*
*
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
LEGAL
ISSUES RELATED TO THE
USE
OF
PS I
AUTHOR
STANLEY
L,
SCHALL
DATE
MAY 1984
SGI J
Dl/V
G-tyU^&L
COOJ[) SQL
ofFt CP
Tht5
pftpffc MY
OP
sow
use
t
Yoo
Q)R\W
/3ozQy
ARMY review(s) completed.
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
Acknowledgments
I would like to extend my sincere appreciation to the following
persons who assisted in the critiquing and editing of this paper:
Jack Hmuck, Aerospace Engineer, McDonnell Douglas Corporation
}
Jose Pulido,
Ventura County, California District Attorney
Criminal Investigator ; and Jack Sherry, former newspaper editor
and retired corporate vice president of a large printing firm.
A special thank you is also extended to my typist, Lisa Christopher
,
who provided the rough drafts and final copy
-Stanley L. Schall
May 1984
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
LEGAL
ISSUE?
RELATED
TO TKF
USE OF
PSI
During the past
several
years,
there has been an increase in the
reported use of psychics in national security matters as well ~as
in assisting federal and local law enforcement.
The psychics
provide nonconvent ional
clues.
These clues added to the success
of solving major crimes.
Note:
psychics do not solve crimes.
The cases are put together by regular investigators.
But, when
used appropriately , psychics become an adjunct
tool similar to
any other legal investigative technique.
This paper is an over-
view raising questions about legal and ethical issues involved in
the use of psi by local law enforcement and the judicial process.
Psi is defined as a term to designate collectively paranormal
events and/or faculties , including ESP, clairvoyance , psycho-
kinesis, and survival phenomena.
From the preliminary investigation through incarceration/
including the judicial procedures,
psi has proven
it can
enhance the ability of many investigators to reduce case
management time and to increase the apprehension rate.
This
is particularly true
in difficult cases.
However,
the
possibility of violating a defendant's rights may also be
present.
Because there
is insufficient case law to provide
necessary guidelines, our four years of study show a need
to establish a dialogue of the issues and ethics regarding
the use of psi within the criminal justice
system.
There are two tracks on which we will focus:
(a)
the use
of persons who have psi abilities and are not members of
a
law enforcement agency,
and
(b)
those persons with psi
abilities who are sworn personnel of an agency.
Psi contributors are treated as informants.
They must
establish their credibility with a high degree of
"hits,"
or verifiable observations, which are then corroborated
by
an investigator.
Once the psi input
is independently
- 1 -
Approved For Release 2005/03/1 4
: CIA-RDP96-00792R0006001
0001-1
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
substantiated ,
it and the resulting evidence may be
intro-
duced
into court.
But this must occur within
the framework
of
the
justice
system.
Search and arrest warrants and the
rules
of evidence must be meticulously adhered
to
in order
to avoid compromising a defendant's rights.
An otherwise
diligently prepared case can be
lost
at perhaps the pre-
trial motion phase—for example
in discovery—or somewhere
down the process during the appeal
stage
if the rules of
evidence prove
to have been violated.
%
To protect the psychic informant who may or may not qualify
as an expert witness ,
a judge may interview the informant
in the presence of the prosecuting attorney and the investi-
gating officer
in an
"in camera" hearing.
Neither the
defense counsel nor the defendant are present during this
session,
if
the judge determines that an informant's data
does not have
a direct bearing on either the guilt or
innocence of the defendant,
the psychic informant need not
be identified in court or be
subject to examination.
This
is contingent on the investigator corroborating the data and
developing independent leads which result in the arrest.
If
a psychic
is
a consultant for an agency,
he /she then
becomes an instrument of the agency and
is subject to the
same legal requirements
in the collection of evidence
as
is
required of sworn members of
the agency.
This can pose
a
problem,
for example, when
a consultant uses remote viewing
abilities to enter
a location mentally,
without consent of
the owner/renter of the property,
or without
a search
warrant.
Does
such action constitute
a legal
search?
So,
as we begin to explore
some ramifications of the use
of
psi,
we begin to identify many areas of concern.
To reduce
Approved For Release 2005/03/14? CIA-RDP96-00792R0006001 90001-1
«*a
j^iaB^a^gitwaB i
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
the problems, we recommend
an agency involved with
psychics develop
a specific policy on how to handle psychics
and
screen each
.informant /consult ant
as carefully
as they
would their own personnel.
