Petitioners Brief — Michigan v. Tyler

/

Supreme Court, U.S, ~)

FILED

NOV 17 1977

HAEL RODAK, JR., CLERK

IN THE q

Supreme Court of the United States

OCTOBER TERM, 1977

No. 76-1608

STATE OF MICHIGAN,

Petitioner,

v.

LOREN TYLER and ROBERT TOMPKINS,

Respondents.

—-— @-—---

ON WRIT OF CERTIORARI TO THE SUPREME

COURT GX OF MICHIGAN

a

PETITIONER’S BRIEF

a

L. BROOKS PATTERSON

Prosecuting Attorney

Oakland County

1200 North Telegraph Road

Pontiac, Michigan 48053

Telephone: (313) 358-0644

ROBERT C. WILLIAMS

Chief Appellate Counsel

JEFFREY BUTLER

LAWRENCE J. BUNTING

ROBERT F. DAVISSON

—_— ——— _

Interstate Brief & Record (o.. Wurlitzer Bidg . 1509 Broadway, Detrot. Michigan 48226

962-8745 8 9961-8746

TABLE OF CONTENTS

Page

nvncncebiinninuid skunesedeseuss ul

SE dacbedewbedsddeccsddsdssecddectedceene 1

PT ti cdndeboksnebsdadeencuadhescusneseeseenes 2

Constitutional Provision Involved ...................... 2

ae it ee tennakebeeaewe 2-3

PED ccdasdcmsedocsescudisseescocewses 3-7

dc cc cdaenschesescontascbeses 7-8

Argument:

1. A WARANTLESS SEARCH OF FIRE-

DAMAGED PREMISES TO DETERMINE THE

CAUSE OR ORIGIN OF THE FIRE, CON-

DUCTED OR CONTINUED AFTER THE FIRE

HAS BEEN EXTINGUISHED AND AT THE

FIRST OPPORTUNITY TO MAKE A DAY-

LIGHT VISUAL INSPECTION, IS CON-

STITUTIONALLY PERMISSIBLE .......... 8-9

A. AN ARSONIST WHO BURNS HIS OWN

PROPERTY THEREBY ABANDONS

THOSE PREMISES WITHIN THE MEAN-

ING OF THE FOURTH AMENDMENT. %13

B. VICTIMS OF ACCIDENTAL FIRES OR

OF MALICIOUS ARSON ARE IN NO

NEED OF PROTECTION FROM POST-

FIRE SEARCHES, AND WILL RECEIVE

NONE FROM ADMINISTRATIVE

SEARCH WARRANTS................. 13-19

Page

ll. A WARRANTLESS SEARCH OF FIRE-

DAMAGED PREMISES TO GATHER EVI-

DENCE OF THE CAUSE OR ORIGIN OF THE

FIRE, CONDUCTED UNDER CIRCUM-

STANCES WHICH INDICATED THAT THE

OCCUPANT HAD NO EXPECTATION OF

PRIVACY IN THOSE PREMISES, WAS CON-

STITUTIONALLY PERMISSIBLE, NOTWITH-

STANDING THAT NO EXIGENT CIRCUM-

STANCES EXISTED, THAT OFFICERS HAD

WITHIN THEIR KNOWLEDGE FACTS UN-

QUESTIONABLY SHOWING PROBABLE

CAUSE, AND THAT OFFICERS HAD AMPLE

TIME TO GET A SEARCH WARRANT ...... 20-24

Ill. THE PROSECUTION SHOULD BE ENTITLED

TO A DECISION ON THE MERITS OF A

QUESTION OF STANDING AT ANY STAGE

OF THE CRIMINAL PROCEEDINGS ....... 24-26

PED cckccoudiccsdddbondGdubebebenedstseeee 27

INDEX TO AUTHORITIES CITED

Cases:

