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Documentation of the Fire Scene: A Legal Perspective

by Guy E. Burnette, Jr., Esquire

THE AREA OF SEARCH AND SEIZURE HAS CREATED MORE PROBLEMS FOR INVESTIGATORS THAN ANY OTHER AREA OF THE LAW. ENTIRE CASES HAVE BEEN LOST DUE TO A VIOLATION OF A PERS0N'S FOURTH AMENDMENT RIGHTS AGAINST "UNREASONABLE SEARCH AND SEIZURE" BY THE GOVERNMENT. IN THE AREA OF ARSON INVESTIGATION, THE PROBLEM IS PARTICULARLY SIGNIFICANT. WHILE MANY CRIMINAL CASES DO NOT EVEN INVOLVE A SEARCH, EVERY ARSON CASE INVOLVES A SEARCH OF THE FIRE SCENE. MORE IMPORTANTLY, WHEN THE SEARCH OF A FIRE SCENE IS FOUND TO BE IN VIOLATION OF A PERSON'S RIGHTS, THE SUPPRESSION OF EVIDENCE WILL USUALLY PREVENT A PROSECUTION ON CHARGES OF ARSON. WITHOUT THE PHYSICAL EVIDENCE FROM THE SCENE, THE "CORPUS DELICTI" OF ARSON CANNOT BE ESTABLISHED. THEREFORE, IT BECOMES PARTICULARLY IMPORTANT FOR ARSON INVESTIGATORS TO UNDERSTAND THE LIMITATIONS ON SEARCH AND SEIZURE AT A FIRE SCENE.

Contents

I. OVERVIEW

II. METHODS OF CONDUCTING A SEARCH

III. CONSENT SEARCHES

IV. CONCLUSION

CONSENT TO SEARCH AND REMOVE EVIDENCE


I. OVERVIEW

THE CONCEPT OF SEARCH AND SEIZURE INVOLVES A NUMBER OF FACTORS. FIRST, THE CONSTITUTION ONLY PROTECTS AGAINST SEARCHES AND SEIZURES WHICH ARE FOUND TO BE "UNREASONABLE". SECOND, THE PROTECTION OF THE FOURTH AMENDMENT ONLY APPLIES TO A SEARCH AND SEIZURE BY AN AGENT OF THE GOVERNMENT. THERE IS NO CONSTITUTIONAL PROTECTION AGAINST SEARCH AND SEIZURES, REASONABLE OR UNREASONABLE, BY PRIVATE INDIVIDUALS OR BUSINESSES. THIRD, ANY TIME THERE IS A SEARCH AND SEIZURE WHICH IS CONDUCTED WITHOUT A SEARCH WARRANT, IT IS PRESUMED TO BE AN ILLEGAL SEARCH. IT IS UP TO THE INVESTIGATOR TO JUSTIFY THE FACT THAT HE OR SHE DID NOT HAVE A SEARCH WARRANT WHEN CONDUCTING THE SEARCH.

II. METHODS OF CONDUCTING A SEARCH

A SEARCH AND SEIZURE CAN BE CONDUCTED IN THREE WAYS. IT CAN BE CONDUCTED UNDER THE AUTHORITY OF A SEARCH WARRANT DULY ISSUED BY A JUDGE UPON A SWORN AFFIDAVIT ESTABLISHING PROBABLE CAUSE TO SEARCH THE AREA. A SEARCH CAN BE CONDUCTED WITHOUT A WARRANT, BUT IS PRESUMED TO BE ILLEGAL AND CAN BE UPHELD ONLY IF IT IS JUSTIFIED UNDER ONE OF THE RECOGNIZED EXCEPTIONS TO THE WARRANT

REQUIREMENT OF THE FOURTH AMENDMENT. SOMEWHERE IN BETWEEN THESE TWO CATEGORIES IS THE THIRD METHOD OF CONDUCTING A FIRE SCENE SEARCH: THE SEARCH PURSUANT TO AN ADMINISTRATIVE SEARCH WARRANT. THIS LAST CATEGORY OF SEARCH WAS CREATED BY THE UNITED STATES SUPREME COURT UNDER THE MICHIGAN V. TYLER DECISION IN 1978. SINCE MOST INVESTIGATORS ARE ALREADY FAMILIAR WITH THE PARTICULARS OF A SEARCH BY WARRANT, THESE LAST TWO CATEGORIES OF SEARCHES AS THEY APPLY TO THE INVESTIGATION OF ARSON PRESENT THE GREATEST DANGER OF MAKING A MISTAKE WHICH WILL BE FATAL TO THE INVESTIGATION.

