By Gregory L. Walterhouse, Associate Teaching Professor, Bowling Green State University, IPSA Member
The Fourth Amendment of the United States Constitution protects persons against unreasonable searches of their property and effects by the Government. The Fourth Amendment is enforceable against the states through the Fourteenth Amendment. This is not limited to searches by law enforcement officers, but by any agent of the government including fire inspectors and fire investigators in the performance of their official duties. Searches may be administrative, for example inspections, or criminal in nature such as arson investigation. The focus of this article will be administrative searches, but it will touch on criminal searches related to fire investigations.
Fire inspectors conduct thousands of inspections across the United States on a regular basis and rarely are they refused entry to perform an inspection. But what if the party in control of the property refuses entry to the inspector? First, the person in control of the property be it the property owner, or a tenant, has a constitutional right to refuse entry to an inspector and cannot be charged or convicted for failing to do so.
Absent consent, the inspector needs to obtain an administrative search warrant. In Camara v. Municipal Court the Supreme Court held that a city ordinance providing for warrantless inspections of leased residential properties was unconstitutional and barred prosecution of persons refusing to permit code enforcement inspections of a personal residence. The Court further held that the probable cause requirement to obtain an administrative search warrant for an area code enforcement inspection is not predicated on the inspector’s belief that a particular property violates the code, but on the “reasonableness of the enforcement agency’s appraisal of conditions in the area as a whole.”
Similarly, the Court has held that statutory authorization of warrantless searches of business properties is unconstitutional. In Marshal v. Barlow’s a business owner refused OSHA inspectors access to nonpublic areas of his business. The Court struck down a provision of the federal Occupational Safety and Health Act that empowered OSHA inspectors to inspect the work area of any employment facility for safety hazards and violations. However, this does not preclude an inspector from observing areas of a business, without a warrant or consent that are observable by the public. The Court cited Camara and See v. Seattle as controlling. In See the Court held that absent consent the warrant requirement established in Camara also applies to inspections of business properties.
An exception to the warrant requirement are closely regulated industries including firearms United States v. Biswell, alcoholic beverages Colonnade Catering Corp. v. United States and automobile junkyards New York v. Burger. The Court upheld the warrant exception citing a long history of regulation of these industries and the owner’s privacy interests being weakened where the government’s interest in regulating businesses are heightened.
Entries to investigate the cause of fires must generally adhere to the probable cause and warrant procedure of the Fourth Amendment (Michigan v. Tyler). However, the Court in Tyler established some exceptions to the warrant requirement.
First, a burning building presents an exigency sufficient to render a warrantless entry reasonable.
Second, for a reasonable time after the fire is extinguished firefighters may seize evidence of arson that is in plain view and investigate the cause of the fire. In Tyler, the Court upheld a departure of investigators from the scene due to visibility problems and a return four hours later to continue their investigation.
Third, where the cause of a fire in unknown and the purpose of the investigation is to determine the fire’s cause; and absent consent from the person in control of the property (owner or tenant), an administrative search warrant is sufficient (Michigan v. Clifford).
However, upon discovering evidence of wrongdoing and establishing probable cause a criminal search warrant is required. Therefore, when investigating under an administrative search warrant and finding evidence of arson or another crime, suspend the investigation prior to obtaining a criminal search warrant.
The “reasonable time” exception established by the Court in Tyler may be problematic and investigators should seriously consider the legal ramifications of investigating fires for a “reasonable time” as an extension of the suppression operation.
First, what constitutes a reasonable time is a question of law that will be determined later by a judge after it is too late for an investigator to correct the mistake. In Tyler, the Court found that a four-hour interruption in the scene investigation was reasonable. However, what about five, six, or more hours?
In addition, leaving an unsecured scene also compromises the change of custody for physical evidence. In Michigan v. Clifford, the Court held that arrival of investigators to the scene later on the day the fire occurred, to investigate a suspected arson without consent or a search warrant after the owner had taken steps to secure the fire damaged dwelling was unreasonable, and violated the Fourth Amendment.
In summary, property owners have Fourth Amendment protection against unreasonable searches, which includes administrative searches for code enforcement and fire investigation purposes. Inspectors and investigators should first attempt to obtain consent from the property owner or tenant, preferably in writing for investigations, prior to conducting inspections or investigations.
If consent is denied, or for any reason is unattainable an administrative search warrant should be sought for inspections or determining the cause of a fire. Once, there is evidence of arson or other wrongdoing that establishes probable cause a criminal search warrant is required to seize evidence and further the investigation.
Finally, even though the Court has established an exception to the warrant requirement for investigating a fire for a “reasonable time” as a continuation of the fire suppression operations, this exception has potential pitfalls, and obtaining consent or an applicable search warrant are better options. For legal questions on performing specific inspections or investigations, fire inspectors and investigators should consult their local municipal or prosecuting attorney for guidance.
About the Author
Greg Walterhouse is an Associate Teaching Professor in the Fire Administration and Masters in Public Administration programs at Bowling Green State University. He holds a Bachelor of Science degree in Management from Oakland University, a Master’s degree in Legal Studies from the University of Illinois and a Master’s degree in Management from Central Michigan University. Before joining BGSU, Greg had over 35 years experience in various aspects of public safety with 18 years in upper management. The author may be contacted at firstname.lastname@example.org.