Seizing Evidence at a CO Incident

Today’s burning question comes from a reader concerned about our legal jurisdiction to seize evidence at a CO incident: We recently responded to a carbon monoxide emergency in a private dwelling. On arrival, there were ten (10) occupants exhibiting signs of CO exposure. The source of the CO was traced to a generator running in the basement. Power to the building had been cut by the local power company due to electrical code violations. The generator had been running unvented for eight (8) days on and off. The CO readings in the structure exceeded 800 ppm.

      Does the fire department have the authority by law, to seize the generator as part of the investigation? The concern by Command on scene was, if the generator is simply removed from the structure, what guarantee would there be that the landlord would not place the generator back in the basement. Does removing the generator outside satisfy the responsibility of the fire department in removing the hazard or addressing the safety of the occupants?

ANSWER: There are 2 issues

1.     Is there grounds for a seizure of the generator

2.     Does the FD to have jurisdiction to investigate the incident.

Let’s take them one at a time.

1.     Grounds for a warrantless seizure: at the scene of a fire the fire department can lawfully seize evidence of the cause and origin in order to preserve it. Unfortunately a CO incident is not a fire in the strictest sense of the word. Police can lawfully seize relevant evidence of a crime that is in plain view. However, seizing an item because someone may later use it improperly is not a lawful grounds for seizure. There may be certain circumstances where the presence of an object or appliance at a scene creates such a hazard to occupants, passers-by, or children (attractive nuisance) that we may need to secure it as a matter of public safety. Seizing the item may be one way of securing it to address public safety. Its probably a stretch in this case.

On the flip side of this, what are the consequences if we wrongfully seize the generator? We could be liable civilly for conversion, trespass to personal property or even a due process/civil rights violation. These actions are unlikely on the facts but they are possible.

2.     Jurisdiction: Most fire departments have a duty to investigate the cause and origin of fires, but beyond that have no legal responsibility/authority to investigate the causes of illnesses or injuries to people – beyond the extent necessary to ensure that the patients are treated and the danger has been mitigated. Assuming we have evacuated/treated the patients, identified the generator as the source of the CO, have it turned off, ventilated the building, and we have warned those involved of the risks – our job is done.

Some states and jurisdictions may grant fire departments greater latitude in investigating the cause of environmental/CO incidents – and if so – seizure of the generator may be authorized in order to preserve evidence relevant to the investigation. I do not think you need to seize the generator in order to prove it was the source of the exposure – but it would probably be valid justification – particularly if there were questions about whether it was running properly, had been modified, etc.

The running of the generator indoors may be a violation of local ordinances or building code regulations and as such the generator could be seized by the building inspector and/or the police as evidence in their investigation. Some states may assign their department of health or department of environmental protection to investigate these cases as well – so those agencies might be in a position to seize the generator as part of their investigation.

Probably the best ones to seize the generator would be the police – assuming they were so inclined. Certainly there is the possibility of reckless endangerment charges against those to set up the generator, particularly if children were present. If it was a landlord who did this to his tenants – he could be prosecuted. However, the police may not be inclined to take that kind of interest in the case in the absence of a death.

If we change the facts in this case slightly we may have a different obligation. Let’s say the generator was not simply unvented – but that it was improperly vented (ie. a contractor vented the exhaust but did so improperly). The generator may very well be relevant to the investigation and to a civil suit between the parties. If we were to disturb the generator and/or the venting by seizing it, we could compromise the ability of the parties to sue and/or defend themselves in court. The term used for destroying evidence is “spoliation of evidence” and if we seize the generator without preserving/addressing the evidentiary considerations we could find ourselves facing liability. This is a growing area of concern for fire investigators at fire scenes and would apply equally here.

Lastly, you mention that the IC didn’t want to leave the generator because the landlord might fire it up again. Obviously – if you leave the generator – the landlord and occupants need to be given a clear warning about the risks. Seizing the generator does not guaranty they won’t go get another one. For that reason, the cautionary warning should be made and well-documented.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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