1 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone Criminal Procedure Chapter 6

2 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone Objectives After 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

3 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone Objectives After studying this chapter, the student 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

4 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone Objectives After studying this chapter, the student 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

5 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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 person 5

6 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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 arrest 6

7 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

8 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

9 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone Authority to make an arrest Some states grant peace officers authority to arrest for misdemeanors not committed in their presence

10 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

11 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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)

12 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

13 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

14 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

15 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone Criminal Procedure Criminal charges can be initiated in 3 ways –Complaint –Information –Indictment 15

16 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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 court 16

17 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone Information Issued by the Attorney General (District Attorney) Contains a statement of the alleged facts & offense committed, together with supporting affidavits and documents 17

18 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

19 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

20 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

21 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

22 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone Search & Seizure 4th Amendment prohibits “unreasonable” searches & seizures by Federal government 4 th Amendment applies to states & municipalities through the 14th Amendment Due Process clause 22

23 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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 seized 23

24 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone What is the remedy when the police violate the 4 th or 14 th Amendment’s warrant requirement? Search & Seizure 24

25 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone What is the remedy when the police violate the 4 th or 14 th 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 25

26 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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 26

27 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

28 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

29 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

30 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone Stop and Frisk Terry 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

31 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

32 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

33 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

34 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

35 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone Exigent Circumstances Most important exception for firefighters –Fire Scene Exception Two key cases: –Michigan v. Tyler (1978) –Michigan v. Clifford (1984)

36 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

37 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

38 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone Custodial Interrogation Miranda Rights Applies to custodial interrogation Exclusionary rule applies to information obtained in violation of Miranda 38

39 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

40 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

41 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

42 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone Criminal Defenses Self-Defense Defense of Others Defense of Property Insanity Entrapment Statute of Limitations 42

43 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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 rule 43

44 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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 force 44

45 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone Defense of Property Can use reasonable force to protect property Generally cannot resort to deadly force merely to protect property 45

46 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

47 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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 law 47

48 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

49 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone 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

50 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone Summary Arrests Criminal charging Search and seizures Attempted Crimes Conspiracies Parties to a crime Criminal defenses 50

51 Copyright © 2007 Thomson Delmar Learning Legal Considerations for Fire and Emergency Services J. Curtis Varone The End Chapter 6