JOHN BOAL
Chapter Objectives
After reading this chapter, you should be able to do the following:
1. Explain the elements of the crime of arson.
2. Relate the differences between an administrative warrant and a search warrant.
3. Conduct a preliminary arson investigation.
4. Document the point of origin.
5. Conduct follow-up interviews.
6. Form an arson investigation team.
Chapter Outline
Introduction to Arson Investigation Arson Defined
Legal Considerations Preliminary Investigation Documenting the Fire Scene Follow-Up Investigation Prosecution
Introduction
Arson investigation can be one of the most complex investigations an investigator can encounter. The investigative skills required for an arson investigation encompass normal investigative skills in addition to skills in the understanding of fire dynamics. During
Contents
Chapter Objectives 51
Chapter Outline 51
Introduction 51
Arson Defined 52
Legal Considerations 53
Preliminary Investigation 55
Documenting the Fire Scene 58
Follow-Up Investigation 62
Prosecution 63
Questions for Discussion 63
References 63
a fire, much of the evidence is destroyed or damaged, and special skills in locating the point of origin and the location of other evidences are the key components to solving the crime and proving the case. It is best to use the team approach in investigating arson fires because of the multitude of skills required.
Many departments use a combination of fire and police investigators to investigate arson cases. The two investigators can be mutually supportive in the investigation. The fire investigator can provide the technical skills of understanding the fire dynamics, while the police investigator can provide the needed expertise in maneuvering through the criminal investigative process. Both skills are necessary for the successful resolution of an arson investigation.
Most criminal investigations require that the investigator prove something occurred as a result of criminal activity. In an arson fire investigation, the investigation must show that the fire was not the result of an accident or a natural event. This has to be done by eliminating all possible causes of the fire other than arson. Arson crimes are unique in that the investigator must prove arson by eliminating any possible accidental or natural causes.
In most criminal codes, arson is the willful destruction or damage to property by means of fire or explosion. The seriousness of the offense is judged by the danger to persons or the amount of property damage. If a person is present or likely to be pres-ent at the time of the arson fire, then the crime takes on aggravated specifications. All aggravated arsons and arsons causing a large amount of property damage are considered felonies. The amount of damage required to qualify for a felony is defined by individual state statutes.
Normal investigative skills in an arson investigation would include the ability to recog-nize and collect evidence to prove the fire or explosion was an intentional act, to develop a suspect or suspects through interviews and evidence examination, to read the crime scene by discovering the point of origin and analyzing the conduct of the fire, and to determine possible motives through interviews with owners, employees, witnesses, and all stakehold-ers in the property damaged.
According to the Uniform Crime Reporting (UCR) Program (2014) compiled by the Federal Bureau of Investigation (FBI), the crime of arson has shown a slight decrease in reporting in the preliminary assessment for the first half of 2013. This is a slight change in the gradual increasing numbers each year over the last several years.
Arson Defined
According to the FBI’s UCR Program (2013a), arson is defined as “any willful or malicious burning or attempting to burn, with or without intent to defraud, a dwelling house, public building, motor vehicle or aircraft, personal property of another” (Para. 1). Fires that are labeled as suspicious or of unknown origin are excluded from the UCR reported data.
According to the UCR (2013a) for 2012, over the last few years, the crime of arson has been trending upward slightly. Arson offenses increased less than 1/10th of 1% in 2012 from 2011. Close to half of all arsons involved a structure of some sort. Mobile property fires such as vehicles accounted for 23.1% of all arson fires in 2012. The average loss for each arson fire was found to be about $12,796 with the arsons of industrial structures account-ing for the highest average loss. In 2012, there were 18.7 arson offenses for every 100,000 inhabitants.
Also according to the UCR (2013b), the arson table 2 for 2012, of the 45,926 reported arson offenses in 2012, only 9,477 or 20.6% of the offenses were cleared by arrest or excep-tional circumstances. About a third of the clearances involved offenders under the age of 18. The low solvability rate of just over 20% is good evidence of the difficulty in investi-gating such a complex destructive crime as arson. It also indicates a need for improved investigations and better-trained investigators. Improved investigation skills begin with an understanding of the legal requirements in conducting an investigation.
Legal Considerations
The investigation and prosecution of an arson case requires that the investigator prove the individual elements of the crime. According to 29 Ohio Rev. Code (2011), these elements must be committed knowingly and by means of fire or explosion. The arson crime must cause or create a substantial risk of physical harm to property of another without their consent. The crime of arson can also be committed by causing or creating a substantial risk of physical harm to property of the offender or another with intent to defraud; can be com-mitted by causing or creating a substantial risk of physical harm to government buildings used for public purpose; can cause or create a substantial risk of harm to property through offer or acceptance of agreement to hire to any property without the consent of the owner or by the owner with intent to defraud; and can cause or create a substantial risk of harm to any park, preserve, well, and/or other real property.