Such steps
should preclude the
compromise of
an investigation or embarrassment to the agency.
It
is our opinion that to reduce or minimize problems when
using persons outside an agency as
an adjunct,
investigators
should learn to develop their own psi abilities.
Such educa-
tion and training should enhance the legal process and reduce
the potential
for errors
in case preparation.
However, we
must not overlook the possibility of
an investigator who
might zealously sacrifice agency ethics and thus violate
a
defendant's rights to obtain
a conviction.
The United States Supreme Court
is currently reviewing the
Exclusionary Rule which requires evidence be obtained in
compliance with the Fourth Amendment to the U.S.
Constitution.
The courts cannot accept evidence obtained in an unreasonable
search and seizure regardless of how relevant the evidence is
to the case.
(Weeks v.
United States ,
232
U.S. 383,
34 S.Ct.
341,
L. Ed. 652
(1914).)
Since that case,
the courts have
adopted guidelines to assure law enforcement that,
by
adhering to proscribed procedures,
its search and seizure
would be considered reasonable.
The general
guidelines
permit a search to be
justified when any of these apply:
(1)
consent is given;
(2)
a search warrant has been
issued;
(3)
an emergency exists;
(4)
there
is probable cause;
or
(5)
a limited search may be conducted when incidental to
arrest.
The United States Supreme Court may relax the Exclusionary
Rule
to include
a statement called "good faith on
the part of
law enforcement when conducting
a
search."
This means that
-3-
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
j f
an error
is made
in the
search
and
seizure
of
evidence,
the case may still
go
forward,
provided
the error was made
without prejudice toward the defendant.
One critical concern
in the Fourth Amendment
is the Reasonable
Expectation of Privacy
(REP)
.
This guarantees everyone the
right to be free from unreasonable
intrusion.
This right
is
personal
to every citizen.
It can exist almost any time
and
any place as long
as:
(a)
the individual has indicated that
he personally expects privacy,
and
(b)
his expectation of
privacy
is objectively reasonable under the circumstances.
When a person is
in custody, whether
in a police car or
in
jail,
he can expect what he
says may be recorded.
This also
relates to someone
in his own home being interviewed by
law
enforcement.
The probability of what he
says being recorded
is
a distinct legal possibility.
Therefore,
a serious issue
is:
will
someone's rights be violated
if,
after they have
been given a Miranda warning,
they elect to remain silent
and subsequently a psychic, either in or outside the interro-
gating rooms, uses ESP to provide the police officers with
incriminating evidence.
Would this violate
a defendant's rights?
Let’s look at another example.
The psychic
is present during
interrogation of
a burglary suspect who may also have been
responsible for
a brutal rape /murder of
a
seven-year-old.
The suspect is told the psychic
is present,
that no matter
how he tries to evade questions,
the psychic will
be able to
read his mind.
The suspect waives his rights and admits
to
the burglary but not to the other crimes,
and the psychic
confirms the suspect's statements.
Is this a form of intimidation by
law enforcement?
Does
it thereby make
the
statement
of admission illegal?
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
Another
example
of
the use
of psychics
is
in
the area
of
psychometry
(the ability
to obtain facts
about
the history
of
an object,
including persons and events connected with
it,
usually
by touching or holding
the object).
An
investigator provides photos,
bloody clothing and a ring
worn by
a murder victim.
He wants to know who the suspect
is.
The psychic provides details
of the crime
scene and
other pertinent information known by the investigator.
Thus,
information provided by the psychic
is immediately
corroborated or disproved.
The psychic then describes in
detail,
circumstances surrounding the death,
perhaps includ-
ing
a description of
the suspect and his car as well as the
location of additional evidence such as
the murder weapon.
Does such information violate any law or rules of evidence
if the investigator corroborates the data and obtains
a
search warrant listing the psychic /informant in the affidavit
supporting the request for the warrant?
I
One last example before we present specific concerns:
Narcotic investigators have received hearsay information from
an anonymous informant about several attorneys who have pro-
vided large sums of money to finance the purchase of cocaine
for distribution.
They have also set up dummy corporations
to hide their profits.
The investigation has taken several
months without sufficient evidence being developed to deter-
mine
if,
in fact,
a crime has been committed.
