unit 2 – legal issues facing the investigator. agency resources from a federal, state, or local...

Unit 2 – Legal Issues facing the Investigator

Agency resources from a federal, state, or local level that could assist the investigator

Legal issues and terms

Spoliation

FS301- Unit 2: Legal Issues Facing the Investigator

Unit 2 Seminar Topics

Federal Resources Federal Bureau of Investigations (FBI)

www.fbi.gov

Bureau of Alcohol Tobacco, Firearms and Explosives (ATF)

www.atf.gov/


State and Local Resources State Bureau’s of Investigation /Departments

of Justice Insurance providers Private investigation firms Special state task force teams

(example: Arson Task Force)


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 Judiciary branch resolves any conflicts that may arise

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 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


Michigan vs. Tyler

This case set the precedent for investigators: They can do a search for the origin and cause and can seize

evidence in plain sight. If investigators want to return, they must obtain an

administrative search warrant. No search warrant is necessary if the building owner gives

consent. However, an owner can rescind that permission and then a

warrant will be necessary.

Right to Be ThereExigent Circumstances

Consent

• The fire department must have the right to enter private properties without a warrant.

• An exigent circumstance such as a fire gives them the right to entry.– To delay entry may put lives and property at risk.

• In the case where consent is required, only the person who owns or has lawful control of the property can give their consent.– A landlord cannot give consent to leased apartments, but

can allow search of common areas.• Consent can be rescinded.

Right to Be There (cont’d) Private investigators (from an insurance company)

generally have the right to be present in an investigation.Consent or implied consent is based on insurance policy.Should entry be denied, the insurance company 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.


Search Warrants All search warrants must be justified.

The fact that there is a government interest in investigation is the justification for a search warrant.

An administrative warrant may be issued under following circumstances:When there is proof that a fire has occurred and that the

investigator has the authority to conduct fire investigation.


Search Warrants (cont’d)

• The 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) – Stay within the boundaries identified in the search warrant

• The request must be specific to what is being sought and who or what is to be searched. – It must also state when the property is to be searched.

Spoliation Everyone must be aware of spoliation issues

A written agency/departmental policy should be established Intentional or negligent acts that result in spoliation could

result in criminal charges Failure to maintain and protect evidence can result in:

Court-ordered fines Sanctions Dismissal of the court case

What Spoliation Is

The loss, destruction, or material alteration of an object or document that is evidence or potential evidence Destruction of evidence can affect an investigator’s

ability to accurately determine the area or the origin and cause of a fire

Spoliation can lead to key evidence not being admitted in a court of law

This picture shows the extra time that the investigator has taken to thoroughly document collected evidence and to show that no cross contamination, alteration, or evidence destruction has occurred.

What Spoliation Is Not The suppression personnel in the normal course of their

duty are not committing spoliation During the overhaul stage, suppression personnel must

be cognizant of spoliation Debris that must be disturbed by the public investigator in

order to locate the area of origin is not spoliationHowever, this must be well documentedA video must be used in conjunction with photos


See You Next Week

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unit 2 – legal issues facing the investigator. agency resources from a federal, state, or local...

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