Commonwealth v. Smith

ZAPPALA, Justice,

dissenting.

I dissent.

Today the majority has etched a new justification for a warrantless search. Now when a fire investigator cannot obtain a search warrant for lack of probable cause, we will permit him to search under the guise of discovering the cause and origin of the fire. This is so even if the exigency which previously supported this intrusion (i.e. possibility of rekindling) no longer exists. *

The Fourth and Fourteenth Amendments 1 to the United States Constitution protect citizens from “unreasonable *53 searches and seizures.” Those amendments also require an independent determination of probable cause and reasonableness prior to the issuance of a search warrant. Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971). The United States Supreme Court has, however, carved out exceptions to the requirement of a search based upon a warrant. For example, an individual’s consent will obviate the necessity of obtaining a search warrant. Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967). Likewise, “exceptional” circumstances may exist which will require immediate action rather than seeking a prior judicial determination of probable cause. In those “exceptional” circumstances, a law enforcement agent seeking to conduct a warrantless search may do so if incident to a lawful arrest or to prevent destruction or removal of contraband. Johnson v. United States, 333 U.S. 10 , 68 S.Ct. 367 , 92 L.Ed. 436 (1948). If so, a warrantless search is valid so long as that search is reasonable.

Particularly relevant to this appeal, the United States Supreme Court has held that a fire official may enter a burning building under an emergency doctrine to fight the fire. Michigan v. Tyler, 436 U.S. 499 , 98 S.Ct. 1942 , 56 L.Ed.2d 486 (1978). Under what circumstances, then, may a fire marshall conduct an investigation without a valid search warrant, where consent has not been properly obtained. To determine this issue, it is important to review in detail the two most recent United States Supreme Court cases regarding this issue.

In Tyler , the United States Supreme Court attempted to resolve the issue of when a fire marshall may conduct a nonconsenting, warrantless search. While fighting the fire at the defendant’s furniture store, fire officials found two plastic containers of flammable liquid. Immediately, the fire chief examined the containers and summoned a police detective to assist in his investigation to determine the origin and cause of the fire. This investigation had to be abandoned due to the smoke and steam present in the building. By 4 a.m., the fire had been extinguished and the *54 fire fighters had departed. Four hours later, the same fire officials again appeared on the scene to determine the origin and cause of the fire. After a cursory examination, the officials left and returned for a third time an hour later. During this last visit, the fire officials obtained various floor and carpeting samples. Approximately three weeks later, another police official visited the furniture store, took photographs, and conducted a more thorough search of the premises. At no time did any police or fire official obtain a search warrant or have proper consent.

In upholding the warrantless search conducted the next morning, the Supreme Court found as a significant factor, the difficulty the fire officials encountered in continuing the initial investigation undertaken while fighting the fire to determine its cause and origin. The majority further held that since a burning building presents an exigent circumstance sufficient to justify a fireman’s entry into the building for the purpose of terminating the fire, any search incident thereto cannot be unreasonable. Because firefighters not only have a duty to extinguish the fire, but also have a duty to determine the cause of the fire, as a protection against reoccurrence, no search warrant or consent is necessary if any such investigation occurs promptly. The Court said:

... [OJfficials 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, (footnote omitted)

436 U.S. 510 , 98 S.Ct. 1950 . In Tyler , the firemen did not remain at the scene to complete their investigation on the night of the fire because of physical impediments, but returned the next morning. Since the Court found no fault in leaving the damaged building, the Court determined that the warrantless search the next morning was merely a continuation of the properly initiated investigation.

*55 Under the circumstances, we find that the morning entries were no more than actual continuation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence.

436 U.S. 511 , 98 S.Ct. 1951 . The Court, however, did invalidate subsequent warrantless searches as being detached from the “initial exigency and warrantless entry.” Id.

Six years later, the United States Supreme Court attempted “to clarify doubt that appears to exist as to the application of our decision in Tyler , ” in Michigan v. Clifford, 464 U.S. 287 , 104 S.Ct. 641 , 78 L.Ed.2d 477 (1984).

In Clifford , the defendants were arrested and charged in connection with a fire at their residence, occurring on October 18, while they were on vacation. By 7 a.m., the fire had been extinguished. Having been informed that arson was suspected, the fire investigator commenced his investigation of the fire at 1 p.m. without either a search warrant or the Appellant’s consent. Since a work crew was securing the house, the fire investigator had to wait until 1:30 p.m. to gain entry. While awaiting entry, the investigator found a fuel can in the driveway. Upon entry into the house, the investigator determined that the fire originated in the basement beneath the stairway. Further investigation uncovered other fuel cans and a crock pot with wires leading to an electrical timer. Thereafter, the investigating team conducted a thorough examination of the remainder of the house, gathering other evidence to support its suspicion of arson. The Cliffords moved to suppress all evidence seized as invalid under the Fourth and Fourteenth Amendments.

A majority of the United States Supreme Court upheld the suppression of the evidence although no clear majority opinion was filed. Justice Powell writing for four members of the majority stated that:

The constitutionality of warrantless and nonconsentual entries onto fire-damaged premises, therefore, normally turns on several factors: whether there are legitimate *56 privacy interests in the fire-damaged property that are protected by the Fourth Amendment; whether exigent circumstances justify the government intrusion regardless of any reasonable expectation of privacy; and, whether the object of the search is to determine the cause of the fire or to gather evidence of criminal activity.

