Fire scene search where firemen went to basement to check for electrical problems was not unreasonable

Fire scene search: The fire in defendant’s house was confined to the second floor, but water went everywhere and was running down to the first floor and basement. Fireman checked the building to protect against water damage and electrical problems from the water and for a continued source of CO2. In the basement, the fireman found 1250 pounds of fireworks which were unlawfully possessed under federal law. United States v. Buckmaster, 485 F.3d 873 (6th Cir. 2007):

Here, however, the firefighters did not leave and then later return, as in Tyler or Clifford. Their initial efforts were directed at extinguishing the fire in the bedroom; then their efforts turned toward ensuring that the house did not sustain electrical or structural damage owing to the water that had been released in the bedroom, and toward ensuring that carbon monoxide levels were at an acceptable level. All this appears to have lasted less than one hour. Tr. at 35 (Perko Test.); Tr. at 60 (Byers Test.). Nothing in the express language of Tyler and Clifford, nor in what can be inferred therefrom, suggests that it is unreasonable for firefighters to act in this fashion, even if it involves making warrantless entries into some of the rooms of the house not directly affected by smoke or fire. If the government provided unrefuted testimony that water was “basically raining in the basement and coming out of outlets and such things,” we fail to see how Buckmaster can claim that it was unreasonable for Madison Township firefighters to stem this flow of water and prevent it from causing electrical shorts or other potential electrical dangers.

It seems an unremarkable proposition that if firefighters are aware of lurking electrical dangers resulting from their efforts to put out a fire in a home–imagine, for example, a homeowner who returns to his salvaged house and attempts to plug an appliance into a moist socket, especially an old socket not fitted with a ground fault circuit interrupter–they should neither have to obtain a warrant nor the express permission of the homeowner in order to alleviate such dangers, especially when they do so, as here, immediately after the fire has been extinguished. This temporal caveat is important, for it makes all the difference in assessing reasonableness. In Clifford, for example, when the arson investigators returned to the house some five hours after the blaze had been extinguished, they were met by a work crew that was not only boarding up the house but was also “pumping some six inches of water out of the basement.” 464 U.S. at 290. Had the fire officials in Clifford attempted to justify their reentry at this point on grounds that they wished to ensure the electrical safety of the house (an argument which they wisely did not make), such justification would have been utterly unreasonable and pretextual, because they could of course have taken such action five hours earlier.

Fact dispute denied summary judgment and qualified immunity in case where the plaintiff alleged that she was stopped and searched based on a domestic dispute to aid her husband’s cause the day before a child custody hearing. Piers v. Higgs, 2007 U.S. Dist. LEXIS 33006 (W.D. Mich. May 4, 2007):

Plaintiff has sued for violation of her Fourth Amendment right to be free from unreasonable searches, arrest and prosecution pursuant to 42 U.S.C. § 1983. Plaintiff has alleged that Defendant VandenBerg and Defendant Rickey Lynn Higgs conspired to violate § 1983 by planting drugs and a partially full bottle of wine in her car and affecting an arrest the night before a scheduled child custody hearing. Plaintiff further alleges a state claim of malicious prosecution.

. . .

As detailed above, Plaintiff has alleged sufficient facts to show that, if true, there was a violation of her constitutional right to be free from an unreasonable search and seizure under the Fourth Amendment of the Constitution. There is no question that if Defendant VandenBerg initiated a traffic stop without probable cause, such an action would violate the “clearly established law” under the Fourth Amendment. See Ferguson, 8 F.3d at 391; see also Terry v. Ohio, 392 U.S. 1 (1968). Further, examining the record in a light most favorable to Plaintiff, there are sufficient facts which raise a question as to whether Defendant VandenBerg had probable cause to arrest or prosecute Plaintiff after the search of her vehicle. Plaintiff apprised Defendant VandenBerg of the fact she was due in court the next day over a custody dispute with her soon-to-be ex-husband. This fact called into question the motivation and credibility of Defendant VandenBerg’s “source” regarding Plaintiff’s drug use and habit, which information was allegedly the only reason he was following Plaintiff on that occasion. In light of these facts, Defendant VandenBerg’s claim of qualified immunity must be denied.

Claim preclusion of a nuisance case in state court barred a federal case on the same facts. Cornell v. City of Cleveland, 2007 U.S. Dist. LEXIS 33063 (N.D. Ohio May 4, 2007).*

Defendant’s evasive conduct in dealing with the officers and her drug history justified a dog sniff when she was stopped. State v. Stombaugh, 2007 MT 105, 157 P.3d 1137 (2007).*