they are not specifically included in the criminal sections of any statutory code
Laws passed by cities, towns, & villages that are not generally referred to as statutes because the local level of government is not sovereign
Ordinances
Cases decided by the appellate courts of a state or federal jurisdiction
Case Law
Instances of litigation (civil) or prosecution (criminal) handled by a district court are rarely used to proffer a legal argument and are considered merely persuasive
The following of prior case law in a jurisdiction
Precedent or the Principle of “Stare Decisis”
Cases overturned or “distinguished”
Determined not to apply to a particular case even if similar
US Constitution
- Basic document for US law
- Defines federal government & its branches & powers
- Grants the power to make laws to the legislative branch
- Article VI is the “supremacy clause” which makes laws under the US Constitution “the supreme law of the land”
- The US Constitution is the basis on which states & their citizens define the rights & duties at the government & the people
- Constitutional safeguards protect citizens from the government but not from other private citizens
The trespassing & asportation, obtaining or withholding of property belonging to another with the intent to permanently deprive the owner of the use & benefit of such property or to appropriate the property to the taker or some third party
Theft
To establish that a burglary has been committed one must prove that
- The accused knew or should have known he did not have authority to be in the locale
- The intent to commit a crime in connection with the unlawful presence or entry
The taking of property through the use of force or threat of force
Robbery
Shoplifting
In practice security personnel should apprehend a suspect as soon as he/she passes the designated payment or checkout area; apprehending a suspect off company property may be dangerous
Federal Criminal Sentencing Guidelines
Require convicted companies make restitution to injured parties & pay a non-tax deductible fee
“Let the master answer” - A common-law doctrine holding an employer liable for an employee’s acts that are within the scope of employment
Respondeat Superior
Any unauthorized listening whether done in person or by means of electronic or other equipment
Eavesdropping
Title 3 of the Omnibus Crime Control & Safe Streets Act
- Authorizes law enforcement of electronic surveillance
- Safeguards wire & oral communications
- Prohibits private possession/use of surveillence equipment
- Creates acceptable uniform circumstance for electrical surveillance
- Sets constitutionally acceptable procedures for government surveillance
Electronic Communications Privacy Act
Extends Title III protection to cell phones, fiber, teleconferencing, voicemail, email, encrypted transmission & most pagers
Allows government surveillance in the interest of national security
Foreign Surveillance Act
Categories of computer-related crimes
The computer itself is targeted
The computer is used to facilitate a traditional crime
The computer is used as a storage device in the criminal activity
Resource Conservation & Recovery Act 1976
First attempt to regulate the disposal of toxic waste
Comprehensive Environmental Response Compensation & Liability Act
(CERCLA)
Establishes crime liability for failure to report the release of a hazardous substance
Economic Espionage Act (1996)
All forms and types of business, technical, or economic information, tangible or intangible no matter how stored or compiled if:
-The owner thereof has taken reasonable measures to keep such information a secret
- The information derives independent economic value actual or potential from not being generally known to & not being readily ascertainable through proper means
Trade Secret
Provides criminal penalties for “controlling persons” in corporations under certain conditions
- Applies to any company having a class of securities registered pursuant to section 12 of the Securities Exchange Act of 1934
- Also applies to any company required to file reports pursuant to Section 15(d) of the Securities Exchange Act of 1934
Foreign Corrupt Practices Act (FCPA)
Makes it a criminal offense to offer a bribe to a foreign official to obtain or retain business
FCPA
Intention to take the person into custody
- Through actual or constructive seizure or detention
- With the understanding of the arrestee that he is arrested
Elements of an Arrest
An arrest can be made under these conditions
- Pursuant to federal or state law
- With or without a warrant
- By police, peace, officer, & private citizen
A judicial process issued upon probate cause authorizing or commanding an act
Warrant
Authorizes the taking into custody of the named person
Arrest Warrant
Authorizes the search of the named place under the conditions imposed
Search Warrant
In what way does the criminal law require statements be made by persons against their own interest?