The investiga-
tors are aware of
a meeting of the alleged conspirators
in a
high-rise building which has
a great deal
of electronic
security to prevent listening devices from being used.
They
contact a person who has demonstrated remote viewing abilities.
This person is successful and provides data to open the inves-
tigation.
:He obtains the points of distribution,
dates and
times of delivery of
the cocaine and the names of the dummy
corporations
- 5 -
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
Wac
the information obtained
by remote viewing
,
and
subse-
quently corroborated by
law enforcement,
a violation of
the
Fourth Amendment?
The reader should not consider the above examples
as fantasies
In fact,
they occurred almost as written, with the exception
of
the
last case.
The cases were
slightly modified
to pre-
clude violating the confidential information.
With these
circumstances
in mind,
let us now approach the specific issues
and ethics of
the use of psi in local law enforcement.
Let's review the case of People
v.
Egan ,
141 Cal.App.3d
798
(1983).
"Binocular- aided observations of marijuana grow-
ing in open fields, made from an airplane,
are legal
as long
as the plane
is at
a lawful altitude
(at least
500 feet above
ground level).
This
is
so even though the marijuana cannot
"truly"
be identified without the use of the binoculars.
yA
defendant simply has no reasonable expectation of privacy
as to the viewing of his crops by aerial
surveillance.
However,
in the case of People v.
Cook ,
Sup. Ct. No. CRN-7500
(Cal ,C!t .App. 4th filed February
16,
1984) (4 Crim. No. 15349)
,
it was stated that aerial flyovers of property where precau-
\
tion was taken to hide the contraband violates REP.
Cook's
residence was
in
a semi-rural area and he was growing mari-
juana
in his back yard.
He took precautions to protect his
illegal activity by hiding the evidence from general observa-
tion.
The flyover was designed to locate the contraband from
the air.
The court stated that since law enforcement did
not routinely fly over Cook's house as
a normal patrol proce-
dure,
they violated his REP.
The court further stated that
"the Fourth Amendment guards the privacy of human activity
from aerial no less than terrestrial
invasion."
There are other cases that state evidence obtained by
a
person using one or more of the
five senses
in observing
- 6 -
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
something coming from
an open apartment house window while
standing outside
on public property does not violate
the
defendant's
REP.
Now let's take
a look
at the psychic
investigator who uses
remote viewing to obtain evidence of
a tax fraud taking place
in
a major gambling casino.
The suspects
are talking at
a
public roof-top restaurant and exchange papers regarding
a
skimming operation and the washing of money through
a bank
in another
state.
The investigator,
through his natural
abilities, projects his mind to their table and
is able to
listen
in on their conversation as
if he were present.
There
apparently
is no case law to preclude this kind of search and
seizure of information since the
suspects'
meeting took place
in the open without taking steps to safeguard their conversa-
tion.
In this case the
"aerial flyover"
is the investigator's
mind and the only enhancement is his or her own natural
abilities.
The California Peace Officers Legal Handbook of 1983, defines
probable cause to arrest as
"a set of facts which would cause
a person of ordinary care and prudence to honestly believe
and strongly suspect that the person to be arrested is guilty
of
a crime."
In other words,
to make a valid arrest without
a warrant,
enough factual information
is needed to make an
average,
reasonable person—who has the same training and
experience—believe or strongly suspect that
an individual
is guilty of
a crime.
People
v.
Price ,
137 Cal.App.3d
(1982).
A psychic informant who has freely and voluntarily provided
quality information
in the past states that she was reading
someone's mind at a supermarket and that the person was buy-
ing groceries to store for the kidnapping of the chief
executive officer of
a multi-national
corporation.
She
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
followed
the person
to his
car and obtained
the license
number
and description
of
the vehicle.
There
is
a passenger
in
the vehicle.
The psychic again uses ESP.
She believes
the passenger
is also involved
in
the kidnapping plot.
Her
information
along with the suspects'
descriptions
is turned
over to law enforcement.
In this case,
one of the suspects
threw away the
store receipt which the psychic retrieved.
However,
the crime
lab was unable to obtain fingerprints.
Law enforcement subsequently learns that the kidnapping has
not yet taken place,
but the car
is rented
to
a known
felon.
The
store receipt
is given to the psychic who uses psycho-
metry and provides
a series of
leads.
The leads are confirmed
by
the
law enforcement unit.
