Brannigan, Vincent M. Cause and Origin: New Legal Doctrines. Fire Chief.
Vol. 40. No. 10 (October 1996). p 25-27.
Abstract: This article examines the nuances of the Fourth Amendment
regarding search and seizure in fire investigations. What kinds of evidence
can be lawfully preserved? The details and judgements of several cases are
State v. Bell, 108 Wash. 2d 193, 737 P.2d 254 (Wash. 1987) concluded
that sheriff's officers need not obtain a warrant before entering a residence
to seize evidence in plain view and lawfully discovered by firefighters.
Police action is limited, however, to the scope of the firefightersí
activities within the residence. They cannot enter areas that the firefighters
would not have been justified in entering, nor can they seize any evidence
that would not have been seized by the firefighters.
In the case of Mazen v. Arizona, 216 Ariz. Adv. Rep. 97 (1996), firefighters
had discovered marijuana plants growing within a fire scene. The police
were notified, and believing that the plain view doctrine applied, the evidence
was seized by them without a warrant. The court suppressed this evidence,
however, because the fire investigators did not have the legal authority
to seize the marijuana plants (being non-arson related criminal activity),
and therefore, the search by the police did require a warrant.
An important question is raised. If firefighters, who have neither the
authority of investigators nor police offices, notice arson evidence in
plain view that is not directly related to fighting the fire, can they preserve
it? Will it be rejected by the court?
Cases such as Michigan v. Tyler, (1978) and U.S. v. Parr, 716 F.2d 796
show that the court will reject evidence collected in the course of a fire
investigation that is unrelated to the circumstances of the fire if a warrant
is not obtained.
Caution in evidence collection and fire investigation is advised. Charging
the senior fire officer on the scene with beginning the cause and origin
search might be helpful. Backup by more experienced investigators should
be provided and the appropriate warrants should be obtained as soon as possible.
For more information, contact:
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