THERE ARE A NUMBER OF WARRANTLESS SEARCH EXCEPTIONS WHICH HAVE BEEN RECOGNIZED BY COURTS OVER THE YEARS. THE MOST WIDELY USED EXCEPTION IS THE EMERGENCY DOCTRINE OR THE EXIGENT CIRCUMSTANCE EXCEPTION. THIS EXCEPTION PERMITS A WARRANTLESS SEARCH WHERE THE CIRCUMSTANCES ARE SUCH THAT IT IS EITHER IMPOSSIBLE OR IMPRACTICAL TO OBTAIN A WARRANT BEFORE CONDUCTING THE SEARCH. IT IS THIS EXCEPTION TO THE WARRANT REQUIREMENT WHICH HAS BEEN RECOGNIZED AS THE JUSTIFICATION FOR A WARRANTLESS SEARCH OF A FIRE SCENE TO DETERMINE ITS ORIGIN AND CAUSE. AS A GENERAL RULE, THERE IS NO REQUIREMENT THAT A SEARCH WARRANT BE OBTAINED TO SEARCH A FIRE SCENE FOR THE PURPOSE OF DETERMINING ORIGIN AND CAUSE. HOWEVER, IF THE SEARCH IS CONDUCTED FOR SOME OTHER PURPOSE, OR IS CONDUCTED SOMETIME AFTER IT REASONABLY COULD AND SHOULD HAVE BEEN CONDUCTED, IT WILL NOT BE UPHELD BY A COURT.

THIS LEADS US TO THE TWO CASES WHICH CAN BE CONSIDERED THE LANDMARK CASES IN THE AREA OF FIRE SCENE INVESTIGATION. THOSE ARE THE CASES OF MICHIGAN V. TYLER AND MICHIGAN V. CLIFFORD. UNDERSTANDING THOSE CASES IS ESSENTIAL FOR ANY FIRE SCENE INVESTIGATOR.

THE TYLER CASE INVOLVED A FIRE TO A FURNITURE STORE IN MICHIGAN. A FIRE WAS REPORTED SOMETIME AFTER MIDNIGHT. THE RESPONDING FIREFIGHTERS HAD CONTROLLED, BUT NOT EXTINGUISHED THE FIRE, BY 2:00 A.M. WHEN THE CHIEF ARRIVED. ON HIS ARRIVAL HE WAS TOLD THAT TWO PLASTIC CONTAINERS HAD BEEN FOUND INSIDE THE BUILDING WHICH APPEARED TO CONTAIN A FLAMMABLE LIQUID. THE CHIEF LOOKED AT THOSE CONTAINERS AND, SUSPECTING ARSON, CALLED A POLICE DETECTIVE TO THE SCENE. THIS DETECTIVE SEIZED THE CONTAINERS AND TOOK THEM INTO EVIDENCE. IT WAS IMPOSSIBLE TO SEARCH THE BUILDING AT THAT TIME DUE TO THE HEAT, STEAM AND DARKNESS. THE FIRE WAS NOT EVEN FULLY EXTINGUISHED UNTIL 4:00 A.M., AT WHICH TIME THE BUILDING WAS ABANDONED AND LEFT UNATTENDED.

ABOUT 8:00 THAT MORNING, FIRE OFFICIALS BEGAN TO RETURN TO THE SCENE. THE FIRST ONES AT THE SCENE MADE A QUICK WALK-THROUGH AND DID NOT FIND ANYTHING THEY CONSIDERED TO BE SIGNIFICANT, NOR DID THEY TAKE ANYTHING INTO EVIDENCE. ABOUT 9:00 A.M., THE POLICE DETECTIVE RETURNED WITH AN ASSISTANT FIRE CHIEF. THEY MADE A THOROUGH SEARCH OF THE BUILDING AND SEIZED A NUMBER OF ITEMS, INCLUDING CARPET SAMPLES SHOWING INDICATIONS OF FLAMMABLE LIQUID POUR-PATTERNS. NOTHING ELSE WAS DONE THAT DAY.

THREE DAYS LATER, A STATE ARSON INVESTIGATOR ARRIVED AT THE SCENE TOGETHER WITH OTHER OFFICIALS. HE SEARCHED THE BUILDING AND SEIZED A NUMBER OF ITEMS AS EVIDENCE. HE RETURNED THE FOLLOWING DAY, FOUR DAYS AFTER THE FIRE, AND SEIZED SOME MORE EVIDENCE. HE RETURNED AGAIN ON THE SEVENTH DAY AFTER THE FIRE AND TOOK SOME MORE EVIDENCE INTO CUSTODY. ON THE 25TH DAY AFTER THE FIRE, HE RETURNED ONCE MORE AND SEIZED SOME ADDITIONAL EVIDENCE. ALL OF THIS EVIDENCE WAS ADMITTED AT TRIAL AND MR. TYLER WAS CONVICTED. AT NO TIME DURING THE INVESTIGATION OF THIS FIRE HAD A SEARCH WARRANT OF ANY KIND BEEN OBTAINED. TYLER NEVER GAVE CONSENT TO ANY OF THE SEARCHES OF HIS BUILDING DURING THE COURSE OF THIS INVESTIGATION, NOR WAS HE EVER ASKED TO DO SO.

MR. TYLER APPEALED HIS CONVICTION TO THE MICHIGAN SUPREME COURT, WHICH GRANTED HIM A NEW TRIAL BASED ON ILLEGALLY SEIZED EVIDENCE. THE MICHIGAN SUPREME COURT SAID THAT THE TWO JUGS OF FLAMMABLE LIQUID SEIZED DURING THE TIME THE FIRE WAS BEING FOUGHT COULD BE ADMITTED IN EVIDENCE, BUT EVERY OTHER ITEM SEIZED AFTERWARD WAS FOUND TO BE ILLEGALLY SEIZED WITHOUT A SEARCH WARRANT. THE STATE APPEALED THIS DECISION TO THE UNITED STATES SUPREME COURT.

