This update will address the use of accelerant canines addressing two different areas:
1. THE STANDARD:
NFPA 921 (National Fire Protection Association) Guide for Fire and Explosion
Investigations, 2004 Edition:
• The canine team must be properly trained and validated;
• Any canine alert not confirmed by laboratory analysis should not be considered
validated;
• Research has shown that canines have alerted to products not produced
by an ignitable liquid and have not always responded when an ignitable liquid
was
present;
• The canine olfactory system is believed capable of detecting gasoline
at concentrations below those normally cited for laboratory methods;
• The proper objective of the use of a canine team is to assist with the
selection of samples that have a higher probability of laboratory confirmation;
• Canine detection should be used in conjunction with, and not in place
of, of fire investigation methods.
2. FEDERAL CASE LAW DECISIONS:
• Accelerant canine evidence is admissible by testimony;
• Corroborating evidence is required;
• There are situations in which the canine will not alert to an accelerant.
When admitting an accelerant canine alert as evidence, the handler should
focus on three areas in the report and testimony. The dog must be:
• Trained; both initially and on-going;
• Certified, on a yearly basis;
• Reliable, both in training and / or deployment.
NFPA 921 (National Fire Protection Association) Guide for Fire and Explosion Investigations, 2004 Edition (CANINE RELATED)
This edition of NFPA 921, Guide for Fire and Explosion Investigations, was prepared by the Technical Committee on Fire Investigations and acted on by NFPA at its November Association Technical Meeting held November 15–19, 2003, in Reno, NV. It was issued by the Standards Council on January 16, 2004, with an effective date of February 5, 2004, and supersedes all previous editions.
This edition of NFPA 921 was approved as an American National Standard on January 16, 2004.
NOTE: The 2008 edition of NFPA 921 was recently released. It notes no significant K-9 related changes.
Origin
and Development of NFPA 921
NFPA 921, Guide for Fire and Explosion Investigations, was developed by
the Technical Committee on Fire Investigations to assist in improving the
fire
investigation process and the quality of information on fires resulting from
the investigative process. The guide is intended for use by both public sector
employees who have statutory responsibility for fire investigation and private
sector persons conducting investigations for insurance companies or litigation
purposes. The goal of the committee is to provide guidance to investigators
that is based on accepted scientific principles or scientific research.
The first edition of the document, issued by NFPA in 1992, focused largely on the determination of origin and cause of fires and explosions involving structures. The second edition of the document included revised chapters on the collection and handling of physical evidence, safety, and explosions. NFPA 907M, Manual for the Determination of Electrical Fire Causes, was withdrawn as an individual document and was integrated with revisions into this document as a separate chapter. Elements of NFPA 907M that relate to other chapters of this document were relocated appropriately. New chapters dealing with the investigation of motor vehicle fires, management of major investigations, incendiary fires, and appliances were added.
The third edition of the document included a new chapter on fuel gas systems in buildings and the impact of fuel gases on fire and explosion investigations. The chapter on electricity and fire was rewritten to improve organization, clarify terminology, and add references. In the chapter on fire patterns, several sections were revised. Other revisions were made in the chapter on physical evidence on the subject of preservation of the fire scene and of physical evidence. The edition also included new text regarding ignitable liquid detection canine/ handler teams.
The fourth edition of this document included new chapters on building systems, fire-related human behavior, failure analysis and analytical tools, fire and explosion deaths and injuries, and wildfire investigations. An updated chapter on motor vehicle fires was written. The document was organized to group chapters into subjects that made it more usable.
The fifth edition of this document includes a revision of the document to comply with the new NFPA Manual of Style and a new chapter titled, “Analyzing the Incident for Cause and Responsibility,” a rewrite of the chapter on Legal Considerations, and a revision in the chapter on Recording the Scene.
Chapter:
1.2.1 The purpose of this document is to establish guidelines
and recommendations for the safe and systematic investigation
or analysis of fire and explosion incidents. Fire investigation or
analysis and the accurate listing of causes is fundamental to the
protection of lives and property from the threat of hostile fire or
explosions. It is through an efficient and accurate determination
of the cause and responsibility that future fire incidents can be
avoided. This document has been developed as a model for the
advancement and practice of fire and explosion investigation,
fire science, technology, and methodology.
1.2.2 Proper determination of fire origin and cause is also
essential for the meaningful compilation of fire statistics. Accurate
statistics form part of the basis of fire prevention codes,
standards, and training.
