16-01-2013, 11:30 AM
Criminal Procedure
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LEARNING OBJECTIVES
Upon completion of this chapter, you 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.
● 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.
● 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.
INTRODUCTION
Th e engine company was returning from a run when they saw the smoke coming from the
third fl oor of a fi ve-story apartment building. Th e light-colored smoke indicated that it was
probably still a contents fi re that had not yet extended to the structure. Th e driver brought the
truck to a stop, the offi cer reported the situation over the radio to the dispatch offi ce, and the
fi refi ghters went to work.
On the third-fl oor landing, the smell of the smoke was not what any of them had expected.
Instead of burnt food or wood smoke, it smelled more like a brush fi re mixed with incense. Th e
smoke was puffi ng from under the door as the offi cer gave the order to force entry.
Once the door was opened, the source of the smoke became immediately apparent.
Six youths, smoking from large pipes, were lying in various locations around the apartment,
oblivious to the presence of the fi refi ghters. A large quantity of marijuana and crack cocaine
was present on a table.
In Chapter 5, we reviewed basic criminal law principles and the most common
criminal off enses. In this chapter we will discuss criminal procedure, including matters
pertaining to arrests, how formal criminal charges are brought, search and seizure, accomplice
liability, and criminal defenses.
AUTHORITY TO MAKE AN ARREST
By law, all citizens have the inherent authority to make a lawful arrest. States diff er somewhat
regarding the basis for which a citizen can make an arrest, but generally anyone may
make a citizen’s 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.
Law enforcement offi cers, frequently termed peace offi cers in state statutes, have
broader powers to detain and arrest those who have committed a crime. Generally, these
offi cers have the authority to detain anyone they reasonably believe is 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. Th is period of detention must be
reasonable, and in some states is limited to two hours.
Peace offi cers may also arrest a person if they have reasonable cause to believe the
person is committing or has committed a felony, or for a misdemeanor committed in their
presence. Some states grant peace offi cers the authority to arrest someone who has committed
a misdemeanor, regardless of whether it was in their presence or not. Furthermore,
peace offi cers have the authority to arrest persons for whom an arrest warrant has been
issued.
In some jurisdictions, fi refi ghters who are assigned to fi re investigation or arson
squad positions, as well as members of the state fi re marshal’s offi ce, are given the authority
to make arrests. In such cases, these fi refi ghters and investigators become “peace
offi cers” (Figure 6-1).
ASSERTING THE AUTHORITY
Arrests may be eff ectuated through the use of force, threatened use of force, intimidation,
or the exercise of legal authority, such as a police offi cer saying “you are under
arrest” (Figure 6-2). Anyone making a lawful arrest is entitled to use reasonable force to
detain the suspect. Th e reasonableness of the force used can be judged only by looking
at the circumstances of a particular case. Using excessive force can result in criminal
charges being brought against the person making the arrest. Th e use of excessive force can also give rise to civil liability, and when committed by Federal, state, or local offi cials
in the performance of their duties, may result in a Federal constitutional rights violation
lawsuit.
FALSE ARREST
When a lawfully appointed peace offi cer has made an arrest that later turns out to be
improper, the offi cer is immune from civil or criminal liability for false arrest, as well as
for any assault and battery that may otherwise have occurred for using reasonable force,
provided that the offi cer acted in good faith with probable cause. Th e immunity from liability
for false arrest is the result of a privilege granted to peace offi cers when making
arrests in good faith.
However, when ordinary persons make a citizen’s arrest, they are entitled to no such
immunity protection. Th erefore, even where the citizen acted with the utmost in good
faith and with probable cause, if the person arrested did not commit a crime, the citizen
who made the arrest could be liable for false arrest. In addition, the citizen making the arrest
could be liable for assault and battery if force was used in eff ecting the arrest. Th us, in
a citizen’s arrest, the risk of mistake is squarely on the person making the arrest.
FIREFIGHTERS AND ARREST POWERS
When it comes to the power to arrest, fi refi ghters and emergency medical personnel are
entitled to make citizen’s arrests, like any other citizen. However, since fi refi ghters and
emergency medical personnel are not peace offi cers, they can expose themselves to liability
for false arrest in the event that a mistake is made.
ARREST WARRANTS
When police have probable cause to believe that a crime has been committed and that a
certain person committed it but the perpetrator is at large, they will often obtain an arrest
warrant. An arrest warrant authorizes any peace offi cer to take the suspect into custody.
To obtain an arrest warrant, police must apply to a judge or magistrate, disclosing the
evidence and the basis for their request. Th e judge or magistrate will review the information
and make a determination whether or not the police have probable cause to believe
that a crime has been committed and that the accused person committed it. If the judge
or magistrate fi nds probable cause, an arrest warrant may be issued.