Chapter 05
- 1. © 2009 Delmar, Cengage Learning Legal Issues and the Right to Be There Chapter 5
- 2. © 2009 Delmar, Cengage Learning 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
- 3. © 2009 Delmar, Cengage Learning 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
- 4. © 2009 Delmar, Cengage Learning 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
- 5. © 2009 Delmar, Cengage Learning 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
- 6. © 2009 Delmar, Cengage Learning 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
- 7. © 2009 Delmar, Cengage Learning 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
- 8. © 2009 Delmar, Cengage Learning 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
- 9. © 2009 Delmar, Cengage Learning 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
- 10. © 2009 Delmar, Cengage Learning 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
- 11. © 2009 Delmar, Cengage Learning Michigan v. Tyler (cont’d.) Figure 5-2 The fire investigator should have the building owner sign a consent agreement to search before proceeding with the scene search.
- 12. © 2009 Delmar, Cengage Learning Michigan v. Clifford • Further defined when investigator can enter a building under exigent circumstances – Versus when the owners have a reasonable right to privacy
- 13. © 2009 Delmar, Cengage Learning 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
- 14. © 2009 Delmar, Cengage Learning 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
- 15. © 2009 Delmar, Cengage Learning 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
- 16. © 2009 Delmar, Cengage Learning 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
- 17. © 2009 Delmar, Cengage Learning 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
- 18. © 2009 Delmar, Cengage Learning 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