THE SUPREME COURT AGREED WITH SOME OF THE FINDINGS OF THE MICHIGAN SUPREME COURT, BUT DISAGREED WITH SOME OF THEIR OTHER CONCLUSIONS. MORE IMPORTANTLY, THE COURT GAVE A VERY COMPREHENSIVE DISCUSSION OF THE CONCEPT OF FIRE SCENE SEARCHES. IN THAT DISCUSSION, THE COURT MADE SEVERAL SIGNIFICANT OBSERVATIONS.

FIRST, AN ACTIVE FIRE SCENE IS AN EMERGENCY WITHIN THE MEANING OF THE FOURTH AMENDMENT OF THE CONSTITUTION. A WARRANT IS NOT REQUIRED FOR THE FIRE DEPARTMENT TO GO INTO A BUILDING TO PUT IT OUT. AT THE SAME TIME, THERE IS NO REQUIREMENT OF A WARRANT FOR AN INVESTIGATOR TO GO IN AND DETERMINE ORIGIN AND CAUSE WHILE THE FIRE DEPARTMENT IS STILL AT THE SCENE. SIGNIFICANTLY, THE COURT WENT ON TO STATE THAT EVEN AFTER THE FIRE HAS BEEN EXTINGUISHED AND THE FIRE DEPARTMENT HAS WITHDRAWN FROM THE SCENE, IT CAN BE SEARCHED TO DETERMINE ORIGIN AND CAUSE WITHOUT REQUIRING A WARRANT. THE COURT STATED THAT SUCH SEARCHES COULD BE CONDUCTED FOR A "REASONABLE TIME" AFTER EXTINGUISHMENT. UNFORTUNATELY, THE COURT DID NOT SPELL OUT WHAT IT MEANT BY A "REASONABLE TIME". THE BEST UNDERSTANDING OF THIS PART OF THE DECISION IS THAT A "REASONABLE TIME" MEANS THE FIRST REASONABLE OPPORTUNITY TO SEARCH THE SCENE. IN OTHER WORDS, WHEN A FIRE OCCURS IN THE MIDDLE OF THE NIGHT AN INVESTIGATOR MAY RETURN THE FOLLOWING MORNING TO START HIS SEARCH. IN A MAJOR WAREHOUSE FIRE, FOR EXAMPLE, THE REASONABLE TIME WOULD INCLUDE ENOUGH TIME FOR THE FIRE SCENE TO COOL DOWN. OBVIOUSLY, A COURT IS NOT GOING TO REQUIRE A SEARCH THROUGH THE STILL-BURNING DEBRIS OF A FIRE SCENE.

AFTER A "REASONABLE TIME" HAS PASSED, A WARRANT WILL BE REQUIRED TO CONDUCT ANY FURTHER SEARCH OF THE PROPERTY. HOWEVER, IF THE SEARCH IS STRICTLY FOR THE PURPOSE OF DETERMINING ORIGIN AND CAUSE, A TRADITIONAL SEARCH WARRANT WILL NOT BE REQUIRED. INSTEAD, THE ADMINISTRATIVE SEARCH WARRANT WAS CREATED BY THE SUPREME COURT IN THE TYLER DECISION. THIS REQUIRES THAT THE INVESTIGATOR APPLY TO A MAGISTRATE OR JUDGE FOR PERMISSION TO ENTER THE FIRE SCENE FOR PURPOSES OF DETERMINING ORIGIN AND CAUSE ONLY. THE ONLY REQUIREMENTS NECESSARY ARE THE FACT OF A FIRE, AN UNDETERMINED ORIGIN AND CAUSE, AND THE NEED TO RETURN TO THE SCENE TO DETERMINE THAT ORIGIN AND CAUSE. THERE IS NO REQUIREMENT OF "PROBABLE CAUSE" AS IN A TRADITIONAL SEARCH WARRANT. THE TYPE SEARCH TO BE CONDUCTED UNDER AN ADMINISTRATIVE WARRANT IS LIMITED TO THE METHODS AND AREAS NECESSARY TO ESTABLISH THE ORIGIN AND CAUSE OF THE FIRE. IT DOES NOT INCLUDE THE AUTHORITY TO SEARCH AREAS WHICH ARE CLEARLY UNRELATED TO THE FIRE'S ORIGIN AND CAUSE, SUCH AS PERSONAL PAPERS AND RECORDS OR AREAS OF THE STRUCTURE WHICH WERE NOT INVOLVED IN THE FIRE. TO SEARCH THOSE AREAS, A TRADITIONAL SEARCH WARRANT IS REQUIRED.

