Yeardley: [00:00:02] Hey, Small Town Super Fam. I hope you’re all having just the best day. Today on The Briefing Room, we have our final lesson in case law. It has to do with what’s known in law enforcement as the Christian Burial Speech. This is a phenomenal episode. I actually think it’s my favorite of the case law episodes, where once again, justice creates tangible change in policing. But also in this one, we get personal anecdotes and teachable moments from Detectives Dan and Dave. So, please enjoy The Briefing Room, The Christian Burial Speech.

[Briefing Room theme]

Dan: [00:00:49] Hey, Small Town Fam. Welcome to the Briefing Room.

Dave: [00:00:55] Every day in police stations across the world, law enforcement officers begin their shift with briefing. Briefings are essential to communication and allow officers and command staff to discuss calls for service, crime trends, case law, wanted subjects, training opportunities, and policy changes. Briefing rooms provide a setting where the team can speak with each other candidly and openly.

Dan: [00:01:19] We wanted to create a similar setting for our listeners. The Briefing Room series will include intimate, informal conversations about trending issues, viral videos, guidance and training from detectives, as well as commentary on other topics impacting law enforcement and the true crime community.

Dan and Dave: [00:01:36] Welcome to The Briefing Room.

[Briefing Room theme ends]

Yeardley: [00:01:45] I feel we should tell our listeners that this lesson on case law about the Christian Burial Speech is actually an extension of Miranda and Escobedo which we covered in our last Briefing Room episode about case law.

Dan: [00:02:02] I remember hearing about this in one of my first college courses for criminal justice, so long time ago. [chuckles] And the Christian Burial Speech, so this case was actually Brewer v. Williams. And Brewer is actually the warden of Correctional Institution. But Williams is the suspect in this case. And here’s a little background on this case. Back on Christmas Eve in 1968, 10-year-old girl named Pamela Powers, goes with her family to the YMCA in Des Moines, Iowa, and they’re going to go watch a wrestling tournament that her brother is competing in. She tells her parents, “I’ve got to go to the restroom,” and she never comes back. So, a search begins. And there’s a guy named Robert Williams, who is an escaped mental hospital patient, and he was currently living at the YMCA. Back in the day, you could actually stay at the YMCA, right?

Dave: [00:03:03] [in a singsong voice] There’s no need to feel down. [Yeardley chuckles] [crosstalk]

Dan: [00:03:07] [in a singsong voice] There’s young man. So just after this girl disappears, Williams is seen in the YMCA lobby carrying some clothing and he’s got a large bundle wrapped in a blanket, and he encounters the doorway at the YMCA. A 14-year-old boy who’s at the YMCA helps Mr. Williams with the door, opens the doors for him so Williams can go out. And then, the boy follows Williams to his car. He opens the car door for Williams and Williams tosses in the things, the bundle and the clothing into the car, and the 14-year-old boy sees two legs sticking out of the bundle blanket. And so, Williams takes off in his car immediately and drives to Davenport, Iowa, which is about 160 miles away. Nobody knows where this girl is, or Williams is at this point. And at some point, Williams calls his attorney, a guy named Henry McKnight and basically confesses. And this is a couple of days after, so this is December 26th now.

Yeardley: [00:04:14] Did the 14-year-old tell the search party, “I think I saw the legs of the little girl,” or he just thought–?

Dan: [00:04:20] No, he did.

Yeardley: [00:04:21] He did do that.

Dan: [00:04:22] He did, but nobody knew where Williams had gone. He disappeared, but drove almost three hours away to Davenport, Iowa, 160 miles. And at some point, Williams calls his attorney, Henry McKnight, and tells him something happened. And this attorney says, “You need to turn yourself in.” The attorney goes to the police officers in Des Moines, Iowa, where the abduction occurred and says, “Hey, this guy is going to be turning himself in to the Davenport police. He has something to do with the disappearance of this little girl.” When Williams turns himself in, they advise him of Miranda and William says, “I’m not going to speak to you until I have my attorney with me.” And McKnight also tells the police, “I don’t want you talking to him either.”

[00:05:13] In the meantime, we got 160 miles between Davenport and Des Moines where this crime occurred. Williams gets an attorney in Davenport also. So now, he’s got two attorneys, and the Des Moines police are going to drive to Davenport, pick up Williams, and bring him back to Des Moines. Both attorneys in this case, McKnight and this other attorney, I think his last name is Kelly, they both tell the police officers, “Under no circumstances are you to speak to my client during the trip back to Des Moines.” The police had also said, “Hey, you’re an attorney. You’re not riding with us. It’s just going to be two police officers, two detectives, and suspect, Williams.”

Yeardley: [00:06:01] When they caught up to Williams in Davenport, did they know or suspect already that the little girl had been murdered?

Dave: [00:06:08] I think everybody thought that she was dead.

Dan: [00:06:11] So, law enforcement is under clear instructions not to question the suspect. Now, we get to the Christian Burial Speech. And on the way back, they’re not supposed to speak to Williams at all, these detectives. One of the detectives starts engaging Mr. Williams in conversation.

Yeardley: [00:06:29] Like the weather kind of thing?

Dan: [00:06:31] A variety of topics, including religion. And this detective delivers this speech which has come to be known as the Christian Burial Speech. And I’ll just read some of this.

So, this detective says, “I want to give you something to think about while we’re traveling down the road. Number one, I want you to observe the weather conditions. It’s raining, it’s sleeting, it’s freezing. Driving is very treacherous, visibility is poor. It’s going to be dark early this evening. They’re predicting several inches of snow tonight. And I feel that you yourself are the only person that knows where this little girl’s body is, that you yourself have only been there once. And if you get snow on top of it, you yourself may be unable to find it. And since we will be going right past the area on the way to Des Moines, I feel that we could stop and maybe locate the body. That the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas Eve and murdered. And I feel we should stop and locate it on the way rather than waiting until morning and trying to come back out after a snowstorm and possibly not being able to find her at all.” So, there’s the Christian Burial Speech.

[00:07:41] William says, “Well, why do you think that we’re going to pass where this girl has been buried just because we’re going back to Des Moines?” And the detective says, “Well, I have a feeling. I kind of know the area of where the little girl’s body might be. But I don’t want you to answer me. I don’t want you to discuss it any further. Just think about it while we’re riding down the road.” Kind of sets the atmosphere of the inside of that car.

[00:08:04] As the car approached a small town about 100 miles from Davenport, the suspect Williams asks the detective, “Hey, have you guys found the girl’s shoes?” The detective says, “Well, I’m not sure. I don’t know if we have.” Williams, the suspect, then says, “Well, why don’t we go over to this gas station over here, and I’ll show you where I left her shoes.” They search, they don’t find the shoes. They continue driving toward Des Moines. And Williams again says, “Hey, have you guys found the blanket?” Detective says, “Well, I’m not sure.” Williams directs the officers to a rest area. They search, they don’t find the blanket either. They continue driving to Des Moines, and as they approach this other small town, Williams says, “Okay, I’m going to show you where the body is.” He then directs the police to the body, and they find the little girl.

So, Williams gets indicted for first-degree murder, obviously. And before the trial, his lawyers say any evidence relating to or resulting from the statements made by Williams during that car ride are inadmissible. So, not only the body, but all the statements are now in admissible. The state basically argues, “Well, that’s inevitable, discovery, the body. We feel like that would have been found no matter what, this little girl’s body. So, even without his statements, it might have been a week, it might have been a month. Eventually, someone’s going to stumble across this body.”

Yeardley: [00:09:38] And was it in a place somebody might stumble across it this body?

Dave: [00:09:43] Yes, it wasn’t buried or anything.

Yeardley: [00:09:47] Even if the body is imminently discoverable, how do they prove at that time since they didn’t have DNA and there was some severe weather that Williams was the killer of that little girl?

Dave: [00:10:00] I imagine that 14-year-old boy’s testimony had a lot of gravity to it.

Dan: [00:10:06] So, initially, this goes to the Supreme Court of Iowa, and they basically say this suspect waived his right to counsel while he was in the car.

Yeardley: [00:10:17] But he didn’t.

Dan: [00:10:17] He didn’t. So, Williams’ attorneys petition for a writ of habeas corpus in the United States District Court for the Southern District of Iowa.

Yeardley: [00:10:28] Can you define habeas corpus?

Dan: [00:10:31] When a petition of a writ of habeas corpus is granted, it basically gives you another day in court. You’re given another chance to prove that you’re being subjected to unconstitutional conditions while you’re incarcerated. And the council for the state and for Williams stipulate that the case would be submitted on the record of facts and proceedings in the trial court without taking any further testimony.

Yeardley: [00:10:54] What does that mean?

Dan: [00:10:56] So, they’re just stipulating to facts that have already been established in previous hearings. They’re not bringing other witnesses in to testify. They’re just going to go on the facts that were presented at a previous hearing. Both sides agree those facts are accurate, and we’re going to go off of that record.

Yeardley: [00:11:14] Based on that record is how they’re going to try this case?

Dan: [00:11:17] Yes. And this conclusion was based on three different reasons. One, Williams had been denied his constitutional right to the assistance of counsel during this car ride. Two, he’d been denied the constitutional protections defined by Escobedo v. Illinois and Miranda v. Arizona.

Yeardley: [00:11:36] Which, just to remind you, our fabulous listeners, we talked about in our last episode on The Briefing Room about case law.

Dan: [00:11:44] Yes. And three, in any event, his self-incriminatory statements on the automobile trip from Davenport to Des Moines had been involuntarily made.

Yeardley: [00:11:54] And the point of them saying he made involuntary statements was if that officer is going to give him a speech about a Christian burial, and these are the things he should consider that that felt coercive, and that would obviously trigger a response from somebody like, “I need to do the right thing,” is that the basis of that argument?

Dave: [00:12:15] Yep. Like you know this is going to induce somebody to provide additional statements, even though they’ve invoked.

Yeardley: [00:12:22] The officer did it on purpose hoping, maybe, and because he didn’t actually ask him any questions, maybe I can skate by on this.

Dave: [00:12:29] Right.

Yeardley: [00:12:30] So, what happened?

Dan: [00:12:31] Eventually, Williams gets another trial, and his attorneys again move to suppress all the evidence stemming from the conversation during the car ride. And the judge rules that the statements given by Williams to the detectives in the car ride were inadmissible. But the judge also says that the body was admissible as evidence because it was inevitable discovery. Eventually, that would have been discovered. So, the body is still evidence that is admissible. In 1977, Williams gets convicted of first-degree murder, and that conviction was upheld by the US Supreme Court.

Yeardley: [00:13:13] Basically, the takeaway is even if you’re not asking direct questions, you cannot also set the person up to confess things based on your statements like, “Hey, I heard you’re not a bad guy. People make mistakes,” that that might make somebody feel more at ease, like, “Oh, hey, they’re on my side. Well, you’re right. I’m not a bad guy, but this happened.” You need to zip it, basically.

Dan: [00:13:43] Yeah. Especially in this case. All the ground rules have been set for this car ride. You are not to speak to my client at all, and then you do that.

Yeardley: [00:13:53] He just spoke to him anyway.

Dan: [00:13:55] If it’s just the two detectives talking, if they’re talking about sports or baseball, that’s one thing. But if the two detectives in the front seat are talking and saying, “Can you imagine what kind of monster you’d have to be if you’re not going to allow these parents to find their child?”, acting like Williams isn’t hearing it in the back seat.

Yeardley: [00:14:13] When you know full well, he’s hearing every word.

Dave: [00:14:16] And again, is that reasonable? No, that’s not reasonable. So, that word creeps into a lot of these cases, reasonableness. Anything we do as police officers, that word always creeps into our decisions. Is it reasonable? I just wanted to touch on that case, because it does have to do with Miranda and Escobedo v. Illinois, these statements that are made either coercive or without full knowledge of what they’re actually confessing to or the circumstances that a suspect is confessing. You have to be clear on all those things.

Yeardley: [00:14:58] It’s so fascinating. I really feel like on television, they throw around Miranda all the time. And as you guys have said, even suspects when you’re putting handcuffs on them, “Well, you didn’t read me my rights, your case is going to go out the window.” But in fact, there are a lot of little avenues and nuances and things that apply to it. I think it’s really fascinating.

Dan: [00:15:21] Well, yeah, and it gets challenged all the time, Miranda. There are a lot of cases that happened after Miranda. I’m just looking at this case brief that I have regarding Miranda and there are multiple links to other cases that are directly as a result of the Miranda warning and deal with what Miranda entails.

Yeardley: [00:15:44] So, cases that got thrown out because they didn’t adhere to the absolute specifics of a person’s rights?

Dan: [00:15:52] Yeah, or that’s why we talk about having to ask clarifying questions that all came out of case law, when somebody invokes their rights, that all came out of case law. And it’s constantly evolving. I’m sure there are cases that are going through court right now that potentially could be picked up by Supreme Courts or appeals courts across the country, that have to do with statements made during an interrogation, during mere contact, during a brief interview, all of those things. It’s just constantly evolving. So, as a police officer, you have to keep up with those things. And that’s part of what Dave, as a sergeant, would do during his briefings like, “Hey, some new case law just came down from the Supreme Court or the ninth circuit that directly affects how we do business out here. And we’re going to talk about it.”

Dave: [00:16:43] Being a detective exposes you to parts of the legal process that you just don’t get exposure to as a patrol officer. So, I’m sitting there, in court, during these suppression hearings, hearing the arguments from both sides. And I soaked that up. I loved that aspect. Very interesting to me, that’s why I love watching trials on TV, is there’s so much to learn there. There are some officers out there, they lose a decision, or they lose some evidence because the court rules against them, and they just don’t make an adjustment. They go, “Well, they’re wrong. So, I’m going to keep doing it the way I do it,” and I’m just like, “Well, you’re going to keep getting cases shoved up your ass. And as a sergeant, it’s kind of my job to make sure that you’re not screwing things up.”

So, I used to read reports, and I look for, “When did they mirandize? When did you give the suspect Miranda?” And as I’m reading your narrative, if I recognize that you either didn’t provide the suspect with Miranda or it’s late, I have to address that and say, “Hey, by the way.” A majority officers would say, “Oh, got it. Okay. Sorry. I’ll make the adjustment in the future.” Handful of officers who are like, “Screw you, Dave. I’ve been doing this longer than you have, and I’m not changing.” And I go, “Well, you wonder why your cases don’t get filed on over at the DA’s office because you’re stubborn and you’re not agile enough to make an adjustment.”

Dan: [00:18:19] And on those note files too, Dave gets to see why these cases get no file because the DA’s office actually sends over the notice to the sergeant of that shift. And then, the sergeant hands that notice out to the officers whose cases are getting no file. It always states the reason for the no file. And if it says ‘illegally obtained statement’, or sometimes it would say, “Should’ve Mirandized at this point, and you didn’t, everything after that is inadmissible. We don’t have enough to obtain a conviction beyond a reasonable doubt,” or improper search all of these things, it matters.

Yeardley: [00:19:00] Have either of you, Dan or Dave, ever been in a situation, maybe early in your career where your encounter with a suspect got brought up in a suppression hearing because the defense is arguing that you violated that suspects rights?

Dan: [00:19:18] Oh, yeah.

Dave: [00:19:19] As a detective, in my caseload, I would say almost every case that made it to trial or was approaching a trial date had a suppression hearing, either for certain evidence or statements, the defense did not want included in a trial.

Yeardley: [00:19:38] Does the defense base that on, “My client said they wanted an attorney, and you didn’t listen,” or what was the argument against the evidence you had gathered?

Dan: [00:19:47] In my experience, and I would say probably the same for Dave, Dave and I were so careful when the L word, lawyer or attorney came up, that we would ask the clarifying questions. If there was any doubt in my mind, I would stop the interview. There was one case that I had where it regarded the ‘attorney’ word. I had arrested a guy for DUI, and he and I did not get along real well. He was one of those guys that says, “I pay your salary.” And I was like, “Well, so do I, because I pay taxes too.” [Yeardley chuckles]

[00:20:20] When I got him back to the police station in the Intoxilyzer room, that’s the breathalyzer machine. Intoxilyzer 8000, I think is what it was back in the day. They probably have a new one now. I had offered this gentleman the opportunity to use a phone to call an attorney. And I said, “Are you going to call an attorney because if you are, I’m going to step out of the room and allow you privacy while you speak to your attorney.”

Yeardley: [00:20:44] Which is the law.

Dan: Which is the law. So, he says, “Yes, I am going to call an attorney.” And I said, “That’s great. There’s a phone book right here. If you want to use a phonebook–” mind you, it’s like 1:30 or 2:00 in the morning. I said, “You can use the phonebook. Or if you have the number in your phone, I can open up your phone and you can write the number down, but I’m not going to allow you to call him on your cell phone. You have to use this phone right here.”

Yeardley: [00:21:10] How come he can’t use his own cell phone?

Dan: [00:21:12] It was a policy in my department and it’s just another way to control that environment. I mean, he’s an inmate at that point. He’s in custody. So, he says, “Okay. Yeah, I’m going to call my attorney.” So, I leave the room. I walk about 15 feet away down a hallway. He’s still my prisoner, mind you. And there are pens, there are other things that he can use as weapons that are available to him. So, he’s not going to just have unfettered access to the back part of my police station. So, I leave the door cracked. And this guy gets on the phone, and he is yelling and screaming. And I can hear a female voice yelling and screaming back to him. And I’m 15 feet away down the hall around a corner with the door cracked. And I can hear almost every word he’s saying, because he’s so loud. If he was talking in a normal voice, I might have heard noise coming, but I wouldn’t have been able to understand what he was saying. But he was screaming so much so that people were coming back to the area that I was at, and going, “Is he okay?” [Yeardley chuckles]

[00:22:23] Anyway, I can hear him for a good three or four minutes. He’s just yelling and screaming and saying, “You got to fucking bail me out. It doesn’t matter where I was tonight. I’m coming home tonight. You’re bailing me out. Get your ass down here.” It was all stuff like that.

Yeardley: [00:22:39] So, that doesn’t sound like the attorney.

Dan: [00:22:41] He’s not talking to his attorney. He’s talking to his girlfriend. Finally, I go back there. And I offered him a reasonable amount of time to make that phone call. I’d say four minutes. I go back in there, and I go, “Hey, man, are you on with your attorney?” And he goes, “Yeah,” and I go, “You’re on with your girlfriend, aren’t you?” And he goes, “Well, I was going to call my attorney after this.” And I go, “Dude, we’re done.” Because the other part of this is I’ve got dissipating evidence–

Yeardley: [00:23:10] Oh, from that breathalyzer.

Dan: [00:23:12] Yes. So, I’m not going to wait all night. “I’ve given you an opportunity. You’ve wasted it. And we’re done.”

Yeardley: [00:23:19] So you have not taken his breath test yet?

Dan: [00:23:22] I have not. And I explained that to him, like, “I gave you an opportunity and you blew it. You called your girlfriend a bitch at her and tell her to come bail you out. We could have had that conversation after you called your attorney. Whatever your attorney told you to do, I was okay with. I can’t force you. I mean, I can write a warrant to take your blood.” Also, on the ride back to the police station after I’d originally arrested him for DUI, after I’d mirandized him, he told me on the ride back that he had had a DUI in the past in the past three years. So, I had that in my report. So, we go to trial. He ended up not blowing into the breathalyzer machine, by the way, which actually, you get $1,000 fine for that one too, for not blowing into the breathalyzer in my state. We go to trial. Right before trial, we have a suppression hearing, and what gets suppressed is the previous DUI statement gets suppressed.

Yeardley: [00:24:17] Him telling you in the car that he had a previous DUI.

Dan: [00:24:21] That gets suppressed, and I’m like, “Okay, that’s fine.” What doesn’t get suppressed is basically his attorney argued that I didn’t offer him a reasonable chance to contact an attorney. I basically tell the court, as I’m on the stand, the same story I just told, is, “I gave him at least four minutes. People were coming. He was loud. He was obviously not on the phone with his attorney. I tried to offer him privacy.” That was the other thing that they argued, that I didn’t give him privacy because I was within earshot. And I’m like, “Well, I could have been 50 feet and I still would have been within earshot, because he was so loud and upset.” So, that did not get suppressed. And the court said, “No, Officer Dan did offer this suspect a reasonable chance to contact an attorney.”

Yeardley: [00:25:14] And reasonable privacy.

Dan: [00:25:16] Yeah. And then, we went to trial. I remember when that got suppressed, I was in the courtroom when the previous DUI statement got suppressed. And I drew a line through it in my report, just like that’s no man’s land, can’t go there. When I was on the stand in the actual trial, the prosecutor asked me, basically the question that the answer would have been that statement about him saying, “I’ve had a previous DUI in the last three years.” And I stopped, I looked at the judge, and I looked back at the prosecutor, and I looked over at the defense attorney. And the defense attorney, “You can see the anticipation on his face like, “Oh, he’s going to fucking blow it right here. He’s going to blow it.” Would have been a mistrial.

