Magazine article Security Management

Investigating Arson: Coping with Constitutional Constraints

Magazine article Security Management

Investigating Arson: Coping with Constitutional Constraints

Article excerpt

ACCOUNTS FOR AN estimated 25 percent of fires in the States. This rate has been rising over the years, due in part to more and better-trained investigators who are able to determine arson in fires that an untrained investigator might classify as unknown in origin.

Unfortunately, success ratios in arson prosecution are low, ranging from 15 percent in cities to 23 percent in rural counties. Contributors to this low success rate are investigations that have been ruled unconstitutional due to violation of a suspect's Fourth, Fifth, and Fourteenth Amendment rights regarding searches, seizures, and due process.

Case law has led to guidelines that fire investigators must follow, or they risk losing a case because of a violation of a defendant's constitutional rights. Those guidelines-particularly those on the timing of an investigation, the taking and disposition of physical evidence, and the questioning or interrogation of suspects-do not stop at the fire site but extend all the way to the courtroom.

A security professional involved in a fire investigation that leads to a suspicion of arson should be aware that guidelines for investigations by government officials are different than those for private citizens. Knowing those differences can help the private security person conduct the investigation in a way that does not violate a suspect's constitutional rights.

The definition of arson varies from state to state. Recent state and federal statutes have extended the common-law definition to include offenses against property as well as habitation. Whether malice was involved determines the gravity of the act.

For example, one person's property may be inadvertently burned by the negligence of another person, and no malice may be involved. The intent involved in the burning of another persons's property is a key element.

Other factors that may be considered include what type and quantity of property was involved, whether human life was endangered, and whether the arson was committed at night or during the day. To account for those variables, one state has divided its arson laws into grades of felonies and misdemeanors.

In that state, felony arson involves knowingly and willfully burning another's property, whereas misdemeanor arson involves a reckless or negligent burning in which there is no intent to destroy but burning nevertheless occurs.

A fire investigation is a systematic search of a fire scene for information about the fire. Its purpose is to reconstruct events that led to a fire, seek the physical cause of the fire, and determine whether the fire's origin was criminal or accidental.

Determining the origin is extremely important because once the crime of arson is suspected, court guidelines must be followed as a precursor to successful prosecutions.

A fire investigation often begins when the fire fighters arrive. Fire fighters are able to observe smoke color, the area first burned, evidence of accelerants used to start or promote fires, and other signs of value to the officially designated investigators, who may not arrive at the scene until the fire is well under way or perhaps extinguished.

The trained investigator then follows recommended procedures for investigations, including questioning the fire fighters. From that point on, the investigation should be under the sole control of the person mandated to conduct the investigation.

If a fire is determined to be arson, then evidence must be collected to determine if the fire was deliberately set, link evidence to the arsonist, and determine the identity of the arsonist. The arsonist must then be located, apprehended, interrogated, and tried.

Investigations should attempt to rule out arson as a possible cause. Only when all other causes have been ruled out should arson be suspected. Such an approach ensures that a thorough investigation is made and precludes possibly charging an innocent person. …

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