(02I) Chapter 5 Crimes Against Property

Torts Against Property

• Trespassing. An invasion of one’s real or personal property that interferes with the use and enjoyment of that property.

• Conversion. The unlawful appropriation and control by the defendant over an item of personal belonging of the plaintiff

Torts Against People

• Defamation of character- written (libel) or spoken (slander)

• Fraud. The false representation of a material fact. Actual loss must be suffered for fraud to be considered a tort.

• Malicious Prosecution. Filing criminal charges when one knows them to be false. Also refers to the use of legal process, civil or criminal, against the plaintiff for purposes other than intended.

• Invasion of privacy. Public disclosure of private fact about an individual. Lack of malice is not a defense against invasion of privacy.

Contract Law

• Terms between a business and a private investigator (Offer, Acceptance & Consideration)

• Defines security officer’s authority

• Can limit a private invetigators authority

• Cannot violate local, state, or federal laws or regulations

Virginia Court System

• Traffic Court

• Magistrate Issues arrest warrants search warrants, admit to bail or jail – Issues subpoenas, custody orders, detention orders, and Protective orders, temp. First appearance/looks for two things 1. Has a crime been committed 2. Did this person do it? Arrest warrant issued • General District Court

• Trial Court for Misdemeanors

Preliminary for Felonies

• Max term 12 months in jail or $2,500.00

Juvenile & Domestic Relation courts (lowest courts)

• Traffic Court (local court)

• Law suits from $5.00 – $4,500.00

• Juvenile Domestic Relations District Court

• 1. Juvenile delinquency and status offenses

• 2. Juveniles accused of traffic violations

• 3. Children in need of services or supervision

• 4. Children who have been subjected to abuse or neglect

• 5. Adults accused of child abuse or neglect, or of offenses against members of their own family or household member

• 6. Adults involved in disputes concerning the visitation, support or custody of a child

• 7. Spousal support

• 8. Abandonment of children

• 9. Foster care and entrustment agreements

• 10. Court-ordered rehabilitation services Court consent for certain medical treatments

• Circuit Court the Circuit Courts have jurisdiction over the following:

1. Civil Actions

• a. Monetary claims over $4,500 but not exceeding $25,000, concurrent jurisdiction with general district courts

• b. Monetary claims exceeding $25,000, exclusive original jurisdiction attachments

• Validity of a county or municipal ordinance or corporate bylaw

2. Circuit Court

•Criminal Cases

• a. All felonies, offenses that may be punished by commitment to the state penitentiary

• b. Misdemeanor charges originating from a grand jury indictment

• c. Transfer or certification of felony offenses committed by juveniles

3. Appeals

• a. Appeals from the General District Court or J&DR District Court

• b. Appeals from administrative agencies

• Circuit Court

• State Court

• Court of record

• Judge or jury

• Felonies/prison time

• 120 courts/31 districts

• Listens to all appeals from lower courts

• Max. Life in prison or death sentence

• Virginia Court of Appeals The Court of Appeals of Virginia provides for intermediate appellate review of decisions of the circuit courts in traffic infractions and in criminal cases, except where a sentence of death has been imposed, and decisions of the circuit courts involving domestic relations matters and appeals from administrative agencies.

• 11 Judges

• Judges travel circuit court districts

• Listens to all appeals from lower courts

•Virginia State Supreme Court Although the Supreme Court of Virginia possesses both original and appellate jurisdiction, its primary function is to review decisions of lower courts from which appeals have been allowed. The Court’s original jurisdiction is limited to cases of habeas corpus (ordering one holding custody to produce the detained person before the Court for the purpose of determining whether such custody is proper), mandamus (ordering the holder of an office to perform his duty), prohibition (ordering a public official to stop an action), and actual innocence (based on biological testing) . The Supreme Court also has original jurisdiction in matters filed by the Judicial Inquiry and Review Commission relating to judicial censure and retirement, and removal of judges. 7 Judges Look at two things 1. Errors in trial 2. Points of Law

• United States Supreme Court – Has 9 Judges – can demand a case from a lower court – can refuse to hear it – Two ways to get into Supreme Court:

• Constitutional Law

• Federal Law

• Criminal Procedure.

• Criminal procedure includes the steps through which a criminal case passes, commencing with the initial investigation of the crime and concluding with the unconditional release of the offender.

• Warrant Procedure

•A warrant is a judicial writ authorizing an officer to make an arrest, search or seizure. A warrant may be issued by any of the following: (Section 19.2-71, Code of Virginia).

• Judge of the Circuit Court

• Clerk of any Circuit Court

• Clerk of any General District Court

• Clerk of any JDR District Court

• Any Magistrate

• The warrant procedure consists of :

• Statement of charges

• Application for warrant

• Swearing to accusations

• Notification as a witness

• Service of the warrant ( typically done by a sworn law enforcement officer).