[00:26:01] I look at look back at the judge, look at the defense attorney, look back at the prosecutor, and I say, “Are you really sure you want me to answer that question?” And the judge says, “We’re going to take a short recess. Jury, you can go back to the jury room.” They all walk out. And the judge looks at this prosecutor and says– and it was a first case this prosecutor ever done. So, it was like the FTO stage for prosecutors. Judge looks at this prosecutor and says, “This officer right here just saved us from a mistrial. You need to be way more careful on the questions you ask and show this court some respect.” And I was like, “Ooh shit.

[laughter]

Yeardley: [00:26:39] Go Detective Dan. Saving the day. [chuckles]

Dan: [00:26:43] And I remember looking over at the defense attorney, he’s like, “Ah, God.” I know he’s thinking billable hours, billable hours, billable hours.

[laughter]

Yeardley: [00:26:53] So fascinating.

Dan: [00:26:58] I’ve got another one too. And so, this guy, Arliss. Arliss and I didn’t get along either the first day we met. And I ended up arresting him. He was basically running interference, because I was trying to catch up to one of his bicycling partners. And he ran interference, and he cut me off and basically, he stopped his bike in front of me, so I couldn’t pursue. So, I got out and I contacted Arliss, because Arliss seemed to want police interaction that day. So, Arliss, he was not happy with me. He was yelling at me, and he was filming me too. And he’s like, “Did you stop me?” And I said, “Yeah,” and he goes, “Well, your lights aren’t on,” and I said, “My lights don’t have to be on for me to be stopping you. I’m telling you right now, you’re stopped.” And he goes, “You didn’t stop me. I fucking stopped you.” And I was like, “Okay, well, semantics. Here we are, Arliss. What do you want to talk about?” I was like, “Give me your ID, man.” And I ended up arresting him for a few things, interfering, resisting arrest. He was on a stolen bicycle. And then, the original person that I tried to contact came back, and he saw them, that person when I was putting Arliss in handcuffs. We’re on the ground, we fought, he fought, didn’t want to go in handcuffs.

Yeardley: [00:28:17] Dude number one comes back and sees you and Arliss on the ground after a fight.

Dan: [00:28:21] Yeah. And Arliss says, “Take my backpack.” He’s yelling, “Take my backpack.” The backpack is kind of spilled out into the middle of the roadway. And the friend comes up and tries to grab it. While I’ve got Arliss on the ground, I reach out and I grab the shoulder strap of the backpack, and we’re in a brief tug of war. And I said, “Let go right now or you’re under arrest,” and they let go and they took off. And I was like, “A bird in the hand is better than two in the bush.” Because if I take off after that person, where’s Arliss going? Arliss is leaving with my handcuffs. And then, I get to charge Arliss with theft as well.

[00:29:02] Anyway, Arliss is saying, “You cannot search my backpack. You can’t search my backpack.” And I was like, “Oh, yeah? Well, watch me.” And I opened his backpack up because I thought I knew everything that I was doing was right. And I opened his backpack and there was an ounce of methamphetamine in there and baggies and cash, and I seized it all. And we went to trial. And that backpack search got shoved up my tailpipe.

Yeardley: [00:29:27] Really?

Dan: [00:29:28] Yep. I needed a warrant. So, I learned from that. Actually, at the first trial, the first suppression hearing, the court ruled that that was inevitable discovery, and that I did not need a warrant to search through that backpack, which was my understanding. To me, it’s no different than wearing a jacket.

Yeardley: [00:29:46] And you would be able to go through my jacket as in patting me down, so you’re considering the backpack and extension on my clothing?

Dan: [00:29:53] Yeah. So, I searched his backpack and at first, the court was like, “No, you’re good to go. That’s inevitable discovery. You would have gotten in there anyway.” That court went to appeal, and that got reversed. And I learned a valuable lesson then.

Dave: [00:30:11] That’s why it’s important to have a very stout inventory policy when you are storing things in your evidence locker, that nothing is armful, hazardous, dangerous, etc.

Yeardley: [00:30:25] What do you mean stout inventory policy?

Dave: [00:30:28] Well written, robust.

Dan: [00:30:31] Yeah. The inventory policy can’t be overly broad. So, that backpack doesn’t go with him to the jail. I have to lodge it into our evidence locker because it’s too big to fit in the jail lockers.

Yeardley: [00:30:45] But you still can’t search it until you get a search warrant?

Dan: [00:30:48] Well, I could. If our inventory policy would have been a little more specific and clear, then I would have been okay.

Yeardley: [00:30:56] I see. So, you’re saying your department’s inventory policy was too broad, too lax, and therefore it didn’t protect you in searching this backpack without his consent.

Dan: [00:31:05] Right. That’s what they attacked, was the inventory policy. Technically, they attacked my search. But more broadly, it was because of the inventory policy, because that’s the reason why I was citing, but I also thought, I’m like, “To me, it’s no different than a jacket.”

Yeardley: [00:31:19] Did they update your inventory policy after that?

Dave: [00:31:22] Yeah. So now, it’s nothing gets lodged in our evidence locker without being searched, because we have two civilian employees that handle all of our evidence on the other side of the evidence locker, and you can’t put dangerous items into their secured area. It could be explosives, animals. I’ve found cats and bunnies in backpacks. And you think about not searching that backpack, it goes into evidence, and this guy gets released four weeks later. And now, you’ve got a dead bunny in the backpack.

Dan: [00:31:59] Perishable food.

Dave: [00:32:01] Uncapped needles.

Dan: [00:32:02] So, you have to address all that.

Dave: [00:32:03] All kinds of stuff.

Dan: [00:32:05] And firearms. If you have a loaded firearm in there, and somebody’s just handling the backpack and they hit the trigger, they could be shot. So, that’s why we have that. But I’ve been in not as many suppression hearings as Dave, but those just roll off the top of my head, those ones right there.

Yeardley: [00:32:22] It’s just part of the job. And so, you do your job well enough to protect against as many of those scenarios as you can.

Dan: [00:32:29] I had several run-ins with Arliss after that. And eventually, Arliss and I were on speaking terms. I always treat him with respect, but I didn’t take any of his shit either. Arliss died in a drunk driving accident where he was sober driving, and a drunk driver hit him.

Yeardley: [00:32:47] Oh, my.

Dan: [00:32:48] And he died.

Yeardley: [00:32:49] Wow.

Dan: [00:32:49] Yeah.

Yeardley: [00:32:50] That is some cruel irony.

Dave: [00:32:53] I’ve had a few instances. Most of them have been about statements, like in Wolf. In Wolf, I started talking to suspect about the computer, because I want to get into the computer. So, anything around that discussion at trial was cut out of my interview. So, you’d have these little skips that were two minutes long, because the defense attorney smartly attacked that part of my interview and said, “That’s going to be way too prejudicial for my client.” And the judge agreed. And so, we had to go through and basically scrub that long interview of any mention of those things.

Yeardley: [00:33:31] And they’re showing that interview tape to the jury.

Dave: [00:33:34] Correct.

Yeardley: [00:33:36] I mean, you do feel like these guys have done terrible, horrific things. The prejudice, you brought it on yourself.

Dave: [00:33:45] One of the most thorough, and for me, very annoying pieces of work was done by Lyssa.

Yeardley: [00:33:53] We should tell the listeners who Lyssa is. Lyssa is a phenomenal defense attorney in Dan and Dave’s jurisdiction. We actually have done an episode with her, and I can’t wait for you to hear it if you haven’t heard it yet. Anyhoo, Lissa takes no prisoners.

Dave: [00:34:10] Yeah. And the other attorney on our team, Brian, they went after one of my cases and wrote over a dozen suppression motions. They wrote motion after motion after motion, attacking the investigation. And I don’t take that personally. They’re doing what they’re supposed to do. And they did a good job of it. I mean, there were some motions where I was like, “Ah, this ain’t going to fly. No way.” They were successful in a couple of them, I don’t remember specifically. One was to get a trial. I had three victims. One of the victims was severed from the other two cases, but very thorough. Talk about billable hours. Lyssa and Brian, they went through a lot of ink. [Yeardley laughs] And I’ll never forget that, Brian and Lyssa, if you’re listening. [Yeardley laughs]

[00:35:00] Some guys, they miss the forest for the trees and don’t understand the big picture. There are situations where when I came out of detectives and went back to patrol as a sergeant, I would show up to people’s calls or traffic stops, and there were decisions being made that just absolutely boggled my mind. Somebody repeatedly telling an officer, “No, I do not give you consent to search my car.” He doesn’t have to say it six times. The first time was enough. And you can try all you want, different routes to get to searching the guy’s car, but he already told you no. So, when you keep doing that, all you’re doing is repeating your mistake. And anything that you seize out of that car is going to be inadmissible. And I don’t understand why that’s so difficult to grasp.

[00:35:55] And they’d say, “Well, even if the search is going to get thrown out, I still got his bag of drugs off the street.” And I’d say, “Great. What if during that search, you also came across a gun that was associated with a murder? That gun’s also gone too. So, how about you put your big boy pants on. Don’t be so stubborn, be smart, and do it the right way.” There’s no payoff for being dirty like that. Do it the right way. Live to fight another day. Don’t get potential evidence thrown out, because you don’t like when someone says no when you ask them for consent. That’s a contempt of cop issue that is a huge hot button for myself, and any other cop worth their weight. If you get upset and huffy, because someone tells you no, I used to call it contempt of cop. “Well, I’m going to find a way to fuck with this guy anyway.” You’re doing it wrong.

Dan: [00:36:51] I had an FTO very early, I’d probably been a police officer for less than eight weeks. His name was Mark. And I had a guy who refused to identify himself one time. He was leaving a house and I didn’t have a lawful right to detain him or identify him. I said, “Hey, man, what’s your name?” And he goes [chuckles], “Fuck you, pig.” That’s what he said to me. That was the first time I’ve been slapped across the face with an “F you, pig.” And I was like, “Hey, get back here.” And my FTO Mark, he goes, “What are you doing? You’ll come across that guy again. And the next time you’ll own him, but you don’t own him right now. So, watch him walk away. There’s nothing you can do about it.” And about a week later, I caught that guy breaking into a car and I was like, “Mark was right.” You always come across them again, but the tables have turned.

Dave: [00:37:46] And Dan going on the radio and was like, “Station One, can you run one for wants and warrants?” And he said, “Last of Pig, first of Fuck You. What’s your date of birth, Fuck You?” [Yeardley laughs] If you don’t take the job personally, there are times where those are really funny when you say, “Hey, man, what’s your name?” And he’s like, “Go fuck yourself.” “Oh, is that the common spelling?”

Yeardley: [00:38:08] [laughs] Sure.

Dan: [00:38:09] “Go Fuck, is that your first name? Or is it Go and then Fuck and then Yourself?”

Yeardley: [00:38:14] That’s so good. Oh, you guys.

Dan: [00:38:16] I will say the one thing that Miranda and these cases have done for law enforcement is if you are just relying on a confession before these cases, I can see how it might lead some police officers to being a little lazy when it comes to their investigations if you’re just going to rely on the confession. I got confessions fairly regularly, but you have to do an exhaustive investigation. You have to turn over every rock and find the evidence there, because what if your confession gets thrown out?

Dave: [00:38:50] Well, a confession has to be corroborated for it to be a valid confession.

Dan: [00:38:56] Absolutely.

Yeardley: [00:38:57] Same with DNA. Like DNA is a huge tool, but it’s not the one and only.

Dan: [00:39:01] Yeah. Absolutely. Sometimes, DNA can be explained away.

Yeardley: [00:39:05] Right. That is such a fantastic primer on how you guys stay within the bowling lane bumpers in order to do your job the right way. Thank you for that.

Dan: [00:39:17] You’re welcome.

Dave: [00:39:18] Enjoyed it.

[Briefing Room theme]

Yeardley: [00:39:22] Well, that was delicious. Here’s how it happened. Just like our main episodes, Small Town Dicks on Patreon is produced by Gary Scott and me, Yeardley Smith, and coproduced by Detectives Dan and Dave. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our editors extraordinaire are Logan Heftel and Soren Begin. And Logan also composed our Patreon theme music. So, that’s fancy. And finally, our books are cooked, and cats wrangled by Ben Cornwell. The team is forever grateful for your support.

[Briefing Room theme concludes]

[Transcript provided by SpeechDocs Podcast Transcription]

[Briefing Room intro]

Dan: [00:00:05] Hey, Small Town Fam. Welcome to the Briefing Room.

Dave: [00:00:11] Every day in police stations across the world, law enforcement officers begin their shift with briefing. Briefings are essential to communication and allow officers and command staff to discuss calls for service, crime trends, case law, wanted subjects, training opportunities and policy changes. Briefing rooms provide a setting where the team can speak with each other candidly and openly.

Dan: [00:00:35] We wanted to create a similar setting for our listeners. The Briefing Room series will include intimate and formal conversations about trending issues, viral videos, guidance and training from detectives, as well as commentary on other topics impacting law enforcement and the true crime community.

Dan and Dave: [00:00:52] So, welcome to the Briefing Room.

[Briefing Room theme ends]

Yeardley: [00:01:01] Today on the Briefing Room, we are continuing our discussion about case law and how it shapes the way police officers are expected to do their job. I have with me, Detective Dan.

Dan: [00:01:18] Hello, Team.

Yeardley: [00:01:19] Hello, you. And I have Detective Dave.

Dave: [00:01:21] I’m present as well.

Yeardley: [00:01:23] You are present. It’s so good to have you both. Okay, fellows, tell us about this famous case that further shapes the way police officers are supposed to do the job, some of the standards that you’re held to, these boxes that you’re expected to tick.

Dan: [00:01:43] Okay. Dave and I thought it would be a good idea to talk about Miranda v. Arizona. That is the case where we get the Miranda warning from. We’re also going to talk about a case that set the groundwork for Miranda.

Dave: [00:01:56] And this case is Escobedo v. Illinois. And this case happened in 1960. And I’ll just give you a brief rundown. So, this guy Danny Escobedo, his brother-in-law, a guy named Manuel, gets shot and killed. On January 19th, 1960, Manny gets shot. Escobedo gets arrested, initially, and refuses to make a statement to the police, and he gets released. About 10 days later, the police have another man in custody, a guy named Benedict. That’s his first name. While Benedict is in custody, he tells the police that Danny Escobedo is actually the shooter in this case, this murder of Manuel. So, the police go out on January 30th, and arrest Danny Escobedo again.

Yeardley: [00:02:51] And this is in Illinois?

Dave: [00:02:52] This is in Illinois. While transporting Danny Escobedo to the station, the police basically say, “Hey, Benedict dimed you out. It would be in your best interest to tell us everything that happened and be honest with us.” And Escobedo says, “Ah, yeah, I’m not going to talk to you guys until I have an attorney.” And the police are like, “Oh. Oh, okay.” And the police reasoning here for not providing him attorney is that he hadn’t been arrested yet. So, he didn’t have the right to counsel.

Yeardley: [00:03:26] Is that true?

Dave: [00:03:27] Well, that’s what they said back in the day. Obviously, there’s case law regarding this. So, that gets addressed at a later time. Escobedo’s attorney actually shows up to the police department, and the police don’t allow the attorney to talk to his client, Danny Escobedo.

Yeardley: [00:03:44] So at the same time the police are bringing Escobedo to the police department, the attorney shows up and the police say, “No, you can’t come into the interview room”?

Dan: [00:03:52] Correct.

Dave: [00:03:54] And this is stuff that I saw your reaction on the Zoom that your eyes opened very wide and you’re shocked. We have to remember that the way they operated back then is not how we operate now.

Dan: [00:04:05] The police repeatedly refuse the attorney to have contact with his client, Escobedo. The police and the prosecutor proceed to interview Escobedo for 14 and a half hours. Escobedo repeatedly asks to speak to his attorney, they refuse. And during this 14-and-a-half-hour interrogation, Escobedo begins to make a couple of statements indicating his knowledge of the crime. They go to trial, and Escobedo gets convicted of murder. Obviously, they appealed this decision, and basically said that he had the right to counsel, and it was refused, and he should get another trial. And Illinois Supreme Court agreed. Illinois Supreme Court reverses the conviction. The state petitioned for another rehearing and the court then affirmed the conviction, so overturned their earlier decision that the confession should be inadmissible. They reversed and say, “Okay, the conviction is good. He should be convicted of murder.”

Yeardley: [00:05:15] Okay, can you put that in layman’s terms?

Dan: [00:05:18] Originally, Escobedo gets convicted of murder. The court says, “Yeah, the confession is good.” He appeals to the Illinois Supreme Court. Initially, the Illinois Supreme Court says, “No, the confession is inadmissible,” and they reversed the conviction. So, Escobedo is not convicted at this point. The state of Illinois petitions for a rehearing with the Illinois Supreme Court, and they come out victorious. So, they reaffirm the conviction. So now, Escobedo is convicted again,

Yeardley: [00:05:53] And thereby saying that his confession was admissible.

Dan: [00:05:57] Yes, I don’t know why they went back and forth. Escobedo then appeals to the US Supreme Court, and in a 5-4 decision, which surprises me– again, we’re talking about 14 hours, he was denied counsel, Escobedo. In a 5-4 decision, the US Supreme Court overturns the conviction.

Yeardley: [00:06:17] And says he is free again?

Dan: [00:06:20] “He is free. You cannot use that confession. It’s inadmissible.” So, let’s just fast forward a few years. Following the Supreme Court’s decision, which happened in 1964, Escobedo ends up receiving 12 felony convictions including federal charges of selling. He’s also convicted of some child sex abuse crimes. While Escobedo is free on bond with those federal charges, Escobedo pleads guilty to attempted murder and get sentenced to 11 years in a separate case. So, that’s just a little nugget. That takes us to March of 1963 and a guy named Ernesto Miranda was arrested by the Phoenix Police Department.

[00:07:05] Phoenix PD had circumstantial evidence on Miranda regarding the kidnapping and rape of an 18-year-old girl. And about two hours of interrogation by the police produces a written confession, a signed confession from Miranda stating, “I do hereby swear that I make this statement voluntarily and of my own free will with no threats, coercion or promises of immunity. And with full knowledge of my legal rights, understanding any statement I make may be used against me.” The issue is that Mr. Miranda was never advised that he had any rights, that he had the right to counsel that, he had the right to remain silent and not make a statement at all. So, that’s the crux of this case.

Attorney: [00:07:57] The questions here are whether antecedently, to the giving of his confession, the police were constitutionally obliged to give warning of a right to remain silent and a right to counsel?

Yeardley: [00:08:18] Does that mean that those basic rights had already been established based on the Escobedo case?

Dan: [00:08:26] They had. There was a basic understanding that people have a right to counsel. Now, in this case, Miranda, to my knowledge never said, “I want to speak to a lawyer.”

Yeardley: [00:08:37] But he also wasn’t advised that he had the right to remain silent, which is part of the Miranda reading of rights.

Dan: [00:08:43] Correct, and that he had the right to counsel also, which was established in the Escobedo case that he has a right to counsel, but Miranda was unaware of those things. So, what the court did, initially, they go to trial, Miranda goes to trial, and he gets convicted. He gets sentenced to 20 to 30 years on each charge with the sentences running concurrently, which means if you get two 20-year sentences consecutively, you’re going to serve 40. Concurrently is you’re serving both of those sentences at the same time. Miranda appeals to the Arizona Supreme Court, claiming that his confession is not fully voluntary and should not have been admitted into the court proceedings. The Arizona Supreme Court affirmed the trials court decision to admit the confession.

Yeardley: [00:09:31] So, they don’t agree with Miranda’s appeal?

Dan: [00:09:35] Correct. Basically, they say, “Well, you didn’t specifically request an attorney. So, sorry, that’s on you.” But again, he was not aware of his rights. We look at this in a different lens now, decades later, obviously. Miranda then appeals that decision up to the US Supreme Court. In 1966, the Supreme Court issued a 5-4 decision in Miranda’s favor, that overturned his conviction and remanded his case back to Arizona for a retrial. This had a ripple effect, even through the Supreme Court. I mean, that’s a close decision, 5-4. The majority in this case of the court ruled that because of the course of nature of the custodial interrogation by police, and the justice, Earl Warren, cited that there are police training manuals that had not been provided during the court proceedings, that no confession could be admissible under the Fifth Amendment self-incrimination clause and the Sixth Amendment right to an attorney clause, unless a suspect has been made aware of his rights, and then the suspect waived those rights.

Attorney: [00:10:49] We are compelled as a matter of federal constitutional law to hold on the basis of the Escobedo case, that these warnings must be given. These rights must be waived. Otherwise, a statement, no matter how free and voluntary it may otherwise be, may not be received in evidence.

Yeardley: [00:11:08] Okay, so in laypersons terms, unless you specifically say to the person, “You have the right to remain silent and the right to an attorney,” and they say, “I understand that, and I waive my right to both of those things,” whatever comes out of their mouth is inadmissible in court.

Dave: [00:11:27] Yeah, it’s fruit of the poisonous tree. So, just going back to the court’s decision, it was 5-4. The four justices who dissented in this case that said, “No, I think the confession is good,” they believe that once this warning went out there that nobody would ever talk to the police. So, that’s where their minds went, and they didn’t think that that was in the best interests of the public. They’re thinking in a more broad sense that nobody’s ever going to confess now, and that we’re going to have problems.

