Question 6. The VA cost estimate on H.R. 3876 is based on reports from 58 percent of your facilities. Your estimate that each veteran who became eligible for drugs and medicines under this legislation would receive 36 prescriptions each year. Do you have any information to support your assumption that veterans receiving fee-basis care are similar to veterans who seek private care for their service-connected disability?

Answer. There is no specific information available to us to support this assumption. It is felt that treatment by a physician, specifically in prescribing medications would be similar, irrespective of whether the VA or the patient is paying for the treatment. It is also assumed that veterans who pay for their own treatment would seek it in a fashion similar to those who are on an authorized fee-basis program, and receive medication in like quantities. These positions were assumed in order to provide a basis for estimating the number of prescriptions and refills of those prescriptions that could normally be expected for veterans covered under H.R. 3876.

Question 7. It is the figure of 36 prescriptions reasonable in your costing of our bill, when the bill would authorize medicine only for a compensable service-connected disability?

Answer. We believe the estimated figure of 36 to be reasonable for the number of times per year medication would be issued to veterans covered under H.R. 3876, whether from a new prescription or refills of prescription previously received. Our VA experience has shown that on an average each veteran visit results in three prescriptions being filled. When continuous care is involved, up to five additional refills may be provided if ordered by the physician. The average of 12 prescriptions per year written by fee physicians and filled in non-VA pharmacies involve those medications which must be started at once. Subsequent refills are provided by VA pharmacies. Any other prescriptions not required to be started at once are sent to the VA pharmacy for filling and refills if ordered. Based on this and other changes, modifications or additional prescriptions written for treatment of a particular disability leads us to believe that the figure of 36 is realistic for a group of persons who have specific disabilities requiring continuous care, versus those who do not and who only seek occasional care and treatment.

Question 8. Please tell us how many weeks of training Federal Protective Officers employed by GSA receive. How many weeks do U.S. Capitol police receive? Please supply us with the names of any security operation known to you where only a week of training if provided.

Answer. We are informed by GSA Federal Protective Service and the U.S. Capitol Police that police officers entering those agencies undergo an eight-week police training program at the Federal Law Enforcement Training Center, Glynco, Georgia. The U.S. Capitol Police further provide an eight-week in-house training program and GSA provides a two-week refresher course at the Federal Law Enforcement Training Center after five years of service.

We know of no agency other than the VA where only a week of training is provided to new police officers. However, the VA adheres rigidly to OPM qualification standards which require that applicants possess two years prior police experience or substitute education at the college level. OPM has also provided the VA with a special police applicant qualification crediting plan through which qualifications can be thoroughly verified. In contrast, GSA, U.S. Capitol Police, and most other Federal, state and municipal police agencies have elected and are prepared to conduct basic police recruit training. It is the VA, and specifically the DM&S position, that the rendering of a total police occupational training program, i.e. the delivery of recruit training if far afield of the VA's mission and that a successful agency orientation of police officers already well qualified in police procedures is a sound alternative.

Question 9. How much money did the VA spend on continuing training for police officers? How many courses, or how much classroom time, is needed to keep employees abreast of revisions to criminal law and advances in police techniques?

Answer. Since 1973, the VA has spent approximately one million dollars in the continuing operation of its forty hour program of instruction for VA police officers. A total of 172 courses were presented to train 4,190 police officers. It is our opinion that revisions to criminal law and advances in police procedures are not frequent or severe enough to warrant special courses at the facility self-protection security police force level. Whereas detailed case law study is a necessity for FBI agents and prosecuting attorneys, any changes in basic police procedures are easily transmitted through technical departmental channels or changes to policy. We have experienced no difficulties whatever in providing clear instructions and suitable training materials to the field where changes have been necessary or new procedures are initiated.

Question 10. If VA had the authority to set pay in accordance with the experience level needed for police work and could adjust salaries to account for recruiting and retention difficulties and geographic cost-of-living differences, could you readily identify where pay is adequate or inadequate? What type of information is available for VA to distinguish between locations such as Philadelphia, Chicago, Biloxi or Tampa?