Arrest Procedure

• The private investigator’s primary responsibility is investigating, not making arrests. However, it is not unrealistic to assume that a crime could occur in the investigator’s presence. Therefore it is important that the Investigator understand the arrest procedure and the rules of arrest Rules of Arrest for the Private Investigator (same rules that apply to the Private Citizen). The private investigator may arrest or detain ONLY when:

• A felony or misdemeanor (breach of the peace) is committed in his presence

• A felony has been committed, even though not in his presence, and there is probable cause (see rules of evidence) to believe that this particular person committed the offense.

• Charges are made by another that a felony has been committed the complainant must be identified

• The complainant must accompany the P.I. to the magistrate to swear to the charges

• Force during an Arrest

• Only as much force as is necessary to make the arrest may be used

• DEADLY FORCE IS NOT ALLOWED TO EFFECT AN ARREST, ONLY THE AMOUNT NECESSARY TO OVERCOME RESISTANCE

• Holding the Arrestee. In most instances, the private investigator will not actually make the arrest, but apprehend or hold the suspect until a sworn officer arrives to make the arrest. The suspect may beheld long enough to get positive identification for obtaining a warrant.

• False Arrest. A false arrest is the unlawful restraint of an individual’s personal liberties or freedom of locomotion. An arrest without proper legal authority is a false arrest, and because the arrest restrains the liberty of the person, is also known as false imprisonment. For false arrest victim’s punitive damages may be awarded in addition to compensatory or normal damages.

• Search and Seizure

• Conducting a Search. the fourth amendment to the U.S. Constitution specifically deals with a person’s right to be free from illegal searches and seizures.

There are three instances in which a search can be legally conducted.

1) With a search warrant, the Private Investigator cannot obtain or serve search warrant. This must be done by sworn law enforcement officer.

2) A felony arrest in a public place, even if the arresting officer had ample time to procure a warrant, so long as the officer possessed probable cause that the suspect committed the crime

3) An officer who reasonably believes that criminal activity may be afoot in a public place is authorized to stop any person who is suspected of participating in that criminal activity and conduct a carefully limited search of the suspect’s outer clothing for weapons that may be used against the officer

Search incident to apprehension or lawful arrest (Kirby vs. Commonwealth, 209 Va.806,167 S.E.2d 411,1969).

• Remove any weapons

• Obtain any evidence. Only the area under the immediate control of the suspect may be searched.

• Consent search. If the person being searched gives consent to the search.

• What may be seized during a legal search:

• Weapons

• “ Fruits” of a crime (stolen property, etc.)

• Means to commit a crime

• Contraband (illegal goods)

• Evidence of a crime

• Legalities.

• As in the case of arrests, the best way to avoid the legal ramifications of an illegal search is to leave the search and seizure to a sworn law enforcement officer when at all possible

• Bail Procedure.

• Bail is defined as the security, usually in the form of money, exchanged for the release of an arrested person as a guarantee of his appearance for trial. The magistrate or judge sets bail at the “first appearance” stage of the judicial process. The eighth amendment to the U.S. Constitution protects the accused from unreasonable or excessive bail.

• Due Procedure. • “Due process of law in each particular case means such an exercise of powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribed for the class of cases to which the one in question belongs”.

• Warrant.

• When an investigator has probable cause he must go to a Magistrate so that a warrant for arrest may be issued.

• Arrest.

• The arrest is when a person or suspect normally enters the Criminal Justice System.

• First Appearance.

• When a person has been arrested, the law requires that the subject be taken to the nearest magistrate or any person who may issue a process of arrest, as defined by Section 19.271 of the Code of Virginia. This is called the “first appearance.” The magistrate or person issuing the process of arrest will tell the subject the charges against him and advise him of his rights.

• Right to an attorney

• Self-appointed (private)

• Court-appointed

• Right to reasonable bail

• An amount sufficient to insure appearance

• An amount not excessive under the eighth amendment

• Preliminary Hearing.

• At the preliminary hearing the state must show two things. First, they must show that there is good reason to believe that a crime has been committed. Second, they must show that there is good reason to believe that the person arrested is the one who committed the crime. The preliminary hearing is not a trial.

• Probable cause must be shown that:

• A crime has been committed

• The person arrested committed the crime

• Outcome of Preliminary hearing

• If probable cause is not shown charge is dismissed

• Information.

• An information is a statement of fact indicating criminal activity. In some cases, usually when the accused is already under the supervision of the court, the Commonwealth Attorney may file for an information. When an information is filed the accused goes right to trial.

Grand Jury.

• If an information has not been filed, the next step in the legal proceedings is a grand jury hearing. The P.I.. may be called to tell all that he or she knows about the case. At this hearing the government will try to show enough evidence that the person arrested should be on trial for the offense. The grand jury can produce one of two decisions:

• True Bill. The grand jury will issue an indictment, which is an official charge of committing the crime. The case then will go to trial.

• No True Bill. The person will be released if the grand jury votes “no true bill”. However the person could still be arrested again at a later date if further evidence is discovered. This would not constitute double jeopardy. The grand jury may also issue an indictment for a person who has not yet been arrested. For example, the jury discovers that there was another person involved in the crime. • Arraignment. Following an indictment the accused would next appear before the court which will hear his case. At the arraignment the accused is told of the charges against him. He would then be asked to enter a plea to the charge. There are three (3) pleas that may be entered:

• Guilty. If guilty plea is entered then the court will decide the punishment or sentence for the offense.