THE DECISION OF MICHIGAN V. CLIFFORD IN 1984 WAS A SEQUEL TO THE TYLER DECISION WHICH CLARIFIED SOME OF THE COURT'S RULINGS. IN THAT CASE, A FIRE OCCURRED AT A PRIVATE RESIDENCE EARLY ONE MORNING WHILE THE OWNERS WERE OUT OF TOWN. THE FIRE WAS EXTINGUISHED AT 7:04 A.M., AT WHICH TIME ALL OF THE FIRE OFFICIALS AND POLICE LEFT THE SCENE. SOMETIME AFTER NOON THAT DAY, A TEAM OF ARSON INVESTIGATORS ARRIVED AT THE RESIDENCE FOR THE FIRST TIME TO INVESTIGATE THE ORIGIN AND CAUSE OF THE FIRE. ON THEIR ARRIVAL, THEY FOUND A WORK CREW BOARDING UP THE HOUSE AND PUMPING WATER OUT OF THE BASEMENT. THE CREW HAD BEEN SENT OUT BY THE OWNERS' INSURANCE AGENT AT THE REQUEST OF THE OWNERS. THE ARSON INVESTIGATORS DECIDED TO GO INTO THE HOUSE TO CONDUCT THEIR INVESTIGATION DESPITE THE ACTIVITIES OF THE WORK CREW SECURING THE PROPERTY. THEY HAD NEITHER A SEARCH WARRANT NOR THE CONSENT OF THE OWNERS OF THE PROPERTY. THEY BEGAN THEIR SEARCH IN THE BASEMENT OF THE HOUSE AND FOUND TWO CANS OF COLEMAN FUEL IN A CROCK POT ATTACHED TO AN ELECTRICAL TIMER. THE INVESTIGATORS RECOGNIZED THE USE OF THESE MATERIALS AS AN INCENDIARY DEVICE AND SEIZED THEM. THE INVESTIGATORS THEN EXTENDED THEIR SEARCH BEYOND THE BASEMENT TO THE UPPER PORTIONS OF THE HOUSE AND SEIZED ADDITIONAL EVIDENCE OF ARSON. CLIFFORD WAS CHARGED WITH ARSON AND CONVICTED IN THE TRIAL COURT. THE MICHIGAN SUPREME COURT REVERSED HIS CONVICTION AND THREW OUT ALL OF THE EVIDENCE BASED UPON AN ILLEGAL SEARCH. THE MICHIGAN COURT FOUND THAT THERE WAS NO EMERGENCY OR EXIGENT CIRCUMSTANCE WHICH WOULD HAVE JUSTIFIED THE SEARCH TO THE PROPERTY.

THE UNITED STATES SUPREME COURT, ONCE AGAIN, AGREED WITH SOME OF THE THINGS THE MICHIGAN COURT SAID AND DISAGREED WITH OTHER THINGS. HOWEVER, IN THE FINAL ANALYSIS, THE COURT CONCLUDED THAT THE ENTIRE SEARCH HAD BEEN ILLEGAL AND EXCLUDED ALL OF THE EVIDENCE TAKEN FROM INSIDE THE HOUSE.

THE COURT FOUND THAT IN THE SITUATION OF A FIRE AT A PRIVATE RESIDENCE THERE ARE ESPECIALLY STRONG EXPECTATIONS OF PRIVACY. WHERE THE OWNERS OF THE PROPERTY HAD DEMONSTRATED THEIR EXPECTATION OF PRIVACY IN BOARDING UP THE HOUSE IT WAS CLEAR THAT THE VIOLATION OF THAT EXPECTATION OF PRIVACY WAS ILLEGAL. THE TIME DELAY BETWEEN THE EXTINGUISHMENT OF THE FIRE AND THE SEARCH BY THE ARSON INVESTIGATORS WAS TOO LONG TO BE CONSIDERED A "REASONABLE TIME" UNDER THE TYLER DECISION. ALSO, UNLIKE THE TYLER CASE, THIS WAS NOT JUST THE CONTINUATION OF A SEARCH BUT THE BEGINNING OF A SEARCH, LONG AFTER THE FIRE WAS OUT WHEN THE SEARCH SHOULD HAVE BEEN STARTED. THE COURT ALSO NOTED THAT ONCE THE INCENDIARY DEVICE HAD BEEN FOUND, THE CAUSE OF THE FIRE HAD BEEN ESTABLISHED. THEREFORE, ANY FURTHER SEARCH OF THE PROPERTY WAS NOT A SEARCH TO DETERMINE ORIGIN AND CAUSE, BUT RATHER A SEARCH TO FIND EVIDENCE OF A CRIME. A TRADITIONAL SEARCH WARRANT WOULD BE REQUIRED FOR SUCH A SEARCH. ONE OF THE JUSTICES OF THE SUPREME COURT COMMENTED THAT THE OWNERS OF THE PROPERTY SHOULD HAVE BEEN GIVEN FAIR ADVANCE NOTICE OF THE PLANNED SEARCH SO THAT THEY COULD BE PRESENT IF THEY DESIRED. THIS IMPLIED THAT THE OWNERS WOULD HAVE CONSENTED TO SUCH A SEARCH IN THE FIRST PLACE. SINCE NEITHER A WARRANT WAS OBTAINED NOR HAD THE OWNERS GIVEN CONSENT, THE SEARCH WAS FOUND TO BE ILLEGAL.

III. CONSENT SEARCHES

BOTH THE TYLER AND THE CLIFFORD DECISIONS STRESSED THE FACT THAT THE INVESTIGATORS NEVER OBTAINED CONSENT TO SEARCH THE PROPERTY. IF PROPER CONSENT HAD BEEN OBTAINED BY THE INVESTIGATORS, THESE CASES WOULD NEVER HAVE REACHED THE SUPREME COURT. MORE IMPORTANTLY, THE CONVICTIONS WOULD HAVE BEEN UPHELD AND THE EFFORTS OF THE INVESTIGATORS WOULD NOT HAVE BEEN WASTED. THE USE OF CONSENT IN FIRE SCENE SEARCHES CAN PREVENT MANY SUCH PROBLEMS IF THE INVESTIGATOR MAKES THE EFFORT TO OBTAIN CONSENT IN THE FIRST PLACE.

