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