Answer. The VA would be able to identify those locations where pay for police officers was adequate or inadequate as part of any new pay setting authorities the agency receives. Presently, the agency only has very general staffing information available on police officers at all VA medical centers. This would enable VA to make broad distinctions between those medical centers with serious police staffing problems and those with minor or no staffing problems. It would be necessary, for the agency to determine the exact magnitude of a serious staffing problem, to require medical centers to submit more detailed staffing and salary survey data. Such data should be readily available at each medical center and would enable the agency to determine what kind of pay setting authorities would help a facility eliminate its problems. This assistance may be in the form of approving special rates, spreading rates or both.

Question 11. On page 8 of Dr. Custis' statement, it is stated that you believe that the Attorney General should concur in regulations concerning concern the training of police officers. Please advise the Subcommittee of any current activity in this area and the status of any other reviews by the Attorney General in the realm of VA security matters. Also, please provide any proposed guidance on the conduct of security matters issued by the Attorney General or OMB.

Answer. The VA has traditionally respected the Office of the Attorney General as that of the highest Federal law enforcement authority. Any Federal agency which, of necessity, becomes involved in the enforcement of Federal laws and Federal regulations must enter the Federal judicial system to accomplish that enforcement function. Therefore, Federal agency police officers should possess a level of police knowledge and skills which warrant their delegated police powers to the satisfaction of United States Attorneys and they must operate within Federal rules of criminal law and procedures. Our General Counsel staff has been able to provide guidance on the provide great majority of law enforcement policies and procedures adopted over the years. In those areas of changing law or growing need for extra caution to assure the protection of individual rights, the Department of Justice has been consulted for interpretations of search policy and law enforcement jurisdiction. The responsiveness of the Department of Justice has always been fully considerate of our situations, timely and thorough. Attachments A and B are examples on file of such assistance. Recently, the Office of Management and Budget requested that we review a draft OMB Circular which outlines comprehensive guidelines for determining to what extent an agency requires law enforcement personnel, firearms authorization, arrest and search powers, and other investigative authorities. A copy of this draft OMB Circular is provided as Attachment C.

[Attachments follow:]

Re: Proposed Search and Inspection Guidelines for VA
Hospital Police; (024)

Dear Mr. Denney:

We are responding to your letter of March 4, 1975, requesting our comment upon your Interim Issue of search and inspection guidelines for Veterans Administration Hospital Police. As you realize, the fourth amendment standard is primarily one of "reasonableness" of the search; differing standards are applied to dissimilar classes of searches. Compare United States v. Harris, 403 U.S. 573 (1971) (probable cause for search for criminal evidence), with Adams v. Williams, 407 U.S. 143 (1971) (reasonable suspicion for investigatory stop), and United States v. Biswell, 406 U.S. 311 (1972) (warrantless inspection of premises of gun dealer). Thus the reasonableness of the search depends on the facts of the case. In light of your better acquaintance with the factual situation in Veterans Administration hospitals, we caution you to view our letter as comment rather than axiom.

I. GENERAL SEARCH

As we understand your guidelines, their primary purpose is to counter any expectation of privacy that a patient or employee might have in nightstands, lockers, or closets. Once this expectation of privacy is thwarted, the fourth amendment protection of privacy is no longer applicable and your agents may engage in a "general search" when they "strongly suspect that prohibited items such as drugs, alcohol or weapons are concealed in an area."

