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Investigating arson: coping with constitutional constraints.

ACCOUNTS FOR AN estimated 25 percent of fires in the States. This rate has been rising over the years, due in part to more and better-trained investigators who are able to determine arson in fires that an untrained investigator might classify as unknown in origin.

Unfortunately, success ratios in arson prosecution are low, ranging from 15 percent in cities to 23 percent in rural counties. Contributors to this low success rate are investigations that have been ruled unconstitutional due to violation of a suspect's Fourth, Fifth, and Fourteenth Amendment rights regarding searches, seizures, and due process.

Case law has led to guidelines that fire investigators must follow, or they risk losing a case because of a violation of a defendant's constitutional rights. Those guidelines-particularly those on the timing of an investigation, the taking and disposition of physical evidence, and the questioning or interrogation of suspects-do not stop at the fire site but extend all the way to the courtroom.

A security professional involved in a fire investigation that leads to a suspicion of arson should be aware that guidelines for investigations by government officials are different than those for private citizens. Knowing those differences can help the private security person conduct the investigation in a way that does not violate a suspect's constitutional rights.

The definition of arson varies from state to state. Recent state and federal statutes have extended the common-law definition to include offenses against property as well as habitation. Whether malice was involved determines the gravity of the act.

For example, one person's property may be inadvertently burned by the negligence of another person, and no malice may be involved. The intent involved in the burning of another persons's property is a key element.

Other factors that may be considered include what type and quantity of property was involved, whether human life was endangered, and whether the arson was committed at night or during the day. To account for those variables, one state has divided its arson laws into grades of felonies and misdemeanors.

In that state, felony arson involves knowingly and willfully burning another's property, whereas misdemeanor arson involves a reckless or negligent burning in which there is no intent to destroy but burning nevertheless occurs.

A fire investigation is a systematic search of a fire scene for information about the fire. Its purpose is to reconstruct events that led to a fire, seek the physical cause of the fire, and determine whether the fire's origin was criminal or accidental.

Determining the origin is extremely important because once the crime of arson is suspected, court guidelines must be followed as a precursor to successful prosecutions.

A fire investigation often begins when the fire fighters arrive. Fire fighters are able to observe smoke color, the area first burned, evidence of accelerants used to start or promote fires, and other signs of value to the officially designated investigators, who may not arrive at the scene until the fire is well under way or perhaps extinguished.

The trained investigator then follows recommended procedures for investigations, including questioning the fire fighters. From that point on, the investigation should be under the sole control of the person mandated to conduct the investigation.

If a fire is determined to be arson, then evidence must be collected to determine if the fire was deliberately set, link evidence to the arsonist, and determine the identity of the arsonist. The arsonist must then be located, apprehended, interrogated, and tried.

Investigations should attempt to rule out arson as a possible cause. Only when all other causes have been ruled out should arson be suspected. Such an approach ensures that a thorough investigation is made and precludes possibly charging an innocent person.

Administrative and criminal law overlap in arson cases due to the nature of the investigation. In addition, individual legal rights vary depending on whether the investigation is conducted by a government official or a private individual.

Constitutional rights in an arson investigation are protected by administrative laws stemming from case law involving civil inspections (such as fire and health) and by criminal laws concerned with searches, seizures, and due process. These laws define procedures by which fire and arson investigations are to be conducted. LAWS GOVERNING FIRE INVESTIGATIONS have attempted to balance the rights of individuals to be free from unreasonable searches and seizures against the rights of authorities to conduct inspections to protect the health, safety, and welfare of citizens.

City in rem inspections (inspections of things, not people) for health and safety purposes have been continuously enforced since colonial days as necessary and desirable. A fire investigation can accordingly be construed as an investigation of a thing rather than a person and deemed necessary for the general welfare.

For example, in Frank v. Maryland(1), the Supreme Court, split five to four, upheld a state court conviction for refusing to permit a warrantless inspection of private premises for the purpose of locating and abating a suspected public nuisance (a decayed and (1) Frank V. Maryland, 359 US 360, 1959. rodent-infested dwelling).

In Eaton v. Price(2), a similar conviction was affirmed by an equally divided Court. However, in Camara v. Municipal Court of the City and County of San Francisco(3), See v. City of Seattle(4), and Marshall, Secretary of Labor, et al. v. Barlow's Inc.(5), the Court reversed itself and required administrative warrants for routine city inspections of both residential and commercial properties if demanded by the owner.

See sought a reversal of his conviction for refusing to permit a representative of the Seattle fire department to enter and inspect his locked commercial warehouse without a warrant and without probable cause to believe that he was in violation of a city ordinance. The Supreme Court held that suitable warrant procedure is required by the Fourth Amendment for entry and inspection of private commercial premises.

Camara similarly sought a reversal of his conviction for violating the San Francisco Housing Code. He had refused to allow city and housing inspectors to conduct a warrantless entry and inspection of quarters that he leased and that were alleged to be in violation of the apartment's building occupancy permit.

