 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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