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Application of Legal Authority in Arson Investigation W Journal of Criminal Law and Criminology Volume 42 Article 2 Issue 4 November-December Winter 1951 Application of Legal Authority in Arson Investigation W. L. Martin Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation W. L. Martin, Application of Legal Authority in Arson Investigation, 42 J. Crim. L. Criminology & Police Sci. 468 (1951-1952) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. APPLICATION OF LEGAL AUTHORITY IN ARSON INVESTIGATION W. L. Martin The following paper was based upon a lecture given by the author at the Seventh Annual Arson Seminar at Purdue University on April 23, 1951. Mr. Martin is a graduate of the University of Louisville School of Law and a member of the Kentucky State Bar Association. He was appointed State Fire Marshall of Kentucky in April, 1949, having served previously as assistant in that office. During World War II he served in the U. S. Navy for nearly six years, and was assigned to duty in both the Atlantic and Pacific theatres of war. At present he holds the permanent rank of lieutenant commander in the Naval Reserve. He is a charter member of the International Association of Arson Investigators, is vice president of that group, and has been active on behalf of the association. He is also a member of the fire prevention committee of the National Fire Protection Association and other social and civic groups.-EnroITR. I. POWER TO ENTER PROPERTY OR PREMISES FOR PURPOSES OF INVESTIGATION The so-called fire marshal acts in each of the states having provisions for investigation of fires universally contain a provision giving the re- sponsible official authority to enter buildings, property, or premises. This power is a double-barreled proposition insofar as its purpose is concerned, in that it is designed in most cases to provide for inspection of premises in connection with fire safety regulations and, in addition, to give the investigator authority to enter in order to make a deter- minatiou as to origin. It seems clear that insofar as the first purpose is concerned such a statute is valid as against all constitutional objec- tions provided it is used reasonably in connection with the statutory purpose. In view of the lack of case law on the subject, it would seem to be generally accepted that the authority extends to searches made for the purpose of discovering evidence on the premises where a fire may have occurred. It is a well-known fact to every investigator who has been involved in arson investigations that a complete search of the premises after a fire is of the utmost necessity in order to determine origin, and that certain evidence will disappear or be discredited if it is not dis- ,covered and safeguarded soon after the fire. It would seem that this is some legal justification for these statutory powers as against constitutional objections based upon the right to refuse to incriminate oneself and to permit unreasonable search and seizure. It must be admitted, however, that there are no court decisions which clearly set out this authority, at least to the knowledge of the speaker, who has made a rather thorough if not exhaustive search and it may be 1951) ARSON INVESTIGATION helpful, therefore, that we have an understanding of what is involved in such constitutional objections. The right to make inspections of certain properties has been held valid on the basis of the police power of the state designed to promote the public health, safety, and welfare by providing for the examination or inspection of property by an authorized official, so that he may determine whether prescribed standards have been complied with. The power to enact and enforce inspection laws is within the general police power of the separate states, and this power may be delegated to municipal corporations.1 The fourth amendment of the U. S. Constitution, prohibiting un- reasonable search and seizure, has been held to be a limit on the powers of the Federal Government and not on. the States. However, similar provisions exist in most state constitutions. 2 All such constitutional limitations do not apply to the reasonable rules adopted in the exercise of the police power for the protection of the public health, safety, and welfare.3 Thus, an inspection of a place of business during the business hours in the enforcement of reasonable regulations is not a violation of the guaranty against improper searches and seizures. 4 It might be sug- gested at this point that it is important that the officer exercising any such authority be familiar with the statutory provisions governing such conduct. A study of some twenty-eight states' laws on the subject re- vealed very little difference between the statutes of the several states, but such discrepancies as are present are important in effect. A great many laws limit inspections to reasonable hours, which would leave it to the discretion of the investigator, subject to being overruled by the courts, as to whether entry at night time, on holidays, or at other times would be reasonable. It would seem where a fire occurs during the night hours, that it would be reasonable to inspect the burned property during the nighttime. In the laws of some states, however, such inspec- tions are limited to daylight hours, or to buildings other than dwellings, or where the official is requested to act following a proper complaint. While it may be considered that such restraints are not advisable and are an unnecessary hindrance to the investigator, it is still important that the provisions of such laws be complied with in order to protect the official actions of such an officer, as well as to insure legality of the investigation. 1. 28 American Jurisprudence 849 et seq. 2. Weeks v. U.S. (1913) 232 U.S. 383, 34 S.Ct. 341, 58 L. Ed. 652. 3. Camden County Beverage Co. v. Blair (3d Cir. 1931) 46 F.2d 655; Com. v. Abell (Ky. 1938) 122 S.W. 2d 757. 4. State ex rel. Melton v. Nolan (Tenn.) 30 S.W. 2d 757; 47 AMERICAN JURISPRUDENCE 510. W. L. MARTIN [Vol. 42 The right to make an arrest carries with it the right to enter land and buildings, except dwellings, if necessary to make an arrest. The right to enter property in making an arrest depends upon the legality of the arrest itself. 5 The right of police officers to enter dwellings is strictly limited. Officers have the right to break and enter (and search) a dwelling or use force to the person to enter the dwelling, in order to make a lawful arrest, as follows: (a) if the arrest is made under a warrant, or to prevent commission of a serious crime, or to effect re- capture on fresh pursuit of one who has been arrested, although the person sought is not in the dwelling, provided the officer reasonably believes him to be there; or (b) if the person sought is actually in the dwelling; or (c) if someone in possession of the dwelling has lead the officer reasonably to believe that the person to be arrested is therein. In other words, where no special relation exists, there is no authority in making an arrest to break and enter a dwelling unless the person sought is actually in the building, or the owner leads the officer to believe him 6 there. The right to enter and inspect will probably be questioned in most cases where the prosecution is seeking to introduce evidence found upon the premises. The objection will be on the constitutional grounds that prohibit unreasonable searches and seizures and the right of self-incrimi- nation. It is necessary that the investigator take proper steps, having in view the emergency nature of the situation, to insure a legal search. If the court finds the accused's constitutional rights have been invaded, then a later arrest based upon evidence discovered thereby may be con- sidered also illegal and it may, in addition, require that such evidence be 7 excluded from a criminal prosecution of the accused. The constitutional protection is not from all searches and seizures but only from unreasonable ones.8 The exact meaning of a "reasonable" search cannot be strictly defined since the Federal court has suggested that each case must depend upon its particular facts.9 The following have been held to be unreasonable: A general search in the hope that evidence of crime might be found;1O ransacking a house for everything which might incriminate the accused;11 opening and examining sealed letters and packages in the mail.12 5. Restatement, Torts, ss. 204. 6. Restatement, Torts, ss. 206. 7. ARREST, SEARCH & SEazuRE, DAX & TIDES, Hammersmith-Kortmeyer Co., Milwaukee. 8. 47 American jurisprudence 531 et seq. 9. Steine v. U.S. (7th Cir. 1932) 58 F.2d 40; cp. 82 American Law Reports 783. 10. U.S. v. Lefkowicz (1932) 285 U.S. 452, 52 S.Ct. 420. 11. U.S. v. Kirschenblott (2d Cir. 1926) 16 F.2d 202. 12. Olmstead v. U.S. (1928) 277 U.S. 438, 48 S.Ct. 564. 1951] 9RSON INVESTIGATION In general, the propriety of a search depends on the nature of the place involved.' 3 A dwelling cannot lawfully be searched without a warrant, except as an incident to a lawful arrest made therein.
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