Fire Marshall Home Inspection

[BDH]

One of the guys at our club was awakened early one morning by a knock on his front door. He opened the door to find the local Fire Marshall standing there, and telling him that he needed to 'inspect his home'. Since he was half awake, and staring at a guy with a badge in a uniform, he said 'come on in...'

About the time they hit the basement stairs he thought 'oh oh. I've got a bunch of powder, primers, etc. down here' but it was too late to do anything about it. Sure enough the Fire Marshall nailed him for having too much powder, told him that he had to get the excess out of the house, and that he would be back to inspect again to make sure he cleared up the problem.

Has anything like this happened to anyone else out here? Also, do you have to let them in, or can you just tell them 'I am not interested in an inspection, thank you' and close the door?

[Vlad]

So he had to much powder .. all he has to do is load a lot of ammo fast. My personal policy is that unless I called you, you need warrant to come into my house.

The more important question is WHY did the fire marshall come to his house? Does he have neighbors who dont like him?

[tightloop]

+1 on Vlad's second question...

[mpolans]

Just guessing, I'd say no, you do not have to let them in. If they insist on coming in, it would be a warrantless search in violation of your 4th Amendment rights. While any contraband (stuff you shouldn't have according to the law) would be confiscated, it couldn't be used as evidence against you.

However, if they ask to search and you consent to it, you've given them permission and anything found can be used as evidence against you.

So, it seems to me, it's pretty much *never* a good idea to consent to a search by a government entity.

That said, it sounds like your buddy isn't going to pay massive fines or go to jail, so it could be worse.

DISCLAIMER: These are just my random thoughts on the subject, this not to be taken as legal advice, nor does anything here create an attorney-client relationship. To get the straight poop on this subject, I highly suggest you contact a competent attorney licensed to practice in your locality.

Edited April 25, 2006 by mpolans

[sbmd]

Oh Brian, you of all people should have directed this question to Jay Worden...aka Mr. Fire! However being a fire nut...uh firefighter and federal speeding tax collector, I can help a little.

The fire marshall falls under law enforcement therefor must comply with all rules of evidence and obtaining of evidence, thus a search warrant would have been required if consent to search was not granted. That would have entailed hours of surveillance and obtaining of information that would have been submitted to the local magistrate or court as probable cause to issue the warrant.

However, the warrantless catch for fire departments. Once you call them and they arrive to handle a fire, guess what, they have control of your property until they leave. Everything in plain view is up for grabs. Sorry that happens but it does.

I believe in this gentleman's case, he needs to look at a nosey neighbor!!!!

Also remember boys and girls, a police officer does NOT have the right to search you car. They must ask and can not hold you until you give them permission to search, that would then fall into unlawful detention. Just some info.

Larry

[Vlad]

And amuzingly in NJ, of all places, a police officer is not allowed to even ask for your consent to search you vehicles. He needs a warrant and nothing else will do.

[EricW]

So, did the ammo in the bottom of his rangebag make major?

[Merlin Orr]

Under "normal" circumstances about the only agent/agency that can do a private property search without a warrant is a state or federal Game Warden...?

[Ron Ankeny]

In general terms, fire officials have an incredible amount of statutory power, especially in terms of emergency power at an incident. Fire codes and the authority to enforce those codes vary from state to state. I can tell you every state gives the Fire Marshal the authority to conduct inspections for fire prevention and sometimes for electrical safety. As you can imagine, public buildings and businesses are subject to routine inspections and certain facilities such as nursing homes and child care facilities are subject to having an inspector crawl up their behinds with a microscope.

However, a private residence is another can of worms. A fire official can not just show up at a person's home and start writing citations without cause to be there in the first place. But, as far as I know every state in the Union has a provision that allows a fire official to take action to remedy an unsatisfactory condition if it can be shown there is reason to believe there exists a condition that would endanger life or property at the residence in question, or would cause a fire safety concern to adjacent areas.