Any criminal arson investigation must be conducted with the rights guaranteed by the fourth, fifth, and sixth amendments to the U.S. Constitution in mind. The fourth amend-ment guarantees the right to be free from unreasonable or illegal search or seizure. As an investigator, we must make sure that we conduct all searches within the context outlined by the Constitution and interpreted by the U.S. Supreme Court and that any suspect seized is seized based on probable cause. The fifth amendment provides arson suspects with the right not to be a witness against themselves. They also will not be deprived of life, liberty, or property without due process of law. The sixth amendment guarantees an accused the right to a speedy and public trial and the right to an impartial jury and to confront the witnesses against them.
The fourth amendment guarantees the right to be secure in one’s person, houses, papers, and effects against unreasonable searches and seizures. No warrant shall be issued unless based on probable cause. The warrant requirement was impractical in all situa-tions, and the courts through judicial decisions in various criminal cases recognized cer-tain exceptions to the warrant requirement. Emergency or exigent circumstance is one exception to the search warrant requirement. This exception recognizes that not all situ-ations are conducive to getting a warrant such as when someone is in danger, hot pursuit, escape, or the destruction of evidence. Officers, based on their ability to articulate the emergency situation and the compelling need to take action without a warrant, may take official action until a warrant may be obtained. It is important to note that the ability to take official action without a warrant exists only as long as the emergency is present. Once the emergency or exigent circumstances are quelled, the warrant requirement returns to conduct the search.
Another exception to the search warrant requirement is consent. The owner or person authorized to give consent may grant investigators permission to search for evidence at a
crime scene. There are a couple of things to note when receiving permission to conduct a consent search. You need to be certain that the person granting permission for a search has the authority to grant permission, specifically in the area you are going to be conducting the search. The real backbone of the consent search is that the consent was freely given and no coercion was applied to gain consent. It is also important to note about consent searches that consent can be withdrawn at any time, even if the consent was given in writing.
Another exception to the search warrant requirement is the automobile exception. In cases where officers have probable cause to believe evidence or contraband may be found in an automobile, a search may be conducted without a warrant, but the officers conducting the search must be able to articulate their probable cause for conducting the search. This mobile exception to the search warrant requirement was created by Carroll v. United States (1925). Another exception to the search warrant requirement that sometimes involves the automobile exception to the search warrant requirement is the search incident to a lawful arrest. Basically, an officer is allowed to search the “person” of a person arrested and the immediate surrounding area of the arrest. Recently, the Supreme Court has placed some restrictions for searches of vehicles incident to a lawful arrest in Arizona v. Gant (2009).
Plain view seizures are permitted without a warrant by law enforcement officials if the evidence or contraband is in plain view to the officer and the officer has a legal right to be in the place to make the observation. A qualifying statement here is that the evidence or contraband must be immediately apparent as contraband or evidence. This has to be apparent without any manipulation of the item or items. Evidence is to be immediately apparent as evidence located by firefighters, while extinguishing the fire, must be immedi-ately recognizable as evidence before it can be seized as being in plain view. Once the fire is extinguished and the fire investigators need to conduct further searches to determine the cause or causes of the fire, an administrative warrant is going to be necessary.
Searches at fire scenes present unique problems for investigators. The fire department as part of their function of protecting the community may search the fire scene for the cause of the fire. The amount of time fire investigators may remain on the scene, after extinguishing the fire to search for the cause of the fire, was determined to be a “reasonable period of time.” This “reasonable period of time” standard was established in the Michigan v. Tyler (1978) decision. If the investigator is in doubt of what a reasonable period of time is, legal advice should be obtained from the prosecuting attorney, or an administrative warrant should be obtained.
The administrative search warrant is obtained from the court that has jurisdiction of the fire location by showing that access to the fire location has been denied or consent not granted. The issuance of the administrative warrant is not based on probable cause but on a valid and reasonable government interest in determining the cause of the fire. If, during the process of conducting the search for the cause of the fire, investigators discover evidence that the fire was the result of a criminal act, then the investigators must obtain a search warrant to continue the search for evidence to be used in a criminal trial. The court with jurisdiction over the matter will then issue a criminal search warrant based on the articulation of probable cause that the fire was the result of a criminal act. The criminal search warrant must contain the identification of the items sought, specific description of the person or places to be searched, and the probable cause that the items to be sought will be present at the location of the person or place to be searched.