Abel v. United States, 362 US 217 (1960) ........... 10,23

Air Polution Variance Board v. Western Alfalfa, 416

ee Ge vcncctcdedanectdettbeddentecdecss 10,23

Argov. United States, 378 F2d 301 (CA9, 1967)........ 23

Bailey v. Michigan, 493 F2d 1218 (CA6, 1974) ......... 19

Page

Bennett v. Commonwealth, 212 Va 863; 188 SE2d 215

GIUUED vavendenacucnebilbadéosunsavedccoceeosevess 19

Brown v United States, 411 US 223 (1973) ........ 9,13,25

Bumper v. North Carolina, 391 US 543 (1968) ......... 22

Cady v. Dombrowski, 413 US 433 (1973).............. 17

Camara v. Municipal Court, 387 US 523 (1967) .. 8,16,17,21

Colonnade Catering Corp v. United States, 397 US 72

RE ee ne ae ae re 14

Cooper v. California, 386 US 58 (1967) ............... 22

Elledge v. United States, 359 F2d 404 (CA9, 1966) ..... 23

Feguer v. United States, 302 F2d 214 (CA8), cert den,

ed ED cn ctnneinntcacdesésee deduces: 23

Friedman v. United States, 347 F2d 697 (CA8), cert

es SE cc ddncccencsnanccnenscasens 23

Harris v. United States, 390 US 234 (1968) ............ 22

Hester v. United States, 265 US 57 (1924) .......... 10,23

Johnson v. United States, 333 US 10 (1948) ........... 22

Jones v. United States, 362 US 257 (1960) ............ 12

Katz v. United States, 389 US 347 (1967) ............. 10

McGuire v. United States, 273 US 95 (1927)........... 10

Michigan v. Tucker, 417 US 433 (1974) ...........055- 12

>

Page

Parman v. United States, 130 US App DC 188; 399 F2d

559, cert den, 393 US 858 (1968) .........00..... 10,23

People v. Crittle, 390 Mich 367; 212 NW2d 196 (1973)... 25

People v. Moore, 391 Mich 426; 216 NW2d 770 (1974).. 25

People v. Patrick, 41 Ill App 3d 1037; 355 NE2d 224

SE bh Ub di nedn bh ehcNUkd 00bbksecccenédecetsces 19

SPUD See aWE Ce ccedededesecedecesuscescsveuceeees 19

Rees v. Peyton, 341 F2d 859 (CA4, 1965) ............. 23

Romero v. Superior Court, 266 Cal App 2d 714; 72 Cal

By Es oe cecncecccdicestpccececececcess 19

See v. Seattle, 387 US 541 (1967) ................ 8,16,17

Simmons v. United States, 390 US 377 (1968) ..... 825,26

South Dakota v. Opperman, 428 US 364 (1976) ........ 22

State v. Buxton, 238 Ind 93; 148 NE2d 547 (1958)...... 19

State v. Cohn, 347 SW2d 691 (Mo, 1961).............. 19

State v. Felger, 19 Or App 39; 526 P2d 611 (1974)...... 19

State v. Murdock, 160 Mont 95; 500 P2d 387 (1972) .... 19

State v. Rees, 258 lowa 813; 139 NW2d 406 (1966) ..... 19

State v. Vader, 114 NJ Super 260; 276 A2d 151 (1971)... 19

Page

Stone v. Commonwealth, 418 SW2d 646 (Ky App, 1967) 19

Swan v. Superior Court, 8 Cal App 3d 392; 87 Cal Rptr

TD GIR cc cccccsceccccosesosssuscusbaneeannen 19

Steigler v. Anderson, 360 F Supp 1286 (D Del, 1973)

aff'd, 496 F2d 793 (CA3, 1974) ©... ccc ccc cece 19

United States v. Biswell, 406 US 311 (1972) ........... 17

United States v. Brown, 473 F2d 952 (CAS, 1973)...... 23

United States v. Colbert, 474 F2d 1974 (CAS, 1973) (en

PPP eee 23

United States v. Cowans, 396 F2d 83 (CA2, 1968) ..... 23

United States v. Dzialak, 441 F2d 212 (CA2, 1971)..... 23

United States v. Edwards, 415 US 800(1974).... —_14,20,24

United States v. Edwards, 441 F2d 749(CAS, 1971) .... 23

United States v. Gargotto, 510 F2d 409 (CA6, 1974).. 15,19

United States v. Green, 474 F2d 1385 (CAS, 1973) ..... 19

United States v. Jackson, 448 F2d 963 (CA9, 1971), cert

den sub nom Willis v. United States, 405 US 924

CTE .cccccoceds:oceceseééecesendenaaeaannan 23

United States v. Kress, 446 F2d 358 (CA9), cert den,

GO RG GD ccccccoccecetecouseuueeeees er

United States v. Martin, 386 F2d 213 (CA3, 1967)...... 10

United States v. Moody, 485 F2d 531 (CA3, 1973) ..... 23

vi

Page

United States v. Santana, 427 US 38 (1976) ........... 10

United States v. Wilson, 472 F2d 901 (CA9, 1972), cert

Se Se En cdbdcccccdéctccecictscec 11,23

Vincent v. United States, 337 F2d 891 (CA8, 1964)..... 10

Warden v. Hayden, 387 US 294 (1967)................ 10

Williams v. Georgia, 349 US 375 (1955) ............... 25

Zap v. United States, 328 US 624 (1946), vacated on

other grounds, 330 US 800 (1947).................. 22

Other Authorities:

Time, Vol. 110, No. 18 (Oct. 31, 1977), p. 22.......... i

Wall Street Journal, Vol. LVII, No. 251 (Oct. 6, 1977),

ih ins ateneddesnedhddeceossbodosedecssesss 15

OPINIONS BELOW

The opinion of the Michigan Supreme Court is reported

at 399 Mich 564; 250 NW2d 467, and is printed at page 17

of the petition for certiorari. The opinion of the Michigan

,

~

Court of Appeals is reported at 50 Mich App 414; 213

NW2d 221. and is printed at page 36 of the petition.