THE CONCEPT OF CONSENT IN A FIRE SCENE SEARCH INVOLVES SEVERAL CONSIDERATIONS. THE COURTS HAVE DEFINED CONSENT TO SEARCH AS A KNOWING AND VOLUNTARY RELINQUISHMENT OF A CONSTITUTIONAL RIGHT WHICH HAS BEEN FREELY MADE BY ONE WHO HAS BOTH THE CAPACITY AND THE AUTHORITY TO DO SO. THERE ARE SEVERAL KEY FACTORS A COURT WILL CONSIDER IN UPHOLDING A SEARCH BY CONSENT.

FIRST, CONSENT MUST BE OBTAINED FROM THE PROPER PERSON. THE PERSON MUST HAVE CONTROL, AUTHORITY, USE OR POSSESSION OF THE PREMISES TO BE ABLE TO GIVE CONSENT. IF PROPERTY IS JOINTLY OWNED OR OCCUPIED, ANY ONE OF THE OCCUPANTS OR OWNERS CAN GIVE CONSENT. HOWEVER, IF ONE OF THE OWNERS OR OCCUPANTS EXPRESSLY REFUSES TO GIVE CONSENT, THEN THE SEARCH CANNOT BE MADE UPON CONSENT OF THE OTHER PARTY.

THE QUESTION OF WHETHER SOMEBODY IS IN A POSITION TO GIVE CONSENT IS NOT SIMPLY A QUESTION OF OWNERSHIP. IN FACT, THE OWNER OF PROPERTY CANNOT GIVE CONSENT TO SEARCH PROPERTY USED OR OCCUPIED BY TENANTS. THE TEST OF "COMMON AUTHORITY" USED BY THE COURTS MEANS CONTROL OVER THE PROPERTY, TOGETHER WITH THE USE OF THE PROPERTY. THEREFORE, A TENANT WOULD BE ABLE TO GIVE CONSENT TO SEARCH HIS PREMISES WHILE THE LANDLORD COULD NOT GIVE CONSENT TO SEARCH THE TENANT'S PREMISES. WHILE MANY LEASES TYPICALLY PROVIDE THE LANDLORD WITH THE RIGHT TO "INSPECT" THE PREMISES AT ANY TIME, THAT IS PROBABLY NOT SUFFICIENT TO AUTHORIZE HIM TO GIVE CONSENT FOR A SEARCH OF THE PROPERTY.

CONSENT GIVEN BY A ROOMMATE, SPOUSE, OR LIVE-IN LOVER IS GENERALLY VALID CONSENT IF IT MEETS THE "COMMON AUTHORITY" TEST. CERTAINLY, A SPOUSE CAN GIVE CONSENT. IT MAY BE SOMETHING OF A GRAY AREA TO USE THE CONSENT OF A COMMON-LAW SPOUSE, ROOMMATE OR "LIVE-IN LOVER". IF THEY HAVE LIVED TOGETHER LONG ENOUGH TO DEMONSTRATE MORE THAN A TEMPORARY ARRANGEMENT OR IF THEY HAVE BOTH SIGNED A LEASE OR RENT AGREEMENT, YOU WILL BE ON BETTER GROUND. IN AT LEAST ONE CASE, A WIFE WHO WAS SEPARATED AND HAD MOVED OUT OF THE HOUSE WAS ALLOWED TO GIVE CONSENT FOR A SEARCH OF THE MARITAL HOME WHERE HER HUSBAND STILL LIVED EVEN THOUGH HE HAD CHANGED ALL THE LOCKS AND KEYS. THE COURT LOOKED TO THE FACT THAT SHE WAS STILL A CO-OWNER OF THE PROPERTY ON THE DEED. HOWEVER, A SIMILAR SITUATION HAS BEEN REJECTED IN ANOTHER JURISDICTION AND WOULD PROBABLY BE REJECTED IN MOST JURISDICTIONS.

ANOTHER PROBLEM AREA INVOLVES PARENTS AND CHILDREN. IT CANNOT BE ASSUMED THAT A PARENT CAN CONSENT TO A SEARCH OF A CHILD'S ROOM. WHILE IT MAY BE TRUE IN SOME CASES, THE INVESTIGATOR WILL HAVE TO LOOK AT THE PARTICULAR CIRCUMSTANCES TO DETERMINE IF IT IS APPROPRIATE IN ANY GIVEN CASE. FOR INSTANCE, IF THE CHILD PAYS "RENT" TO THE PARENTS AND OTHERWISE DEMONSTRATES SOME DEGREE OF INDEPENDENCE WHICH WOULD ENTITLE THE CHILD TO ABSOLUTE PRIVACY IN HIS OR HER ROOM, THEN THE INVESTIGATOR SHOULD PROCEED CAUTIOUSLY IN SEEKING CONSENT THROUGH THE PARENTS. WHERE THE CHILD PERMITS A PARENT TO FREELY ENTER THE ROOM TO CLEAN UP, DO LAUNDRY AND OTHER SUCH ACTIVITIES, THE PARENT WILL PROBABLY BE ABLE TO GIVE VALID CONSENT TO SEARCH THE ROOM. HOWEVER, A SEARCH OF CLEARLY PERSONAL ITEMS SUCH AS LOCKED DRAWERS OR STORAGE BOXES KEPT OUT OF VIEW WILL REQUIRE CONSENT BY THE CHILD. OF COURSE, THE PARENTS MAY CERTAINLY CONSENT TO A SEARCH OF COMMON AREAS OF THE HOUSE, THE GARAGE, ATTIC, AND OTHER AREAS WHICH ARE NOT EXCLUSIVELY USED AND OCCUPIED BY THE CHILD.

