Chapter 05

© 2009 Delmar, Cengage Learning

Legal Issues and the Right to Be There

Chapter 5


Objectives

• Describe legal issues as they pertain to the right of the investigator to be on and stay at the fire or explosion scene

• Describe the difference between legislative laws and case law

• Describe and understand Supreme Court decisions that have affected fire investigators and how they carry out their duties


Case Study

• The fire department put out a fire and left the scene

• There was a five hour delay before the investigators arrived

• When investigators arrived, the building was being secured with plywood on behalf of the homeowners, who were away camping at the time of the fire


Case Study (cont’d.)

• The investigators entered the house without consent or a warrant, discovered evidence of an incendiary nature, and continued to search the scene

• They eventually charged the homeowners with arson

• Their attorney moved for suppression of the evidence and the appeals court granted it based on warrantless search


Introduction

• First step to ensuring compliance with all legal issues surrounding an investigation is to have access to legal counsel – District (prosecuting) attorneys provide this service

• At the least, the officer in charge (OIC) of the fire scene must know his or her legal right to be on the scene

• Most laws are there for a reason


Legislated Laws and Case Laws

• United States Constitution establishes a balance of power – Most laws are developed by the legislative branch of

government with approval from the executive branch • Same process is mirrored in the states and even in

most localities

– Judiciary branch resolves any conflicts that may arise


Legislated Laws and Case Laws (cont’d.)

• As the result of criminal or civil action, a point of law becomes an issue in a court of law

– Judge interprets the law in a court proceeding; that decision becomes case law• Important that investigator know and understand case

law

– Aggrieved parties can take their cases to a higher court to contest a point of law• Case is not reheard; only that legal issue is argued and

adjudicated


Legislated Laws and Case Laws (cont’d.)

• In the United States Supreme Court, only certain cases can be heard, including:– Constitutional law– Issues between parties from different states– Conflicts between states– Issues between U. S. citizens and foreigners– Cases involving both state and federal laws– Cases involving maritime law or admiralty– Cases in which the United States is a party


Supreme Court Decisions

• Freedoms and rights of U.S. citizens are spelled out in the Constitution

• Supreme Court has the responsibility to interpret the Constitution and its amendments


Michigan v. Tyler

• Investigators can do a search for the origin and cause can seize evidence in plain sight

• If they want to return, they must obtain an administrative search warrant

• No search warrant is necessary if building owner gives consent– However, owner can rescind that permission and

then a warrant will be necessary


Michigan v. Tyler (cont’d.)

Figure 5-2 The fireinvestigator shouldhave the buildingowner sign aconsent agreementto search beforeproceeding with thescene search.


Michigan v. Clifford

• Further defined when investigator can enter a building under exigent circumstances– Versus when the owners have a reasonable right to

privacy


Right to Be There

• Private investigators generally do not have an entry problem– Consent or implied consent based on insurance policy– Should entry be denied, the insurance may not have

to pay the claim

• Public investigators must have permission to be on the scene– Except under exigent circumstances where the good

of the people is of the utmost concern


Exigent Circumstances

• It is generally understood that the fire department must have the right to enter private properties without a warrant– To delay entry may put lives and property at risk. both

at that address and on neighboring properties– This is extended to making an immediate

investigation into the determination of the area of origin and cause of the fire; to delay will require a warrant to re-enter the property


Consent

• Person who owns or has lawful control of the property can give consent

• Control is the issue– Landlord cannot give consent to leased apartments,

but can allow search of common areas

• It is important that the consent be documented• Consent can be rescinded


Administrative Search Warrants

• All search warrants must be justified– The fact that there is a government interest in

investigation is the justification

• Administrative warrant issued under following circumstances– Proof that the investigator has the authority to

conduct fire investigation– Proof that a fire has occurred – Investigator cannot lawfully be on the property

because exigencies have expired


Criminal Search Warrants

• Constitution requires issuance of a search warrant by a judge based on probable cause

• Investigator must swear to the facts written in the application (affidavit)

• Request must be specific on what is sought and who or what is to be searched – Must also state when property is to be searched

• Investigator must stay within the boundaries identified in the search warrant


Summary

• Understanding federal and state laws is essential to knowing your rights and the rights of others

• Through case law fire investigators have been given direction as to what is acceptable

• It is best to seek recommendations from the prosecuting attorney in setting proper procedure– Will assist you to establish rules, guidelines, approved

forms, and policies

Documents

Chapter 05