1 copyright © 2007 thomson delmar learning legal considerations for fire and emergency services j....

1Copyright © 2007 Thomson Delmar Learning

Legal Considerations for Fire and Emergency ServicesJ. Curtis Varone

Criminal Procedure

Chapter 6



ObjectivesAfter studying this chapter, the student

should be able to:– Define arrest, and explain the authority of a

firefighter to make an arrest– Explain the difference between criminal and

administrative search warrants – Identify at least six exceptions to the search

warrant requirement




should be able to:– Explain the constitutional limitations upon a

firefighter conducting a cause and origin determination as part of an investigation after a fire

– Explain what is required to constitute an attempted crime




should be able to:– Define accessory before the fact, accessory

after the fact, and an aider and abettor– Define a criminal conspiracy and explain the

liability of each co-conspirator

4



Criminal Procedure• Arrest - the lawful control of one person

over another, thereby depriving the person of his/her liberty

• An arrest involves having – the authority to make an arrest, and then– asserting that authority to effectuate the

restraint of the person5



Authority to make an arrest• Citizens arrest – right of any citizen to

make an arrest when the person being arrested has committed – a misdemeanor in their presence, or – when probable cause exists to believe that the

person being arrested has committed a felony• Includes right to use reasonable force to

effectuate the arrest6



Authority to make an arrest

• Peace officers – are police and law enforcement officers as defined by law– In some states arson investigators may be

authorized to make arrests and would qualify as peace officers

7



Authority to make an arrest• Peace officers have the authority to make an

arrest the same extent as a “Citizen”, plus– Detain someone reasonably believed to be

committing, has committed, or who is about to commit a crime for a reasonable period to investigate the circumstances, without charging them with a crime

– Detention period must be reasonable, and in some states is limited to two hours without charges

8



Authority to make an arrest• Some states grant peace officers

authority to arrest for misdemeanors not committed in their presence



Liability for Mistakes• Peace Officers have a privilege when

making an arrest that later turns out to be wrong– They are immune from suits for false arrest

and battery arising out of the arrest– Officer must have had probable cause and

acted in good faith



Liability for Mistakes• Citizens enjoy no such privilege –

– If a citizen is mistaken when making an arrest (even if they had probable cause and acted in good faith) they can be liable for false arrest and battery (if a battery occurred)



Authority to Make Arrests

• Arrests may be effectuated through the use of:– Force– Threat of force– Intimidation– Exercise of legal authority – such as a police

officer saying “You are under arrest”.12



Arrest Warrants• When police have probable cause to

believe a crime has been committed and a certain person committed it, and the perpetrator is not in their presence, they need to obtain an arrest warrant.

• Police must apply to a judge or magistrate for an arrest warrant.

13



Arrest Warrants• Judge or magistrate must be satisfied that

the police have probable cause to believe a crime has been committed and the defendant committed it, in order to issue the warrant

• An arrest warrant authorizes any peace officer to take the defendant into custody

14



Criminal Procedure

• Criminal charges can be initiated in 3 ways– Complaint– Information– Indictment

15



Complaint

• Commonly used for minor offenses– Some states use complaints for more serious

charges as well• Includes a statement by police officers

about what the Defendant allegedly did, as well as the specific charges

• Filed with the appropriate court16



Information• Issued by the Attorney General (District

Attorney)• Contains a statement of the alleged facts &

offense committed, together with supporting affidavits and documents

17



Information• Defendant charged by an Information has

the right to have the charges reviewed by a Court

• “Probable Cause” hearing– Limited Issue: Does the information contain

probable cause to believe a crime has been committed, and the Defendant committed it

18



Indictment• Issued by a “Grand Jury”

– Not used in all states• Prosecutor oversees Grand Jury

– Presents cases– No judge present

• Jury hears witnesses and reviews evidence

19



Indictment• Issue for a grand jury:

– Does the evidence establish probable cause to believe a crime has been committed, and the Defendant committed it

• If grand jury concludes the evidence establishes probable cause an indictment will be issued

20



Fourth Amendment to US Constitution

• The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation…

21



Search & Seizure

• 4th Amendment prohibits “unreasonable” searches & seizures by Federal government

• 4th Amendment applies to states & municipalities through the 14th Amendment Due Process clause

22



Search Warrant• Issued by a neutral magistrate• Must make a finding that there is probable

cause to believe:– a crime has been committed, and– evidence of that crime exists in the place to be

searched• Must describe the place or person to be

searched and the property to be seized23



• What is the remedy when the police violate the 4th or 14th Amendment’s warrant requirement?

Search & Seizure

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• What is the remedy when the police violate the 4th or 14th Amendment’s warrant requirement?