Dan: [00:11:59] They had similar concerns at the Escobedo trial.

Attorney: [00:12:03] It should be very clear that we’re not talking merely about an opportunity to consult counsel. It is not the absence of consultation with counsel that is important. It is the absence of counsel that is important. That a man under indictment who clearly has the right to counsel who was questioned at all by the police, no matter how many times he had consulted with counsel since his indictment, if the confession came in the absence of counsel, the confession would be incompetent, which means essentially, there will be no more confessions.

Dan: [00:12:37] I will say this. Law enforcement was forced to change their tactics. And I don’t think Miranda or Escobedo has had really any impact on the amount of confessions we get. So, just a little sidenote to this case, Miranda gets retried in 1967.

Yeardley: [00:12:57] The actual man named Miranda, not the case?

Dan: [00:13:00] Yes, the actual dude. So, Miranda goes back to trial in 1967 on the original kidnapping and rape case. After it had been thrown out, they do a retrial. This time, the prosecution presents other evidence and brings other witnesses forward. Miranda gets convicted again, absent the confession. He gets convicted in ’67, sentenced to 20 to 30 years. So, 20 to 30 years, that’s his sentence. The Supreme Court of Arizona reviewed that case and affirmed the conviction. The US Supreme Court said, “Now, if you guys did everything you said you were going to do, then we’re good. We’re not going to review that case again.”

Yeardley: [00:13:40] The conviction stands.

Dan: [00:13:42] Yeah. Miranda gets paroled in 1972. So, he gets sentenced to 20 to 30 years and he serves just under 5 years in prison for the kidnapping and rape of an 18-year-old girl. He ends up going back to his old neighborhood. And now, all these police officers have Miranda cards with the Miranda warning on them that you’ve read to people when you take them into custody. And cops are going around Miranda having him autograph their Miranda cards.

Yeardley: [00:14:09] Stop it.

Dan: [00:14:10] It’s unbelievable. I wouldn’t want to talk to the guy. He’s a rapist and he’s a kidnapper. I’m not going to have him autograph my Miranda card. Anyway, that happens for a few years. In an ironic twist of fate, in 1976, Miranda goes to a bar one night, gets in a verbal argument with a guy that turns physical, and he gets stabbed to death. And the suspect in that case gets arrested, but due to a lack of evidence against him, he gets released and he’s never tried for.

Yeardley: [00:14:40] That is ironic.

Dan: [00:14:44] Anyway, Dave has talked about when and how we use Miranda.

Dave: [00:14:49] The gist is this is why we have Miranda warning, is that the court said, “We have to give that upfront to anybody we’re accusing of a crime and who is at risk of potentially providing incriminating information about themselves. We have to frontload that interview with, “Hey, I want to make sure you’re aware that you don’t have to speak to me, basically.'” And this is how the police have had to operate ever since.

Dan: [00:15:16] The court outlines this and says, “Anytime a person is in custody, prior to their interrogation, they must be clearly informed that they have the right to remain silent, that anything they say will be used against them in court. They must be clearly informed that they have the right to an attorney, and have the attorney with them while they’re being questioned. And that if you cannot afford an attorney, an attorney will be provided to you by the state, at no cost.” Those are your rights.

Now, the other side of that is, if a suspect actually chooses to exercise those rights, the right to remain silent, the right to an attorney, etc., the interrogation must cease at that point until the attorney is present. And then obviously, you must give the person time to confer with their attorney. So, that all makes sense. That’s where we are today regarding interviews, and when we talk about Miranda, mirandizing, “Did you give him Miranda? These are all the terms that we use in law enforcement.

Dave: [00:16:18] This is background for the discussion we’re about to enter is when are situations that we are providing a suspect with the Miranda warning?

Yeardley: [00:16:28] Because if somebody is in your custody, who you are just chatting with, there’s a thing where you don’t have to read the Miranda because you haven’t actually accused them or suspected them of a crime?

Dave: [00:16:46] Well, that’s what we’re going to talk about, is when do you provide Miranda and when do you not need to provide Miranda. And it’s all about time, place, and circumstance, and what a reasonable citizen or person would feel about whether or not they are being seized, like detained, stopped, etc. So, this again has provided the boundaries or the railings for where police can go with interrogation and questioning. We talk about a situation where you say, “Hey, did you mirandize?”, like, say a patrol is out with a suspect, and the detective gets called in, one of the first things I’m going to ask is, “Has he been advised and Miranda?”. I want to know that upfront, because if he already has, I’m not required to do so.

Yeardley: [00:17:34] You don’t have to readvise him of that.

Dave: [00:17:36] Right. If it was a day prior that they contacted him, I’m going to readvise him. But if we’re talking about a half an hour, I don’t have to readvise. Not every person that comes across a suspect has to advise him of his rights. If he’s been advised, a reasonable person would say, “Oh, nothing’s really changed about my circumstances. I knew that I have the right to remain silent, and an attorney, etc.” So, there are conditions, there are cases where I’m not required to advise someone to Miranda. And this is kind of the discussion. I always love when people say, “You never advised me of my rights.” “Well, I don’t have to in certain situations. One of those being, if I’m not going to ask you any questions, I don’t have to advise you have your rights.” You can be under arrest and never get the Miranda warning.

Yeardley: [00:18:22] Really?

Dave: [00:18:23] Yeah, absolutely.

Yeardley: [00:18:24] You can put me under arrest, not ask me any questions. And in that case, you don’t have to read me my Miranda rights?

Dave: [00:18:30] Exactly. Miranda applies when I am asking interrogatory questions that put you at risk of incriminating yourself. So, it’s a misnomer. People are like, “Oh, this arrest is going to get thrown out because they never advised me of Miranda.” “Well, I wasn’t asking you any questions. I don’t have to.”

Dan: [00:18:48] Now, if a suspect starts talking to you about the case, then yes, you need to mirandize them.

Yeardley: [00:18:54] So you need to interrupt them and say, “Before you go on, I need to advise you of your rights”?

Dan: [00:18:59] Exactly. And then there are some situations where Miranda may or may not apply. I’m just thinking back on cases. You’ve seen video of interrogation rooms, or interview rooms or police departments. I can have a conversation with a suspect in that room and not have Miranda, and there are some specific ways to do that. One is, leave the door open.

Yeardley: [00:19:25] Like physically?

Dan: [00:19:26] Yeah, physically leave the door open. I would also sit on the far wall of the room, so I am not between the suspect or the person I’m interviewing and the door.

Yeardley: [00:19:39] Talk about why those two things are important.

Dan: [00:19:42] Well, if I’m sitting between the door and the suspect, they’re not going to feel like they’re free to leave if I’m between the door and the suspect. If I switch the seating in that room, it’s easier for me to articulate that they were free to leave. I wasn’t between them in the door. The door was open. I had told the suspect that they were free to leave. But the other side of that is if I’m going to start asking incriminating questions, I need to mirandize this person. So, if you’re just having a general informational interview, say they’re not a suspect at this point at all, I’m just talking to them, trying to get some background, I think they’re a witness. But all of a sudden, they start making incriminating statements. Now, I have to mirandize them.

Yeardley: [00:20:24] And it wouldn’t have to be incriminating themselves, or could it be incriminating somebody else?

Dan: [00:20:29] It’s self-incrimination. So, the Fifth Amendment. Other situations, Dave’s had this happen many, many times. There is specific language that we have to touch on regarding an invocation. So, if somebody says, “I wonder if I should speak to an attorney?”, do you think that that is a clear invocation or a request to speak to an attorney?

Yeardley: [00:20:52] I don’t think it’s a clear invocation. I don’t think it’s even a request to speak to an attorney. I think it’s wondering out loud.

Dan: [00:21:01] And the courts agree with you. Dave, why don’t you talk about some different situations where you’ve had this happen?

Dave: [00:21:07] Our first episode ever, Don’t Go!, suspect in that case was speaking to Detective Don. And he made some sort of comment about, “Well, I don’t have an attorney.” And at trial, that became an issue at a suppression hearing, basically saying, “Well, he said the ‘attorney’ word and you guys continued to question him.” And the argument that Prosecutor Eric made was, there are specific boxes suspects have to check for it to be an invocation of their rights. And in this case, he made a statement. It’s not unequivocal, where you say, “Oh, he clearly just invoked his right to remain silent,” or, “He clearly requested an attorney.” So, you have these situations where, again, they’re nuanced. And those cases that happen in an interview room aren’t going to be addressed for months and months down the road until they reach the courtroom.

So, you think about the impact something very simple, like a contact out on the street between a patrol officer and a suspect, that can have a huge impact on the case when it finally makes it to trial. So, very complex. It’s easier just to get Miranda out of the way when you start talking to somebody. But for me, there were times where I was worried that once I bring up the subject matter that I want to ask you questions about, especially in my caseload of child abuse and sexual assault, that I don’t want to give you Miranda if I don’t have to.

[00:22:45] There are times where I would interview somebody on their own turf, go to their house, ask them, “Hey, I’m Detective Dave from X police department. I’d like to speak to you. Are you available right now?” I’m on their turf. I can let them know I’ve gotten a confession without Miranda before by just saying, “You’re not under arrest, and regardless of what we talk about during this conversation, you will not be under arrest at the end of our conversation.” No reasonable person can say, “I still thought I was going to be under arrest.” “Well, what did the detective say to you?” “He told me that I wasn’t under arrest. And that under no circumstances would I be under arrest at the end of the conversation, regardless of what we talked about.” So, I’m letting that person know you’re not under arrest, you’re not in custody, you’re on your own turf, you are free to leave at any time. I used to put in my narratives. I usually had a whole paragraph about kind of what the interaction was like. The tone, is it conversational and polite, or is it confrontational? If I’m going to get confrontational with somebody, I’m going to provide them with their Miranda warning.

Yeardley: [00:23:59] And these are the part of your reports that you had to submit to prosecutors?

Dave: [00:24:04] Yeah.

Yeardley: [00:24:05] So, you’re setting the scene, is what you’re saying?

Dave: [00:24:07] Exactly, because after having gone through suppression hearings, you start to see where the arguments are made by defense attorneys. And a defense attorney says something like, “Well, based on where you are situated in the room, did my client have free access to the door to be able to leave?” That’s what Dan’s talking about. “I left the door open, I put them closest to the door, so they had unobstructed path to an exit to be able to leave that room.” Situations where I would interview somebody at their house, did they invite me in, or did I just step in without being invited? Big difference. Did I limit their movements by patting them down and requesting that they only stay in the room where we were speaking.

I had a case where a suspect slapped a two-year-old girl and left a huge handprint on the side of her face. I went to his house to interview him. He invited me into his apartment. He had free rein of his apartment, even though that was a strategic thing for me. I was worried, he kept walking into this back room still talking to me, I can hear him, but he’s in the back room. Now, that’s a huge risk to me if he’s grabbing a gun from under his pillowcase. But it’s a tactical and strategic decision for me. I did not want to mirandize this person. He invited me into the house. I didn’t limit his movements. I never patted him down.

[00:25:38] Nobody can say I, representative of the government, was overstepping my bounds. This man invited me into his house, subsequently confessed. Never gave him Miranda, never became an issue at trial either, because everyone’s like, “Oh, should we argue this? Detective Dave wrote a whole paragraph about what was going on to set the scene.” So later on, the attorneys know suspect’s not being bullied by Detective Dave. It’s actually quite the opposite. He put himself at quite a disadvantage by going into the suspect’s house, letting suspect roam the house freely. I wasn’t being overbearing. I was just there to talk to him.

[00:26:19] So, you have situations where you have to mirandize. There’s been other situations where I’ve been in an interview, and the tone turns at some point and becomes confrontational, or I start calling somebody out about the lies that they’ve told me. Without ever having given them Miranda, I start confronting them on lies, and facts and circumstances. And then, I recognize, “Hey, this conversation turned the corner, I now need to provide you with your Miranda rights.” So, it’s fluid.

Yeardley: [00:26:51] Interesting. And would that have the effect of where they would clam up or– obviously, it’s case by case, but did you have situations where they were like, “Fuck you, I want a lawyer,” and you’ve changed the tone of it?

Dave: [00:27:03] Absolutely. There are times where once you get Miranda, somebody just says, “Nope. I’m not talking to you,” because they recognize the path of that conversation is not good for them. And now, he just gave me Miranda, and that’s an “oh, shit” moment for people. So, you have to massage those situations.

Yeardley: [00:27:21] But you’re allowed to use everything that came prior to that Miranda warning, are you?

Dave: [00:27:26] Absolutely, yeah. When I would talk to other police officers, or other police officers would watch my demeanor in an interview, I learned that from the veterans, the Dons of the world. Sergeant Dave. Detective Jeff, one of the most skilled interviewers I’ve ever watched. Very, very good. Knows how to read the room, knows how to command an interview, and how to direct where the conversation goes. Those are the guys that I learned from. And then, you learn more during a suppression hearing than anything, because you see where defense attorneys go with. “Well, the detective did this, and the government did this,” me being the government. So, really valuable lessons are learned by officers in suppression hearings, and it always frustrated me if a confession or a piece of evidence was thrown out as a result of a suppression hearing, officers will go, “Oh, that’s bullshit. i got screwed on this.” It’s like, “Well, you also lost your case. So, maybe make an adjustment. Are you going to change the way you do things, and are you going to learn from this? Or are you going to be bitter, and continue to operate the way you operated in this case, and it got shoved up your ass? Make an adjustment. Get better.”

Dan: [00:28:55] The easiest barometer for Miranda is, are handcuffs on the suspect? Because if they are, and you’re going to be talking about the case, you need to mirandize them.

Dave: [00:29:05] Right. The test is, would a reasonable person feel free to leave? That’s the test. And it’s always that ‘reasonable’ word again. Would a reasonable person, given these circumstances, feel as though they are free to leave? If the answer is most people would feel like they are not free to leave, and I’m asking them questions, I have to give Miranda. Have to. That’s why it’s so important to frontloaded with, “You’re not under arrest. And regardless of what we speak about today, you’re not going to be under arrest at the end of this conversation.”

Yeardley: [00:29:38] I might come back tomorrow and put handcuffs on you, but after this conversation when I get up and go, you’ll still be free.

Dave: [00:29:44] Right. And people might think that’s tricky. Have I violated your rights? I’m playing by the rules that are given to me. So, I love when people go, “Well, the cops lied to him in the interview room.” I can do that. I’m playing within the rules. I can lie to you, I can bluff.

Dan: [00:30:01] Suspects lie to us all the time.

Yeardley: [00:30:02] They lie to you guys all the time. I’m just saying that.

[laughter]

Dave: [00:30:05] A lot of people think that that’s dirty cop work. The real world is not a vacuum. These are very fluid situations. There are times in an interview where you are like, “I really want to hit him with this fact right now, but I’m going to ask him four more questions before I do it.” It’s all strategy. And it’s thinking on your feet and being able to move with the conversation or redirect the conversation down the path that you want it to go. But cops need to be in charge in that interview room. If that dynamic changes and you’re on your heels, you’re going to lose that negotiation. And Dan was in sales for a long time, Dan recognizes that too. If you want to win, which for us, the win is get the confession, you’ve got to be in charge of that interview room. And it doesn’t mean that you’re pounding your hand on the table, it just means that you are intelligently and strategically pushing that interview down the path that you want it to go to.

Dan: [00:31:05] That said, there are plenty of situations that I’ve been in and that Dave has been in, you get a suspect in an interview room, and they say, “You know what? I don’t think I want to talk to you. I’m not going to talk to you.” Or, “I think it’s best if I had an attorney now.” I would say that’s an unequivocal invocation of their rights.

Dave: [00:31:26] Very clear.

Dan: [00:31:27] And it’s okay to ask clarifying questions too. So, you can say, “Okay, you just brought up your attorney. I just want to make sure that you’re stating at this point that you do not want to continue the interview, and that you would like your attorney present. Are we clear on that?” And they would either say yes, or sometimes they would say, “Well, I mean, it depends on what you’re going to ask me.” Now, that’s different. What we have to do in law enforcement is we have to ask clarifying questions, to say, “Well, what questions am I asking that you feel like you need an attorney on, so I won’t talk about those things, and we’ll go a different route with this interview?” Because that’s going to come up at a suppression hearing, for sure. Absolutely will come up. So, you have to ask clarifying questions. That way, you can show the court and show the defense attorney and everybody else in that room, “I just wanted to make sure that we were both on the same page, the suspect and I, during this interview that we were on the same page. And that I recognized that there was the mention of an attorney, and this is important, and I need to touch on this.”

[00:32:37] I’ve also had other situations where someone says, “I’m not going to talk to you. No matter what you ask me, I’m not going to talk to you.” That’s a clear invocation. I say, “Okay, well, I’ve got to go do some paperwork at my desk. I’m going to lock you in this interview room. You’re not free to leave. You’re under arrest at this point. If you change your mind and you want to talk to me, just knock on the door. Or if you need something, knock on the door. Can I get you some water? When’s the last time you used the restroom?”

Yeardley: [00:33:03] So, if they say I want an attorney, and then they knock on the door and say, “I changed my mind. I want to talk to you,” is that a sticky wicket for you?

Dan: [00:33:13] It’s not, but you have to ask clarifying questions. And you’d probably advise them up Miranda again on a recorded line. And I would say, “So, earlier when we spoke you invoked your right to an attorney. Now, you seem to have changed your mind. We need to talk about this, about that fact that you have now changed your mind.” And you ask very specific clarifying questions. “Do you now wish to speak to me without an attorney present?” “Yes.”

Dave: [00:33:43] Have you been threatened, coerced, intimidated, etc., in any manner, which made you change your mind?” You want to ask those questions too, because those are going to be brought up, they are always brought up. This thought that the police being heavy handed were in my clients face for six hours. I want to ask that upfront. So, it’s already answered by the time it gets to a suppression hearing. We talk about the dance.

[00:34:09] I recall two great examples of this. One is the episode, Wolf, where when I started probing suspect for information about his computers and his electronic devices. He said, “If we’re going to go down that path, then I’m going to want an attorney.” I had to ask clarifying questions to cover my ass saying, “I want to clarify that you will continue speaking with me and you don’t feel like I’m violating your rights currently, but you’re telling me that you don’t want to speak about computers and child sex abuse material, that kind of stuff.” “Yes, you have that correct, detective. I don’t want to talk about that. But I’ll talk to you about all this other stuff.”

[00:34:49] I had another situation where I remember being on patrol, daytime, and recall I was in a fairly busy intersection, and a vehicle was late going through the light going the opposite direction. And I remember seeing that going, “Should I go pull that guy over?” But I would have had to cross three lanes of traffic in the middle of a greenlight. And I was like, “It’s just not worth it. That’s potentially dangerous. So, I’m going to let it go.” But I remember the guy looked like, “Oh, shit, I just ran a red light, and there’s a cop in the intersection. Awesome.” So, I’ve got a great look at this guy. Two minutes later, I hear there was a vehicle just stolen, and it was from a convenience store about three blocks away. So, I’m like, “Oh, I just saw that truck. That’s the one who ran the light going the opposite direction.” Flip around, start driving back, trying to backtrack where the suspect was going. And I see the guy. I see him running now on the sidewalk. And he’s running back towards where he came from. Not in the car anymore. And I’m like, “That’s the same guy. That’s him.” I drive another block. I see the truck has been ditched. He probably saw me in that intersection and went, “Oh, shit. I stole a car. The cops are right there.” The victim in this case went into the convenience store and left the keys in the car, left the car running, “I’m just going to be in there for a few minutes.” This guy’s like, “Oh, sweet car running, I need to get across town.” Hops in, drives away with it. It just so happens I was two blocks away in an intersection when he did that. Lucky, I got lucky.

[00:36:30] I remember seeing this guy, and I turned around. He sees me turn around. He now runs back the other direction. So, we’re doing this cat and mouse thing. [Yeardley chuckles] And I finally just pull up on him as he’s crossing the street, and I put him at gunpoint because I’ve got a felony here with a stolen vehicle. I held this guy at gunpoint in the middle of an intersection, traffic stopped all around me. I’ve got him proned out, face down, arms out, legs out. And I start advising him of Miranda, in the middle of street at gunpoint because I wanted to ask him, “Whose car was that that you just took?” So, I said, “Weren’t you just driving? Why are you running now?” This is after Miranda, at gunpoint, interesting situation. And he said, “Oh, it’s my friend’s truck back there, and it broke down. So, I was running back to the store to get my friend.” I’m like, “Okay, this is bullshit.”

Yeardley: [00:37:31] [laughs]

Dave: [00:37:32] I said, “Who’s your friend?” “Oh, his name is– I don’t even remember.” I said, “Did you steal that truck?” And he said, “I don’t want to answer that. I want to remain silent.” And I said, “You don’t want to answer that question and want to remain silent? Does that mean that you won’t answer any more questions?” He goes, “No. If you ask me if I stole that truck, I don’t want to answer that question. But I’ll talk to you about anything else.” So, this guy’s confession– well, wasn’t a confession, his bullshit, was all blessed after a suppression hearing because I clarified with him, given at gunpoint, fairly coercive, I clarified with him that he just didn’t want me to ask the question about if he stole the truck. All the other stuff was still in play. And I remember one of the attorneys on that case came to me and he said, “That was some brilliant maneuvering there in recognizing that you could clarify and still kind of go down that path.”