The fifth amendment protects persons from self-incrimination and guarantees the right of due process of law. As part of the guarantee against self-incrimination, a suspect
has the right to representation by an attorney before any questioning occurs if the suspect requests an attorney. Interrogation of the suspect falls under the protection against self-incrimination afforded by the fifth amendment. The suspect is guaranteed certain rights that are enumerated in what has become known as their rights under Miranda. Under these Miranda rights, the suspect has a right to remain silent. They are advised that any statement made will be used against them in a court of law. They have the right to have an attorney present before any questioning occurs. They are advised that if they cannot afford an attor-ney one will be provided by the court before any questioning occurs. The suspect has the right to exercise these rights at any time during the interrogation.
The rights under Miranda were guaranteed in the court decision of Miranda v. Arizona (1966). Miranda rights are not guaranteed to everyone arrested. The suspect is required to be advised under the Miranda ruling when two conditions are present. The two conditions that apply the Miranda ruling to a police interrogation are custody and questioning. The suspect must be in custody or at least in a position that they are not free to leave. Many factors must be considered to determine if the suspect felt they were free to leave the interrogation includ-ing the suspect’s perception that they were not free to leave. When the suspect is in custody, they must be asked questions. When both conditions are present, then Miranda would apply.
Other applicable sections of the fifth amendment are that no person shall be subject to double jeopardy in any criminal offenses and suspect must be provided their due process of law. These constitutional rights guarantee that the government agents will honor their commitment to the judicial process and not seek to bring charges against someone previ-ously released by the court once the judicial process is started. This requirement requires that the investigator get the facts right the first time and present a case fully documented and respectful of a suspect’s constitutional rights.
The sixth amendment guarantees the suspect the right to a speedy trial and the ability to confront the witnesses against them. These rights are important in arson cases in that a hasty arrest may put the prosecution under some unfortunate time constraints in trying to meet the time requirement in bringing the suspect to court after their arrest. In many arson cases, the crime is committed without witnesses. The main witnesses in arson cases are going to be the investigators and the forensic examiners that examined the collected evidence. Through the process of discovery the suspect has the right to the information in the prosecution’s case and the evidence that could be presented at a trial. This preview of the evidence and witnesses is important in allowing the defense to prepare their defense by questioning the testing, collection, or preservation process and challenging the legality through motions to the court.
Preliminary Investigation
Any criminal investigation begins with the discovery of the crime. Many times, the crime is the discovery of a crime scene by persons not affiliated with law enforcement. A fire or explosion scene is located, and emergency personnel are notified. The fire can be discov-ered in various stages of progress. Since fires and explosions are not ordinary everyday occurrences, it is important for firefighters to determine the cause of the fire and whether there are continuing threats or dangers to the rest of the community. The very first consid-eration in responding to the scene of the fire or explosion is to protect life and then to save further property damage or spread of the fire.
Once the fire is extinguished and the scene stabilized, the important task of determin-ing the cause of the fire begins. It is important that the scene be made safe for investigators to complete their tasks. The fire may have damaged portions of a structure to render them unsafe for investigators to operate. Once the fire has been extinguished, the scene made reasonably safe, and a reasonable period of time has expired, it is important to obtain consent from the owner or person authorized to give consent to examine the fire scene to determine the cause. If consent cannot be obtained, an administrative warrant needs to be obtained to conduct further investigation into the cause of the fire. If conducting the investigation into the cause of the fire evidence of a criminal act is uncovered, the inves-tigation continues to investigate the cause of the fire and collects evidence important to any criminal investigation. Once the evidence of criminal activity is found, the investiga-tors must obtain a criminal search warrant because the administrative warrant would not cover evidence recovered since it is not based on probable cause.
Evidence discovered during the administrative search would be admissible under the plain view doctrine in that investigators come upon the evidence while working a legiti-mate administrative warrant. They are allowed to be where they found the evidence. Once the evidence is found and the criminal search warrant is necessary, it changes the focus of the investigation. To continue the search for criminal evidence, a criminal search war-rant based on probable cause would have to be obtained. The evidence found during the administrative search would apply to establishing probable cause required for the criminal warrant.
The most important evidence in determining the cause of the fire and related criminal activity will more than likely be located at the point of origin. It is the focal point of the investigation once the fire is out. The point of origin can yield the best evidence of the heat and duration of the fire. A good indicator of the point of origin is the signs of the lowest and deepest charring. Much fire evidence will be located at the lower levels of the scene.
The very location of the point of origin can be indicative of possible arson in some fires. An accidental fire typically has one point of origin, and multiple points of origin are indicative of a suspicious fire.
According to the National Fire Protection Association (NFPA) (2004), the location of the fire’s origin requires the coordination of information from a number of sources: the physical marks of the fire, observations of witnesses, analysis of physics, fire chemistry, initiation and development of the fire, and location of electrical arcing. The careful exami-nation of the fire burn patterns can provide key direction in locating the point of origin.
Recognition of these physical marks requires a keen eye and training in fire dynamics.
These burn patterns can provide an arrow to the point of origin.
These burn patterns can provide an arrow to the point of origin.