Sufficient information
is then
obtained through conventional police methods to arrest the
suspects as they drive
to carry out their plan.
Is the original evidence provided by the psychic grounds to
develop probable cause?
Will
it hold up in court?
California Evidence Code
S
1042(b)
states that where
a
search is made pursuant to a warrant valid on its face,
the
defense
is not entitled to disclosure of the informant in
order
to attack the legality of the search or the admissi-
bility of
the evidence obtained.
Section 1042(b)
uses as
a standard for disclosure whether the informant
is a material
witness on the issue of guilt and whether there
is
a reason-
able possibility that nondisclosure might deprive the
defendant of
a fair trial.
This
is
set forth
in case
law:
People
v. Williams ,
Cal. 2d
355,
359
(1958);
People v.
Garcia ,
67 Cal. 2d
830,
839
(1967).
If the psychic informant believes that
a known child moles-
ter has
just taken
a seven-year-old girl to his mountain
cabin where
he contemplates rape and eventually murder,
- O-
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
and
identifies
the
suspect's van
and the first three digits
of
the license number,
it would be considered an emergency
A.
O Umo LUiitt
I
O-U-l V 'O-w
u
,
<4 •- Jt- —
-i
•» P
vac; oc-L-ni
_
li i to
or
to
had
be;en reported missing and then run their
sex offenders
through the files of the Division
of Motor Vehicles to
ascertain
if he owns
a van with the reported first three
digits.
If this
information
is verified and county real
estate records confirm the ownership of
the property by the
suspect,
the officers could either obtain
a search warrant
for the child or use the exigent circumstances to prevent
the crimes of rape and murder.
It appears that events
in
this
scenario would require identifying the informant.
Once
the psy chic/ informant took the
stand for eventual cross-
examination by defense counsel,
the prosecution would first
have to establish the credibility of his informant which may
be difficult.
To prove this,
there should be statistics
to show that the psychic's statements are far beyond the
degree of probability of guessing and that the psychic has
been used successfully in the past to assist in providing
nonconventional clues to solve major crimes.
A psychic
is driving by a residence and sees
a male about
25 years old standing behind an unlocked chain link fence.
The psychic uses his ESP and believes the male
is thinking
about selling
15 kilos of cocaine and the receiving of more
than $600,000
in cash from a transaction that will take
place
in
48 hours.
The psychic, who has established him-
self over the past several years as
a reliable informant,
is now a consultant
for a police agency.
He contacts the
agency about the narcotics.
Since the consultant
is presently
acting as an agent for the police department,
he must follow
all of
the rules of evidence regarding search
an<i seizure.
In the case of People
v.
Mendoza,
122 Cal.App.3d Supp.12
- o_
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1
(1981)
the court ruled that
a police officer had the right
to enter the unlocked front gate and talk to Mendoza who
was approximately
75 feet from the
front of the
fence.
The
officer wanted to talk to him about his dealing
in heroin.
The officer observed Mendoza as being under the influence
of drugs.
The court stated
in
a
to
1 decision that they
"viewed the fence
as being more
for
'discouraging dogs,
children,
handbill deliverymen and others from walking
across the front lawn and flower beds'
than for the purpose
of exclusing the public.
Therefore, Mendoza had no reason-
able expectation of privacy
in his front yard and it was
proper for
the officer to enter the unlocked gate and
approach him.J'
In our scenario,
instead of the psychic/consultant walking
through the gate,
he used his mind to obtain the information
from his vehicle which was across the street from the sus-
pect's residence.
We now must decide what is REP as it
relates to the thought process of an individual
in open
view but on his own property.
I have not yet found any case
law to cover this.
Fate Mcigazine reported in its November 1979 issue "that the
South Gate, California Police Department used
a psychic who
gave
a police artist
a description of
a suspect in the dis-
appearance of
a seven-year-old that occurred October
22,
1978.
The officers recognized the suspect, who was known by
the missing boy's family,
and arrested him.
The suspect
confessed to murdering the boy as well
as two others.
Judge
William E. McGinley of the Los Angeles Superior Court ruled
'that the use of the psychic
in the case was merely an inves-
tigative tool and cannot be relied upon by the officer
in
connection with justifying the arrest.
However,
it may be
used to follow up additional
leads.'
It was evaluated as
- 10 -
Approved For Release 2005/03/14
: CIA-RDP96-00792R0006001 90001-1