In most instances a representative of the Fire Marshal would be accompanied by a deputy or municipal police officer (around here anyway) and he would tell you up front why he was knocking on your door. Entry could be refused, in which case the fire official would simply get a warrant (probably already have one) and return with a couple of deputies to conduct an inspection.

As others have pointed out, it kind of sounds like someone dropped a dime on your buddy. Another possibility would be if the Fire Marshal had reason to believe your friend had a substantial quantity of black powder.

PS

I was typing up a reply when Merlin and SBMD posted. Jay would know. I believe he is a Battalion Chief and has some responsibility for fire prevention, but I am not sure. As for checking cars, boats, out buildings, and the like. All a Game Warden needs in probable cause. But his probable cause better meet the litmus test.

I can tell you for a fact, under the right conditions, a fire official can get a warrant so fast (in my state) it would break the sound barrier.

Edited April 25, 2006 by Ron Ankeny

[carinab]

There is a great article by Karen McNutt about fire proofing your gear in a back issue of Women and Guns. You might contact the 2nd amendment foundation about that article as I would be certain that as an attorney for the 2nd amendment foundation, Ms. McNutt has her facts straight. Your friend may actually be able to buy a hazardous materials cabinet (used for storage of paints, solvents etc) to store the powder. As for loaded rounds, there really is no threat in a fire if they are in "factory style containers (ala dillon boxes, etc). Since the rounds aren't in a tight chamber (such as a pistol's chamber), the rounds cook off and send a frags of brass here and there and not terribly far. Nothing like hollywood would show you in the films. I think the fire fighter may agree that his yellow coat has been designed to absorb a bit of collateral material. If it were me, I would contact the fire marshall's office and find out exactly what code is, drop the dime on a local lawyer to interpret it, and then make the best effort I could (even if the powder lived at a friends house for a short visit) before they came back for a visit.....

Standard non-legal disclaimers apply!

Edited April 25, 2006 by carinab

[Ron Ankeny]

Unless the jurisdiction has adopted other standards, I would imagine NFPA 495 would apply and you certainly don't need a lawyer to interpret NFPA 495. Under the old code from 1992:

10-3.7 Smokeless propellants intended for personal use in quantities not exceeding 20 lb (9.1 kg) may be stored in original containers in residences. Quantities exceeding 20 lb (9.1 kg) but not exceeding 50 lb (22.7 kg), may be stored in residences if kept in a wooden box or cabinet having walls of at least 1-inch (25.4 mm) nominal thickness.

I recall reading a proposal several years ago that would reclassifiy smokless powder as a flammable solid in the 2001 edition but I am not sure if the revised standard kept the same storage requirements. I also know NFPA 495 was updated just this year. At any rate, my guess is the guy simply exceeded the allowable limit for a residential structure regardless of type of storage. Again, that's only a guess and he should contact the Fire Marshal for applicable codes. If I were in his shoes, I would also ask for information leading up to the investigation even though the specifics would probably not be disclosed.

FWIW, I have been at several fires involving flammable solids, explosives, etc. Smokeless powder does not really meet the definition of an explosive material, but I can tell you in larger quantities it is a might impressive accelerant and it is worthy of regulation.

Would someone please fire a message off to Jay Worden? I think it would be of value for someone to post the current NFPA 495 residential storage standards in the reloading forum.

[smokshwn]

To be honest Ron it really does not matter what NFPA says about storage limits. A jurisdiction may set there own limits (that whole AHJ thing in NFPA). Not to mention set limits according to occupancy type (multi family units for example).

As far as the FM being able to do a search, again jurisdictionally there can be some variance. Most must abide by LE standards as far as entrance, search, seizure, etc. Most assuredly it is the best bet to deny entry and never give consent to search without a warrant.

My gut tells me someone ratted your buddy out. If you want you can PM more details (City, Fire Department Name, Fire Marshal Name, etc) and I will have one of our Investigators make a couple of calls.