14.5.10 Canine Teams. Trained canine/handler teams may assist
investigators in locating areas for collection of samples for
laboratory analysis to identify the presence of ignitable liquids.
16.5.4.2 Canine/Handler Teams. When a canine/handler
team is used to detect possible evidence of accelerant use, the
handler should be allowed to decide what areas (if any) of a
building or site to examine. Prior to any search, the handler
should carefully evaluate the site for safety and health risks such
as collapse, falling, toxic materials, residual heat, and vapors and
should be the final arbiter of whether the canine is allowed to
search. It should also be the handler’s decision whether to search
all of a building or site, even areas not involved in the fire. The
canine/handler team can assist with the examination of debris
(loose or packaged) removed from the immediate scene as a
screening step to confirm whether the appropriate debris has
been recovered for laboratory analysis.
16.5.4.7* Canine Teams. Properly trained and validated ignitable
liquid detection canine/handler teams have proven their
ability to improve fire investigations by assisting in the location
and collection of samples for laboratory analysis for the presence
of ignitable liquids. The proper use of detection canines
is to assist with the location and selection of samples.
16.5.4.7.1 In order for the presence or absence of an ignitable
liquid to be scientifically confirmed in a sample, that sample
should be analyzed by a laboratory in accordance with 16.5.3.
Any canine alert not confirmed by laboratory analysis should
not be considered validated.
16.5.4.7.2 Research has shown that canines have responded or
have been alerted to pyrolysis products that are not produced by
an ignitable liquid and have not always responded when an ignitable
liquid accelerant was known to be present. If an investigator
feels that there are indicators of an accelerant, samples should be
taken even in the absence of a canine alert.
16.5.4.7.3 The canine olfactory system is believed capable of
detecting gasoline at concentrations below those normally
cited for laboratory methods. The detection limit, however, is
not the sole criterion or even the most important criterion for
any forensic technique. Specificity, the ability to distinguish
between ignitable liquids and background materials, is even
more important than sensitivity for detection of any ignitable
liquid residues. Unlike explosive- or drug-detecting dogs,
these canines are trained to detect substances that are common
to our everyday environment. The techniques exist today
for forensic laboratories to detect submicroliter quantities of
ignitable liquids, but because these substances are intrinsic to
our mechanized world, merely detecting such quantities is of
limited evidential value.
16.5.4.7.4 Current research does not indicate which individual
chemical compounds or classes of chemical compounds are the
key “triggers” for canine alerts. Research reveals that most classes
of compounds contained in ignitable liquids may be produced
from the burning of common synthetic materials. Laboratories
that use ASTM guidelines (see Section 16.10) have minimum standards
that define those chemical compounds that must be
present in order to make a positive determination. The sheer
variety of pyrolysis products present in fire scenes suggests possible
reasons for some unconfirmed alerts by canines. The discriminatory
ability of the canine to distinguish between pyrolysis
products and ignitable liquids is remarkable but not infallible.
16.5.4.7.5 The proper objective of the use of canine/handler
teams is to assist with the selection of samples that have a
higher probability of laboratory confirmation than samples
selected without the canine’s assistance.
16.5.4.7.6 Canine ignitable liquid detection should be used
in conjunction with, and not in place of, the other fire investigation
and analysis methods described in this guide.
Annex A:
A.16.5.4.7 For
more information, see Kurz et al., “Evaluation
of Canines for Accelerant Detection at Fire Scenes”; DeHaan,
“
Canine Accelerant Detection Teams: Validation and Certification”;
and Tindall and Lothridge, “An Evaluation of 42 Accelerant
Detection Canine Teams.”
Annex C:
DeHaan,
J. “Canine Accelerant Detection Teams: Validation
and Certification.” CAC News, California Association of
Criminalists, July 1994.
Kurz, M.,
et al. “Evaluation
of Canines for Accelerant Detection
at Fire Scenes.” Journal of Forensic Sciences 39, No. 6
(November 1994): 1528–1536.
Tindall,
R., and K. Lothridge. “An
Evaluation of 42 Accelerant
Detection Canine Teams.” Journal of Forensic Sciences 40,
No. 4 (July 1995): 561–564.
