Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s burning question: Does a fire department have the right to search a firefighter’s locker, individual sleeping room, or dresser without cause?
Answer: It depends. As a governmental agency, a fire department has to respect the 4th Amendment rights of everyone, including its employees. The 4th Amendment prohibits warrantless searches of areas where someone has a reasonable expectation of privacy. While it is possible for a firefighter to have a reasonable expectation of privacy in a locker, individual sleeping room, or dresser, it is also possible for that expectation to be unreasonable.
The biggest factor that will impact whether a firefighter has an expectation of privacy or not is whether the fire department has a policy that puts members on notice that they have no expectation of privacy in certain areas. In the absence of such a policy there’s a risk that a firefighter may be found to have a reasonable expectation of privacy in those locations.
There are a few other factors that may impact whether a firefighter has an expectation of privacy: is the locker, sleeping room or dresser shared with other members; is it lockable and is it in fact locked; who has keys/combination; and has the department conducted searches in the past.
Most well written policies allow the fire department to search such areas without probable cause. In other words, the fire department by policy reserves the right to search the areas at any time without notice for any reason or no reason. The logic is – by having such a formal policy a member could not have a reasonable expectation of privacy in such an area.
In the absence of such a policy or some sort of well known and established practice of searching lockers, sleeping rooms, or dressers on a regular basis, the fire department would need a search warrant to search the area, or the consent of at least one member who is authorized to have access to the area. To get a criminal search warrant, probable cause must be established that a crime has been committed and evidence of that crime exists in the area to be searched. That is going to require the assistance of law enforcement.
Consent searches are an often-used option. If three firefighters share a sleeping room and dresser (each on a different shift), and each have full access to all areas of the room and dresser, then any one of them can consent to the search. However, if only one firefighter has access to a room, locker or dresser, consent must come from that one member.
