Commonwealth v. Smith

LARSEN, Justice,

concurring.

I join the majority opinion. The warrantless, non-consensual search and seizure of evidence by Officer/Fire Marshall Cobb on the morning after the fire had been extinguished is constitutionally and logically indistinguishable from the morning-after search and seizure of evidence by fire investigators that received the approval of the United States Supreme Court in Michigan v. Tyler, 436 U.S. 499 , 98 S.Ct. 1942 , 56 L.Ed.2d 486 (1978). I write separately to address the dissent’s erroneous proclamation that “the majority has etched a new justification for a warrantless search.” At 804.

*50 There is nothing at all “new” about the justifications, i.e., the exigent circumstances justifying a warrantless search and seizure, that were recognized by the United States Supreme Court in Michigan v. Tyler, 436 U.S. 499 , 98 S.Ct. 1942 , 56 L.Ed.2d 486 (1978), and reaffirmed by that Court in Michigan v. Clifford, 464 U.S. 287 , 104 S.Ct. 641 , 78 L.Ed.2d 477 (1984). The dissent seems to believe that Tyler recognized only a single exigent circumstance, namely the fighting of a fire and prevention of “the possibility of rekindling” by determining “the cause of the fire as a protection against reoccurrence____” At 804, and 805.

This exceedingly narrow view of Tyler —that the exigent need to determine the cause and origin of the fire is over the instant the fire is out and there is no possibility of its rekindling 1 — ignores Tyler’s reasoning and explicit language to the contrary. In Tyler , the United States Supreme Court, in reversing the Michigan Supreme Court, stated:

[The opinion of the] Michigan Supreme Court ... may be read as holding that the exigency justifying a warrant-less entry to fight a fire ends, and the need to get a warrant begins, with the dousing of the last flame. 399 Mich [564], at 579, 250 NW2d [467], at 475. We think this view of the firefighting function is unrealistically narrow, however. Fire officials are charged not only with extinguishing fires, but with finding their causes. Prompt determination of the fire’s origin may be necessary to prevent its recurrence, as through the detection of continuing dangers such as faulty wiring or a defective furnace. Immediate investigation may also be neces *51 sary to preserve evidence from intentional or accidental destruction. And, of course, the sooner the officials complete their duties, the less will be their subsequent interference with the privacy and the recovery efforts of the victims. For these reasons, officials need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished. And if the warrantless entry to put out the fire and determine its cause is constitutional, the warrantless seizure of evidence while inspecting the premises for these purposes also is constitutional.

Id. 436 U.S. at 509-510 , 98 S.Ct. at 1950 (emphasis added).

There was no real dispute with these principles. The major issue in Tyler was with their application to the morning-after searches and seizures conducted to determine the origins of the fire and to obtain evidence of the suspected arson. The defendants argued that the Michigan Supreme Court was correct in viewing any “exigency” as over at 4:00 a.m. when firefighters and investigators left the scene and that their “departure and re-entry four hours later that morning required a warrant.” Justice Stewart, expressing the views of five members of the Court, stated:

On the facts of this case, we do not believe that a warrant was necessary for the early morning re-entries on January 22. As the fire was being extinguished, Chief See and his assistants began their investigation, but visibility was severely hindered by darkness, steam, and smoke. Thus they departed at 4 a.m. and returned shortly after daylight to continue their investigation. Little purpose would have been served by their remaining in the building, except to remove any doubt about the legality of the warrantless search and seizure later that same morning. Under these circumstances, we find that the morning entries were no more than an actual continu *52 ation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence.

Id. at 511 , 98 S.Ct. at 1950 (emphasis added). 2

Tyler clearly controls the instant case and validates the morning-after search and seizure of evidence by Officer Cobb under the circumstances. The exigent circumstances recognized in Tyler as justification for a warrantless search and seizure were the need to extinguish the fire and the need to determine its cause and origin not only to prevent rekindling but also “to preserve evidence from intentional or accidental destruction,” and these exigencies continued to exist even where the investigation was broken off due to adverse conditions and resumed a reasonable time thereafter. Those same exigent circumstances were present in equal force in the instant case.

HUTCHINSON, J., joins in this concurring opinion.

. The dissent is convinced that, at 9:00 a.m. on the morning after the fire at appellant’s home, there was no possibility of its "reoccurrence” or "rekindling” because the electricity had been shut-off and because of the "twelve hour time lapse between the extinguishing of the fire and the search____” At 807. A fire official would, it seems to me, be remiss in his duties if he were to reach such a conclusion based solely on the fact that twelve hours had elapsed and electricity had been shut-off. I, for one, would be most reluctant to rehabitate my residence knowing only what fire officials in the instant case knew at 9:00 a.m. on the morning after.

. The Court affirmed the Michigan Supreme Court’s grant of a new trial, however, because of the subsequent searches and seizures. The Court held:

The entries occurring after January 22, however, were clearly detached from the initial exigency and warrantless entry. Since all of these searches were conducted without valid warrants and without consent, they were invalid under the Fourth and Fourteenth Amendments, and any evidence obtained as a result of those entries must, therefore, be excluded at the respondents' retrial.