CASES
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
DECISIONS AFFECTING:
• Connecticut
• New York
• Vermont
CASE: United States v Marji
158 F. 3d 60 (1998)
Expert testimony that investigators were alerted by an accelerant sniffing
canine to traces of an accelerant was sufficiently reliable to be admitted
in prosecution for arson, insurance fraud and mail fraud arising from defendant’s
alleged scheme to set fire to his own business.
Any error in admitting expert testimony that accelerant sniffing canine alerted investigators to traces of accelerant at a fire scene was manifestly harmless in prosecution for arson, etc., in view of substantial other evidence demonstrating defendant’s use of accelerant.
Although the defendant cites some studies and a proposed amendment to the National Fire Protection Association’s Guide for Fire and Explosion Investigations to the effect that dog sniff evidence is not always reliable, all that these sources suggest is that special weight should not be assigned to the dog sniff evidence in the absence of any corroborating evidence.
CASE: United States v Paccione
2000 WL 34251719 (2000)
(The Second Circuit affirmed this canine case. The court’s decision was
without a published opinion. Technically, this means the court’s rulings,
findings and comments cannot be used or referred to in other cases. Even with
this decision without published opinion, the case may be referred to when certain
matters of law are pointed out by the Second Circuit.)
The court saw no error at all in the admission of testimony that a dog trained to detect petroleum products alerted in several areas after the fire.
Expert testimony that investigators were alerted by an accelerant sniffing canine to traces of an accelerant is sufficiently reliable to be admitted in an arson prosecution.
Moreover, the danger of unfair prejudice was not great here, since there is no reason to think the jury found the dog’s actions more convincing than corroborative laboratory results.
UNITED STATES COURT OF APPEALS
SIXTH CIRCUIT
DECISIONS AFFECTING:
• Kentucky
• Ohio
• Michigan
• Tennessee
CASE: United States v Pinson
1 Fed. Appx. 426 (2001)
(The Sixth Circuit affirmed this canine case. The court’s decision was
without a published opinion. Technically, this means the court’s rulings,
findings and comments cannot be used or referred to in other cases. Even with
this decision without published opinion, the case may be referred to when certain
matters of law are pointed out by the Sixth Circuit.)
An arson investigator received consent to enter the defendant’s home over the telephone from the defendant. Acting with this verbal consent, but without a search warrant or written consent, the investigator entered the home to inspect the property and take samples for testing.
A dog trained to detect accelerants alerted to the presence of accelerants. Other corroborating evidence concluded the fire had been set deliberately.
Western District New York
CASE: Mastin v Senkowski
297 F. Supp. 2d 558 (2003)
An arson investigator stated that an accelerant dog did not detect the presence
of hydrocarbons or petroleum based products in the fire area. The investigator
further stated that the scent dog is not a “fool proof” way to
detect hydrocarbons. It is possible for the accelerants to burn away and
leave no residue or to become flushed away during fire fighting operations.
In this case, the fire was very hot and that water was applied to the house continuously for thirty to sixty minutes. Other evidence revealed that an accelerant was used to set the fire.
UNITED STATES DISTRICT COURT
Southern District Mississippi
CASE: Mitchell v City of Jackson, Mississippi
481 F. Supp. 2d 586 (2006) U.S. District Court Southern District Mississippi
Police officers had probable cause to arrest suspects for murder of their companion in arson fire of one suspect’s vehicle, where:
In addition, the fact that an arson dog alerted to plaintiff's clothing would not, without more, create probable cause.
UNITED STATES DISTRICT COURT
Southern District Eastern Division Ohio
CASE: Simpson v Jackson
2007 WL 2286242 (2007) U.S. District Court Southern District Eastern Division Ohio
After a residential fire was extinguished, a dog handler for the Columbus Fire Department (CFD) went to the scene with his dog to search through the first floor of the house for traces of flammable liquids.
In front of the house, in the living room right inside a large window, the dog gave a “primary alert” (i.e., an indication that the dog detected the presence of a flammable liquid). After searching the rest of the room, the handler took the dog outside where the dog gave another “primary alert”, this time on the porch directly outside the large window in the living room.
The handler admitted that surface samples taken from the areas where his dog had indicated the primary alerts did not show the presence of an accelerant when tested.
An investigator testified that it was his opinion that the fire was intentionally set, due to:
1. The CFD dog handler testified that his dog twice alerted to the presence of a flammable liquid;
2. Most significantly, the CFD investigator, opined that the fire was intentionally set by a Molotov cocktail thrown through the front window.
This was sufficient evidence to show that a crime was committed.
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