ON THE OTHER SIDE OF THE COIN, AN INVESTIGATOR WILL HAVE TO CONSIDER CAREFULLY THE VALIDITY OF CONSENT TO SEARCH A PARENT'S HOUSE GIVEN BY A CHILD. OTHER THAN HIS OR HER OWN ROOM, AND THE "FAMILY AREAS" SUCH AS THE LIVING ROOM AND KITCHEN, A CHILD GENERALLY DOES NOT HAVE THE NECESSARY CONTROL OR AUTHORITY OVER OTHER AREAS OF THE HOUSE. THIS IS PARTICULARLY TRUE IN THE PARENT'S BEDROOM AND OTHER TRADITIONALLY PRIVATE AREAS. THOSE AREAS SHOULD ONLY BE SEARCHED WITH CONSENT FROM A PARENT.

IN SEEKING CONSENT TO SEARCH A FIRE SCENE AT A BUSINESS, CONSENT MUST BE OBTAINED FROM A PERSON WITH MANAGERIAL AUTHORITY OVER THE BUSINESS. IT IS NOT NECESSARY TO OBTAIN CONSENT FROM THE OWNER OF THE BUSINESS, BUT IT IS NECESSARY TO OBTAIN CONSENT FROM SOMEBODY WHO HAS CONTROL OVER THE DAILY OPERATIONS OF THE BUSINESS RATHER THAN A MERE EMPLOYEE OF THE BUSINESS. ONCE AGAIN, THE INVESTIGATOR MUST BE CAREFUL NOT TO GO INTO AREAS WHICH ARE OBVIOUSLY RESERVED FOR THE EXCLUSIVE USE OF SOMEONE OTHER THAN THE PERSON WHO GIVES CONSENT. A MANAGER OF A BUSINESS CANNOT GIVE CONSENT TO SEARCH THE BUSINESS OWNER'S PRIVATE OFFICE. SIMILARLY, EVEN THE BUSINESS OWNER CANNOT GIVE CONSENT TO SEARCH INSIDE THE DESK OR PRIVATE LOCKER OF AN EMPLOYEE THERE AT THE BUSINESS.

THE MANNER IN WHICH CONSENT IS REQUESTED AND GIVEN WILL DETERMINE THE SCOPE OF THE SEARCH WHICH WILL BE PERMITTED. WHERE AN INVESTIGATOR ASKS TO COME INSIDE "TO TALK ABOUT A FIRE", THIS IS NOT CONSENT TO SEARCH AT ALL. REQUESTING CONSENT TO SEARCH FOR "THE ORIGIN AND CAUSE OF A FIRE" IS NOT CONSENT TO SEARCH THROUGH PERSONAL PAPERS, FILING CABINETS, LOCKED DRAWERS, ETC. OF COURSE, ANYTHING WHICH IS OBSERVED IN PLAIN VIEW CAN BE SEIZED EVEN WHERE THE INVESTIGATOR HAS OBTAINED CONSENT TO COME IN "TO TALK" WITH THE OWNER.

THE METHOD OF OBTAINING CONSENT IS PERHAPS THE MOST IMPORTANT ASPECT OF A CONSENT SEARCH. UNLIKE ALMOST EVERY OTHER TYPE OF SEARCH, A CONSENT SEARCH DOES NOT REQUIRE ANY STANDARD OF PROBABLE CAUSE OR EXIGENT CIRCUMSTANCE OR ANY OTHER SUCH REQUIREMENT. THE ONLY REQUIREMENT IS THAT THE CONSENT BE FREELY GIVEN BY A PERSON WITH THE AUTHORITY TO GRANT CONSENT. THE TEST THE COURTS WILL APPLY TO DETERMINE IF A CONSENT SEARCH IS VALID IS A REVIEW OF "THE TOTALITY OF THE CIRCUMSTANCES".

