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There are various circumstances where law enforcement can legally carry out a search of an individual or their property. Are there situations where the person being searched has a responsibility to protect the health and safety of the searcher, given there is no other crime going on? Situations where this may arise include:

  • Search of personal: It must happen all the time that the police want to carry out a search of someone who has used hypodermic needles in their pocket. Is such a person required to inform the searcher of this fact prior to the search?
  • Search of real property: If law enforcement want to carry out a search of one's property, and there are potential risks such a dangerous dog or hazardous material, is the owner required to provide details of these risks?
  • Search of computing equipment: If law enforcement want to carry out a search of one's computer, and you have viruses or other malware on the machine would one be required to warn the searchers?

An jurisdiction would be interesting, the best answer would probably give an idea of how this answer varies around the world.

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  • if I remember correctly the issue of whether forcing a person to divulge passwords to seized computer equipment is to force an defendant to self-incriminate him/herself is a hotly contested civil rights issue in the US currently.
    – Neil Meyer
    Sep 25, 2023 at 11:25
  • Generally, Law Enforcement has policies that off the persons subject to the warrant the opportunity to let them tell the officer about possible hazards. However, they have procedures that will assume that the person will likely not be cooperative and how to handle the search in a safe manner for everyone involved.
    – hszmv
    Sep 25, 2023 at 16:19
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    The answer is basically "yes" under general principles of premises liability and under a specific "fireman's rule" but spelling it out in any jurisdiction with proper citation to legal authority would take more time than I have and I've never seen a chart comparing multiple jurisdictions on this question. There is quite a bit of case law in this little niche of tort law.
    – ohwilleke
    Sep 25, 2023 at 22:31

2 Answers 2

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There is no general answer, with reference to the fireman's rule. See Minnich v. Med-waste for a review of the various different answers given by courts, and numerous citations. In some states, there is a rule that limits liability to emergency personnel who are damaged by a third person's negligence. One version posits a very limited duty only to "refrain from willful or affirmative acts which are injurious", and it is reasoned that officers are aware of the risks inherent in their profession and have assumed those risks. There are policy arguments in support of the rule, including the fact that the injuries are compensable through workers' compensation thus liability for on-the-job injuries is properly borne by the public (these are rationales advanced by various courts in their rulings). "Line-of-duty" injuries are particularly insulated from findings of liability.

Some states have abolished the rule, for example Virginia allows liability when a person knows of responder presence, or where negligent act or omission violates a statute, or the injury was independent of the officer's duty being carried out. The SC Supreme court summarizes that

those jurisdictions which have adopted the firefighter's rule offer no uniform justification therefor, nor do they agree on a consistent application of the rule. The legislatures in many jurisdictions which adhere to the rule have found it necessary to modify or abolish the rule. The rule is riddled with exceptions, and criticism of the rule abounds

The present question focuses on a specific subset of circumstances: police officers (not all emergency responders), and injury arising from executing a search warrant. Although initially the fireman's rule was a rule about firemen, it quickly extended to police. No ruling has suggested that police officers and firemen should be treated differently, and no ruling has suggested that there are different liability standards for the execution of a search warrant, versus any other law enforcement action.

See Moody v. Delta Western, Inc., 38 P.3d 1139 and Waggoner v. Troutman Oil for compendia of holdings on this rule. Counting cases, the rule seems to generally hold, but the specifics of the rule are not uniform across states. As pointed out in Moody,

the Firefighter's Rule does not apply to negligent conduct occurring after the police officer or firefighter arrives at the scene or to misconduct other than that which necessitates the officer's presence. Such misconduct may include failure to warn of pre-existing known but hidden dangers

(which is exactly the case that you describe) as established by the courts in Maryland and California. Whether or not an exception to the rule has been made explicit in a given state, the rationale of Flowers v. Rock Creek Terrace, Neighbarger v. Irwin Industries and related cases could be persuasive .

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If the search is of a “business or other undertaking”, yes

Under uniform Work Health and Safety Laws a person conducting a business or undertaking owes a duty of care to take reasonable steps to prevent harm to others due to their operations.

Otherwise, maybe

I can find no case law on this - probably because the emergency personnel are covered by worker’s compensation and it is probably not in the insurer’s interest to sue for recovery.

I suspect that the general rules of negligence would apply: was there are duty of care, was it met, was there damage, and did it result from the failure to meet the duty? The answer would depend on the specific circumstances.

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