464 U.S. 292 , 104 S.Ct. 646 . Reaffirming Tyler , Justice Powell stated that a burning building creates an exigent circumstance which justifies not only a warrantless entry by fire officials to fight the blaze but permits fire officials to remain in the building for a reasonable time thereafter to investigate the cause of the blaze. As in Tyler , Justice Powell opined that the aftermath of a fire often presents exigent circumstances which require immediate investigation to protect the public interests. In that situation no warrant is necessary. However, if the nonconsenting search is not compelled by exigent circumstances or if the object of that search is not to determine the cause and origin of the fire, the appropriate search warrant is required. Justice Powell stated:

Circumstances that justify a warrantless search for the cause of a fire may not justify a search to gather evidence of criminal activity once that cause has been determined. If, for example, the administrative search is justified by the immediate need to ensure against rekindling, the scope of the search may be no broader than reasonably necessary to achieve its end. A search to gather evidence of criminal activity not in plain view must be made pursuant to a criminal warrant upon a traditional showing of probable cause.

464 U.S. 294 , 104 S.Ct. 647 .

In distinguishing Clifford from Tyler , Justice Powell placed great weight on the fact that no search had been commenced in Clifford at the time the fire had been extinguished, while in Tyler , the fire officials started their investigation only to be thwarted by uncontrollable elements. Thus, Tyler’s warrantless search was permissible as a reasonable continuation of a proper warrantless search *57 while in Clifford , the warrantless search could not be upheld as a continuation since no search had begun at the time the fire was extinguished.

In his opinion concurring in the judgment of the court, Justice Stevens raises another relevant factor in distinguishing Clifford from Tyler . In Tyler , the fire officials conducting the search the day after the fire was extinguished were the same fire officials that attempted to search the building the night of the fire. This was not the case in Clifford . Therefore, there could be no continuation of the previously conducted search. Furthermore, Justice Stevens would hold that once the firemen have left the scene of the fire, the exigent circumstances justifying a warrantless search to prevent re-occurrence would cease, thereby requiring adherence to the Fourth and Fourteenth Amendments. However, unlike Justice Powell, Justice Stevens would hold that any entry into a building subsequent to extinguishing a fire would require a criminal search warrant unless the owner had received sufficient notice of the proposed search.

... I believe the two clauses of the Fourth Amendment command-would require the fire investigator to obtain a traditional criminal search warrant in order to make an unannounced entry, but would characterize a warrantless entry as reasonable whenever the inspector had given either the owner sufficient advanced notice to enable him or an agent to be present, or had made a reasonable effort to do so. (footnote omitted)

464 U.S. 303 , 104 S.Ct. 652 . Since the Cliffords had not received actual advance notice of the search, nor had the fire officials even attempted to so notify them, Justice Stevens would find the warrantless search unreasonable and violative of the Fourth Amendment.

Finally, the four dissenting Justices would have held that the Cliffords had no expectation of privacy because they were away, and that the intrusion by the fire inspector was neither “new or substantially different intrusion from that which occurred when the fire fighters first arrived to extin *58 guish the flames” and that the subsequent search was merely a continuation of the original entry. 464 U.S. 308 , 104 S.Ct. 655 . Thus, the search was reasonable and not violative of the Fourth Amendment.

Reading Tyler and Clifford together, certain principles regarding the Fourth Amendment and investigations of the causes and origins of fires are clear. Firemen have the right to enter a private residence without a warrant without violating the Fourth and Fourteenth Amendments of the United States Constitution if done so for the purpose of extinguishing a fire. While performing the task, firemen may seize any evidence, which is in plain view, of the cause and origin of the fire. In addition to fighting the fire, fire officials are charged with determining the cause and origin of the fire. The purpose of the investigation into the cause and origin of the fire is to prevent rekindling of the fire. When the search is conducted for this purpose, then no search warrant is necessary even if consent has not been granted, but only if the search is a continuation of the initial entry. If the nonconsenting, warrantless search into the cause and origin of the fire is begun, but must be terminated due to the condition of the building, then that search may be continued at the first instance reentry is permissible. Finally, if it is clearly shown that the search is not for the purpose of determining the cause and origin of the fire, but rather to obtain evidence of criminal activity, then such search must either be with consent or with a valid search warrant.

Applying these principles to the present case, it is apparent that the evidence must be suppressed. From the testimony of Officer Cobb, one can only conclude that the purpose of the search the morning after the fire was to obtain evidence of arson. The fact that the electricity in the house had been turned off the day of the fire supported Officer Cobb’s suspicion of arson. Because of the twelve hour time lapse between the extinguishing of the fire and the search, it is abundantly clear that the likelihood of the fire rekindling was minimal. Therefore, the exigency which *59 supported the initial entry abated by the next morning when Officer Cobb conducted his search. Likewise, since Officer Cobb, by his own admission, never entered the building the night of the fire, justification for the search the next day cannot be found in the “continuation” theory set forth in Tyler . Thus, the nonconsenting search and ultimate seizure of evidence was violative of the Fourth and Fourteenth Amendments and cannot be sustained. 2

For the foregoing reasons, I would reverse the order of the Superior Court and reinstate the order of the Court of Common Pleas of Susquehanna County.

NIX, C.J., and FLAHERTY, J., join in this dissenting opinion.

The following opinion was originally circulated as a proposed majority opinion and is now being resubmitted as my dissent. It appears that the majority has adopted verbatim the legal analysis and rationale of this dissent. (See majority opinion pp. 40-47).

. No State constitutional issues are raised in this appeal.

. The trial court specifically found that the Appellant’s wife did not consent to the search and the Commonwealth presents no evidence or argument to refute this finding. My independent review of the record supports this determination by the Suppression Court.