Take care, Craig

[Front Man]

DISCLAIMER: These are just my random thoughts on the subject, this not to be taken as legal advice, nor does anything here create an attorney-client relationship. To get the straight poop on this subject, I highly suggest you contact a competent attorney licensed to practice in your locality.

Great disclosure MPOLANS!

Seek Legal Counsel!!

FM

[BDH]

Thanks everybody. All good stuff, and I wondered about him being ratted out as well. When I asked him why he let him in, he said 'I was half awake, and staring at a badge'. When I asked him why the Fire Marshall said he needed to inspect his house, he said 'it was township policy'. Apparently, 'township policy' also includes a maximum of 12# of smokeless powder in a residence (good thing I live in a difference township as they might get really excited about that 25# keg of shotgun powder, two cases of N340, and all the rifle powder ).

Also, good catch on Jay so hopefully he will comment. Since I didn't even think about running this by him, I guess that shows how little I have been up here...

[mpolans]

DISCLAIMER: These are just my random thoughts on the subject, this not to be taken as legal advice, nor does anything here create an attorney-client relationship. To get the straight poop on this subject, I highly suggest you contact a competent attorney licensed to practice in your locality.

Great disclosure MPOLANS!

Seek Legal Counsel!!

FM

And exactly what's wrong with suggesting someone seek the advice of professionals trained to look into these sorts of things?

Edited April 25, 2006 by mpolans

[John Dunn]

So how do gun shops get away with having 200+ pounds of powder stored on the shelves in no protective wooden box?

[AWLAZS]

Oh Brian, you of all people should have directed this question to Jay Worden...aka Mr. Fire! However being a fire nut...uh firefighter and federal speeding tax collector, I can help a little.

The fire marshall falls under law enforcement therefor must comply with all rules of evidence and obtaining of evidence, thus a search warrant would have been required if consent to search was not granted. That would have entailed hours of surveillance and obtaining of information that would have been submitted to the local magistrate or court as probable cause to issue the warrant.

However, the warrantless catch for fire departments. Once you call them and they arrive to handle a fire, guess what, they have control of your property until they leave. Everything in plain view is up for grabs. Sorry that happens but it does.

I believe in this gentleman's case, he needs to look at a nosey neighbor!!!!

Also remember boys and girls, a police officer does NOT have the right to search you car. They must ask and can not hold you until you give them permission to search, that would then fall into unlawful detention. Just some info.

Thay can take the car while they do the paperwork for a search warrant

Larry

[XRe]

So how do gun shops get away with having 200+ pounds of powder stored on the shelves in no protective wooden box?

Easy... they buy off the FM...

[Bigbadaboom]

I would have told the Fire Marshall to make an appointment and I would be happy to allow him to inspect my home but it's going to happen by my schedule not his. If he had a problem with this I'ld tell him "To bad". I can't imagine how a fire inspection is a warrant issue. I think that if a Judge issued a warrant so that someone could enter my home for an inspection, the case would end up in the SCOTUS. That's Hitler's Germany type crap.

Game and Fish Commision Officers can't perform warrantless searches of your home either. They can, however, search your vehicle.

[geezer-lock]

I was interested enough in this topic to do a little research of my home town policy. The city code is:

Sec. 11-38. Right of entry--Generally.

The fire marshal shall have the right, at all reasonable hours, to enter into and upon all buildings and premises within the city for the purpose of conducting any examination required or authorized by this article.

Ord. No. 129, § 8, 11-15-15; Code 1959, § 12-18)

State Law References: Power of city to appoint officers to enter any building or enclosure to examine and discover whether the same is in a dangerous state, and to cause such as may be dangerous to be put in a safe condition, VTCS Art. 1068(2).

Sec. 11-71. Code adopted.

The City of Lubbock hereby adopts, the International Fire Code, herein known as the fire code, published by the International Code Council, 2003 edition....