The Supreme Court ruled that once entry for a warrantless code-enforcement inspection has been refused, a warrantless inspection thereafter cannot be justified under the Fourth Amendment.

Barlow's refused entry to a federal occupational safety and health inspector, and a federal district court ruled in favor of Barlow's. On appeal by the secretary of labor to reverse the judgment, the Supreme Court held that inspection without a warrant or its equivalent pursuant to Section 8(a) of the Occupational Safety and Health Act violates the Fourth Amendment.

Although a sense of urgency in Frank might seem to require a search without a warrant, no such argument could be used in Camara, See, or Barlow's. In these instances, the inspections were routine and no harm could be demonstrated to result from a delay (2) Eaton v. Price, 364 US 263, 1960. (3) Camara v. Municipal Court of the City and County of San Francisco, 387 US 523, 1967. (4) See v. City of Seattle, 387 US 541, 1967. (5) Marshall, Secretary of Labor, et al. v. Barlow's Inc., 429 US 1347 1978. (6) State of Michigan, Petitioner v. Loren Tyler and Robert Tompkins, 436 US 499, 1978. in obtaining administrative warrants to inspect. FIRE INVESTIGATIONS, UNLIKE MOST ROUtine city inspections for health and safety, are often conducted under conditions where neither the owner's permission nor administrative warrants can be obtained when needed. Owners may not be readily located, administrative warrants are often difficult to obtain, and other impediments may present themselves.

The fire investigator's primary concern is that a delay in gathering evidence-while waiting for a warrant or the owner's permission-may result in evidence being moved, tampered with, removed, destroyed, or compromised in some other manner.

In State of Michigan, Petitioner v. Loren Tyler and Robert Tompkins(6), the Supreme Court came to grips with the unique problems fire service personnel face in fire investigations. In that instance Tyler and Tompkins had been convicted in a Michigan trial court of conspiracy to bum real property.

On appeal to the Michigan Supreme Court, the convictions were reversed on the grounds that various pieces of physical evidence and testimony based on personal observation and warrantless searches were unconstitutional and therefore inadmissible.

The case was based on investigations made at Tyler's Auctions, a furniture store, after a fire in which the store's contents were burned. About two hours after the fire started, it was almost entirely extinguished and the fire chief arrived to commence an investigation. Unable to see because of steam and the lack of light, he left and returned four hours later to continue the investigation.

During the investigation, plastic containers suspected of containing an accelerant were discovered, along with suspicious bum marks on the carpet and evidence of a fuse. The investigation was continued intermittently over several weeks by various officials including the Michigan State Police Arson Section.

The court put to rest the supposition that fire fighters must secure a warrant or consent before entering a burning structure to put out a blaze, stating that that requirement would defy reason-fire fighters are retained for the very purpose of putting out blazes.

Beyond that point, the Court departed somewhat from the appellate decision. The Court agreed with the Michigan decision regarding warrantless searches. But it concluded that if carried to the extreme, the Tyler decision could be understood as holding that the rationale justifying a warrantless entry ends and the need to get a warrant begins with the dousing of the last flame.

The Court considered that restriction unrealistically narrow and concluded that officials need no warrant to remain in a building a reasonable amount of time to investigate a blaze after it has been extinguished.

In Michigan v. Clifford(7), a case involving warrantless searches of a private residence, the actual use of the structure in respect to habitation and expectation of privacy was cause to consider prior cases.

In this case the Supreme Court held that "if a warrant is necessary, the object of the search determines the type of warrant required. If the primary object is to determine the cause and origin of a fire, an administrative warrant will suffice ... and if the primary object is to gather evidence of criminal activity, a criminal search warrant may be obtained only on a showing of probable cause to believe that relevant evidence will be found in the place to be searched."

In Coolidge v. New Hampshire(8), the Court held that if evidence of criminal activity is discovered during the course of a valid administrative search, it may be seized under the "plain view" doctrine.

In addition, evidence so seized "then may be used to establish probable cause to obtain a criminal search warrant. [However] ... fire officials may not... rely on this evidence to expand the scope of their administrative warrant without first making a successful showing of probable cause to an independent judicial officer."

Justice Powell indicated that after a fire had been extinguished and officials had left the scene, investigations from that time on generally must be made pursuant to a warrant on the "identification of some new emergency."

The word reasonable as used in legal matters is difficult to define. In determining what constitutes a reasonable amount of time to remain in a building to investigate, the emergencies that confront officials under fire conditions must be recognized, as must the citizen's expectation of privacy.

Since each case must stand on its own merits, the investigator must take extreme care not to exceed the amount of time a court would hold as reasonable.

The Court also addressed the admissibility of evidence obtained during the reasonable amount of time allowed for investigation after officials are in a building and the need for a criminal warrant once evidence of arson is discovered. FOURTH AMENDMENT LIMITATIONS ON searches and seizures apply only to government activities and not to the acts of private persons. That view of the Fourth Amendment stems from the 1921 Supreme Court case Burdeau v. McDowell.(9)

In that case the defendant's employer and private detectives broke into the defendant's private office, blew open his safes and files, and obtained private papers.