Yeardley: [00:38:31] So now that we have Miranda and you say, “You have the right to remain silent, and anything you say can and will be used against you in the court of law and the right to an attorney,” why would anybody ever speak to you without an attorney?

Dan: [00:38:45] Well, part of is it’s a sales job. After you mirandize somebody, you obviously ask them, “Do you understand your rights?” 99% of the time they say yes. Sometimes, they have some other questions regarding the Miranda warning, which I’m happy to answer. But then, you say, “Okay, so this is what we’re dealing with today. Tell me what’s going on, man.” It’s a conversation. It’s not, “Why did you do this?” It’s a conversation that you have with somebody. And again, your demeanor, the way you deliver questions, the certain questions that you ask, have you built rapport with somebody? Those are all factors that weigh into whether or not somebody is going to give you a statement.

Dave: [00:39:27] I have been convinced that I was going to arrest someone whether or not they spoke to me at all. And they chose not to invoke, and by the end of that conversation had changed my mind. So, it cuts both ways. There are times where giving a statement actually helps out. Especially if it’s like a self-defense-type thing, I’ve been convinced where I’m like, “Oh, this guy’s going to jail.” And then, you talk to him and he’s like, “Oh,” you find out that there’s a lot of things that were left out by the complaining party. And now, you’re able to explain the circumstances and make that now a reasonable use of self-defense.

[00:40:10] I’ve been convinced on rape cases by a suspect who I never thought was going to give me a statement. And then after a half an hour, you’re like, “Okay, now I don’t have probable cause anymore.” It works both ways. So, Miranda is not a black and white issue. There’s a lot of gray area and nuance, as with any of these other cases that we’ve talked about, that you’ve got some leeway and some agility inside those conversations. But once it’s an unequivocal invocation, “I want to remain silent. I don’t want to speak to you. I want an attorney, we’re done. And unless you reinitiate contact and a desire to speak to me, we’re going to be done. I’m never going to get another shot at speaking to you about it.”

Yeardley: [00:40:56] Unless the suspect reinitiates. You can’t. Dave can’t.

Dave: [00:41:00] Correct. The suspect has to reinitiate.

Yeardley: [00:41:03] It’s so interesting and so nuanced and complex. Let’s put a pin in our case law lesson right here. Small Town Super Fam, thank you so much for joining us here on Patreon. You guys are the best. We’ll have another Briefing Room in two weeks, so don’t miss it. We’ll see you next time.

[Briefing Room theme]

[00:41:29] Well, that was delicious. Here’s how it happened. Just like our main episodes, Small Town Dicks on Patreon is produced by Gary Scott and me, Yeardley Smith, and coproduced by Detectives Dan and Dave. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our editors extraordinaire are Logan Heftel and Soren Begin. And Logan also composed our Patreon theme music. So, that’s fancy. And finally, our books are cooked, and cats wrangled by Ben Cornwell. The team is forever grateful for your support.

[Transcript provided by SpeechDocs Podcast Transcription]

[Briefing Room intro]

Dan: [00:00:05] Hey, Small Town Fam. Welcome to the Briefing Room.

Dave: [00:00:11] Every day in police stations across the world, law enforcement officers begin their shift with briefing. Briefings are essential to communication and allow officers and command staff to discuss calls for service, crime trends, case law, wanted subjects, training opportunities, and policy changes. Briefing rooms provide a setting where the team can speak with each other candidly and openly.

Dan: [00:00:35] We wanted to create a similar setting for our listeners. The Briefing Room series will include intimate and formal conversations about trending issues, viral videos, guidance, and training from detectives, as well as commentary on other topics impacting law enforcement and the true crime community.

Dan and Dave: [00:00:52] Welcome to the Briefing Room.

[Briefing Room theme ends]

Yeardley: [00:01:00] Today on the Briefing Room, we thought it would be really informative to talk about some case law, which greatly informs how police officers are expected to do their jobs out in the field. So, I have with me, Detective Dan.

Dan: [00:01:17] Hello, Team.

Yeardley: [00:01:18] Hello, you. And I have Detective Dave.

Dave: [00:01:22] Hello, Small Town Fam.

Yeardley: [00:01:25] All righty, Dan. Class is in session. Start us off.

Dan: [00:01:29] Basically, when we talk about case law, it’s an ongoing curriculum for police officers. It’s a constant update for us. Every year, we have training on new case law, and on case law that’s maybe been affected by other decisions. So, for this episode, the two cases we’re talking about here are Tennessee v. Garner, and Graham v. Connor. Now, Tennessee v. Garner, this case happened in 74. It wasn’t ruled on until 1985 by the Supreme Court, but this case has to do with the right of the police to shoot a fleeing felon. So, we’ll talk about that one. And the other case is Graham v. Connor, this case was ruled on by the Supreme Court in 1989. What this case did was it created a three-prong test for officers’ use of forced decisions.

Dave: [00:02:29] And it’s the basis of how officers are judged in use of force situations today, in 2022. These two cases are landmark decisions that have survived all kinds of challenges over the years, going through, being reevaluated by the courts. They’ve all been affirmed. These are solid decisions, and they’re not going anywhere. This is how cases are evaluated by district attorneys who are examining whether or not the police used a reasonable amount of force.

Dan: [00:03:03] What these two cases basically revolve around is reasonableness, and that’s a word that we use in law enforcement quite frequently. Every use of force has to be reasonable. When we talk about how officers react and the decisions they make, we use the reasonableness test to gauge whether or not a similarly trained officer with similar experience would make decisions similar to the officer in question. So, these cases and other cases provide a framework for how police officers do what they do out on the street every day. The first one I want to talk about is Tennessee v. Garner.

Judge: [00:03:51] We’ll hear arguments first this morning in Tennessee against Garner.

Dan: [00:03:55] This happened in Tennessee back in 1974.

Person: [00:03:59] On the evening of October 3rd, 1974, the police received the call to come to the scene of what was an apparent breaking and entering.

Dan: [00:04:08] These officers arrive at the house. One of them goes behind the house, and he sees a suspect running across the yard. He gives chase. The suspect encounters a six-foot-high chain link fence. The officer afterwards says, “I didn’t believe he was armed.” That’s important. He confronts the suspect whose name is Garner. His last name is Garner. Garner disregards the officer’s commands to stop and comply. Garner does not comply, Garner begins going over the fence. The officer pulls out his weapon and shoots Garner in the back of the head and it kills him.

Person: [00:04:54] There are two issues in this case. The first deals with the constitutionality of state statute with regard to the use by police officer of all necessary means to affect an arrest. The second is one of the municipality’s use of deadly force to apprehend a fleeing burglary suspect, after exhausting all other reasonable means is constitutionally permissible.

Dan: [00:05:22] Back then, in Tennessee, they had a state statute that you could shoot fleeing felons. Even in the state that Dave and I worked in, there was a fleeing felon statute that you could use deadly force. That statute is trumped by this case law, Tennessee v. Garner.

Dave: [00:05:40] Because this is Supreme Court case law.

Dan: [00:05:43] Yeah, this is Supreme Court case law. It actually went through a few lower courts. And basically, the suspect, in this case, he was 15 years old, he gets shot in the back of the head and he dies on the way to the hospital. They find $10 and a purse in his possession that were taken from the house during the burglary. And police officers now, we recognize this use of force as being completely unreasonable, that you can’t just shoot somebody because they’re running from you. But this is the case law that really set that.

Yeardley: [00:06:21] Just to be clear, because of this case, Tennessee v. Garner, you are now no longer allowed to just shoot a fleeing felon. Is that so?

Dan: [00:06:33] Correct.

Yeardley: [00:06:34] Okay.

Dave: [00:06:35] The Tennessee statute back in 1974 stated, “If after notice of the intention to arrest the defendant, the defendant either flees or forcibly resists, the officer may use all the necessary means to affect the arrest.”

Yeardley: [00:06:52] So, that would include everything.

Dan: [00:06:54] That’s pretty all-encompassing right there.

Yeardley: [00:06:57] Yes, but one would assume that you would try several other tactics, all the other tactics, to stop the fleeing felon before you resorted to deadly force.

Dan: [00:07:08] Yeah.

Dave: [00:07:09] The suspect’s father bring suit and says that this was excessive force, and I agree. At first, the courts side with the police and the prosecution and the state on this, and say, “No, we have a statute that says he can use any means to affect the arrest.” It then goes to the Court of Appeals, and a Court of Appeal says, “The killing of a fleeing suspect is a seizure for the purposes of the Fourth Amendment.”

Yeardley: [00:07:43] Can you explain what that means?

Dave: [00:07:45] The Fourth Amendment has to do with search and seizure. The Fourth Amendment is why we have to write search warrants for properties when someone has a right to privacy in that dwelling.

Person: [00:07:55] The narrow question presented is whether a state law authorizing the killing of an unarmed and nonviolent fleeing felon by police in order to prevent escape constitutes a reasonable search and seizure of the person.

Dave: [00:08:06] The broader definition of seizure is basically, if I arrest you, that’s a seizure. If I put my hands on you, that’s a seizure. Even if I limit your movement without putting my hands on you, like to detain you, by giving you a verbal command, “Stop right there. Sit down,” I am seizing you at that moment.” When you shoot somebody, you have now disabled their ability to get away, and you have effectively seized them for all intents and purposes. That’s what we mean by seizure.

Dan: [00:08:40] So, the Court of Appeals ruled in this case that the killing of a fleeing suspect is in fact a seizure, but it’s only lawful when it’s reasonable. It’s only constitutional when it’s reasonable.

Dave: [00:08:58] You’ve gotten this case, the officer admitting that he recognized the suspect is not armed and did not believe him to be armed. So, this officer knows that this person is not armed with a weapon. But that officer is also covered by this then existing statute in Tennessee, which says, “You can shoot a fleeing felon.”

Dan: [00:09:24] This case eventually goes to the Supreme Court and the Supreme Court basically says, “The use of deadly force against the subject is the most intrusive type of seizure possible because it deprives the suspect of his life.” And I think we’d all agree on that.

Yeardley: [00:09:36] Yes.

Dan: [00:09:38] The majority opinion of the court held that the state failed to present evidence that its interest in shooting unarmed fleeing suspects outweighs the suspect’s interest in his own survival.

Yeardley: [00:09:51] Can you say that again, please?

Dan: [00:09:53] The majority of the court held that the state failed to present evidence that its interest in shooting unarmed fleeing suspects outweighs the suspect’s interests in his own survival.

Yeardley: [00:10:05] Right. So, it goes back to that word ‘reasonableness’.

Dan: [00:10:09] Yeah. To me, it’s pretty obvious that in this situation that’s inequitable, that you can shoot somebody just because they’re running from you.

Yeardley: [00:10:20] Yes.

Dan: [00:10:21] Anytime we talk about use of force, we’re going to talk about reasonableness. I mean, we could talk about this case for a long time, and a lot of it had to do with common law, which common law goes way, way, way, way back. I mean, we’re talking about like English common law. It’s antique law is really what it is. I think we’ve evolved.

Yeardley: [00:10:45] I really want us to have evolved.

Dave: [00:10:47] At least the law has.

Dan: [00:10:48] Not the mammals.

Yeardley: [00:10:49] [chuckles] Fair.

Dan: [00:10:51] The dissenting opinion in this case was actually from Justice O’Connor, which I find a little surprising.

Yeardley: [00:10:57] Sandra Day O’Connor?

Dan: [00:10:59] Yeah.

Sandra Day O’Connor: [00:11:00] Do you think that it really is unreasonable under the Fourth Amendment for an officer who would tell an inexperienced adult burglar, “Stop or I’ll shoot,” you think the Fourth Amendment prohibits that? You think that there’s no room there for saying that the person who refuses to heed that warning is knowingly giving up any right to have alternative action taken?

Person: [00:11:33] No, I don’t think that the Fourth Amendment should allow such a shooting. I think that unless the state interests require it because of the interest of protecting the public, the Fourth Amendment would bar that today. The officer may have other alternatives, he should run after him, he should call in assistance, he should investigate the scene. It does not invariably follow if the person gets away, he’ll never be caught, or that may often be the consequences, not always the consequences.

Dan: [00:12:02] So, in her opinion, she highlights the fact that police officers must often make swift, spur the moment decisions while on patrol and argued that the robbery and assault that happened in the home are related to the already serious crime of burglary, which we can agree. I think burglary is a serious crime, especially at a residence.

Dave: [00:12:22] Was this an occupied dwelling?

Dan: [00:12:24] It doesn’t say anything in here. I don’t believe it was occupied at the time.

Dave: [00:12:28] Justice O’Connor mentions the robbery inside the house, and I’m thinking, was there some sort of confrontation inside the house? It doesn’t change what happens at the fence, especially when the officer says, “I didn’t believe the suspect to be harmed.” Right there, is a huge cutoff moment for this case.

Yeardley: [00:12:49] Right. Your life as an officer is not in danger. That kid is just trying to get away from us. So, that seems massively excessive. I know we’ve said it many times on this podcast, but I already can’t remember the difference between robbery and burglary. One has to do with people involved and one does not, correct?

Dave: [00:13:09] Yeah. Robbery is I forcibly or by threat of force or intimidation take something from you.”

Yeardley: [00:13:18] So you encounter me?

Dave: [00:13:21] Right. A burglary is, I break into a house. There’s nobody around. Even if there is somebody around who’s sleeping on the couch, there’s no interaction between me and the other person. So, burglary is considered a property crime because you’ve just broken into a premise, like a building or a house. A robbery is a person crime because you are physically either intimidating, threatening with a weapon, or you’re fighting with a person. So, robbery is people on people, burglary is a property crime.

Yeardley: [00:13:57] Okay.

Dan: [00:13:59] When you get down to brass tacks about what this decision did for police officers is it established that the reasonableness of an officer’s use of force, whether against a fleeing suspect or otherwise, is to be determined from the perspective of the officer under the circumstances that were apparent to him or her at the time. So, like we touched on earlier, did not observe a weapon, had clear view, the officer had a flashlight and was face to face with the suspect before the suspect turned to flee. And the officer said, “No, I didn’t believe he was armed.”

Yeardley: [00:14:36] Also, he was 15.

Dan: [00:14:39] Well, the officer actually estimated this kid’s age to be 17 or 18. Now, I’ve seen kids that, I swear to God were 20 years old that were only 14 or 15 years old, because they’re 6’2″, unless you’re talking about there’s just an obvious discrepancy of what you’re looking at. I mean, an 8-year-old kid, I don’t think anybody’s going to mistake an eight-year-old for an 18-year-old, but a 15-year-old, I can see that.

Yeardley: [00:15:07] Especially one bold enough to go commit a burglary. You want to play adult games, you’re in the adult arena now. And there are consequences, not to say that Mr. Garner deserved what he got, but you open yourself up to a series of circumstances that are now out of your hand.

Yeardley: [00:15:26] If you’re going to break into somebody’s house, there is a chance that these harsh consequences will happen to you.

Dave: [00:15:35] Right. There are bad things that can happen when you put yourself into that circumstance.

Dan: [00:15:40] There’s another one here, and it’s Graham v. Connor. This guy, Dethorne Graham, goes to a convenience store with a buddy. He is feeling a little off because he’s diabetic, and he feels like he’s having an insulin reaction. So, he’s going to go get some sugar to even him out. He goes inside the store, he looks and he goes, “The line’s too long. I’m leaving.” He returns to his friend’s vehicle. They drive away from the store, and Officer Connor, a police officer, saw Graham’s behavior and became suspicious. So, Officer Connor pulls Graham and his friend over. During the encounter, the officer tries to detain Graham, and Graham resists arrest and is injured, breaks his foot and he’s got some cuts on his wrist, he’s got a bruised forehead, and he injures his shoulder during the scuffle. So, he files a federal lawsuit against the officer basically alleging that the use of force during the stop was excessive and violated his civil rights. So, it eventually went to the Supreme Court.

Judge: [00:16:56] We’ll hear argument next to number 876571, Dethorne Graham v. M.S. Connor.

Dan: [00:17:03] Again, we’re talking about reasonableness, this word that is a character in our lives as police officers, reasonableness. The Supreme Court held that determining the reasonableness of a seizure requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake. So, putting the grab on someone as a police officer, there’s a reasonableness test that you must put. Is it reasonable that I use all means of force necessary to affect an arrest? And it’s similar to Tennessee v. Garner.

Person: To quote this court in Tennessee v. Garner, reasonableness depends not only when a seizure is made, but also how it is carried out.

Dan: [00:17:53] The court basically said, “Given the facts known at the time, would a similarly trained and experienced officer respond in a similar fashion as Connor did?”

Yeardley: [00:18:02] That’s the question they’re asking.

Dan: [00:18:05] Yes.

Person: [00:18:06] Both courts held that respondents conduct was objectively reasonable, considering the need for force, the amount of force used, and the extent of the injuries that petitioner has alleged.

Judge: [00:18:16] What reason was there for handcuffs on a diabetic in a coma?

Person: [00:18:23] At the time, the officer didn’t know that he was a diabetic in a coma.

Judge: [00:18:28] Did he have a weapon of any kind?

Person: [00:18:31] The record doesn’t indicate, I don’t believe.

Judge: [00:18:33] The record didn’t show he had a weapon of any kind.

Person: [00:18:35] That’s correct. But the record–

Judge: [00:18:36] Why was he handcuffed?

Person: [00:18:37] The record shows that he was properly stopped as a suspect for a criminal investigation, that he was acting suspiciously, that he was acting in a bizarre manner that Mr. Barry asked for Officer Connor’s help. Mr. Barry, so said, he said he didn’t know what was wrong with petitioner, might be an insulin reaction, the sugar reaction. He had never seen one. He was scared. He didn’t know what to do. He asked for Officer Connor’s help. He testified the petitioner was throwing his hands around. The district court stated without contradiction that when the backup officers were arriving, a scuffle started. And at that point, the officer sought to put the handcuffs on petitioner. He resisted the handcuffs, he threw his hands around more. Indeed, even after he was handcuffed and the officers want to put him in the car, the undisputed record shows that he was vigorously fighting and kicking, resisting getting into the car.

[00:19:27] And the district court in the court of appeals both commented on. Given his resistance, even after he was handcuffed. And given the crowd that was gathering and getting out of hand, the police were reasonable in deciding that they needed force to overcome his resistance and that they needed to get him into the car quickly and out of a hostile environment.

Dan: [00:19:45] So, what the Supreme Court did is they came up with their three questions that you answer as an officer when using force.

Dave: [00:19:55] It’s called the Three-Prong Graham Test.

Yeardley: [00:19:57] Okay, what are the three questions?

Dave: [00:20:01] The severity of the crime at issue. Whether the suspect poses an immediate threat to the safety of the officer or others. And whether the suspect is actively resisting arrest or attempting to evade arrest by fleeing. So, you have to take those things into account. And again, this all comes down to reasonableness and why the courts and district attorney’s offices are unable to Monday morning quarterback, based on case law, like Graham v. Connor, and Tennessee v. Garner, is that police officers are judged in the moment, not with the benefit of hindsight. Basically, you have other officers as a kind of a reasonableness standard, is would another officer with the same amount or similar training with similar experiences, in that situation, would they have acted similarly to the way this officer acted and is that reasonable?

[00:21:07] Police officers in the heat of the moment, making split-second decisions, when I say split second, we’re talking, “Life could be gone in one second if I don’t do this, or if I do this.” It’s not fair to judge people if you weren’t there. So, I can’t stress that enough. It’s what the officer is experiencing at the time, not what me, on my couch, watching the news later that night or a day later, I’m not qualified to judge that man. I can make a judgment on the reasonableness of the use of force based on, “Do I have similar training? Do I understand that moment? Do I understand all the outside factors that go into the totality of the circumstances right in front of this officer?”

Dan: [00:22:03] Which is the importance of the three-prong test. So, the severity of the crime at issue. Did this guy steal a pack of Skittles? Now, it’s quite different if this person is a kidnapper. Also, whether the suspect poses an immediate threat to the safety of the officers or others. Now, another way to look at that is what if this person gets away? That’s also a threat to others. So, I would go back to in Season 2-

Yeardley: [00:22:33] Monster.

Dan: [00:22:34] -Monster. Now, if that kidnapper would have gotten away, does he pose a threat to the public? Hell, yes, he does.

Yeardley: [00:22:44] And to that little girl.

Dan: [00:22:45] And to that little girl. We cannot let him get away. So, were they justified in using deadly force against him? They didn’t but I think they were justified if they would have. If there was only one police officer, and this guy is running through the forest with this girl trying to get away, or the girl is safe now and the guy is still trying to get away, but he’s running toward a neighborhood, I would say that that guy poses an immediate threat to the public.

Yeardley: [00:23:16] And the third tenet is?

Dan: [00:23:18] Whether he’s actively resisting arrest or attempting to evade arrest by flight.

