Fire departments, both career and volunteer, are acting on behalf of government agencies. Although some are owned, operated and controlled entirely by municipalities while others are recognized by ordinance, they still perform governmental functions.

Fire departments of every type are considered “governmental actors.” Being governmental actors, fire departments are subject to and must know where their customers' constitutional rights begin and where the department's rights of access and/or taking control end. Failure to know where the boundary of one's fire service operational constitutional authority sits could subject the fire officer and fire department — and in many cases, the municipality — to constitutional claims by residents whose rights have been infringed upon.

Constitutional claims can arise from numerous instances in the fire service, including motor-vehicle accidents, suppression operations, structural collapses and special rescues. Although a violation may be construed as an innocent act by a fire command officer or any other firefighters, it could have significant impact on a criminal investigation or on civil liability for constitutional violations.

Consider a motor-vehicle accident. It's not unusual for firefighters at the scene of an accident to not only extricate a person, but to preemptively search the vehicle looking for unusual personal effects. Firefighters may be looking for identification or for valuable items to give to the injured person or a police officer to secure.

In Michigan v. Tyler, 436 U.S. 499 (1942), the U.S. Supreme Court held that firefighters are granted an exception to search-and-seizure warrant requirements in cases of emergency. As you will recall, the Fourth Amendment of the U.S. Constitution prohibits improper search and seizures without warrant and probable cause. During an emergency incident, governmental actors such as firefighters are granted a temporary and/or limited scope to the right of access to conduct a limited investigation for cause and origin or to neutralize the emergency. Within the limited investigation for cause and origin, firefighters are permitted to make the scene safe and investigate.

However, without consent of the owner, firefighters are not permitted or granted access to all parts of a motor vehicle, including the glove compartment, under the seats, the trunk and the center seat compartment. If firefighters improperly access these areas, valuable evidence may be suppressed and any resulting criminal case could be dismissed. Once the emergency has ended, such as with the patient's removal from the scene and transportation to the hospital, responders' limited right of access has ended. Only police officers who are trained to recognize probable cause and who know the procedure to acquire a warrant should proceed with access. Firefighters aren't trained in such matters.

As for a person's home, real estate or commercial premises, firefighter access during building collapse events or structure fires is once again limited to saving lives and mitigating the hazard. Great care must be exercised by the incident commander and any other crew supervisors. There is no privilege for firefighters to access unaffected portions of a structure or to go through unaffected drawers, cabinets or any other areas outside the function and scope of an expected emergency response.

For example, in a partial building collapse, once a hasty search of the remaining portion of the building has been made and search operations have followed protocol to search voids and investigate victim noises, there is no longer a right of access by emergency personnel or police officers except in relation to cause and origin. Just as in a fire, the building collapse scene should be preserved to allow building code officials, officers or fire investigators an opportunity to investigate cause and origin.

There is very little reason to anticipate fire suppression crews investigating cause and origin, therefore, it isn't within their limited right and privilege of access to the property. As a matter of fact, firefighters conducting any investigation that is outside their scope and training could cause evidence to be suppressed, even after the legitimate or proper investigators have performed their duties.

If such a practice is tolerated by fire command officers and not redressed to ensure constitutional compliance and protections, the command officers can be subject to criminal prosecution and civil litigation for constitutional rights violation. In addition, if a fire officer can be shown to have a pattern of being indifferent to fire operations violating one's constitutional rights, a 42 U.S.C. Section 1983 action is possible.

Historically, Section 1983 is a right of action against governmental actors. For example, this section has been applied against police departments for high-risk governmental law enforcement activities, primarily for prisoner custodial issues (non-time-compression policy events) and police chases (time-compression, spur-of-the-moment reaction rather than deliberate policy). Fortunately, the application of Section 1983 to members of the fire service requires a pattern, policy or custom of indifference to the violation of such rights. While the level of evidence to show a custom, pattern or practice is a large hurdle for a civil rights violation claim, this isn't the standard used for suppressing evidence. To suppress criminal evidence, only a violation of the Fourth Amendment is required.

Arson investigators, whether firefighters or police officers, are painfully aware of constitutional protections and are trained in the proper application of practices to ensure constitutional compliance. Arson cases are extremely tough to prosecute, even of a fire that has a lot of evidence. Fire investigators are constantly battling for mere inches of circumstantial evidence. Their fire suppression brethren can help by better understanding the practical consequences of their on-scene actions.

Let's not give the bad guys an easy out by providing a simple justification to suppress evidence. We need to remember that we're all on the same team.

Kim Ross Houser is the assistant chief of the Greensburg (Pa.) Fire Department and a partner in the firm of Mears, Smith, Houser & Boyle, P.C. An attorney with experience in special fire investigations, insurance issues and litigation, he has defended, represented and consulted for emergency response organizations on operational, employment and malpractice issues. Houser is an instructor with the National Fire Academy and the Pennsylvania State Fire Academy, and he has written numerous articles for emergency service publications.