Importance Of Search And Seizure In Criminal Investigations

Abstract

Searches of fire scenes are common in operations of the fire service and important to the investigation of fire origin and cause. Fire and arson investigators need to be aware of search and seizure laws. There have been several court decisions and laws created regarding proper search and seizure procedures for fire and arson investigators. Research into these laws and court rulings will help fire and arson investigators understand what type of search warrant is required, if search warrants can be obtained, and who can obtain a search warrant.

Search Warrants for the Fire and Arson Investigator The Illinois Fire Investigation Act (1992) stipulates that every fire department chief has the responsibility
to investigate every fire in the area that the legally organized municipal department provides fire protection to. During these investigations, a sworn member of any organized and paid fire department is authorized to investigate the fire to determine its origin and cause (20 ILCS 2910). The laws of search and seizure have been created to protect citizens Fourth Amendment Rights against unreasonable search and seizure by the government. When considering the actual investigation process, investigators need to know search and seizure laws to ensure all searches are completed legally, the different warrants applicable to searches, and how to obtain these warrants. Search warrants are legal orders issued by a judge or magistrate that authorizes law enforcement officials to search a certain location (Verone, 2012).
During emergencies where the fire department has been called to perform suppression duties, the Emergency Doctrine permits the search of a premise without a warrant if the search is conducted in a reasonable time period and conducted to determine origin and cause. After such a time, search warrants are needed, and any evidence or information gathered during a search without a warrant will not be upheld by a court (Burnett). Exigency for emergency services can be defined as the need for fire and police to act in an emergency to make an area continually safe. Without exigency, the only ways to perform a legal search is through consent, or obtaining an administrative or criminal search warrant. A problem that exists in the fire service for fire and arson investigators is to establish when a search warrant is needed, as well as, their ability to obtain such a warrant in the absence of police department assistance (Berlin,
2011). In determining whether or not a search warrant is needed after a fire for the investigation, case law, specifically Michigan v. Tyler (1978) states that a warrant is not needed to enter a building while on fire. Firefighters who gain legal entry are able to remain to investigate the origin and cause of the fire in a reasonable amount of time. Because the fire in Michigan v. Tyler was not completely out, and smoke and steam prevented the investigation on the night of the fire, the Fire Chief and investigators arrived the next day with tools to gather evidence. This entry was considered reasonable and original exigency was still applicable because it was ruled a reasonable continuance of the same investigation. To justify a warrantless search based on the exigent circumstances, law enforcement must demonstrate threats to life or safety (the emergency doctrine), the risk of immediate destruction or removal of evidence, or escape/flight (Berlin, 2011). Other entries that were made after the morning of the fire on January 22nd, specifically, February 16th entry was found to be an illegal entry, and all evidence was ruled as inadmissible in court.
The ruling of the Michigan V.
Tyler case is important for establishing warrantless searches as part of the initial investigation, and that factors from the fire itself inhibited the investigation, continuing the original exigency. The question that it did raise, however, is the definition of “reasonable” as it relates to the investigator to perform warrantless searches. Michigan V. Clifford (1984) ruled that the investigators were prohibited from performing the investigation of a house fire for personal reasons, and the fire scene was remanded into custody of the homeowner after extinguishment. As such, a search warrant was needed to gain lawful entry into the home, and the evidence that was obtained was not allowed to be used in court. The investigators in this instance should have obtained an administrative search warrant. In the absence of exigency, consent to search would be needed to lawfully search a premise without a warrant. This instance could arise when a fire investigator is unable to conduct an investigation in a “reasonable” amount of time. To obtain such a warrant, it is recommended the investigator get the consent in writing from the proper owner to prevent any question of consent being granted. It should also be noted that the consent must not be coerced, it is not continuous, and may be revoked at any time
(Burnette).
An investigator may ask when is a search warrant needed, and what types of warrants are there? When exigency in an emergency or what a reasonable amount of time to conduct an investigation is questioned, it is general rule of thumb to obtain search warrants (Berlin, 2011). There are two different types of search warrants that need to be known, administrative search warrant and criminal search warrant. Both warrants are created by the investigator, and are signed by a judge or magistrate of the court prior to searches being conducted. Without the signature, the warrant is not executable. It should be noted that although there are warrant courts available, any judge or magistrate can sign a warrant, anywhere, and at anytime.
Administrative search warrants are for instances where origin and cause are trying to be determined. The administrative search warrant was created by the Supreme Court during the Michigan V. Tyler case, and requires that the investigator apply to a judge or magistrate for permission to enter the fire scene for proposes of determining origin and cause only (Burnette). The fact that a fire has occurred, may not be sufficient enough evidence to have a judge agree to an administrative warrant. The investigator must prove any circumstances that justify such a warrant, and show why the investigation could not be conducted with original exigency. If at any time there is evidence of any arson or criminal act, the investigator must stop his investigation and acquire a criminal search warrant (Berlin, 2011). Like a criminal search warrant, a judge or magistrate must sign the warrant, which clearly defines the purpose of the search and any items that may be seized. Criminal search warrants are similar to that of administrative search warrants only in that a judge or magistrate of the court needs to sign the warrant for issuance. In these warrants, unlike the administrative warrant, the investigator has to have probable cause that a crime has been committed, and evidence of that crime will be located in the area to be searched (Verone, 2012). In the warrant, it should be noted that specific items are to be mentioned, as well as areas to be searched. A criminal search warrant is not all inclusive (Berlin, 2011). Finally, the question of who can initiate a criminal search warrant needs to be discussed. According to the Peace Officer Fire Investigation Act (1992), any investigator who is a sworn member of a fire department and is authorized to investigate fires in that jurisdiction also possess the same powers of arrest, search and seizure and the securing and service of warrants as sheriffs of counties, and police officers within the jurisdiction of their political subdivision (20 ILCS 2910). The warrant is created by the investigator, with area and specifics to be search identified, and that warrant is signed by a judge or magistrate for approval. Fire investigators find themselves in a world between police officers and firefighters. The Emergency Aid Doctrine states that the firefighter has a right to enter a premise without warrant to mitigate and investigate emergencies and provide a continually safe environment. Searches of homes and businesses are required to be able to find the causes of fires. By virtue of incidents that have occurred in the past, laws have been established to protect the rights of citizens, and serve as a guideline for the way in which fire investigators are to conduct their investigations. Understanding these laws and learning the correct ways to investigate a fire or crime scene, fire investigators will be better able to search for evidence and determine cause legally.

References
Berlin, M. M. (2011, July). Crime scene searches and the Fourth Amendment. Investigative Sciences Journal, 3(2). Retrieved from http://www.investigativesciencesjournal.org/article/view/8951
Fire Investigators Act, Ill. Comp. Stat. § 425 ILCS 25 (Chapter number 1992).
Guy, B. E. (n.d.). Document of the fire scene: A legal perspective. Retrieved from Inter Fire on-line website: http://www.interfire.org/res_file/srchseiz.asp
Michigan v. Clifford, 464 U.S. 287 (1984).
Michigan v. Tyler, 436 U.S. 499 (1978).
Peace Officer Fire Investigation Act, Ill. Comp. Stat., § 20 ILCS 2910 (1992).
Varone, J. C. (2012). Legal considerations for fire and emergency services (2nd ed.). Clifton Park, NY: Delmar Cengage Learning.