THE MOST COMMON PROBLEM THAT ARISES AFTER A CONSENT SEARCH IS A DENIAL THAT CONSENT WAS EVER GIVEN. IF THERE IS ANY QUESTION ABOUT WHETHER CONSENT WAS PROPERLY GIVEN OR GIVEN AT ALL, THE BENEFIT OF THE DOUBT WILL GO AGAINST THE INVESTIGATOR. CONSENT MUST BE CLEARLY GIVEN BY THE PARTY BY AFFIRMATIVE CONDUCT OR EXPRESSION. A STATEMENT THAT "I GUESS IT'S O.K." OR "WELL, I GUESS I CAN'T STOP YOU" IS NOT CONSENT AT ALL. THE PARTY GIVING CONSENT MUST UNDERSTAND AND RECOGNIZE THAT THE INVESTIGATOR IS THERE FOR THE EXPRESS PURPOSE OF CONDUCTING A SEARCH AND, WITH THAT IN MIND, MUST VOLUNTARILY AGREE TO PERMIT A SEARCH. FOR THIS REASON, THE INVESTIGATOR MUST IDENTIFY HIMSELF AND THE AGENCY HE REPRESENTS, EXPLAIN THAT HE IS CONDUCTING AN INVESTIGATION INTO A PARTICULAR FIRE, AND STATE THAT HE BELIEVES A SEARCH OF THE AREA IS NECESSARY TO CARRY OUT THAT INVESTIGATION. AFTER DOING SO, THE INVESTIGATOR SHOULD OBTAIN WRITTEN CONSENT ON A CONSENT TO SEARCH FORM. THAT RESOLVES MOST OF THE PROBLEMS THAT CAN ARISE IN THE SITUATION OF A CONSENT SEARCH.

COERCION AND INTIMIDATION CANNOT BE USED IN OBTAINING CONSENT, EVEN WHERE THE INVESTIGATOR MAY NOT REALIZE HE IS CREATING A SITUATION OF INTIMIDATION. ANY SUGGESTION OF THREATS, PRESSURE OR INTIMIDATION WILL INVALIDATE A CONSENT SEARCH. SOME EXAMPLES THAT HAVE BEEN REVIEWED BY COURTS INCLUDE A PROMISE NOT TO ARREST A SUSPECT'S GIRLFRIEND IN EXCHANGE FOR GIVING CONSENT TO SEARCH, A WARNING THAT IF THE INVESTIGATOR HAD TO OBTAIN A SEARCH WARRANT HE WOULD "TEAR THE PLACE APART", A PROMISE OF LENIENCY IF CONSENT WERE GIVEN, OR THE PROMISE OF A "HARD TIME" IF IT WERE NOT.

IT IS PERMISSIBLE TO ADVISE A PERSON THAT A WARRANT WILL BE "SOUGHT" OR "APPLIED FOR" IF CONSENT IS NOT GIVEN. IT IS NOT PERMISSIBLE, HOWEVER, TO STATE THAT A PERSON "MIGHT AS WELL CONSENT" SINCE A WARRANT WILL UNDOUBTEDLY BE OBTAINED IF CONSENT IS NOT GIVEN. ANOTHER POINT THAT SOMETIMES COMES UP IN INVESTIGATIONS IS WHETHER A PERSON MUST BE TOLD THAT THEY HAVE THE RIGHT TO REFUSE CONSENT. THE UNITED STATES SUPREME COURT HAS RULED ON THIS POINT AND STATED THAT IT IS NOT NECESSARY TO SO ADVISE A PERSON. HOWEVER, IF A PERSON ASKS WHETHER CONSENT MAY BE REFUSED, THAT PERSON MUST BE TOLD OF THE RIGHT TO REFUSE. WHILE THE SUPREME COURT HAS NOT REQUIRED AN INVESTIGATOR TO INFORM A PERSON OF THE RIGHT TO REFUSE CONSENT AS A MATTER OF FEDERAL LAW, SOME STATE COURTS HAVE IMPOSED SUCH A REQUIREMENT. YOU SHOULD BE AWARE OF YOUR PARTICULAR STATE'S REQUIREMENTS. IN MOST STATES, IT IS NOT REQUIRED UNLESS THE PERSON SPECIFICALLY ASKS IF CONSENT CAN BE REFUSED.

A RECENT DECISION BY AN APPELLATE COURT IN FLORIDA RAISES NEW IMPLICATIONS FOR THE FORM OF CONSENT NECESSARY TO UTILIZE AN ACCELERANT DETECTION CANINE IN FIRE SCENE SEARCHES. ALTHOUGH THAT DECISION INVOLVED A NARCOTICS CASE, THE REASONING OF THE DECISION WOULD SEEM DIRECTLY APPLICABLE TO FIRE SCENE SEARCHES USING ACCELERANT DETECTION CANINES. IN THAT CASE, THE COURT INVALIDATED A CANINE SEARCH OF A DEFENDANT'S RESIDENCE WHERE A POLICE DETECTIVE USED A GENERIC FORM OF CONSENT TO SEARCH THE SUSPECT'S RESIDENCE. AFTER INITIATING THE SEARCH, THE DETECTIVE CALLED FOR A NARCOTICS DETECTION CANINE. THE DOG ALERTED TO A CONCEALED AREA BEHIND A WALL UNDER THE KITCHEN SINK. WHEN THE WALL WAS OPENED, NARCOTICS WERE FOUND AND THE SUSPECT WAS CHARGED WITH VIOLATIONS OF THE NARCOTICS LAW. THE SEARCH WAS HELD TO BE INVALID BASED UPON THE FACT THE SUSPECT WAS NEVER INFORMED A NARCOTICS DETECTION CANINE WOULD BE USED TO ASSIST IN THE SEARCH. THE COURT HELD THE SEARCH EXCEEDED THE SCOPE OF AUTHORITY UNDER THE CONSENT GIVEN BY THE SUSPECT SINCE HE WAS NEVER INFORMED A NARCOTICS DETECTION CANINE WOULD BE UTILIZED IN THE SEARCH AND NEVER EXPRESSLY AUTHORIZED THE USE OF A NARCOTICS DETECTION CANINE. IN FIRE SCENE SEARCHES WHERE AN ACCELERANT DETECTION CANINE WILL BE USED, INVESTIGATORS ARE ENCOURAGED TO INFORM THE PERSON WHOSE PREMISES WILL BE SEARCHED THAT AN ACCELERANT DETECTION CANINE WILL BE USED AND CONSENT FOR THE USE OF AN ACCELERANT DETECTION CANINE SHOULD BE EXPRESSLY GRANTED BY THE SUSPECT BEFORE INITIATING THE SEARCH. WRITTEN CONSENT FORMS SHOULD BE REVISED ACCORDINGLY TO AVOID A POTENTIAL PROBLEM WHEN THE CONSENT SEARCH IS LATER REVIEWED BY A COURT.