Voluntary
An arrest without a warrant can be made by a police officer or a private person according to state law
- May arrest without a warrant with reasonable cause to believe the person committed an offense
- With reasonable cause, the police officer will not be held liable for the arrest
Police Officers
- Citizens’ arrest authority is limited to:
- Any crime committed in the presence of the arrested person
- A felony even if not committed in that person’s presence
Private Person
Private Person
- A security officer could be subject to civil damages if he apprehends the wrong person
- The arrested person must be taken “without unnecessary or unreasonable delay” before a court, judge, or police officer
*Failure to do so risks civil damages & criminal charges if force or threat of force was used
- The security officer must have authority to make the arrest & the person to be arrested must be made aware
* A lack of arrest authority (i.e.. no crime or wrong person) his actions may constitute a fake arrest or assault
A person who is unlawfully arrested can resist with all reasonable force
If a subject is killed int he process of an arrest, the officer may be guilty of manslaughter or murder
Private individuals who hold a valid police officer appointment & who make an arrest without a warrant (pursuant to the appointment) are protected as police officers
The inducement by an LEO of a person not otherwise disposed to do so, to commit a crime for the purpose of persecuting him
Entrapment
Entrapment
- Common (case) law for federal & some states; statutes in other states
- Entrapment cannot result from a private person unless acting with law enforcement (in some states)
- Conduct not constituting entrapment under the common law might still be considered a criminal act
- The mere act of giving another the opportunity to commit an offense is neither facilitation nor solicitation nor is it entrapment under current common law
Procuring another to commit a crime
Criminal Solicitation
Rendering aid to another with the knowledge it is in aid of the commission of an offense
Criminal Facilitation
The 4th Amendment
- Prohibits unreasonable searches
- Does not apply to searches by private persons
- A warrantless search incidental to arrest is authorized but cannot extend beyond the immediate area
Alternatives for when an employee is suspected of concealing evidence
- Arrest the employee on the charge of the crime
- Permit the employee to leave but file a criminal complaint with the police
- Take disciplinary action against the employee
* if doubtful a combo of the 2nd & 3rd alternatives might be wiser than a citizen’s arrest
Conditions of searches in private organizations
- Searches or inspections are consented to
- Searches or inspections are made conditions of employment
- Searches or inspections are not conducted in areas where the employee was given sole & exclusive right of possession & maintains a reasonable expectation of privacy, such as with a private locker or desk
In federal matters, the request to the grand jury is made by who?
US Attorney or Assistant US Attorney
In state actions, who makes the request or issues an “information”
US Attorney General
US Asst. Attorney General
District Attorney
County Attorney
Special Prosecutor
Use of Force
Reasonably necessary force is generally allowed in?
- Defense of oneself or others
- To restrain others who one believes are about to commit suicide or do themselves serious harm
- To correct a minor (if a parent or guardian has the authority to do so)
- By a police officer or person directed by an officer to assist, or a private citizen to arrest or prevent escape of a criminal
The permissible use of force varies jurisdiction to jurisdiction
Generally, deadly force can only be used when?
- Fear of one’s own life (where simply debilitating the offender is not an option)
- Some jurisdictions require the attack or threat of attack be actual
- Some jurisdictions require only a reasonable belief such an attack is occurring or threatened
- Prevention of a crime involving deadly weapons or the apprehension of a criminal with a deadly weapon
When using force in defense of another, some jurisdictions require that the defended person be authorized to use force to defend himself or herself in such cases the defender acts at his or her own peril
The general rule is that a lawful occupant or an individual in charge of premises may use an amount of force reasonably necessary (but not deadly force) in preventing or terminating a perceived criminal trespass
Defense of Premises
What are the two functions of locks alarms warning notices and other security measures?
- Serve as deterrents
- Provide a basis for appropriately invoking criminal sanctions against aggressors by security personnel acting in good faith
Administrative law is an application of?
Civil Law
Relates to functions powers and procedures of government administrative agencies and departments
Administrative Law
Administrative law focuses on how government agencies do what?
Carry out assigned tasks under constitutions and statutes
A government agency has an administrative role if it has the authority to?
- Make determinations affecting private rights, especially the power to make rules
- Adjudicate cases
- Conduct investigations
- Issue, suspend, revoke licenses
- Institute prosecutions
Administrative law is not a separate category of law but rather what?
The application of statutory civil law to government agencies
Actions of government must meet minimum standards of Constitutional due process
Government agencies that have access to, or distribute public information related to privacy, rulemaking, investigations, subpoenas, reports, inspections, hearings and informal reviews, licenses adjudications & judicial reviews (oversight of agency actions by the courts)
Administrative Procedures Act (APA)
Congress establishes, modifies & terminates agencies; which branch appoints key personnel?
Executive
In day-to-day activities, promulgation of rules & investigations agencies have very broad independence
An independent agency has the power to determine private rights through?
Rule-making
Investigations
Prosecution
Licensing
Other informal actions
Freedom of Information Act (FOIA) 1966
- An amendment to the APA
- Deals with the release & disclosure of certain kinds of information by the Federal Governemnt
the FOIA requires federal agencies to disseminate & disclose information about their activities & proceedings
- By publication in the Federal Register
- Distribution of material for public inspection & copying
Broad exemptions to the “Disclosure Rule”
- National security information
- Internal (agency) personnel rules & practices
- Information specifically exempted by statute
- Trade secrets & confidential commercial or financial information
The courts have required that in addition to being confidential, there must be a showing of an adverse effect on future government cooperation and a showing that disclosure will have an unfavorable & substantial impact on a party’s competitive position
A promise by a government agency, not to disclose information may not prevent later disclosure, by that agency or another
Exemptions to the Disclosure Rule
- Interagency & agency internal communication not normally available to parties in litigation with the agency
- Personnel, medical, and personal records
- Financial institutions information - financial institutions & agencies that regulate banks
Exemptions to the disclosure rule
- Geological information
- Investigation records if it would: interfere with enforcement proceedings, deny a fair hearing to any party, or amount to an invasion of personal privacy
- Disclose investigative techniques
- Endanger the safety of LE personnel
Health Insurance Portability & Accountability Act
HIPPA
Encouraged health care providers to engage in electronic transactions & required new safeguards to protect the security & confidentiality of the transactional information
HIPPA
- Covers health care entities that conduct certain financial & administrative transactions electronically
- Covers all medical records & health information used or disclosed by a covered entity, in any form
HIPAA
Covered entities generally must…
- Adopt written privacy procedures concerning who has access to protected information how it is used, & when it is disclosed
- Train employees on privacy procedures, and designate an individual responsible for ensuring the procedures are followed
HIPPA is enforced by the HHS Office for Civil Rights (OCR)
What is the main purpose of the Privacy Act?