JURISDICTION

The decision of the Michigan Supreme Court was filed

on February 14, 1977. The petition for a writ of certiorari

was timely filed on May 16, 1977, and was granted on

October 3, 1977. The jurisdiction of this Court is invoked

under 28 USC §1257 (3).

CONSTITUTIONAL PROVISION INVOLVED

The Constitutional provision involved in this case is the

Fourth Amendment:

‘The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable Qe hall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.”

QUESTIONS PRESENTED

I.

WHETHER A WARRANTLESS SEARCH OF FIRE-

DAMAGED PREMISES TO DETERMINE THE CAUSE OR

ORIGIN OF THE FIRE, CONDUCTED OR CONTINUED

AFTER THE FIRE HAS BEEN EXTINGUISHED AND AT

THE FIRST OPPORTUNITY TO MAKE A DAYLIGHT

VISUAL INSPECTION, IS CONSTITUTIONALLY PER-

MISSIBLE”

WHETHER A WARRANTLESS SEARCH OF FIRE-

DAMAGED PREMISES TO GATHER EVIDENCE OF THE

CAUSE OR ORIGIN OF THE FIRE, CONDUCTED UNDER

CIRCUMSTANCES WHICH INDICATED THAT THE OC-

CUPANT HAD NO EXPECTATION OF PRIVACY IN

THOSE PREMISES, WAS CONSTITUTIONALLY PERMIS-

SIBLE, NOTWITHSTANDING THAT NO EXIGENT

CIRCUMSTANCES EXISTED, THAT OFFICERS HAD

WITHIN THEIR KNOWLEDGE FACTS UNQUESTIONA-

BLY SHOWING PROBABLE CAUSE, AND THAT OFFIC-

ERS HAD AMPLE TIME TO GET A SEARCH WARRANT?

WHETHER THE PROSECUTION SHOULD BE ENTITLED

TO A DECISION ON THE MERITS,OF A QUESTION OF

STANDING AT ANY STAGE OF THE CRIMINAL PRO-

CEEDINGS?

STATEMENT OF FACTS

Loren Tyler and Robert Tompkins were convicted of

conspiracy to burn real property. Tyler was also

convicted of burning real property and burning insured

property with intent to defraud.

The: fire occurred at Tyler's Auction in Waterford

Township, Michigan, a building leased by Tyler where he

conducted a retail furniture business (R.210-213).

Tompkins was a business associate of Tyler's

(R.1144-1155, 1237).

4

Physical evidence, taken by fire and police officials

without a search warrant from the premises after the fire

had been extinguished, was admitted at the trial over

objection. (A.20-23, 57-60)

The fire began with two loud explosions shortly before

midnight on January 21, 1970 (R.69-70). The fire

department arrived shortly thereafter. Fire Chief See

discovered and seized two plastic containers, one

partially filled with a flammable liquid, before the

firefighters left (A.8-10). Respondents did not challenge

the admissibility of that evidence in the Court below.

Chief See conferred with Detective Webb of the police

department at the scene shortly before the firefighters

left. Webb's efforts to take pictures of the interior of the

building were unsuccessful due to a malfunctioning

camera and the fact that the building was filled with

smoke and steam. (A.24-27).

By 4:00 a.m. on January 22 the fire was extinguished.

The premises were thereafter left unattended until 8:00

a.m. when See returned with Assistant Fire Chief

Somerville and together they briefly surveyed the area

(A.16-18, 23-24).

Most of the interior of the building and all the

furnishings and fixtures had been almost completely

consumed by fire. Almost all that remained were metal

parts of furniture. The acoustical ceiling had fallen onto

the floor, and the steel support beams above were twisted

and had all been very badly damaged by heat and fire

(A.18-19). However, the northwest and northeast sections

of the building were not as badly damaged. Though all

the furniture fabric had been destroyed, a few pieces of

5

wooden framework were merely scorched and damaged

by smoke, and there were some business records on the

floor which had not been completely destroyed (A.S1I,

56-57).

Assistant Chief Somerville, who did not know the

identity of the landlord and had been informed that the

tenant was in Florida (A.22), returned with De*ective

Webb between 9:00 and 9:30 a.m. and discovered pieces

of tape along a thin linear burn mark in the carpet of one

room (A.19, 27-28). The burn circled the room, went

through a door, and continued down a stairway to an

exit. Pieces of carpet and wood containing the burn

marks were removed, and the trial admitted over

objection (A .19-23).

Four days later, on January 26, Sergeant Hoffman of

the Michigan State Police, Arson Section, took

photographs of the interior of the building which were

lost in the mail (A.47-48).

