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Fire investigators' authority in question

Tampa's fire marshal stopped by the city attorney's office this week with a simple question: Can he and his investigators legally arrest people suspected of arson?

For years, they have done just that. They act like police. They seek confessions. They carry city-issued guns. They put people in jail.

But, The Times has found, neither the fire marshal nor some of his arson investigators are sworn police officers. And that has prosecutors worried.

Fire Marshal Melvin Stone's question to city attorney James Palermo has touched off a flurry of legal speculation from Tampa to Tallahassee. The answer could throw into question pending arson cases and potentially dozens of convictions in the city's most costly crimes.

"If they're not (sworn officers), preliminarily, they perhaps shouldn't be making arrests," Palermo told The Times Thursday. "But we don't know that yet for sure. We're looking into it now."

What if people who are not certified to make arrests have in fact made them? Those arrests could be deemed illegal, local prosecutors and public defenders say. That means any confession and some evidence that an uncertified officer gathered while making an arrest could be thrown out in court.

While it would be difficult to appeal or overturn a past conviction based on an illegal arrest, attorneys say, in a worst-case scenario the loss of valuable evidence in a pending case could mean some arsonists would go unpunished.

Prosecutors plan to meet with the city attorney and fire marshal, said a lawyer for the Hillsborough State Attorney's Office. The public defender's office is putting its lawyers on notice.

"This has never been raised before _ it's a very unusual situation," said Michael Hayes, general counsel for the Hillsborough State Attorney's Office. "We really don't know what the effect will be. That will have to be resolved."

The Tampa City Council bestowed upon its fire investigators in 1989 the power to make arrests and carry guns. But state fire officials say the city can't grant that authority, which the state extends to applicants only after police training, a rigorous background check and a state test.

"I don't know of anyone who makes arrests who isn't certified," said Candice Crawford, the deputy state fire marshal in Tallahassee. "They need to understand the rights and obligations of that power."

No one has publicly questioned the expertise of Stone or Tampa's arson investigators. Each of them averages more than 10 years of experience. Even with increasingly heavy case loads, Stone said, Tampa has cleared a higher percentage of its arson cases than any other fire department in the country during the past five years.

Of the five investigators, three are state-certified police officers. Stone and the two other investigators graduated from the police academy but are not certified, according to Stone and the Florida Department of Law Enforcement. Mike Salario, Tampa's former fire marshal who took over as chief of arson investigations for the state last month, also made arrests in Tampa but has never been a certified police officer.

The question of whether fire investigators have police powers has little to do with their abilities to probe suspicious fires, local attorneys say. But it has much to do with how likely _ and how legal _ an arson conviction can be in court.

Like other fire marshals before him, Stone said, he presumed the 7-year-old city ordinance granting city fire investigators arrest powers was enough.

"The (city) code said we had the same authority" as Tampa police officers, Stone said. "They (the city) considered us high-level, specialized detectives specializing in fire investigations.

"I'm following a long-standing precedent," he added Wednesday. "Until I'm told (otherwise) by someone else, we'll just have to continue."

But Thursday, after the city attorney's office began examining the legality of the arrest powers, Stone said he could no longer discuss the issue.

Hillsborough prosecutors always handled Tampa's arson cases under the assumption that the fire investigators they put on the witness stand were police officers as well, Hayes said.

"This is the first indication we know of that anyone is questioning their power to make arrests," Hayes said. "Just like with all officers who bring cases to us, we rely on their good faith that they are qualified to make the arrests that they do."

This is not an issue in any other major Florida city, including Miami, Orlando, Jacksonville, St. Petersburg and Clearwater. In those cities, fire investigators say, they are not allowed to make arrests unless they are state-certified police officers.

In St. Petersburg and Clearwater, for example, investigators determine whether a fire is suspicious and might even identify a suspect, but sworn police make the arrest. That way, they say, no questions linger over the validity of confessions or valuable evidence when they go to court.

Meanwhile, in Tampa, prosecutors and defense attorneys say they will have to see what happens to pending arson cases in which a fire investigator without state police authority made the arrest. The number of such cases was unavailable Thursday.

"My gut feeling is it won't become an issue until you run into a criminal case where someone is trying to suppress evidence, or the city is getting sued for illegally arresting someone," said Jorge Lorenzo, felony bureau chief for the Hillsborough County Public Defender's Office.

Stone said he won't wait. With his new administrative job as city fire marshal, Stone said, he will no longer make arrests. But from now on, he will require all his investigators to become certified police "just in the event that anyone wanted to make an issue of it."

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