Allow citizens to access information held by federal agencies about themselves
Privacy Act applies only to federal agencies & not to the private sector
Privacy Act provides following right & remedies
- Notice to and comment from the individual before disclosure by the agency (ten exceptions exist)
- A lawful FOIA application may require disclosure
- Right to access one’s own record & request justifiable amendments
- Right to civil damages if intentional improper disclosure caused injury
Civil Law
- Deals with private rights & remedies
- Primarily establishes and adjudicates rights among private persons, both individual & corporate
- Civil rights involve statutory law, rather than common law
- 50 titles in the U.S.C. Title 18 is criminal law - others are primarily civil
- There is greater diversity in state’s civil state law then criminal
Categories of Civil Law
- Statutory Law
- Common Law
* Contract common law
* Tort Common law
What do Federal & State Bills of Rights protect citizens from?
Other Citizens
Civil Law
- The number of subjects dealt with in civil law is much great
- The subjects of civil law developed & containing the most legislation are usually the subjects related to a state’s economic center
Common Law
When a federal court hears a common law dispute it applies the same legal principles applicable to state law at the same location
Terms & conditions expressed in words
Express Contracts
Terms & conditions not stated in words; based on the parties really intending the terms
Implied Contract
Imposes an obligation on someone who has benefited from an act or lack of an act, for another
Implied in Law
Based on parties’ conduct even without formal words, but not if some critical term is unstated
Implied in Fact
The value of a product or service, determined by a court, when it is disputed in an implied contract
Implied Reasonable Value
Liability for the acts of another without personal fault of the one liable
Vicarious Liability
If several parties have been jointly negligent but the judgment was against only one; that party is entitled to a proportionate contribution from the others
Contribution
*Might be prevented by a “hold-harmless” or “indemnification” in a contract
For an employer to be liable for its employee (agency relationship-vicarious liability)
The employee must have acted within the scope of his duties
Depending on the circumstances of the action taken while performing duties for a private employer; a law enforcement officer may be:
- Within the scope of employment of the LEA
- Within the scope of employment of the private employer
- Outside the scope of employment of either
A willful or negligent wrong done to one person by another
Tort
Unlike contract injuries, torts do not require any agreement between the parties & in cases of negligence may not depend on the intentions of the parties
One in which the actor intends the consequence’s of the act or to do the act resulting in injury
Willful Tort
The failure to use reasonable care & due diligence under the particular circumstances as a result of which another is injured or suffers some damage
Negligence
Negligence does not require intent, even an intent to be negligent - rather it is the absence of an attitude or intent - to be duly careful - that characterizes negligence
Negligence so gross or reckless as to be tantamount to acting with total disregard for the consequences of the action is sometimes held to be similar to an intentional wrong and may lead to heavier liability on the part of the negligent person
Exemplary or punitive damages may be awarded multiplied by a factor of the actual damages to dissuade the negligent party from similar future behavior
Examples of Torts
The actual use of force against another involves physical touching
Battery
Examples of Tort
Putting another in fear that force will be used against him or her; do not involve physical contact
Assault
Deprivation of another’s liberty or freedom which may involve actual physical restraint and may involve intimidation that physical force will be used if an escape is attempted
False Imprisonment
Wrongful appropriation of the personal property of another or exercise of dominion by the converter over the personal property of another in a way inconsistent with rightful owner’s interest
Conversion
Use of a trick, device, false scheme, or other deception that causes another to suffer loss because of reliance on the one committing the fraud
Fraud or Misrepresentation
Behavior that results in annoying unwholesome or destructive conditions or produces substantial interference with another’s use or enjoyment of his property
Nuisance
Damaging untrue oral (slanderous) & written (libelous) statements
Defamation
The truth of a statement is generally an adequate defense to an action of defamation
Occurs when without justification or proper cause there is
- Intrusion into secret affairs of another
- Disclosure of such affairs
- Placing of another in a false public light
- The appropriation of some private or secret aspect of another for the commercial use
Invasion of Privacy
Federal Tort Claims Act (FTCA)
Allows individuals to recover from the US for property damage, personal injury, & wrongful death caused by the negligence of a federal employee
FTCA
The government is liable if a law enforcement officer commits assault, battery, false imprisonment, false arrest, abuse of process or malicious prosecution
The government is not liable if the claim against LEO is for libel, slander, misrepresentation, deceit or interference with contract