Note the phrase: "...for the purpose of conducting any examination".

That is authority broad enough to drive a LaFrance 110' ariel truck through. I am going to pose this question to one of my fireman friends who also posts here, but I think I know the answer.

David C

Edited April 25, 2006 by geezer-lock

[Bigbadaboom]

I was interested enough in this topic to do a little research of my home town policy. The city code is:

Sec. 11-38. Right of entry--Generally.

The fire marshal shall have the right, at all reasonable hours, to enter into and upon all buildings and premises within the city for the purpose of conducting any examination required or authorized by this article.

Ord. No. 129, § 8, 11-15-15; Code 1959, § 12-18)

State Law References: Power of city to appoint officers to enter any building or enclosure to examine and discover whether the same is in a dangerous state, and to cause such as may be dangerous to be put in a safe condition, VTCS Art. 1068(2).

Sec. 11-71. Code adopted.

The City of Lubbock hereby adopts, the International Fire Code, herein known as the fire code, published by the International Code Council, 2003 edition....

Note the phrase: "...for the purpose of conducting any examination".

That is authority broad enough to drive a LaFrance 110' ariel truck through. I am going to pose this question to one of my fireman friends who also posts here, but I think I know the answer.

David C

I would pose that question to an Attorney that does Constitutional law.

[Genghis]

So he had to much powder .. all he has to do is load a lot of ammo fast. My personal policy is that unless I called you, you need warrant to come into my house.

+ 1 on this and on not EVER consenting to ANY search.

The game warden is an example of an official who can sometimes do a search without a warrant. The airport officials and border patrol agents are in the same category. And child protective services can march into your house without a warrant or court order, and take your kids away, if they believe they are in danger.

In addition to state laws that limit the amount of gunpowder you can store without a permit, some states (I believe including Texas) have a law that prevents any local governmental unit (city or county) from imposing different standards. This is called preemption, and it's an important limitation on localities that applies to a lot of different laws affecting guns.

Not legal advice, of course! You have to pay for that.

[cking]

What is consent!

Anytime any official says may we come in and you let them in. you have consented for a search.

The smart thing to do is step outside close the door behind you and discuss what they want.

I usually walk them back to there vehicle while talking. Then when I've heard enough I ask for a card, then tell them I'm busy now and could they please leave.

[ima45dv8]

Also not legal advice, but in Georgia, an officier who has probable cause that a crime has been commited can search your vehicle without a warrant. While your car is considered an extension of your home and offered many of the same constitutional protections, the fact it has wheels on it and may allow someone to drive away with evidence (your house cannot) is the basis for this. I believe some (if not many) other states have similar statutes.

The fun starts when an officier asks to search your vehicle. If you say no, many will start threatening to go get a warrant. If you want to risk being a smatt-ass, you could point out that you are fully aware that they don't need your consent if they have probable cause. "Since you don't have probable cause, just exactly what do you plan to swear to in front of the local magistrate to get that warrant?"

You won't make any friends, but it could be an interesting way to kill some time if your schedule allows it.

Edited April 25, 2006 by ima45dv8

[geezer-lock]

I am aware of several cases that have attempted to overturn rulings based on the National Fire Protection Association codes but those have some claim that was first raised in an administrative hearing. My feeling is that if you barred entry to the Fire Marshal because he did not have a warrant you would probably have one in your hand in very short order.

In the event that you were fined or cited for a violation as a result of the inspection you should exhaust your appeal rights with the administrative body before you attempt a constitutional challenge. Americans in general and Texans in particular can get quite testy about “trespassing”, but making the leap to a court challenge will be an arduous and expensive undertaking.

What I would suggest is that you know the law in your township regarding the quantities of smokeless powder and primers you are allowed to store in a “residence”. It is probably more than most of us would be willing to buy.

I am not a lawyer and I don’t play one on TV, but I have been on both sides of this debate.

David C