• The “EXCLUSIONARY RULE”– evidence seized by an unlawful search may

not be used in court– limited to the person who’s privacy interests

were violated by the search

Search & Seizure

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Warrantless Searches• 4th Amendment does not prohibit all warrantless

searches, only “unreasonable” searches• Valid warrantless searches

– Plain View – Consent– Stop and Frisk (Terry Stop) – Incident to Arrest– Vehicles– Open Fields and Abandoned Property– Exigent Circumstances 2

6



Plain View Doctrine

• Objects falling in the plain view of an officer who has a right to be in a position to have that view may be introduced in evidence (Harris v. United States, 1968)

27



Consent Search

• A consent search occurs when a person voluntarily allows a law enforcement officer to search his or her body, premises, or belongings

28



Stop and Frisk

• A police officer may stop and briefly detain a person for investigative purposes if the officer has a “reasonable suspicion” supported by “articulable facts” that criminal activity “may be afoot,” even if the officer lacks probable cause



Stop and FriskTerry v. Ohio (1968)

• When police officers encounter suspicious activity and have reasonable fear for their own safety, they may conduct a pat down search of the outer clothing of a person in an attempt to discover weapons

30



Search Incident to Arrest• A person who has been lawfully arrested may

be searched for purposes of removing weapons and preventing the concealment or destruction of evidence

• Search may extend to the area (and to all items and containers) within his or her immediate control (Chimel v. California, 1969)

31



Vehicle Searches

• Warrantless searches of motor vehicles are permitted if a law enforcement officer has probable cause to believe that the vehicle contains items subject to seizure (Carroll v. United States, 1925)

32



Open Fields • The open fields doctrine allows law

enforcement officers to search for and seize evidence in the open fields without a warrant, probable cause, or any other legal justification

33



Abandoned Property

• A law enforcement officer may observe, examine, or inspect property whose owner has “voluntarily disregarded, left behind, or otherwise relinquished his or her interest in the property in question” (United States v. Colbert 1973)– No expectation of privacy

34



Exigent Circumstances• Most important exception for firefighters

– Fire Scene Exception• Two key cases:

– Michigan v. Tyler (1978)– Michigan v. Clifford (1984)



Fire-Scene Exception• The initial entry by firefighters into a

building for the purpose of extinguishing a fire is constitutionally justified as an exigent circumstance exception to the warrant requirement.

• Once lawfully present, firefighters and investigators can seize evidence that is in plain view

36



Fire-Scene Exception• Firefighters and investigators may remain

on scene without a warrant for a reasonable period of time after the fire has been extinguished in order to conduct their investigation

• Post fire entries that are clearly detached from the initial exigency are subject to the 4th Amendment warrant requirement

37



Custodial Interrogation

• Miranda Rights• Applies to custodial interrogation• Exclusionary rule applies to information

obtained in violation of Miranda

38



Accomplice Liability• Principal - directly involved in the crime• Accessory - not present at the scene

– before the fact - helped to plan– after the fact - helped principal to evade

capture • Newer approach: aider & abettor

– anyone who aids & abets principal can be charged as a principal

39



Conspiracy• An agreement to commit a crime• Conspiring to commit a crime is itself a

crime• All co-conspirators can be liable for the

crimes committed by any of the other co-conspirators in furtherance of the conspiracy



Attempted Crimes• Attempts to commit crimes can be

punishable as crimes• Requires the same mental state as the

crime• Requires at least an act in furtherance of

the attempt– Some states demand a more substantial act

than others



Criminal Defenses• Self-Defense• Defense of Others• Defense of Property• Insanity• Entrapment• Statute of Limitations

42



Self-Defense• Person has a right to use reasonable force

to defend him/herself• Can meet level of force with same level of

force/escalate as reasonably necessary– Can meet deadly force with deadly force

• pre-emptive strike not allowed before hand• punitive strikes not allowed afterward

• Retreat rule43



Defense of Others• Can use reasonable force to defend another• Same rules as for self-defense

– no pre-emptive strikes– no punitive strikes

• Mistakes– Majority Rule: person acts at his/her own peril and

will be liable if mistaken as to need to use force44



Defense of Property

• Can use reasonable force to protect property

• Generally cannot resort to deadly force merely to protect property

45



Insanity Defense• Most states consider it a defense

– not guilty by reason of insanity• Some state’s it is now a mitigating factor

– guilty but insane• 2 Edged sword

– Minimizes or eliminates criminal responsibility– Can be institutionalized for life, or until person no longer

poses a threat to himself/others



Insanity Defense

• At the time of the conduct as a result of mental disease or defect, the person lacked substantial capacity either to:– appreciate the wrongfulness of his/her

conduct– conform his/her conduct to the requirements

of the law47



Entrapment

• An affirmative defense to a crime• The conduct of law enforcement personnel

was such as would induce a normally law abiding person to commit the offense

• In some states the issue focuses on the defendant’s propensity to commit such crimes

48



Statute of Limitations• A legislative determination about how long after

a crime has been committed, can someone be charged

• Key action is “Charged” not “Tried” or “Convicted”

• Some crimes do not have statutes of limitation– Example - murder

49



Summary• Arrests• Criminal charging• Search and seizures• Attempted Crimes• Conspiracies• Parties to a crime• Criminal defenses

50



The End

Chapter 6

1 copyright © 2007 thomson delmar learning legal considerations for fire and emergency services j....

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