Yeardley: [00:23:23] So, that’s sort of combined with number two in this particular case, if he’s trying to get away?

Dan: [00:23:29] Yes. And particularly when I was a canine officer, these factors would go into decisions I made on whether or not I was going to deploy my dog, or how I was going to deploy my dog. Off leash on a long line, on a six-foot leash, on a 12-foot lead? My long line was 25 feet. All of these factors, whether or not I was going to muzzle my dog.

Yeardley: [00:23:53] Meaning, literally keep him from biting the suspect.

Dan: [00:23:58] Yeah. One of the questions I would ask officers when I went to assist them if I was going to deploy my canine was, was do you have PC for a crime right now and what is that crime? I’ve got theft 3, it’s a shoplifter who ran from Walmart, and he ran northbound, go find him. If I see that suspect running from me, I’m not going to just dog him. I’m not going to send my dog on him, because I’ve got a petty theft. So, this case right here is the test that kind of directed me on how I made decisions as a canine handler. Now, there was another case where it was an armed robber who was running from me, and I sent my dog on him and my dog bit him and caused quite a bit of damage to the guy’s leg because he was trying to pull his leg out of my dog’s mouth and he had some damage to it, but I was absolutely justified in sending my dog on that guy.

Yeardley: And why is that?

Dan: [00:25:00] It’s an armed robbery. I mean, the severity of the crime is, that guy he poses a threat to the to the public if he gets away. He honestly said to me, “I didn’t think your dog was going to catch me before I got to that fence.” [crosstalk]

Yeardley: [00:25:16] [chuckles] Dog is always faster.

Dan: [00:25:19] 35 miles an hour. It’s pretty quick through an empty parking lot.

Dave: [00:25:24] Land sharks. And this is important, we go back to the Kilcullen episode.

Yeardley: [00:25:31] Yes, End of Watch.

Dave: [00:25:34] I remember being in that pursuit, I knew that we were going to chase that car forever. Regardless of the suspect’s driving behavior and circumstances, the time, the location of where the pursuit is either heading towards or going through is why we terminate pursuits because the juice isn’t worth the squeeze. We’re putting the public in more danger than it’s worth to arrest the fleeing suspect, even though it’s a felony. It’s a felony to elude the police. In that case, and in the Kilcullen case, I knew that we were going to chase that car until it ran out of gas or until something happened. In the mountains where we were, I was the only vehicle that had any radio reception. I don’t know how that happened, but my car’s radio was the only one that was working for our agency. And when I heard that Officer Kilcullen had been shot, I knew this was a deadly force situation.

Yeardley: [00:26:49] You mean you knew that you might have to use deadly force?

Dan: [00:26:53] Right.

Dave: [00:26:53] And that James, who was the first officer behind suspect’s car, I knew he can ram her off the side of the hill, because if the use of force is justified, the resulting injuries are inconsequential. And there’s case law about vehicles being pursued and using pit maneuvers on vehicles that are going at high rates of speed, that it’s inherently a deadly use of force with your vehicle to spin a suspect vehicle at high speeds, because there’s a great chance that someone’s going to get seriously injured or killed. In that situation, I knew that James could push suspect right off the side of the hill. It’s a creative way to end that situation and make sure that this person who just shot a police officer does not get away.

[00:27:48] James had a ride-along with him that night, and James was a little bit worried that he might put himself off the side of the road too. So, James did a great job. Once that pursuit ended, we came to the top of a logging landing, and it’s literally gravel ends, and the forest begins. There’s nowhere for the suspect to go. That allows us to slow things down. She’s not fleeing anymore. So, the circumstance has changed. But it was important for me when I heard that the officer had been shot that other people in our stack of cars following suspect, need to be aware of that because it changed the rules of engagement. That now I know that I can shoot this person if they’re trying to get away from me, because that person is a danger to the public, has just killed somebody and is actively trying to get away. Situation just did not present itself. The circumstances weren’t there.

[00:29:00] I’ve been asked many times, “I can’t believe, why didn’t you shoot her?” Wasn’t there. It was never there for me to pull the trigger and shoot the suspect because I did not feel scared for my safety or the others that were with me to have the number of guns that were pointed at her after she just killed one of our brothers, for her to not get shot, shows how professional the brothers and sisters that were up on that mountain that day. Exceptional, exceptional folks. All did it the right way.

Dan: [00:29:32] I get the same question. You weren’t there.

Yeardley: [00:29:36] So, it works both ways. You weren’t there to know why we didn’t shoot her, and in a situation where somebody does get shot, you weren’t there.

Dan: [00:29:46] Yep. 2020 hindsight. So, this case right here, Graham v. Connor, is especially important. This is the three-prong test. Severity of the crime, whether the suspect poses an immediate threat to the safety of officers or others, and whether or not he or she is actively resisting arrest or attempting to flee. Some big cases recently that this case law has been a part of is the shooting of Michael Brown in Ferguson, Missouri, the shooting of Alton Sterling in Louisiana, and the Derek Chauvin/George Floyd case in Minneapolis. Is it reasonable for Derek Chauvin to have his knee on George Floyd’s neck for eight plus minutes? No, it’s not. It’s not reasonable.

Dave: [00:30:37] I mean, it’s not even close.

Dan: [00:30:39] When you look at it through the lens of reasonableness, officers who have been trained in those situations and have similar experience say that’s not reasonable.

Dave: [00:30:49] And it’s exceptionally important for people to realize, this is in the eyes of an officer, a similarly trained officer with similar experience in the same situation. It’s not a similar citizen. It’s not a similar civilian. It’s, “I need to be judged based on how other officers would have interpreted that situation.” Is it reasonable?

Dan: [00:31:19] There was a case several years ago now, and I think it was in South Carolina where a man had run from a traffic stop and the officer shot him in the back and killed him. I remember watching because there’s actual video of that shooting. I remember watching that video before I knew any of the facts of the case. I was like, “That looks unreasonable to me. You were losing the foot chase, so you just shot him? And the guy was merely running from a traffic stop? Mm-hmm.”

Dave: [00:31:52] It’s not reasonable.

Dan: [00:31:53] It’s not reasonable.

Yeardley: [00:31:55] Right. It’s so interesting and complex.

Dave: [00:31:59] Ahmaud Arbery, one of the persons convicted is a former investigator for the district attorney’s office there. Not employed at the time, was retired. But was any of that reasonable? You call the police. It’s that simple. These guys created their own emergency by chasing Ahmaud Arbery down.

Yeardley: [00:32:22] And then, blocking his way.

Dave: [00:32:24] Yeah. And approach him with a shotgun, it’s– you just look at it and you’re like, “I’m done. This was unreasonable a long time ago, and now this happened, totally unreasonable.”

Dan: [00:32:38] The Ahmaud Arbery case sounds circumstantially very similar to Tennessee v. Garner.

Yeardley: [00:32:46] Well, and also Zimmerman and Trayvon Martin.

Dan: [00:32:50] Yeah. I mean, they said in the Ahmaud Arbery case that he was burglarizing a house that was under construction, and he was running, and then they shot him. So similar to Tennessee v. Garner, where Garner got shot in the back of the head trying to go over a fence, after the officer had already said, “I didn’t think he had a gun on him. I didn’t think he was armed.” So, I know that the three defendants in the Arbery case, probably claim that, “Oh, we thought he probably was armed.” But I think justice has been served in that case.

Yeardley: [00:33:27] Yeah. Do you consider Connor’s stop on Graham to be to meet that threshold of the three-pronged Graham test?

Dave: [00:33:37] I understand [sighs and breathes heavily] with the benefit of hindsight, which we’re not supposed to use, can I put myself in that officer’s shoes without knowing everything that that officer is experiencing? I can understand why he was interested in what was going on with Graham. I understand that. It makes sense to me. It seems reasonable that he would be curious as to what Graham was up to. So, I understand where he’s coming from there. It’s also why in those types of situations, I would also make sure that I had additional probable cause to make the traffic stop. Did they have violations on the vehicle? In that situation, would I follow that car and without additional PC? Would I pull that car over? I probably wouldn’t. I’d be like, “Uh, okay, I don’t know what he’s got. We don’t have any call from the store saying, ‘Hey, somebody just shoplifted from us.'” That would be additional information that would be– now you’ve got a righteous stop.

[00:34:48] Absent that, for me, personally, I would probably just follow that car, try to get my own PC for a traffic violation and then do a traffic stop so I can lawfully contact with the benefit of having additional PC to make the stop on the car. That’s me personally. There’s so much gray area, it’s not black and white like people want it to be or that cops would want it to be. You operate in these gray areas, and you have case law that either supports what you’re doing or case law that says, “No, you can’t do that.” These situations are not– they’re very complicated. Even simple situations like this, they are nuanced and they’re complicated, but that’s why these cases are so important to the police.

Yeardley: [00:35:46] Yes. Well, thank you both for walking us through that. It’s so much to process while you’re making a split-second decision out in the field. Thank you for doing what you do. Small Town Super Fam, class is dismissed. We will see you next time.

[Briefing Room theme]

[00:36:10] Well, that was delicious. Here’s how it happened. Just like our main episodes, Small Town Dicks on Patreon is produced by Gary Scott and me, Yeardley Smith, and coproduced by Detectives Dan and Dave. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our editors extraordinaire are Logan Heftel and Soren Begin. And Logan also composed our Patreon theme music. So, that’s fancy. And finally, our books are cooked, and cats wrangled by Ben Cornwell. The team is forever grateful for your support.

[Transcript provided by SpeechDocs Podcast Transcription]

Yeardley: [00:00:03] Hey, Small Town Fam, it’s Yeardley. How are you? Where are you? I hope you’re sitting down because we have some big news. Earlier this year, we launched a show called The Briefing Room over on Patreon. This series features candid conversations about trending topics, training issues, public safety, viral videos, and how law enforcement is navigating modern policing today. Since its launch, we’ve heard from so many of our Patreon subscribers who love the show that the information has been incredibly helpful and informative, and that more people ought to hear it. So, in January, The Briefing Room is coming to our main feed as its own weekly series. You heard that right. No more long hiatuses. No, seriously.

[00:00:52] Here’s how it’s going to go. We’re going to have our regular season of Small Town Dicks and then jump into a season of The Briefing Room. In the meantime, while we record new episodes of The Briefing Room for the main feed, we wanted to share some of our favorite episodes from the series that have already been posted on Patreon. First up, we have an episode called Situational Awareness. Small Town Fam, Detective Dave dropped some serious knowledge on us with this one. And then, about every two weeks, we will release another briefing room that has already aired on Patreon just to give you a taste of what’s to come in January. Thank you so much for being here. Let’s get to it.

[Briefing Room theme]

Dave: [00:01:40] Hey, Small Town Fam, welcome to The Briefing Room. Every day in police stations across the world, law enforcement officers begin their shift with briefing. Briefings are essential to communication and allow officers and command staff to discuss calls for service, crime trends, case law, wanted subjects, training opportunities, and policy changes. Briefing rooms provide a setting where the team can speak with each other candidly and openly.

Dan: [00:02:09] We wanted to create a similar setting for our listeners, The Briefing Room series will include intimate and formal conversations about trending issues, viral videos, guidance and training from detectives, as well as commentary on other topics impacting law enforcement and the true crime community.

Dan and Dave: [00:02:26] Welcome to The Briefing Room.

[theme music continues and ends]

Yeardley: [00:02:36] So, I have with me, Detective Dan.

Dan: [00:02:39] Hello.

Yeardley: [00:02:40] Hello, and I have Detective Dave.

Dave: [00:02:42] Greetings.

Yeardley: [00:02:43] Greetings, sir. One of the things that you both talked about a lot in Episode 2 of The Briefing Room, which is called Smash and Grab, was situational awareness. And I thought it would be really beneficial for our listeners, if you both could dig into that a little bit and talk about specifically, what you mean, what to look for, and what sort of crimes bring that phrase to the surface for you.

Dave: [00:03:12] Yeah. I think some people have a certain degree of situational awareness just as part of their nature, that they either pay more or less attention to their surroundings than others. Certainly, I was that way.

Yeardley: [00:03:26] Before you were a cop?

Dave: [00:03:27] Before I was a cop. And I think it is just from living in big cities. I’ve lived in some big cities on both coasts and been in high crime areas. And then, once I became a police officer, certainly that was amplified, that kind of situational awareness, because it’s just pounded into your head, nonstop. Be on the lookout. Always be paying attention for this. Listen to the hairs on the back of your neck, those types of things. And so, as a police officer, throughout your career, you respond to numerous crimes where the criminal or the suspect took advantage of someone because either, A, they looked like a vulnerable person, weren’t paying attention. Sometimes, you can’t help it. You’re just going to be victimized and that criminal have made up their mind. But people can take steps to mitigate some of the danger out there. And the biggest for me is just look around, listen, pay attention to the hairs on your neck. Anywhere I’m out, I am constantly looking at people’s hands in their pockets.

Yeardley: [00:04:30] That actually leads me to my question was, yes, I can look around, but I won’t see things the way you see them. So, with both of your experience in law enforcement, what sort of thing– you see a person and they aren’t walking with purpose, that might be a red flag, right? Or you see a person who won’t take their eyes off you or as you say, won’t take their hands out of their pockets. What sort of things?

Dave: [00:04:55] Yeah. You think about walking down the street and we talk about the hair on the back of your neck. I listened to that part of my physiology.

Yeardley: [00:05:06] I feel like you also though, have a game plan if the hair on back your neck stands up whereas I might just go, “Uh-oh, oh, fuck.”

Dan: [00:05:13] And I think to some degree, Dave and I and others who have been in physical confrontations with people were a little bit inoculated to being surprised as much.

Yeardley: [00:05:25] Sure. I can tell you, obviously, I’ve never been in a physical fistfight.

Dave: [00:05:30] Well, we got to change that.

[laughter]

Yeardley: [00:05:32] All right, let’s go outside.

Dave: [00:05:34] Let’s go– I don’t know where you want to go. But maybe The Grove and we could pick a fistfight. You’d be on TMZ tonight.

Yeardley: [00:05:41] [laughs]

Dan: [00:05:43] You talk about The Grove, and you were talking about how people need to have a purpose when they’re out there, like walk with purpose. And I made an observation yesterday, and I didn’t bring it up to either of you, but there’s a woman who was walking in front of us, who had her head down, buried on her phone while she was walking through a large crowd of people. And I’m thinking to myself, she doesn’t even know where she’s going. She’s going to walk into a signpost. And she was just weaving back and forth. Because she was walking so slowly, I was trying to get around her. And she was completely oblivious to what was going on around her. Those are the things that I’m talking about. That’s what a suspect would be looking at.

Dave: [00:06:22] Like, it’s the same as a lion outside a herd of wildebeest, you look for the one you can pick off. When I speak to people in presentations that I would provide when I was a detective, we had a slide about just being situationally aware. Pick your head up, look at your surroundings. If you feel like somebody’s following you, cross the street just to test them to see if they’re going to cross at the same time. Just be aware. That kind of awareness a lot of times is enough to dissuade somebody from selecting you because they go, “I’m not going to be able to surprise that person. I’m already on their radar,” things like that. We talked plenty of times about leaving stuff visible in your car. That’s a lack of situational awareness.

[00:07:08] Yesterday, where we ate lunch, I had my back to a majority of that restaurant, makes me extremely uncomfortable. Probably makes most police officers uncomfortable, to have their back to the majority of the building they’re in. So, constantly looking around seeing who’s entered the space, who’s left, certainly in the area we were yesterday. Hey, Zipper.

Yeardley: [00:07:33] Zipper, the cat, has come to pray at the altar of Dave

Dave: [00:07:36] Yeah. Certainly, a situation where we’re at yesterday with large crowds, there’s all types of threats that could be out there. I don’t live on a scale of 0 being not paying attention at all to 100 being paranoia, but I’m paying attention to my surroundings. When somebody’s acting disorderly or as if they’re off, I’m going to make a note of that. It’s important. I’m sure a lot of our listeners are the same way. But there are plenty of times in my career where I’ve taken a robbery or a theft report where somebody had their head buried in their phone and somebody ran up behind them and just pulled the purse right off them, right off their arm. It happens. And that’s in a small town.

[00:08:22] You think about in Los Angeles, the number of robberies that happen, those suspects are looking for certain characteristics in a victim because they’re worried about getting caught. They don’t want to have to overcome a large degree of resistance. They’re going to mitigate that by picking somebody who’s probably not going to offer resistance or is not paying attention.

Dan: [00:08:46] A really tragic example of somebody not being aware of what’s going on around them happened several years ago in our town where Dave and I worked. This young woman had stepped off of a public bus. She had her headphones in, and she had her face buried in her phone. She wasn’t paying attention, and there’s a major street that goes right through there, and cars are routinely going 45 or 50 miles an hour through there. And she didn’t even look. She didn’t even look when she walked out into the street, and she got hit by three cars. She got hit by two going in the same direction that pushed her over in the other lanes and a car hit her in the oncoming lanes. And she was killed. It’s a terrible accident. But you have to be a little more aware of what you’re doing. I think cell phones are obviously a huge problem with situational awareness.

[00:09:45] I even catch myself sometimes walking down the sidewalk in LA and I’m looking at my phone, and I snap out of it and go, “Put your phone in your pocket and walk. Get to your destination.” Some of the things that people can do out there is if you are situationally aware, A, you might be able to identify a threat before you encounter it. So, we’re talking about, you’ve been walking for a few blocks, and this person is still behind you, and you get that feeling of, “You know what? This doesn’t feel right.” Simply cross the street. Now, if they cross the street behind you, now your level of awareness goes up, because you’re aware of them now mimicking everything that you’re doing. That’s probably going to put you in a position where you’re thinking, “Okay, a confrontation might be imminent. Start developing a game plan.”

Yeardley: [00:10:35] Like duck into a store.

Dan: [00:10:37] Duck into a store. Maybe you just get on the phone, call 911. That’s what we do, we come out. And all you simply have to say is, “I’ve been walking for several blocks. I think a male is following me. And can you send a patrol officer out here?”

[background noise]

Yeardley: [00:10:52] Oh, my God, the cat is losing her mind playing soccer.

[cat growling]

Yeardley: [00:10:58] [laughs]

Dan: [00:10:58] She’s throwing a fit.

Yeardley: [00:10:59] She’s really throwing a tantrum.

Dan: [00:11:02] So, like I was saying, when you’re developing a game plan, say, you’re a female, and the only thing that you have are maybe a set of car keys and maybe there’s a little pepper spray bottle on there, that’s a good time to just have it in your hand and have it ready, because if it does happen, it’s probably going to happen fast. If this assailant or whoever means to cause you harm or take property from you wants to do so, it’s going to happen really fast. And what are they going to look for? They’re probably going to look for an ideal location where it can happen with no witnesses. So, if you’re coming up on a dark alley, I would probably avoid that.

Yeardley: [00:11:39] Yes. If I call 911, because I think someone’s following me, do the police get irritated?

Dan: [00:11:45] No. Look up at the street signs and know where you are.

Yeardley: [00:11:51] Also in a car, right? No matter what, you want to be able to say, “I’m at–“

Dave: [00:11:56] Did you see me yesterday when we’re going to lunch? Every intersection I’m picking up a street sign. So, I know what’s intersection I’m at, in case the shit hits the fan right then and there, or we getting to a fender bender, I know where I’m at. So, I call the police. Those are little things. And for aspiring police officers out there, get in the habit before you ever put in to be a police officer. As you go through intersections or if you’re on a long stretch of road, look at a mailbox and pick up the numbers on the address so you know which thousand block you’re in.

Dan: [00:12:29] Milepost markers. That’s one of the things that we go by in law enforcement. I’m on this road at milepost 3, westbound.

Yeardley: [00:12:36] Interesting. So, I think in addition to being aware of what’s around you, be aware of where you actually are.

Dave: [00:12:45] Yeah, I’ve been caught before where I had an idea of where I was, but I was actually two streets away.

Yeardley: [00:12:52] Which could be all the difference between “I’m there in 45 seconds,” “I’m there in three minutes.”

Dave: [00:12:57] Yeah, 20 seconds when you’re fighting, feels like a long time. It’s just little things. So budding police officers, get in the habit now picking up street signs, and knowing your cardinal directions north, south, east, and west. That is invaluable practice that you can do just driving to the grocery store.

Dan: [00:13:15] It’s hard to get help there if they don’t know where you’re at.

Yeardley: [00:13:17] Sure. If they’re trying to go to the wrong street.

[laughter]

Dave: [00:13:21] That is a lonely feeling. “Uh, you guys coming? “You told us you’re at this place and you’re not.” “Oh, shit. Yeah, that’s my bad.”

Yeardley: [00:13:32] “Shit.” [chuckles]

Dan: [00:13:33] It drives me nuts when I watch like Cops, and these guys are in foot pursuit. And they’re mic’ed up. So you should be able to hear everything they’re saying. And they’re in foot pursuit and all they say is, “I’m in foot pursuit.” And then they never give a direction of travel, or where they’re at or, “We’re continuing westbound through this alley,” they don’t give any of that. They just keep running and they’re so target locked that they’re not giving other essential information to responding officers.