Accepting as a given that you may constitutionally issue such a regulation, your theory is technically sound. Katz v. United States, 389 U.S. 347 (1967). This first premise, however, is in doubt. There are two Supreme Court cases which appear closely pertinent: Stoner v. California, 376 U.S. 483 (1964), and Chapman v. United States, 365 U.S. 610 (1961). In Stoner, a hotel clerk gave police his consent for a search of defendant's rcom. Although the hotel regulations required that the key to the room be placed in the mail box each time the hotel was left by the occupants, and although there was implied consent for hotel employees in furtherance of their duties to enter the room, the Court found that the constitutional right to privacy was a personal right and could only be waived by the petitioner. Consequently, the search was invalidated. 1/ In Chapman, a landlord authorized the entry of police officers into a tenant's house after the landlord had noticed a strong odor of mash emanating from the dwelling. Paraphrasing Johnson v. United States, 333 U.S. 10, 14 (1948), the Court held that "to uphold such an entry, search and seizure 'without a warrant would reduce the Fourth Amendment to a nullity and leave (tenants') homes secure only in the discretion of (landlords)."" 365 U.S. at 616-17.

Apparently a mere property interest does not give the government a right to search. The law of third party consent searches has been succinctly stated in United States v. Matlock, 415 U.S. 164 (1974): authority to consent to a search is found in "mutual use of the property by persons generally having joint access or control for most purposes," not bottcmed in the property interest of the third party. Id. at 171 n.7. Cf. Frazier v. Cup, 394 U.S. 731, 740 (1969). The issue is more closely targeted by the United States v. Blok, 188 F.2d 1019 (D.C. Cir. 1951), genre of cases wherein the property interest of the government is insufficient to counter an expectation of privacy. Cf. United States v. Nasser, 476 F.2d 1111, 1123 (7th Cir. 1973). The clear indication is that the individual's expectation of privacy is to prevail over the governmental interest in criminal searches. A regulation contrariwise will probably not tip the balance, although we hastily add that the need must be determined by a greater wealth of facts than you have revealed to us.

1/ A close reading of this case, however, indicates that there was no California statute that would permit the hotel proprietor to authorize the police to search rooms. 376 U.S. at 488. The Court eschewed ruling on whether or not such a statute could pass constitutional muster.

Id.

We recognize, however, the difficulties inherent in the close living quarters as well as the conceivable tension in hospitals. Consequently, a protective search for aggressive instruments (guns, explosives, knives, etc.) in emergent circumstances may be permissible. See Adams v. Williams, 407 U.S. 143 (1972); Terry v. Ohio, 392 U.S. 1 (1968). In like circumstances, a search for essentially "passive" evidence (heroin, stolen goods, etc.) will probably be impermissible. See Sibron v. New York, 392 U.S. 40 (1968). We suggest, therefore, that your general policy be one of no "general searches" without probable cause except in exigent circumstances for aggressive instruments.

II. PERSONAL SEARCHES

You might wish to include a better explanation of the second prong of the test articulated in Aguilar v. Texas, 378 U.S. 108 (1954), and Spinelli v. United States, 393 U.S. 410 (1969): i.e. that the agent must inform the magistrate or judge "of some of the underlying circumstances from which the informant concluded" that the evidence is where he claims it is. Acuilar v. Texas, supra, 373 U.S. at 114.

III. VEHICLE SEARCHES

Unfortunately, we do not fully comprehend your vehicle search directive. If an agent of the government has probable cause that a specific vehicle is carrying criminal evidence, he may stop the car and search it. A warrant is preferable when there is time to obtain it; however, when there is insufficient time to obtain a warrant, one is unnecessary. Chambers v. Maroney, 399 U.S. 42 (1970); Carroll v. United States, 267 U.S. 132 (1925).

You might wish to stress that in a search of a vehicle incident to an arrest, the arrest must be a custodial arrest rather than a mere stop to issue a notice of violation. Cf. Gustafson v. Floride, 414 U.S. 260 (1973); United States v. Robinson, 414 U.S. 218 (1973).

The law of inventory searches of vehicles is presently unsettled, there being an appearance of conflict between the Fifth and Eighth Circuit Courts of Appeals. Compare United States v. Lawson, 487 F.2d 463 (8th Cir. 1973), with United States v. Gravitt, 484 F.2d 375 (5th Cir. 1973), cert. denied, 414 U.S. 1135 (1974),