IT IS PARTICULARLY IMPORTANT TO KNOW THAT CONSENT CAN BE WITHDRAWN AT ANY TIME, IN PART OR IN WHOLE. IF A PERSON WHO HAS GIVEN CONSENT SUDDENLY CHANGES HIS OR HER MIND, THE SEARCH MUST STOP. IF THE PERSON LIMITS THE AREA OF SEARCH BY SAYING "DON'T LOOK IN THERE" OR "LEAVE THAT ROOM ALONE", THE SEARCH CANNOT PROCEED IN THOSE AREAS. IF CONSENT HAS BEEN GIVEN BY ONE PERSON WITH AUTHORITY TO DO SO, IT CAN BE CANCELED BY ANOTHER PERSON WITH AUTHORITY TO DO SO. IN THAT CIRCUMSTANCE, ANY EVIDENCE ALREADY OBTAINED CAN BE USED AGAINST BOTH THE PERSON WHO GAVE CONSENT AND THE PERSON WHO REFUSED CONSENT.

ANOTHER ASPECT OF CONSENT IS THAT IT IS NOT CONTINUOUS.

IF THE INVESTIGATOR WANTS TO RETURN TO THE AREA FOR A SUBSEQUENT SEARCH, HE OR SHE MUST OBTAIN CONSENT AGAIN, UNLESS CONSENT WAS SPECIFICALLY GIVEN FOR AN ONGOING SEARCH "AS LONG AS NECESSARY". OF COURSE, THAT CONSENT CAN STILL BE WITHDRAWN AT ANY FUTURE TIME BY THE PERSON WHO PREVIOUSLY GAVE CONSENT.

ANOTHER FACTOR TO CONSIDER IS THE CONDITION OF THE PERSON GIVING CONSENT. AN INDIVIDUAL IN AN EXTREME STATE OF INTOXICATION CANNOT GIVE VALID CONSENT. A PERSON WHO IS FEEBLE-MINDED, RETARDED, INSANE, OR OTHERWISE INCAPABLE OF UNDERSTANDING THE SIGNIFICANCE OF GIVING CONSENT CANNOT VALIDLY CONSENT TO A SEARCH.

IV. CONCLUSION

AS YOU CAN SEE, THERE ARE MANY CONSIDERATIONS TO BE UNDERSTOOD IN THE FIELD OF SEARCH AND SEIZURE. HOWEVER, BY

UNDERSTANDING THESE CONSIDERATIONS AN INVESTIGATOR CAN ENSURE

THAT THE RESULTS OF HIS OR HER INVESTIGATION WILL BE ADMISSIBLE AT TRIAL, WHICH IS THE OBJECTIVE OF EVERY INVESTIGATION.


CONSENT TO SEARCH AND REMOVE EVIDENCE

I, ________________________________, the ______________________________ of the
(Person giving consent) (Owner,tenant, manager, etc.)

________________________________located in ________________________________
(Residence, business, vehicle, vessel, etc.) (City/State)

at________________________________________________________________
(Complete address)

do hereby freely and voluntarily give my consent to _________________________________________
(Name of Official)

of the ______________________________________________
(Agency)

and any other fire official, investigator or law enforcement officer participating in the investigation of this fire incident, to enter and search the property described above and the surrounding areas of the premises, including any other structures or vehicles situated on or adjacent to the property, to examine and remove evidence relating to the fire which occurred on or about

______________________ at ___________________.
(Date) (Time)

I specifically give my consent and authorize these persons to inspect and remove any items of evidence which may be related, directly or indirectly, to the investigation of the circumstances and cause of the fire, and to submit the evidence to examination, analysis, and/or testing. I specifically give my consent and authorize these persons to use an accelerant detection canine (trained dog) to assist and participate in the search of the premises, surrounding areas, other structures and vehicles. This consent shall remain in effect and shall authorize subsequent entry and removal of evidence as often as may be necessary to complete the investigation of this fire incident or until this consent is revoked in writing.

Signature _____________________________________

Current Address _______________________________

__________________________ Phone (___)_________

Date:__________________ Witnessed by __________________________________

Time:__________________

RE: Agency File No. __________________________

Reprinted with permission from the author.

 
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