Yeardley: [00:14:01] That’s a problem.

Dave: Yeah, as a responding cover unit. It’s happened to me before. I’m sure I’ve given out poor radio traffic before, it’s happened. I’m familiar with a few cases where I was like, “Okay, you were a shitshow on that one.” But there’s other times where you’re trying to respond to cover somebody and you’re the asshole cop who’s just sitting in the middle of an intersection with his lights and the sirens on going, “Well, I don’t know whether to go north, south, east or west. I’m waiting to be able to make that determination.”

Yeardley: [00:14:27] Right. Just going back to what you’re talking about. If you think you’re being followed for a moment, one of the things that’s been happening here in Los Angeles is people have been putting these little trackers on cars.

Dan: [00:14:27] Apple tags.

Yeardley: [00:14:46] Apple tags on nice cars, and then they get the GPS location of where you have stopped. Depending on the time of day, I suppose it’s more likely that you’ve stopped at home versus somewhere else. But that is a new wrinkle in the follow home.

Dan: [00:15:05] Yeah, so these Apple tags, they’re tiny, and they’re going to be hard to find. I mean, there’s a million places on the exterior of a car that you could hide one of those, and it not be detected. And whoever puts it on there could do so with relative ease just by simply maybe walking by the car and looking innocuous.

Dave: [00:15:25] You mean it’s not like the GPS magnets that we used to have to climb under cars and find a nice part of the frame without ever being discovered?

[laughter]

Dan: [00:15:33] Yeah, think about like, you could put double-sided tape on the back of one of those Apple tags, walk by and place it under someone’s sideview mirror. When’s the last time you looked under your sideview mirror?

Yeardley: [00:15:45] Right. Or, pretend that you dropped something and then stick it under the car-ish?

Dan: [00:15:50] Yeah, in the wheel well, a lot of people have gas tank covers that aren’t locked. You can open that, place it in there. Police officers have now found Apple tags on their vehicles.

Yeardley: [00:16:02] Like their marked cars?

Dan: [00:16:04] Yes. So, if you’re a criminal, especially in a small town, if you know that there are only a few police cars out there, and you’ve marked them all with these Apple tags, then you know where they are and maybe that directs you to where you commit crimes.

Yeardley: [00:16:19] So, what do we do about this? As a citizen, how would one mitigate that threat?

Dan: [00:16:25] Apparently, Apple’s aware of this problem, they’ve made an update for iPhone where you will be notified of unwanted Apple tags at significant locations. Meaning your phone will know when you’re at home, or you’re at work and if there’s an unrecognized air tag near you, you get a notification. There’s an app for Android phones called Tracker Detect that you can scan around you for AirTags. But our listeners should google how to do this, because you have to go into your phone settings menu and make sure that some features are enabled. It’s also worth saying though that I have these features enabled on my phone, and I have had friends over that have AirTags on their keys and in their wallets, and I did not get a notification about it. So, it’s a little unclear to me how reliable the detection is, or exactly how that technology works. I don’t know. Maybe it knew that me and my friend’s phone knew each other, and we were in the same room. But I think it would be good to talk about how to manually look for trackers as well.

So, if you’re out in public, say your car was parked in a parking structure, and you went shopping at the mall, and on your way home, it sounds inconvenient, it sounds probably not reasonable to a lot of people. But maybe go to another populated area and get out of your car and maybe just do a quick walk around. I’m saying that because I don’t think it’s always safe or smart to do it in the actual parking structure where the Apple tag might have been placed, because they might be watching for you right there. And, of course, they might be watching you leave and just in case they get lost in traffic, they still know where you’re going and they can track you real time on their phone. So, at the very least, take a look around your car. Check under the wheel wells, check under the rear and front bumpers, check under your mirrors, check any place that you think that one of these tags might be secreted on your car.

Dave: [00:18:27] That seems like a lot of work.

Yeardley: [00:18:30] [laughs] A lot of work to save your own life.

Dave: [00:18:33] No, but the premise is if something doesn’t look right, investigate it. If something doesn’t feel right, investigate. Some great advice I got right when I started as a police officer was, “Hey, there are times where you’re going to feel like you’re being nosy.” It’s actually what you’re paid to do. So, embrace it. And something doesn’t look right, I always listen to that. And it’s from a learned experience where you go, “Ah, I’ve seen that before,” “Ah, I’ve felt that before.”

Dan: [00:19:03] Just going back to when we’re talking about making a game plan with the pepper spray and everything, I would say the third thing out there is if you’re doing all those things, preparing yourself, doing a little countersurveillance and showing that you are aware of what’s going on, that might be enough for whoever’s pursuing you, or is planning on victimizing you. Maybe they say, “You know what? That’s probably not my best victim right there.”

Yeardley: [00:19:31] You’re not an easy target anymore. They want the least amount of resistance, I assume.

Dave: [00:19:36] And we talk about crime prevention. And back in college, back in the early to late 90s, I took a class called Crime Prevention Through Environmental Design. And it’s all about target hardening your house, that you don’t have bushes that would obscure a window, so bad guy can get in between your house and a big bush and have complete cover from the street. That you have lighting, that there aren’t dark alcoves that are adjacent to access areas to the back of your property. That you lock your windows during the summer day when you’re away at work so that your windows, you don’t leave them open. The number of burglaries in summer of people saying, “Yeah, they came through the back window. I didn’t think anybody could get into my backyard.” You got to think how criminals think is basically the gist of this.

Dan: [00:20:26] That was one of my caseloads, investigate a lot of burglaries. One of the things that was in common with many of these burglaries, the point of entry was the air conditioner in the window. So, they had to just push it in. If it wasn’t secured, some people put screws into the wood frame of the house to hold it in there, but some people don’t. And they would just push the air conditioner into the house, and they would go through the big open window right there.

[00:20:54] Get a Ring camera at the very least for the front of your house. Get a doorbell camera, it doesn’t have to be Ring, I’m not sponsored by Ring. I’ve got one. I think they work incredibly well. I always get an alert on my phone. You can talk through the Ring doorbell camera. You can talk and say, “How can I help you?” If someone’s at your front door. Sometimes, just seeing the cameras enough of a deterrent, where people say, “Ah, man, I’m caught on camera,” and they just turn around and they leave. They don’t always, but sometimes they do.

[00:21:26] Talking about burglary, environmental design for your exterior doors, doors that access the exterior of your house, front door, back door, sometimes the garage door, on the side of your garage leads into your garage, put longer screws into the strike plate on your doorframe. So, the strike plate is that little metal piece about waist high where it’s got a little hole in it where the–

Yeardley: [00:21:52] Oh, the tongue of the door latch goes into?

Dan: [00:21:55] Yeah. If you put longer screws in there, it’s a little harder to break through those doors.

Dave: [00:22:01] You want to screw that gets into the house frame, not just into the doorframe. So, we’re talking three-inch screws. That wood is much more structurally sound than just screwing a striker plate into a doorframe and hoping that after a couple of kicks that it’s not going to break. There’s a difference I can tell from using “the key” to hitting a house that’s equipped with a well-defended door versus one that’s just like a couple of screws, no biggie. You can knock those off the hinges. The ones that are built well, that takes several kicks, several hits with the key to get in.

Yeardley: [00:22:40] The key is the big heavy thing that looks like a big metal tube that you bang into a door to open it, right?

Dave: [00:22:48] Right.

Yeardley: [00:22:49] Funny that you call it a key.

Dave: [00:22:50] Because it opens every door.

Yeardley: [00:22:52] Sure. [laughs]

Dave: [00:22:54] Yeah, so just little things that alert a suspect and paying attention. “I’m not the one to fuck with today.” You can do little things that will dissuade a criminal from selecting you as a target. And it can be as easy as just having a motion light on the side of your garage.

Dan: [00:23:10] They even make motion lights out there that follow you. We did a drug search warrant at a house, and we creeped up on the side of this house and motion light comes on. It was a spotlight. And we were like, “Oh, my God, we’re right in the middle of the light. We got to move.” And we moved and it followed us. The most uneasy feeling in the world. Like somebody was actually steering the light and you’re thinking to yourself, “Oh, this is not good.” “I see you.”

Yeardley: [00:23:40] [chuckles] That is amazing. That’s all really good, interesting stuff. I’m glad that you answered the question about what to look for, not just listen to the hair standing up on the back of your neck. Because as a civilian, I think the list of things to look for is pretty short. As somebody who’s experienced in dealing with suspects, it’s quite a bit longer.

Dave: [00:24:05] Yeah. And I know we’re beating a dead horse here, but even as a police officer, just your rhythm and cadence is your answer, what should be an easy question would be enough to throw up red flags for me.

Yeardley: [00:24:19] What do you mean?

Dave: [00:24:20] What’s your date of birth? And the answer begins with “Un.”

Yeardley: [00:24:26] Uh-huh. Uh.

Dave: [00:24:28] That’s bridging, that’s buying time.

Dan: [00:24:30] Or, they just give you a month in a day, but they don’t give you the year.

Yeardley: [00:24:33] Oh, because they’re trying to figure out the math.

Dave: [00:24:36] And somebody who’s not discerning, here we ago, I say, “What’s your date of birth?” And they go, “I’m 28.” Somebody go, “Oh, you just told me he’s 28.” And I go, “He didn’t answer the question.” So, it’s little things like that. [chuckles] I’d ask somebody who’s 40 years old who, within moments, I know we’re playing the name game. And you say, “You ever had an ID?” “No.” “You’re 40, never had an ID? Come on.”

Dan: [00:25:04] Yeah, people who are in their late 20s, early 30s and they don’t know what their social security number is, everybody knows that.

Dave: [00:25:13] I just pay attention to little stuff. Certainly, I had that to a degree before but once I became a police officer, and you have a few field training officers and some experience get their hands on you, it just amplifies your suspiciousness of folks and circumstances.

Yeardley: [00:25:13] Yeah. Fascinating. Thank you both.

Dan: [00:25:34] Stay safe out there. It seems like I always say that but–

Yeardley: [00:25:38] You mean it, so it’s all right. [chuckles]

Dan: [00:25:40] I do. I don’t want people to be victimized at all. I hope the best for everyone.

Dave: [00:25:46] Yeah, I look at pockets, hands, and your degree of compliance.

Dan: [00:25:51] I had a sergeant when I was on patrol, and the last thing he would say in every briefing was, “Watch their hands.”

Dave: [00:25:57] That’s in the, “The shit that makes cops nervous,” that’s on page number one.

Yeardley: [00:26:02] Interesting. You heard it here, Small Town Superfam.

Dan: [00:26:05] We could go on and on and on.

[laughter]

Yeardley: [00:26:07] We could, but we’re not going to. Thank you so much for joining us here today. You guys are the best. Stay safe out there. Really, stay safe.

Dan: [00:26:19] Thanks.

[laughter]

Yeardley: [00:26:22] What’s the matter with you guys?

Dan: [00:26:22] What the fuck? What do I say?

Yeardley: [00:26:24] All you have to do say–

Dan: [00:26:25] What do I have to do with my hands?

[laughter]

Dan: [00:26:29] Until next time.

[Briefing Room theme]

Yeardley: [00:26:35] Hey, Small Town Superfam. So, The Briefing room will return on March 11th, with new episodes dropping every other week thereafter. And, of course, on the week’s there’s no Briefing Room, we have other goodies planned for you here on Patreon, so stick around because there’s lots to talk about. Thank you so much for listening. We are so happy you’re here.

[Briefing Room theme continues]

[00:27:05] Well, that was delicious. Here’s how it happened. Just like our main episodes, Small Town Dicks on Patreon is produced by Gary Scott and me Yeardley Smith and coproduced by Detectives Dan and Dave. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our editors extraordinaire are Logan Heftel and Soren Begin. And Logan also composed our Patreon theme music. So, that’s fancy. And finally, our books are cooked, and cats wrangled by Ben Cornwell. The team is forever grateful for your support.

[Briefing Room theme continues and ends]

[Transcript provided by SpeechDocs Podcast Transcription]

Yeardley: [00:00:02] Hey, Small Town Fam. How are you? Well, we have something very special for you today. We’re starting a new mini-series over on our Patreon called The Briefing Room. We’ve been kicking this idea around since our Behind the Badge Series, and we think you’ll find The Briefing Room conversations to be topical, informal, and informative. Today, we’re excited to share the inaugural episode with all our listeners. Then, if you like what you hear, please join us over on Patreon for more installments in the coming weeks. Also, everything we post on Patreon is ad free. Thank you so much for joining us today. Now please settle in for The Briefing Room Episode 1: Online Safety.

[The Briefing Room theme]

Dave: [00:01:00] Welcome to The Briefing Room. Every day in police stations across the world, law enforcement officers begin their shift with briefing. Briefings are essential to communication and allow officers and command staff to discuss calls for service, crime trends, case law, wanted subjects, training opportunities, and policy changes. Briefing rooms provide a setting where the team can speak with each other candidly and openly.

Dan: [00:01:29] We wanted to create a similar setting for our listeners. The Briefing Room series will include intimate, informal conversations about trending issues, viral videos, guidance and training from detectives, as well as commentary on other topics impacting law enforcement and the true crime community.

Dan and Dave: [00:01:45] Welcome to The Briefing Room.

[The Briefing Room music]

Yeardley: [00:01:54] Hey, Small Town Super Fam. How’s it going? I hope all is well in your corner of the world. I am excited because today, we have our first episode of a new series we’re calling The Briefing Room. I have with me, Detective Dan.

Dan: [00:02:14] [pause]Good afternoon.

Yeardley: [00:02:16] [laughs] Did you forget where you were?

Dan: [00:02:18] I had to look at my watch.

Yeardley: [00:02:19] [laughs] Good afternoon. And our Detective Dave.

Dave: [00:02:23] Happy to be here.

Yeardley: [00:02:24] Happy to have you.

Dave: [00:02:25] It’s always, always, always enjoyable.

Yeardley: [00:02:28] [giggles] It is always enjoyable. Dave, you have a very special episode for us today. Take it away.

Dave: [00:02:36] I do. It’s like a public service announcement. Due to my past caseload involving child abuse, sexual assault, there’s some overlap with those cases in which we have children who are exposed to dangerous people on the internet and social media apps. It became fairly apparent that we needed to have some sort of outreach to schools, students, and parents about online safety, about being aware of online activity. Detective Jeff, my former partner, Detective Matt, and I would do presentations throughout the year at different events, parenting events, school events. We’ve done school assemblies, we’ve also been in a more intimate setting where we are just speaking to health classes in high schools. Very positive feedback to these presentations.

Yeardley: [00:03:36] From both students and parents?

Dave: [00:03:38] Students, parents, and faculty. I imagine thinking about my high school days, if a detective or a police officer, a firefighter, or an attorney, were they had come into my classroom and give a presentation on their subject matter, I would have been engaged. So, in these opportunities, you never know how us boomers are going to come across [Yeardley laughs] to high school aged folks.

Yeardley: [00:04:05] You’re a little young to be a boomer, by the way. I crest the very last year of boomerness, I don’t consider myself a boomer actually.  

Dave: [00:04:12] I don’t consider you one either. You’re eight years old on TV. Giving these presentations extremely important from the outreach perspective and from prevention. In this instance, I tailored this presentation to be focused towards parents and them being aware of what’s out there, both the good and the bad when it comes to smartphones, online safety, that type of thing.

Yeardley: [00:04:41] Did you find they’re often surprised?

Dave: [00:04:43] Always.

Yeardley: [00:04:44] Really?

Dave: [00:04:44] Very surprised. I think some parents have their finger on the pulse of their child’s activities, both at home and when they’re away, and outside of their parents’ supervision. Other parents might have their head in the sand or just be naive and think, “My child’s not going to be exposed to that,” or, “My child would never put themselves in a situation where they’d be in an unsafe situation.” This is fairly broad. Some of the information is fairly obvious. In other situations, parents go, “I never even thought of that.” So, take from this what you will, this is my general, parents safety presentation.

Dan: [00:05:25] I’d say if you’re a parent, and there’s one Patreon episode you could ever listen to, this is the one.

Yeardley: [00:05:32] This is it.

Dave: [00:05:33] It’s important stuff. Matt and I especially would start out these types of presentations with kind of a survey, where we just ask the audience some questions, have them raise their hand if they do this. If not, we educate our audience.

Yeardley: [00:05:49] Can you tell us what those questions were?

Dave: [00:05:51] Yeah. I would start with, “Raise your hands, how many people in here allow their child to have a smartphone? Show of hands.”

Yeardley: [00:06:01] All the hands go up for the most part?

Dave: [00:06:02] Always 95 plus percent. Most kids, it seems right now are probably getting phones 9, 10. I mean, elementary school, kids are getting smartphones. There’s utility in that because it makes communication a lot easier. It makes finding out where your child is a lot easier. So, I see usefulness in these devices. At the same time, there’s a darker side too, children having that kind of access to an online community and social media apps. I would ask, “Who here has a child with a smartphone?” Bunch of hands go up. “How many parents actually monitor your child’s screentime?” Fewer hands go up. “How many parents monitor the actual apps that their child is downloading?” Fewer hands go up. “How many parents know their child’s passcode to get into the phone?” Just a couple hands go up. “How many parents have an actual contract with their child regarding use and abuse of these devices?” Couple hands go up.

[00:07:09] The contract to me is, I, the parent, set down some ground rules for my child on what’s acceptable online behavior and what isn’t. There’s some sanctions tied to use and abuse of these devices. If you’re not getting your homework done, the sanction is you lose what’s near and dear to you, like Xboxes and Playstations and smartphones. I’ve been to countless disputes, family disputes, and it was over one of those luxury items in a child’s life being taken away, like a cell phone. The fights between teenage kids and their parents over being denied the use of a cell phone or being grounded from it, I’ve been in some big fights.

Yeardley: [00:07:53] Wow!

Dave: [00:07:54] Screaming and yelling.

Yeardley: [00:07:55] Enough where the police had to be called?

Dave: [00:07:57] Exactly. So, it’s a big deal. It’s applicable to anybody whose child has a smartphone. I talk about teen sexting, which is texting, but sexual matters, sexual in nature. Years ago, we had an issue where a female had sent a revealing photo to her boyfriend, high school aged, and made the boyfriend promise, “You’re not going to pass that around to your buddies.” Within a matter of days, almost everybody in this high school had seen this photo. That happens all the time. Nowadays, you think about the ease it is to transfer a file to somebody else.

Yeardley: [00:08:44] Sure.

Dave: [00:08:45] All I have to do is hit forward and I can forward a photo or a screenshot or whatever to my circle of friends, and I have trust that they’re not going to pass that on to anybody else. Pretty soon, it’s like a forest fire. It swept the entire school. We’ve had cases where somebody was unaware that their photo had been disseminated to numerous other people until about a week and a half later, when somebody in a completely different city in a completely different high school recognized it was their friend in the photo and were like, “Hey, by the way, are you aware this photo of you is making its rounds?” Absolutely horrifying to this high school aged girl. You can imagine how devastating that is. It’s a big problem.

[00:09:32] I get into statistics when it comes to sexting and this kind of subject matter. Average child gets their cell phone at right around 10 years of age. The percentage of children who have received content from someone else that made them uncomfortable, 20%. One out of five kids admit to getting something they’re like, “Ooh, I don’t know if I should see that,” or, “I’m uncomfortable.”

Yeardley: [00:10:01] Mostly from people they don’t know?

Dave: [00:10:03] From people they do know. Or, it’s someone they met on an app, agreed to give a screen name or a phone number, it’s like catfishing. I think that this person is my age, turns out it’s a 35-year-old guy.

Yeardley: [00:10:18] Sex offender.

Dave: [00:10:20] Sex offender who’s reaching out to kids because the internet is now a playground for sex offenders. How many kids have shared a private photo or info or videos with a stranger online? What’s your guess, Yeardley? Percentage of children who have engaged in that kind of behavior with a complete stranger online?

Yeardley: [00:10:40] I want to say 10%, but that seems incredibly high.

Dave: [00:10:44] 55%.

Yeardley: [00:10:46] [gasps] Oh, my God!

Dave: [00:10:48] Over half of kids have shared something sensitive with a complete stranger online. Percentage of children who have sent a sexual image to someone they only knew online, never met them in person, 15%. Percentage who have sent a sexual image to a boyfriend or a girlfriend, what do you think that number is?

Yeardley: [00:11:10] That’s got to be high. I want to say like 80%.

Dave: [00:11:13] 70%.

Yeardley: [00:11:14] Wow!

Dave: [00:11:16] Percentage, where the sender had a sexual image shared with the recipients’ friends. So, person sends a photo thinking, “It’s only going to my boyfriend or this person.” Percentage of people who have had that trust betrayed, and that image was forwarded on to other folks who weren’t the intended recipients, 39%. Largest demographic of internet porn consumers, 12 to 17 years of age. That’s the largest population of people who consume or watch internet pornography, is 12 to 17 years.

Yeardley: [00:11:53] Oh, my God!

Dave: [00:11:55] And the last, this one’s important. I have it underlined in my presentation. Percentage of children who would change their behavior if they knew their parent was monitoring their activity, 43%.

