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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 discussed.

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:
Fire Chief
35 E. Wacker Drive, Ste. 700
Chicago, IL 60601-2198
Phone: (312) 726-7277

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