The Court held that these private papers were admissible as evidence in a grand jury investigation and trial of the defendant. The Court ruled that the Fourth Amendment was not intended to restrain the unlawful conduct of private individuals who seize property belonging to another.

Lower court decisions have applied the Burdeau rule to private arson investigators. For example, the Kentucky Supreme Court (in Stone v. Commonwealth(10)), observed the rule that evidence obtained by private individuals is not excludable under constitutional provisions. The court allowed for the admission of testimony by a private insurance company investigator who had inspected a store building allegedly burned by the defendant.

In Lester v. State(11) the Georgia Court of Appeals held that physical evidence obtained in a private fire investigation was admissible in a trial for first-degree arson. Before the trial Lester had moved to suppress as evidence some pieces of copper tubing that the insurance investigator had taken from the scene of the fire.

The search could not have violated Lester's Fourth Amendment rights, held the court, since the investigator was dispatched by a private firm at the behest of the fire insurance company.

The admission of physical evidence obtained by a private fire investigator does not depend on any contractual right of entry the insurance company may have with the insured.

In Davis v. State(12), the Georgia Court of Appeals ruled that even if there had been no contractual right, no government official had participated in (7) Michigan v. Clifford, 464 US 287, 1984. (8) Coolidge x,. New Hampshire, 403 US 443, 1971. (9) Burdeau v. McDowell, 256 US 465. (10) Stone v. Commonwealth, 418 SW2d 646, cert. den. 390 US 1010, 1967. (11) Lester v. State, 244 SE 880, 1978. (12) Davis v. State, 344 SE2d 730, 1986. the search, and thus the evidence would be admissible. Even when an investigation is carried out by private arson investigators, courts become concerned about the independence of the private investigator from public law enforcement officials. In Lester the Georgia Court of Appeals noted that the private investigator in this case did not communicate with any law enforcement agency before conducting his investigation. Furthermore, in Maciejack v. State(13), the Indiana Supreme Court held that the search of burned premises by an insurance company investigator was not governed by the Fourth Amendment, even though representatives of the police and fire departments accompanied the investigator. Here the police investigation was viewed as ended before the insurance company became involved. However, in State v. Cox (14), the New Mexico Court of Appeals held that in an investigation where a police officer and fire chief accompanied the private insurance investigator to the burned house and obtained various physical samples of wood products, government action was involved, making the requirements of the Fourth Amendment applicable. The fire chief had cut some of the samples and turned them over to the investigator, who put them in containers and then gave them to the police officer. Unlike Maciejack, in this case an official arson investigation was ongoing when the insurance company became involved. Thus, evidence obtained by a private arson investigator is admissible in a criminal prosecution provided there is no concerted activity with an official investigation. The courts have not suggested that all activities of private investigators resulting in obtaining evidence are excusable. The Kentucky court in Stone noted that the defendant might have a legal remedy in a trespass suit against the private investigator. In sum, government officials conducting an arson investigation are bound by Supreme Court guidelines, Tyler being the landmark case regarding the conduct of government officials. Tyler guidelines for a private security person working with an official investigator are as follows: * The designated investigator should begin the investigation as soon as possible, even during fire-fighting operations. Evidence viewed or seized during those operations would be admissible under the "plain view" doctrine. * The building or area should be secured as soon as possible to preclude the defense from arguing that evidence was tampered with, removed, or added. * Barring untenable conditions, every effort should be made to conduct a continuous investigation once started, without leaving the area or building. * A warrant is not required as long as an emergency exists, and any evidence discovered should be admissible. Emergencies include overhaul operations, checking for energized electrical lines and gas leaks, and other activities. If in doubt, obtain an administrative warrant. * Gathered evidence that could have been destroyed or lost if not seized immediately is admissible. * Evidence taken with the permission of the owner is admissible. (Owner's claim to ownership should be established.) * A warrant is not necessary if the owner abandoned the property. * An administrative warrant cannot be used after evidence of arson is detected. A criminal warrant must be obtained to continue the search once arson is suspected. The area must be secured then if not already secured.

A security professional conducting an arson investigation as a private citizen is not bound by court guidelines regarding the Fourth Amendment. In addition, some states allow information obtained by a private investigator, acting alone, to be passed on to a government investigator.

However, a private investigator participating jointly in an investigation with a government investigator could violate constitutional standards and could also be charged with trespassing for entering another's property without permission. Everett K. Woods is an assistant professor of fire science in the Department of Safety Science and Technology at Central Missouri State University (CMSU) in Warrensburg. Donald H. Wallace is an associate professor in the Department of Criminal Justice at CMSU. (13) Maciejack v. State, 404 NE2d 7, 1980. (14) State v. Cox, 674 P2d 1127, 100 NM 667, 1983.
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Title Annotation:Special Issue
Author:Woods, Everett K.; Wallace, Donald H.
Publication:Security Management
Date:Nov 1, 1991
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