Yeardley: [00:12:08] Only 43%.

Dave: [00:12:10] Only 43%. I think there’s probably an aspect where some kids are like, “My parent would never do that anyway.” But we have almost one out of every two saying, “Yeah, if I knew I was being watched, I’d be a lot more cautious and a lot more conservative with the types of activities I engage in online.”

Yeardley: [00:12:32] Do you know the source of those percentages you just gave us?

Dave: [00:12:36] I got that information off a website that is www.gaurdchild.com. GaurdChild.com has this set of metrics. I get into apps, specific apps and social media that have been popping up on law enforcement radar. These change like the tide. One app will be popular, and then it’s replaced by something else, and fewer users use less the popular app and they move to a different one. These apps are always evolving. The list that I have here is probably overcome by events that things have changed since then. I have a graphic, and it’s titled “10 Apps Teens are Using that Parents Need to Know.” And this is a big one, parents start to perk up. After those statistics, they’re intrigued. And then you let them know, here’s what you should be looking for on your child’s phone.

[00:13:41] Some of these apps are kind of sneaky. They hide themselves, and their true intentions. Be it an app that the icon is a calculator, looks like the calculator on your iPhone but that’s actually got a password that you can enter, and it’s really just a folder, a locked folder, a vault, that you can open up and save images into that app, that when your parents get your phone, it just looks like the calculator app, but then you open it, you type into the calculator, your PIN number, and hit Enter and it opens up a folder. The app still acts like a calculator if you want to do that. But if you enter your PIN, it opens a folder.

Yeardley: [00:14:24] I see.

Dave: [00:14:25] Sneaky. So, we have the calculator app.

Yeardley: [00:14:28] That’s what it’s called, the calculator app?

Dave: [00:14:31] There’s different names they change. I’ve seen Keep Safe, there’s an app like that, it’s a vault app. We call them vault apps, it’s an archive. Omegle. I had a case years ago with Omegle. O-M-E-G-L-E. It’s an app that children would first probably get exposed to on YouTube watching YouTube videos, and there were ads associated with Omegle, and that’s how I came across it.

Yeardley: [00:14:58] What would be appealing about that app to a child?

Dave: [00:15:01] That app is appealing to a child because it’s random. There’s no real identifying information, you can come up with your own screen name. It’s fairly anonymous. That app puts you in touch with complete strangers. That’s kind of the whole point of the Omegle app. It’s a free online chat website that promotes chatting anonymously to strangers. That’s fine for adults.

Yeardley: [00:15:24] I’ve never heard of Omegle.

Dave: [00:15:26] I hadn’t either. But I had a case with an eight-year-old, who had this Omegle app, her parents were unaware of it, on her smartphone. And she had downloaded this app and got put in touch with an adult who started soliciting sexual images from this eight-year-old. Horrible.

Yeardley: [00:15:45] Horrible.

Dave: [00:15:47] And that case was resolved by the parents getting into this girl’s phone. After bedtime, they could hear her chatting in a video.

Yeardley: [00:15:57] Like a FaceTime video sort of?

Dave: [00:15:58] Right. The parents bust into the girl’s room, and they’re like, “What are you doing?” “Oop. Nothing.” And they get into her phone and they say, “What is this?” And the app was running on her phone, and the parents start digging and see this chat history and they’re horrified. And then, the police get called. Good job, parents.

Yeardley: [00:16:17] Yeah.

Dave: [00:16:18] Let’s see. The Yellow App, it’s just like a yellow-colored box icon. Yellow is an app designed to allow teens to flirt with each other in a Tinder-like environment.

Yeardley: [00:16:29] Oh!

Dave: [00:16:30] Right. Cringe. Whisper app, an anonymous app where the creators promote sharing secrets and meeting new people. ASKfm, ask an anonymous question, get an answer. This app has been linked to the most severe forms of cyberbullying. Hot or Not.

Yeardley: [00:16:52] I’ve heard of that one.

Dave: [00:16:53] Right. Strangers basically rating your photos, whether they think you’re hot or you’re not. BurnBook, users are able to post anonymous rumors about other people.

Yeardley: [00:17:03] What the–!?

Dave: [00:17:04] Yeah. Wishbone, an app that allows users to compare kids against each other and rate them on a scale, talking about looks.

Yeardley: [00:17:12] Who would compare kids?

Dan: [00:17:14] Who do you think?

Yeardley: [00:17:15] I mean I just don’t– Argh.

Dan: [00:17:17] You read the descriptions on these apps, and it’s almost like the Knights of the Round Table sex offenders got together and said, “Let’s brainstorm some ways that we can-“

Yeardley: [00:17:27] Lure children-

Dan: [00:17:28] -lure children in-“

Yeardley: [00:17:29] -into our orbit.

Dan: [00:17:30] Yeah, it’s disgusting.

Dave: [00:17:34] I’ve talked about Kik Messenger and Instagram, Facebook. We’ve had cases associated with those apps in the past, they’re on this list. I encourage parents in these presentations, scrutinize your child’s friends lists on their social media apps. If the child’s unable to tell you when and where they met this person, that person’s a stranger and you should probably scrub that person from the child’s friends list. I am certain it is tedious, tireless and unpopular, difficult work for parents to have this level of supervision of their children. But given the current space we’re in, it’s like allowing your child to go down to the playground after dark. I wouldn’t have been allowed to do that. In Dan and Dave’s world back in the day when we were playing wiffleball out in the park all day, once the streetlights came on, we knew. And I’m sure a lot of our listeners had the same childhood. Streetlights come on, head back.

[00:18:34] Monitor friends lists actively. This is part of that social contract. This is part of the contract that parents have with their kids, when we talk about use or abuse. If you lay out your expectations of what can and cannot happen while your child is online, when they break that, they’ve broken the contract and then there’s sanctions. That way, the child feels like, “Wow, I’m part of the negotiation here.” Even if the parent’s like, “That’s non-negotiable,” [chuckles] they at least get to be a part of the conversation. It’s how you build buy in, in any setting. But in this case, you really want your kids to respect where you’re coming from when it comes to this stuff.

[00:19:17] I tell parents, monitor your social media presence, monitor your child’s activities, monitor all that. Parents need to have the discussion with their child about receiving friend requests or message requests from strangers. We’ve had numerous cases. I’ve highlighted a few on the podcast about these guys that would just kind of randomly shotgun messages out to females. Prepubescent high school aged females where they’re reaching out, it’s fishing. They’re trying to see if they can get the child on the line and begin grooming them. So, friend request, message request from strangers, big red flag, it’s fairly obvious.

[00:20:04] I tell parents that when they ask a child for access to the device, part of the contract is that the child without hesitation or protest provides that to the parent. It’s a parents castle. So, I allow you to have the device. With that, there are restrictions. Go through the phone with the child and review the apps. “What’s this one? Show me.” Imagine [chuckles] the pucker factor for a child’s like, “Oh, shoot. I should have closed out all my windows.”

Yeardley: [00:20:34] Yeah. Except if they have the calculator app where they go, “Look, it’s just a calculator.” Except that if it’s an iPhone, for instance, it comes with a calculator built in.

Dave: [00:20:44] And that’s the thing.

Yeardley: [00:20:45] So, then you would have two, and why do you need two?

Dave: [00:20:47] Right. I say you can keep the app that came with the phone, but the other one goes away? Why do you need two calculators? Why do you need a vault app?

Dan: [00:20:57] Isn’t there also a way for parents to monitor what apps are actually downloading on their child’s phone?

Dave: [00:21:02] There are, and that’s later on in this presentation. We get into the spyware and tricks. Tricks of the trade for parents.

Dave: [00:21:24] I ask parents apply consistent sanctions for abuse of the device, got to be held accountable. Child has to know that when they cross the line and are in the restricted areas of use, that that was a gamble for them, they might lose access to that app, they might lose access to their device. So, there has to be regular sanctions. Keep your child accountable. The last thing, this always shocks a few parents in an audience. I always say, “It’s your house, you can search it.” I can’t, as a government agent, ask you the parent, “Hey, I’d really love to see what’s in your child’s bedroom. Can you go search your child’s closet and tell me what you find in there?” I’ve made you my agent on the search, I can’t do that. Parents, it’s their home. If they want to go through their child’s belongings, it’s your home. That child is renting from you.

Yeardley: [00:22:23] [laughs]

Dave: [00:22:25] I tell parents, “You own the home, you’re responsible for what’s in it. That’s your child, they report to you. You’re the boss. You can search your own home.”

Dan: [00:22:33] You can take the phone away.

Dave: Right. Some parents are like, “Ah, but it’s my child’s phone. It’s an invasion of privacy.” I’m like, “That is your bedroom that your child happens to occupy. There’s a difference.” You can take phones away. I’ve had people say, “My child actually has a job and bought their phone.” I’m like, “Doesn’t matter.”

Yeardley: [00:22:52] Why it doesn’t matter?

Dave: [00:22:53] It doesn’t matter because that child until they’re 18, their behavior can impact a parent, we have a law in our state where if a parent fails to supervise a child and this child is out creating havoc, the parent can be held responsible for that child’s actions because they’re not properly supervising their child, that they know their child’s out raising hell, and they just allow it to happen? Well, now you’re on the line for this. You’re on the hook, parent. I let them know, if your child’s up to nefarious, unlawful activities, you have the potential to be responsible for that. I would take responsibility for what’s in your house and what’s going on in your house. It’s your place. Even if it’s your child’s “property,” still your responsibility. I have another slide with just a longer list of apps that were popular a few years ago when I did this presentation. I don’t have descriptions for these apps, but these are social media apps that land on the radar of elementary, junior high, and high school aged kids.

Yeardley: [00:23:54] The reason you know about them is because it landed on your desk because there was an issue.

Dave: [00:23:58] Yeah. It used to scare and surprise me. I’d be like, “Well, I feel I’m pretty up to date on this stuff,” because I try to stay contemporary with what’s out there. You just can’t keep up. There were times where a police report comes across my desk or I’m sure with Dan, a new fencing app where people can steal products and then sell them online in a fairly anonymous fashion. I’m sure he came across them too, where you’re like, “I hadn’t heard of that one. That’s a new one for me.” Some of these are those for me. Amino, Discord, GroupMe, Houseparty. Snapchat’s been out there for a while. MeetMe, Live.Me, TikTok, Tumblr, Yubo, YouNow. It’s like a video streaming service where you can be put in touch with strangers. These are all out there. Then, I talk about spyware for parents.

[00:24:57] These are apps that they charge a monthly fee or a yearly subscription. But if you put this spyware on your child’s phone, and there’s other apps and software that allows you as a parent– I know that George did this back in the day with his high school age daughter and son. They were on the family plan, their phone plan, and any app that showed up on the kids’ phones would also show up on their parents’ phone. [Yeardley laughing] So, George will be like, “Ah, nice try. You are not downloading this app today.” George’s kids, great kids.

Yeardley: [00:25:38] They are great kids.

Dave: [00:25:39] If they tried to be sneaky, he’d be like, “Ha-ha, gotcha.” Parents have the ability to have this kind of exposure to what’s landing on their child’s phone. Bark is an app, and the icon is basically a dog that’s barking, like your cats around here. Anytime a burglar shows up, they’re like, “Someone’s at the door.” Bark tracks text messages, email, and social media activity. Automatic parental alerts and notifications, $9 a month, unlimited number of devices you can apply it to.

Dan: [00:26:16] Pretty good.

Dave: [00:26:17] There’s another one called Qustodio, Q-U-S-T-O-D-I-O, the icon is just a capital letter Q in script. Monitors YouTube, browser history and text message content. Blocks pornography, and pornography websites. It also has location tracking and a panic button. So, if you get in over your head and something, it’s like a quick 911 call to your parents, or however way you want to set that up. WebWatcher, tracks and archives text messages, deleted texts, photos, browser history, GPS locations, and social media apps. Very, very valuable. Scans content and photos and provides parental notifications and alerts for risky behavior.

Yeardley: [00:27:04] Of these apps that you would regularly encounter, did you have a preferred one?

Dave: [00:27:10] For the spyware apps?

Yeardley: [00:27:11] Yeah.

Dave: [00:27:12] I’ve never dealt with a parent in a case who had a spyware app. There’s a little Easter egg in there, which is the parents who have these apps don’t have kids that are landing on my caseload. Take that for what you will.

Yeardley: [00:27:27] When you’re in these assemblies and doing these presentations, how much pushback would you get from parents or kids who are also in attendance when you would bring up the spyware conversation?

Dave: [00:27:41] With kids, crickets, or some hmms and maybe a few laughs, like, “I’d like to see my parents try that shit on me.”

Yeardley: [00:27:48] Oh.

Dave: [00:27:48] Yeah. With parents, there’s a lot of nudge-nudge, and “Hmm,” and, “This could work,” “we’re doing that tonight.” There’s a lot of that. Good traction from the people that you would expect to get good traction from, and the offenders, [chuckles] the kids are like, “I don’t know that I like my parents being able to read my deleted text messages and let them know if I’m engaging in “risky behavior.’”

Dan: [00:28:17] I also think that these presentations that Dave did and these other detectives, you start to enlighten parents to some of the authority that they have in running a household, and it empowers them. I’ve been to enough dispute calls with an unruly child who is just raising hell in the house and making it basically unlivable, because this child feels like he or she is going to run the show. Parents often would say, “Well, I can’t put my hands on him or her. If I put my hands on my child, you’re going to take me to jail.” I’m like, “I don’t know who told you that.” You can’t injure your children. You have to set boundaries as a parent with your children. And if you don’t, your kids will run up one side of you and down the other. It’s about accountability. And I think these presentations really reinvigorate these parents, where they’re like, “I do have some control here.”

Yeardley: [00:29:16] Right. Interesting.

Dave: [00:29:18] That was one of the goals here, is, “Let’s educate parents so we empower them to be able to alter their child’s behavior and prevent them from having police contact, prevent them from being stuck in a dangerous situation with someone they just met on an app.” Parents appreciate that. Deep down, I think, kids appreciate when they have some discipline and some structure rather than being able to run around, no curfew, they feel their parents don’t give a shit what they do. I think kids actually do appreciate when their parents are like, “I have higher expectations of you. You disappointed me. Now, you, for two weeks are going to sit at home with me while you’re grounded.” Later on, that pays off.

Yeardley: [00:30:02] Yeah. When you give these presentations to illustrate the kinds of things that you’d see when the horse has left the barn, so to speak, and nobody had spyware, nobody is monitoring the apps or the online activity, would you say these are the sorts of things I see? Would you enumerate a few of the kinds of details that would come across your desk to go like, “Listen to me. This is not just about, ‘oh, you need to control your kid.’ This is about safety. This is for your child’s wellbeing.”

Dave: [00:30:35] Right. As part of this presentation, I highlighted three main cases that I worked. I think I’ve talked about them on the podcast before that are social media driven crimes. Facebook, Kik Messenger, things like that where we have sex offenders either already registered or when I’m done with them, they’re going to be registered, reaching out to vulnerable, impressionable, young people, and grooming them.

Yeardley: [00:31:07] And also traveling to meet them if they don’t live in the same city or town or state. If there’s enough contact between sex offender and the child, it’s not unheard of that they would go, “Oh, hey, what’s your address?” And then suddenly, they show up at the playground that’s in the neighborhood.

Dan: [00:31:24] In those cases for us other detectives who are working alongside Dave, are so much fun for us.

Yeardley: [00:31:32] To catch those guys.

Dan: [00:31:33] Catching those guys and their surveillance. Honestly, the moment that you introduce yourself as a police officer– because Dave’s the quarterback. He’s the eye in the sky, basically, he’s back at his desk, and he’s calling the place. He’s telling us detectives who are surrounding this area where bad guy is supposed to appear. “Hey, he says he’s arriving in this vehicle. It’s this color, and that he’s a block away from the park right now.”

Yeardley: [00:32:01] Because Dave’s in touch with the sex offender online pretending to be the victim, right?

Dan: [00:32:07] Yeah. The initial confrontation with these guys, when you introduce yourself, “Hi, I’m Detective Dan. We need to have a chat,” the look on their face is priceless. [Yeardley laughs]

Dave: [00:32:19] It’s good stuff. Yeah.

Yeardley: [00:32:21] Would you start out with that so the parents go like, “Oh, shit, oh, shit.”?

Dave: [00:32:25] No, I ease them into it, and then I hit them with a sledgehammer. Impact, right?

Yeardley: [00:32:31] Yeah.

Dave: [00:32:32] So, I would go into grooming, which we’ve discussed, and we have on our resources page a list of grooming activities.

Yeardley: [00:32:39] We also have that wonderful episode with Nicole called Disclosures, where both of you have an extended conversation about the kinds of grooming that you’ve seen over the course of your work.

Dave: [00:32:50] Right. Previous podcast episodes, I talk about each suspect kind of had their own little fishing pool with a line. “Your boyfriend’s really lucky.” Fishing, trying to see if you’re going to, A, respond, and B, “Do you have a boyfriend?” “I’d really like to cuddle with you.” I had one guy that was all about sending dick pics, like right away. So, they all have their little game that they play with the subjects of their attention. You just have to feel out for that and recognize it when it comes across, which I always did right away, send a friend request to one of these guys using a fake account. Right away, they send you a message, like, “What’s your story? Tell me about you. You have a boyfriend? You want to hang out sometime?” It starts quickly and usually escalates rapidly after that.

All of this is done because the ultimate payoff for the offender is to arrange an in-person meeting so they can offend. That’s a crime in our state, where you are using an online tool to communicate with a known minor to engage in sexual activity and then taking it a step further by offering a place to meet and then taking a substantial step towards doing that, which if I arrange a meeting with you, and you show up at the location based on our– [chuckles] could be 20 minutes of chat. I’ve spent hours chatting with some of these folks, until they finally go, “Okay, I feel safe enough that I want to meet this person.”

Yeardley: [00:34:35] Meaning, the sex offender feels safe enough?

Dave: [00:34:37] The sex offender feels safe enough where they’re like, “Okay, I don’t think it’s a cop.” And they play some of these tactics, like, “Why don’t you send me a picture of you right now?” So, you have to be creative about avoiding that, and that was always a challenge for me. I was like, “How do I get out of this one? Oh, I’ll use the excuse I used with this other guy.” Usually, it worked.

Yeardley: [00:34:57] Do you want to tell us what that was or no? Is that a trade secret?

Dave: [00:35:01] Trade secret.

Yeardley: [00:35:01] Fair.

Dave: [00:35:03] A lot of times, these offenders would offer drugs, alcohol, something that might loosen inhibitions or be attractive to a teenager, who’s like, “Oh, yeah, I’d love to drink alcohol with you. That’s not something I can do, or I have to sneak out to do that.” So, these offenders know this, that it’s appealing, and that’s an offer, they’ll make. All kinds of stuff.

I have a slide titled “Warning Signs.” It’s all about warning signs that a parent would see from their child. It could be as simple as your child being very secretive about their online activities, hiding their phone, things like that. Child becomes obsessive about being online, because they want to go talk to their friend. They get angry when they can’t be online, or you don’t allow them to get online. Your child receives phone calls from numbers you don’t recognize or people you don’t know, and they sneak off to have a conversation. They receive gifts, they show up with new clothes, they get packages sent to the house from someone the parents don’t know and are like, “Why is my child receiving a package?” Or, “Where’d you get those shoes?”

Yeardley: [00:36:20] That’s insane. It’s so obvious. It’s so bold.

Dave: [00:36:25] Right. Child might be withdrawn from family and friends. It’s also normal where kids get to the point where they’re like, “I don’t really want to hang out with my parents or be at this Thanksgiving social. I’d rather be at home or I can be online, or I can go out and meet my friends at the park.”

Yeardley: [00:36:42] But to what extent has that erosion occurred?

Dave: [00:36:46] Right. Is it coupled with these other warning signs? The child might change screens or turn off their computer when an adult enters the room. The child starts to look at pornography online. Given today’s culture, I would expect that from a percentage of the population of kids. I would expect them to be looking at pornography, because it’s out there, it’s available. When it becomes more involved, or obsessive or consistent, that’s an issue. The desensitizing nature of children watching these hardcore pornography videos, that’s going to impact their development. I have the source for that information, website is internetsafety101.org. There’s actually a tab called Predator Warning Signs.

Yeardley: [00:36:46] That’s good to know. We’ll put all that up on our website under Resources.

Dave: [00:37:49] What to do if your child discloses sexual abuse? You’re the parent. Your child has either told a friend, family member, or yourself.

Yeardley: [00:37:59] Teacher, maybe.

Dave: [00:38:00] Teacher. They’re disclosing that they’ve had sexual contact or contact that they felt was a violation. When a parent hears that, I imagine it’s a huge pucker factor moment, like, “Oh, shit, not my child.” I understand that. If it happens, there are ways for a parent to handle that, that are kind of in my playbook, it’s kind of a wish list. I hope the parent does this, this and this. Here they are. If your child discloses sexual abuse, believe them, number one. The number of times I’ve had a child give a very descriptive, credible account of something horrible that happened to them and not be believed by the person who’s supposed to protect them, dozens. Happens often in this case load of child abuse, all the time. So, believe them.