• Not Guilty. If a not guilty plea is entered then the court must decide, through the evidence of the state, whether the accused is guilty or not. If guilty, a punishment will be decided upon.

• Nolo Contendere. “I do not wish to contend”. Nolo Contendere is equivalent to an admission of guilt and subject’s one to punishment, however, it leaves open the possibility for the charged to deny the alleged facts in other proceedings.

• Pre-trial Hearing. During the pre-trial hearing the lawyer for the defendant may file motions with the court. A judge will decide what is admissible in the case.

• Trial. In most criminal cases, the trial will be before a jury. However, the defendant may prefer to have only a judge hear the case. The trial will typically follow the following steps:

• Presentation of government evidence

• Cross examination by the defense • Defense will present its case

• The P.I. may be called to testify

• Closing statements

• Verdict. There are three possible verdicts that the judge or jury might render:

• Guilty. Accused is then sentenced by the judge (see section k)

• Not guilty. Accused is acquitted or set free

• Mistrial. A trial that becomes invalid because of basic error in procedure:

• Hung jury

• Others

• Pre-sentencing. Sentencing may be deferred awaiting a pre-sentence investigation. • Background considered

• Criminal

• Work

• Family

• Other

• The severity of the offense is considered

• Sentencing. In Virginia the judge issues the formal sentence. The sentence is the punishment set by the court (judge) for the particular crime. The judge has various options when sentencing:

Incarceration

• Fine

• Incarceration and fine

• Suspended sentence

• Probation- combination suspension

• Restitution

• Community service

• Combination of any of the above

• Appeal. After the sentencing, the defense may appeal the decision of the court to a higher court. Cases are appealed on questions of law or constitutionality, not on questions of the facts of the case. The appeals process is typically a very long process and could eventually end up in the StateSupreme Court and finally in the United States Supreme Court. The United States Supreme Court is the highest authority in the appeal process.

• Types of Crimes. There are many types of crimes which the private investigator should be familiar with

• Larceny. Larceny is the wrongful taking and carrying away of personal property belonging to another with the intent to permanently deprive the other of the property (Section 18.2-95 , 96, Code of Virginia). There are two kinds of larceny based on the value of the property taken:

• Grand Larceny

• Grand larceny is defined by Section 18.295 of the Code of Virginia as “any person who”: “commits larceny from the person of another of money or other thing of value of five dollars or more.”

• “commits simple larceny not from the person of another of goods and chattels of the value of $200 or more.” • Grand larceny is punishable by confinement in the penitentiary for not less than one nor more than twenty years or at the discretion of the judge or jury, be confined in jail for a period not exceeding twelve months or fined not more than $2,500, either or both (Section 18.2-95, Code of Virginia).

• Petit Larceny

• Petit larceny is defined by section 18.2-95 of the Code of Virginia as “any person who” “commits larceny from the person of another of money or other things of value less than five dollars .” “commits simple larceny not from the person of another of money or other things of value of less than $200.”

• Petit larceny is punishable as a Class 1 Misdemeanor (Section 18.2- 96 Code of Virginia).

• Embezzlement. Embezzlement is the wrongful appropriation by someone to his own use or benefit, with the intent to permanently deprive the owner thereof, or the personal property of another which has been entrusted to him by virtue of his employment or office.

• Embezzlement is different from larceny in two ways:

• Larceny is a crime against possession and embezzlement is a crime against ownership.

• While larceny requires a trespassory taking, there is no trespassory takes in embezzlement

• Because of his employment or office, the embezzler has been entrusted with the lawful possession of the personal property of another.

• It is only after this entrustment with the property that the embezzler decides to and does convert the property, owned by another, to his own use or benefit.

• To possess property, one must have the right to exercise discretion over the use and handling of that property. Ownership means that one holds title to the property.

• If the value of the embezzled property is $200 or greater, it is a felony.

• If the value of the property is less than $200 it is a misdemeanor.

• Refer to Section 18.2-111 through 118 of the Code of Virginia for embezzlement-related laws.

• Forgery (Felony). Forgery is the making of a false writing or materially altering a writing which, if genuine, would apparently be legally effective or the foundation of legal liability (Section 18.2 -172 Code of Virginia).

• There must be a writing, that is, a written instrument or document.

• Under the particular facts and circumstances of the case, the false writing or alteration must have the potential to be legally binding or to create or destroy legal liability.

• Any possibility that it may operate to the injury of another is enough

• A writing which is invalid on its face cannot be a forgery. • Refer to sections 18.2-168 through 171 & 173 for forgery related crimes.

• Uttering (Felony). Uttering occurs when a person, knowing a writing to be false, offers it to another as genuine with the intent to defraud the receiver

• The person offering the forged instrument must know it is false.

• The utterer, by word or act, must represent to the receiver that the forged document is genuine.

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