From the Classroom
By Ray Hill, Professor Emeritus
Santa Rosa Junior College
The Fourth Amendment and Arson Investigations
In 2023, we reported two Case Alerts on arson offenses:
- “Definition of Inhabited” – 12/19/23 – LUPC Ref.# CAC00126
- “Alcohol is an Accelerant Used to Start a Fire” – 1/27/23 – LUPC Ref. #CAB00195
Here is a review of Fourth Amendment cases as they relate to entering a premises and arson investigation:
A Michigan furniture store was set afire. Firefighters conducted an initial attack and extinguishment. Arson was suspected. Subsequent reentries and searches of the building occurred two hours, six hours, seven hours, four days, seven days, and 25 days later, during which investigators recovered evidence of arson. The U.S. Supreme Court ruled that fire officials can remain on scene after a blaze has been extinguished to conduct a contemporaneous investigation to assure there is no re-ignition of the fire. A warrantless investigation may be delayed when necessitated by darkness, an inherently dangerous to life and health (IDLH) environment, building integrity/condition, or smoldering debris making an immediate investigation impractical. During this inspection, any arson evidence observed in plain view is admissible. However, once any reignition or safety hazard has been mitigated, investigators must adhere to Fourth Amendment requirements and seek a search warrant for further investigation (Michigan v. Tyler (1978) 436 U.S. 499).
An early morning residential fire occurred. The blaze was extinguished. The fire department and police left the scene. Five hours later, arson investigators re-entered the premises to investigate the cause and origin of the fire. The homeowner had already called workers to board up the house. This search revealed the fire had been deliberately set in the basement using two cans of Coleman fuel contained in a crock pot attached to an electrical timer. Additional arson evidence was discovered on the upper floors of the house. The U.S. Supreme Court ruled “there are especially strong expectations of privacy in a private residence and respondents here retained significant privacy interests in their fire-damaged home.” Because the warrantless searches were not a continuation of the earlier emergency entry, the evidence was unlawfully obtained (Michigan v. Clifford (1984) 464 U.S. 287).
After a fire has been extinguished, fire personnel and arson investigators may remain on the scene for a reasonable time to determine the cause and origin of the fire. There is an exigency with a fire reigniting and causing further danger to persons or damage to property (Peo. v. Glance (1989) 209 Cal. App 3d 836).
Firefighters responded to a report of a structure fire at the defendant’s home. Upon arrival, they could not see smoke or fire, but could smell something burning. They entered the backyard to make sure there was no imminent danger. There was no working fire, however a burnt homemade rocket, test tubes, and chemistry equipment were on the ground. The smell of smoke was still present, so firefighters opened the door of a nearby shed and once inside the shed opened the door of a metal storage cabinet “to make sure everything was clear.” They observed bottled chemicals in the cabinet. Police were summoned and a search warrant was obtained for further investigation. The defendant was charged with possessing explosive materials and a destructive device. The 6DCA ruled the persistent odor of unspecified smoke, the source of which was not apparent, justified an exigency entry into the backyard and the opening of the door to the shed. At that point because no fire source was observed, any emergency had ended. The opening of the cabinet door was not justified. That search was unreasonable and evidence within must be suppressed (Peo. v. Nunes (2021) 64 Cal. App. 5th 1).
Note: The court here ruled that firefighters were governmental officers conducting a search.
Eastern Contra Costa County firefighters responded to a fire at the defendant’s Clayton residence. When the fire was knocked down, a fire captain entered the residence to check for the fire’s origin to prevent a reignition. In a bathroom, he observed a bathtub lined in stainless steel, plastic bottles and tubes, and bottles of acetone. The residence was cordoned off and the sheriff’s department was called. The captain’s observations served as the basis for the issuance of a search warrant. The defendant was convicted of manufacturing methamphetamine. The 1DCA ruled that the firefighters’ initial entry to fight the fire and Captain Clary's subsequent search for continuing fire dangers were justified by exigent circumstances. “The firefighters’ discovery of apparatus consistent with a methamphetamine laboratory, combined with the fact of the outbreak of the fire, warranted reentry to investigate a possibly volatile situation with the danger of future, if not an immediate, fire hazard.” It noted that “Captain Clary’s reentry into the residence with Deputy Douglas less than one hour after the fire had been extinguished, and while the firefighters remained on the scene, was a continuation of the captain's initial entry and investigation.” (Peo. v Avalos (1988) 203 Cal App. 3d 1517).
Instructor Notes: I worked on a Type One engine for the Bodega Bay Fire Protection District for more than 18 years. Firefighters receive training on water stream deployment and evidence preservation during their fire attack. But I have to admit, once firefighters start putting “the wet stuff on the red stuff,” they are not necessarily remembering evidence preservation. Once a fire has been knocked down and the overhaul begins, this is the time for an arson investigator to look for cause and origin to prevent reignition. There is no Fourth Amendment restriction on law enforcement teaming up with fire personnel at this stage. You may have to borrow fire safety gear as needed. Here is where any arson evidence, and the informed opinion of the arson investigator, can yield the probable cause to seek a search warrant.
Here in Sonoma County, officers with the Rohnert Park Department of Public Safety have the unique designation of being both police officers and firefighters and train for both roles. Patrol cars even have turnouts in the trunk! A sergeant, who is a former student, told me there was a dispatch to an in-progress domestic violence call where patrol was tied up. So the fire crew strapped on their duty belts and responded in a Type One fire engine!