[00:38:55] There’s a statistic out there that something around 90% of disclosures are found to be truthful. So, I would err on the side of caution and say, “My child just told me this.” Unless there are circumstances where you found your child to be completely unbelievable and they make up a lot of stories, I would hope your inclination would be to believe your child. Report it immediately. The initial reaction from a lot of parents, totally understandable, is, “I’m going to reach out over the internet to the person who’s contacting my child. I’m going to read them the [unintelligible] Act. I’m going to confront them. I’m going to let them know they are no longer to contact my child.” It’s an appropriate reaction. In my wish list or my playbook, my preference is you call the police first. And maybe I can take that role at a later date, while also trying to secure evidence.

Yeardley: [00:39:55] Because chances are they’re not just doing it to your child. There are multiples.

Dave: [00:40:00] Correct.

Yeardley: [00:40:01] So, if the police get involved, then you can stop this person, instead of sending them underground and then you can’t find them.

Dave: [00:40:08] Right. All of a sudden, their profile is deleted, those types of things, huge roadblock for me. Great job by the parent being initially very protective. I totally understand that. I’m just saying, from my perspective, “This is what I want.” So, report it immediately, and with that is avoid confronting or alerting the suspect that you’re onto them. I’ve got a graphic here on that slide that has three different graphics. Of children who are sexually abused, 20% are abused before the age of eight. 90% of child sexual abuse victims know their abuser. It’s not stranger-danger, it’s someone close to them. Only 4% to 8% of child sexual abuse reports are fabricated.

Yeardley: [00:40:58] Okay, it’s very small.

Dave: [00:41:00] Then, I get into the online predators that I personally have encountered. Dan’s met a couple of these guys.

Dan: I have, they didn’t look like their mug shots when I encountered them. They had raised eyebrows.

[laughter]

Dave: [00:41:17] A certain curiosity.

Dan: [00:41:18] Or caution.

Yeardley: [00:41:20] Sweat on the brow.

Dan: [00:41:21] Sweat on the brow, the hands are shaking. That’s typically the reaction you get.

Dave: [00:41:26] I’ve said it in other presentations and in podcasts, without fail when confronted, these offenders go, “Oh, shit, I’m not talking my way out of this with this detective.” I see the bullshit alarm on his face is going off. “He doesn’t believe me. How do I recover here?” Without fail, they say something along the lines of, “I was never going to initiate any sexual activity with this child. I was simply meeting up with them to let them know how dangerous it is to meet a stranger online.” How altruistic of you is that? It’s garbage.

Yeardley: [00:42:05] Yeah, garbage.

Dave: [00:42:06] Total bunk.

Dan: [00:42:07] You’ve got three guys on this page. Go through their ages real quick.

Dave: [00:42:16] Contestant number 1, 28-year-old man, trying to lure a 15-year-old girl to meet in person for the purposes of engaging in sexual activity. He’s one of the guys that within moments was, “Here’s a picture of my erection. Let’s see how you handle that.” Very aggressive, wasted very little time. When I wrote the search warrant for his Facebook page, that suspect was talking to over a dozen other people concurrently. Timestamps on messages where it’s clear, he just sent Jane a message at 3:30 PM and at 3:31 in between messages with Jane, he was contacting Stacey and asking, basically, a thread of messages and the photos being posted, like cookie cutter to all the other chats. Another suspect I have here, 28-year-old male trying to meet up with a 14-year-old.

Yeardley: [00:43:15] Disgusting!

Dave: [00:43:16] Another one, 33-year-old male used marijuana to groom two 13-year-old girls. In each of these cases, these offenders met up with my team of detectives. And then shortly thereafter, I was introduced to them in an interview room at our police station.

Yeardley: [00:43:38] [chuckles] Things got progressively worse for them.

Dave: [00:43:41] Always satisfying. I used to always– just kind of my little shtick at the end. Once I knew the arrest team was walking up to suspect, I would say, “Surprise.” [Yeardley laughs] I remember I spoke to Detective Kyle about one of those. He said, “Yeah, we were patting the guy down at the hood of the car and we put a cell phone in front of them. And we got a message from the account you’re using, and it said, ‘Surprise.’”

[laughter]

Dave: [00:44:12] We started laughing. “Meet my friends.”

Dan: [00:44:15] One of these cases that was particularly disturbing to me was this suspect, much older than the girl he was going to meet, who he thought he was going to meet, he pulls up in an SUV. I think it was his grandmother’s SUV, and he had a bed made in the back of the SUV. So, this young female who was innocent, he was planning on taking her virginity in the back of this SUV. It’s shocking and disgusting. Putting these guys in cuffs is the most satisfying feeling because how many other girls did he do that to? There was another guy, Dave was working in this case. This guy took this young woman, this young girl to the movies and made her pay.

Yeardley: [00:45:04] Oh, my God!

Dave: [00:45:05] Oh, yeah.

Dave: [00:45:18] To wrap up with parents, I would always let them know that there are laws that govern this type of behavior.

Yeardley: [00:45:27] What type?

Dave: [00:45:28] Sexting-type behavior-

Yeardley: [00:45:29] Oh.

Dave: [00:45:30] Among juveniles. Certain laws have certain elements of the crime where a child must be under this age for to apply, or the suspect has to make the offer to meet up, ask for a photo, and then make an effort to meet in the place where the agreed-upon meeting was going to take place. There’s different laws that affect these. These have had to evolve with social media. Legislatures across the US are drafting and enacting laws that were written a year or two prior. We’re always trying to catch up with technology. That’s a learning process. As part of this, I think I mentioned earlier the issue where females photo was disseminated without her knowledge to hundreds of people. That’s a crime for the person who sent it.

Yeardley: [00:46:27] A crime for the girl who sent it, and not the person who disseminated it?

Dave: [00:46:31] It’s a crime for both of them. I’ll go through some of the laws. I’m going to give a very general overview of what the title is, but it would give away our state, even though I know our listeners are very smart, and they would– [Yeardley laughs] they already know. But to keep up appearances, we have one law that is about taking a video recording, either a picture or a photo of a child engaged in sexually explicit activity, that law is supposed to cover an adult who is reaching out to a juvenile and asking for explicit images. You’re basically asking for child pornography. That law also impacts the person who sends that image. Say it’s a 16-year-old girl and her 16-year-old boyfriend, that law still applies.

Yeardley: [00:47:19] Oh.

Dave: [00:47:20] Even though that probably wasn’t the intent of the law. You think about we’re trying to catch up with technology and trends across society. So, that law was applicable, and if the 16-year-old girl had the boyfriend ask, “Hey, will you send me a nude photo?”, the crime occurs when boyfriend asked for it and if the girlfriend sends it, she’s committed a crime too. Those are biggies.

Yeardley: [00:47:48] Interesting.

Dave: [00:47:49] We were getting cases where we have these sexting, think about the statistics earlier, the sheer volume of teenagers who have forwarded on explicit photos or asked for them, I don’t want to make all those people sex offenders. I want to educate them, counsel them, and arrest the behavior so it stops. We had that law. We recognized in our little niche of child abuse and sexual assault, that that law had way too much teeth for these teen sexting cases that we had. I’m like, “That is a lifelong sentence if that charge applies to you. It shouldn’t. Let’s educate them.” We talked about the law where you can’t, as an offender, offer to meet a child for the purpose of engaging in sexual activity. It’s against the law. There’s varying degrees of that. There’s online sexual corruption in the first degree or in the second degree. The first degree is much more serious. Second degree is maybe you offered to meet, but the meeting never took place, or he never showed up at the actual meeting spot, but you made the offer, and it was clear what was going to happen if and when you met with the child. Those are crimes. It might get your 13 months in prison.

Yeardley: [00:49:16] If you just offer but you don’t meet up with them?

Dave: [00:49:19] Correct. You’re probably going to get registered as a sex offender if you do that. And you’ll probably be at least on probation for three years. It’s not a given that you’re going to end up in prison. A lot of it likely has to do with, “How many charges can I apply under this statute?” Or, what your criminal past, your history is as a criminal. As a result of the sexting cases where a photo was sent to a boyfriend with the understanding it’s just going to stay on your phone and you’re not going to send to your boys, a new law evolved in our state, and it was incredibly useful for us working this caseload. Disseminating an intimate image of someone else without their consent and using it in harassing, humiliating, shameful manner is a crime. So, it’s kind of this revenge porn type stuff where boyfriend is unhappy with girlfriend for breaking up with him, and he’s like, “Hey, we made some sex videos,” and you throw it up on the internet. It’s a huge violation of your ex’s trust, that should be against the law, and it is now.

Yeardley: [00:50:29] Is it more severe if both parties are underage? If the boyfriend is 15 and the girlfriend is 15, and he disseminates her photo, is that a greater crime?

Dave: [00:50:41] It’s not as great as the first one I talked about, which was the law that was kind of behind the times where if you ask for it or if you send it, you are guilty of committing this crime. This one is much less severe when you send out this intimate image without the other person’s consent. It’s a misdemeanor. It’s an occasion where we can educate the child, both children involved, and their parents and school staff if it’s impacting the school, which inevitably it does, because those rumors go right around the school. It’s horrible. I can’t imagine being in high school nowadays.

Yeardley: [00:51:17] Ugh. It was hard enough when we were. [chuckles]

Dave: [00:51:21] Right. Detective Matt and I, and other detectives that we’ve had on our show, met with the district attorney to formulate a game plan. How are we going to handle these sexting cases so we’re not turning 15 and 16-year-olds into felons and sex offenders when that’s not an appropriate use of the statute? Let’s find a different way to do this that is less impactful, long term, and immediately impactful when you can go to a parent or a child who is your “suspect” for sexting back and forth. I just want to stop the behavior right there, and that’s your “Get Out of Jail Free” card.

[00:52:04] You can imagine, and this has happened, where I have this talk with the suspect, the 16-year-old, and his father, or his mother, and I say, “This has to stop now, do we understand? If your name is on a police report and it lands on my desk again for the same type of behavior, I’m going to think that you didn’t get the message. I’m probably going to ramp things up a little bit.” The district attorney, she agreed, like, “We need to have a plan of attack.” So, the circumstances drive the police response. Our preference is an informal education and counseling to all parties involved. We let them know that the creation of the image is a crime and requesting an image is a crime.

[00:52:51] We want to avoid the criminalization of these kids who are engaging in activity that a majority of other high school kids are doing, it just hasn’t landed on my radar. Evaluations are on a case-by-case basis and all depends on the behavior of the activity, are they being harassing, shameful, that type of thing. We want all the parties to cooperate. If I say, “Hey, I need to get into your phone, and we’re going to go through and delete all the questionable images off your phone. I want you to cooperate with that. If you stonewall me and say, ‘Screw you, it’s my child’s phone, you’re not getting into it,’ I go, “Well, it’s my phone, by the way, I just seized it because I know what’s on there. And really, I just wanted your cooperation, but now you’re going to make me write a search warrant for this. And that’s a lot of work, not just for me, for a deputy district attorney who asked to review this, and I’m also going to go interrupt a judge in the middle of their day or night. I’d rather you just cooperate.” Most people, 99% of parents were like, “Okay, now that you put it that way, I’d be happy to cooperate with you.”

[00:54:04] The context of the sexting behavior is a course of shameful, harassing, intimidating, or is it consensual. Consensual is a completely different animal. I’d rather it be a consensual thing rather than you saying, “Hey, I’m going to release this rumor throughout the school unless you send me a photo of what you’re wearing right now, and I prefer you not be wearing anything.” Like that, come on, man.

[laughter]

[00:54:30] You are on the path to becoming a regular on my caseload. We really stressed coercive, bullying, shaming behavior, real bad. You’re going to get a different response from law enforcement and from the court. If you just want to cooperate and play ball with us, it’s going to end today. It’s all over. I know that your phone has these images on there. I have to ensure that that is not available, or else I wouldn’t be doing my job. It’s like arresting someone for crack and then handing them back the crack pipe and the crack, saying, “You know what? I just really don’t want to deal with it today. On your way.”

Yeardley: [00:55:09] Just don’t do it, okay? Here’s all the stuff back.

Dave: [00:55:12] Right. That stuff has to go. It’s fruits or proceeds of a crime, that stuff has to be taken care of.

Dan: [00:55:19] Repeated cases.

Dave: [00:55:20] Obviously. If you repeatedly come across my desk, you’re going to get my attention because you’re just creating work for me. That only happened a few times, but it has happened where we have this talk with the involved child and their parents, and they swear up and down, “I got the message. Promise, you’ll never see me again.” And then a month later, here they are, listed in another police report and you’re like, “All right, you get level two consideration now.” It’s going to be a bigger deal than the last time we met. It’s just the way it is.

[00:55:56] The last thing I would talk about with parents is it’s especially applicable to parents of boys. Not to say it doesn’t go the other way but in my experience, and I know when I discussed sex offenders, a lot of times I say he or him, that’s my experience, is 90 plus percent of my caseload was male offenders. So, I speak in those terms. I encouraged parents to always discuss consent with their children, how important that is, what consent looks like, what it doesn’t look like. It’s extremely important to avoid landing your name in a police report, that if you respect the other person’s boundaries, we’re not going to get to the point that we have a crime occurring. That’s the whole goal. Nobody’s getting victimized, and then everything’s consensual. So, talk to your children about consent, and what it looks like. I have a video that I used to always throw into every presentation I had on the subject. The title is “Consent. It’s as simple as tea.”

Yeardley: [00:57:04] Like tea that you drink?

Dave: [00:57:06] Yeah, like a tea party.

Yeardley: [00:57:07] [chuckles]

Dave: [00:57:08] I found that video on YouTube. It’s a brilliant video, it’s only a few minutes long, but basically says, “You wouldn’t allow your friend to come over unannounced and offer you tea. And when you said no, they shove it down your throat until you’re unconscious. If you wouldn’t consent to that, and you recognize that the person is not consenting, just because you guys had tea before, that it’s not such a stretch to think about it in sexual terms.” Just because we’ve had sex before doesn’t mean that it’s going to be a regularly scheduled program. It doesn’t mean that because they said yes before that they can’t say no now. It doesn’t mean that in the middle of the act, when they start saying no, that means it’s over with. That if a person is punch drunk on tea, and they’re passed out, you should be caring for them, not taking advantage of the amount of tea that they drank, that it’s all consensual. Don’t violate other people.

Dan: [00:58:08] Just to be clear, you’re talking about juveniles together right now. Not talking about a 28-year-old who’s groomed a 15-year-old. We’re talking about juveniles and consent.

Yeardley: [00:58:20] Among juveniles.

Dan: [00:58:21] Yes. A juvenile cannot consent at all with an adult.

Yeardley: [00:58:26] What about juvenile to juvenile?

Dave: [00:58:28] Yeah, so in our state, a juvenile is considered a child until their 18th birthday. In our state, you are not as a child capable of consenting to any sexual contact with anyone.

Yeardley: [00:58:42] Even a 16-year-old to 16-year-old?

Dave: [00:58:44] Right.However, we understand what happens in high school. We’re not naive. So, there’s consideration given to that by prosecutors and by the legislature when we talk about laws and what has to be prosecuted versus prosecutorial discretion. We all went to high school. We know what happens at the parties, and we know that people are in relationships. We understand that 16-year-olds are going to experiment and they’re going to have sexual experiences. We just ask that it be in a consensual manner.

Yeardley: [00:59:15] When you’re talking about teenagers consenting to have sex, you’re speaking in a colloquial way?

Dave: [00:59:20] Absolutely. I’m not speaking in a legal term way or legal definition. We’re discussing the birds and the bees that happens to be explored by likeminded juveniles.

Yeardley: [00:59:32] Yes. Okay.

Dan: [00:59:33] What’s important, us in law enforcement and prosecutors and judges, we all understand what the spirit of the law rather than the letter of the law. We know there’s a difference there.

Yeardley: [00:59:44] There are nuances.

Dan: [00:59:45] There are nuances and we take those things into consideration.

Dave: [00:59:49] This video, I love this video, it’s the accent. The guy sounds kind of like the Gecko from GEICO. The video is so simple, it’s entertaining.

Yeardley: [00:59:58] To our listeners, if they want to actually watch the video as you would present it in your presentations, you can find it on YouTube. It’s called Tea and Consent. Tea as in T-E-A.

Dave: [01:00:11] Right. There’s two versions. One is the English accent, the British accent that I really enjoy.

Yeardley: [01:00:19] Yes. [chuckles]

Dave: [01:00:20] The other is an American voiceover

Dan: [01:00:23] The British one is way more charming.

Yeardley: [01:00:24] [chuckles]

Dave: [01:00:25] It really is actually,

Yeardley: [01:00:26] There you go. [chuckles] So, that’s how you would wrap up your presentation?

Dave: [01:00:32] I would always take questions at the end. If our listeners have questions, feel free to reach out.

Yeardley: [01:00:39] You can reach out to us at info@thebriefingroompod.com.

Dave: [01:00:42] Yeah. For parents who have questions about what we just went over, if you want to email myself or the team at info@thebriefingroompod.com, feel free. Happy to answer the questions.

Yeardley: [01:00:54] Yeah. Excellent. What an extraordinary public service, Dave. It’s so good. Thank you.

Dave: [01:01:01] You’re welcome. I hope it helps.

Yeardley: [01:01:03] I don’t see how it couldn’t.

Dave: [01:01:05] After these presentations, Matt and I would get extremely useful feedback and let us know that parents needed to hear this stuff, that it’s valuable information.

Yeardley: [01:01:16] Absolutely. Thank you, Dan.

Dan: [01:01:18] You’re welcome. I have limited experience in these other than putting handcuffs on them, which is fun.

Dave: [01:01:26] Yeah, Dan got to be there present for the fun part.

Yeardley: [01:01:29] [laughs]

Dave: [01:01:31] And I got to see dick pics and have all sorts of activities described on what people wanted to do to me.

Yeardley: [01:01:38] Oh, boy, because they thought you were Stacey.

Dave: [01:01:42] Yep.

Yeardley: [01:01:44] Ugh. There you go. Small Town Fam. To take us out of this episode, we thought we would play you the audio from that awesome video, Tea and Consent. Stay safe, stay well. We will see you next time.

Narrator: [01:02:01] If you’re still struggling with consent, just imagine instead of initiating sex, you’re making them a cup of tea. You say, “Hey, would you like a cup of tea?” And they go, “Oh, my God, I would love a cup of tea. Thank you.” Then, you know they want a cup of tea. If you say, “Hey, would you like a cup of tea?” And they’re like, “Ah, you know, I’m not really sure.” Then, you can make them a cup of tea or not, but be aware that they might not drink it. And if they don’t drink it then, and this is the important bit, don’t make them drink it. Just because you made it, doesn’t mean you are entitled to watch them drink it. If they say, “No, thank you,” then don’t make them tea. At all. Just don’t make them tea. Don’t make them drink tea. Don’t get annoyed at them for not wanting tea. They just don’t want tea, okay?

[01:02:52] They might say, “Yes, please, that’s kind of you,” and then when the tea arrives, they actually don’t want the tea at all. Sure, that’s kind of annoying as you’ve gone through the effort of making the tea, but they remain under no obligation to drink the tea. They did want tea, now they don’t. Some people change their mind in the time it takes to boil the kettle, brew the tea and add the milk. And it’s okay for people to change their mind, and you are still not entitled to watch them drink it. If they are unconscious, don’t make them tea. Unconscious people don’t want tea and they can’t answer the question, “Do you want tea?” because they are unconscious.  

[01:03:30] Okay, maybe they were conscious when you asked them if they wanted tea, and they said yes. But in the time it took you to boil the kettle, brew the tea, and add the milk, they’re now unconscious. You should just put the tea down, make sure the unconscious person is safe, and this is the important part again, don’t make them drink the tea. They said yes then, sure, but unconscious people don’t want tea. If someone said yes to tea, started drinking it, and then passed out before they’d finished it, don’t keep on pouring it down their throat. Take the tea away. Make sure they are safe, because unconscious people don’t want tea. Trust me on this.

[01:04:09] If someone said yes to tea around your house last Saturday, that doesn’t mean they want you to make them tea all the time. They don’t want you to come around to their place unexpectedly and make them tea and force them to drink it, going, “But you wanted tea last week,” or to wake up to find you pouring tea down their throat going, “But you wanted tea last night.”

If you can understand how completely ludicrous it is to force people to have tea when they don’t want tea, and you’re able to understand when people don’t want tea, then how hard is it to understand when it comes to sex? Whether it’s tea or sex, consent is everything. And on that note, I’m going to make myself a cup of tea.

[Small Town Dicks theme]

Yeardley: [01:04:54] Wow, that was delicious. Here’s how it happened. Just like our main episodes, Small Town Dicks on Patreon is produced by Gary Scott and me, Yeardley Smith. And coproduced by Detectives Dan and Dave. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our editors extraordinaire are Logan Heftel and Soren Begin. And Logan also composed our Patreon theme music. So, that’s fancy. And finally, our books are cooked and cats wrangled by Ben Cornwell. The team is forever grateful for your support.