On January 29, Hoffman and Somerville met with

Respondent Tyler at the fire station. Tyler was advised of

his Miranda rights, and agreed to talk with the officials

(A.54-55). After having been informed of the condition of

the burned building, Tyler gave the opinion that arson

must have occurred (A.55-56). Following a_ brief

discussion of insurance and the contents of the building,

Tyler agreed to go with the officials to survey the scene

of the fire, where he pointed out various missing articles

(A.55-57). No photos were taken or evidence seized at

that time.

Sergeant Hoffman returned without Tyler three weeks

later, on February 16, and took more photographs, which

were admitted at trial without objection (A.48-49). He

6

also found a piece of fuse and pieces of glass and other

debris, which were admitted over objection (A.50,

57-60).!

Oscar Frisch, a part-time employee of Respondent

Tompkins (A.32-33), was the principal witness tending to

establish Respondents’ guilt. He first inculpated

Respondents in a conversation with Detective Webb on

January 31, 1970 (R.265), and repeated ‘“‘basically’’ the

same story thereafter (R.322). He testified at trial

(A.32-46) that for two days prior to the fire, he and

Respondents moved nearly everything of value out of the

store and delivered the merchandise either to buyers or

to warehouses (A.33-37). During this period they filled

the store with truckloads of worthless furniture (A.33-39)

as well as cardboard they had been collecting since

December to facilitate the burning (A.39-42; R.457-458).

' The fact that Respondents in the court below challenged only the

admissibility of Exhibits 5-11, obtained on January 22, 1970, and

Exhibits 54-61, obtained on February 16, 1970 (Appellant's Brief

Below, p. 3), tends to obscure the actual scope of the investigation in

this case. In addition to the entrances onto the premises mentioned

above, a furnace repairman inspected the furnace with Detective

Webb on an unspecified date “‘right after the fire’ (A.66-67). A

television repairman examined the remains of television sets in early

February in the company of Webb and Hoffman (A. 64-66). Although

the photographs taken by Hoffman on January 26 were lost in the

mail, it is apparent that his opinion that the fire was the result of arson

was based at least in part upon observations he made on that date (R.

748-749). Most items of evidence that were removed, as well as the

furnace and pieces of cardboard, were checked for fingerprints (A.50;

R. 249-250). And both Webb and Hoffman examined certain records

that were not destroyed sufficiently to determine that they belonged to

the landlord, not to Tyler (A. 30; R. 798). Regardless of whether the

constitutionality of these additional searches has been preserved for

appeal, they are relevant to the general obtrusiveness of the

investigation.

oe

>

All items of disputed evidence tended to show that the

fire had been deliberately set, but none tended to identify

the perpetrator.

SUMMARY OF ARGUMENT

Fire officials have a duty to investigate the cause or

origin of fires. Once a fire has been extinguished, the

officials are faced with two possibilities as they begin

their investigation. Either the occupant burned his own

premises, or the fire was caused accidentally or by

malicious arson.

If the former, the occupant’s actions show that he has

no expectation of privacy in his burned premises. By

deliberately instigating so massive a disruption and

invasion he has abandoned those premises within the

meaning of the Fourth Amendment. The concepts of

arson for profit and of Fourth Amendment protection of

the burned premises are wholly incompatible.

If the fire was accidental or the result of malicious

arson, the occupants of the premises are treated as .

victims by police and fire officials. The likelihood that

they will be aggrieved by a possible intrusion into what

little remains of their privacy in badly-burned premises is

negligible. That privacy will not be protected by an

administrative search warrant, which should issue

whenever a fire has occurred. In addition, a fire is so

readily ascertainable a fact that the judgment of a

disinterested magistrate should not be necessary to

determine its occurrence.

Once abandonment has been shown, a reentry into

burned premises violates no constitutionally protected

interest. This Court has never required the judgment of a

disinterested magistrate to determine whether a proposed

investigation intrudes upon a protected area, only to

determine when the right of privacy must yield to the

right to search.

Finally, if Petitioner's arguments on the search and

seizure questions are not accepted, we contend that in

order to avoid the serious injustice of a retrial of

Respondent Tompkins identical to his original trial in all

constitutional respects, a hearing pursuant to Simmons v.

United States, 390 US 377 (1968), should be ordered. If

Tompkins cannot show standing, the judgment of

conviction should be reinstated.

ARGUMENT

I.

A WARRANTLESS SEARCH OF FIRE-DAMAGED

PREMISES TO DETERMINE THE CAUSE OR

ORIGIN OF THE FIRE, CONDUCTED OR CON-

TINUED AFTER THE FIRE HAS BEEN EXTIN-

GUISHED AND AT THE FIRST OPPORTUNITY TO

MAKE A DAYLIGHT VISUAL INSPECTION, IS

CONSTITUTIONALLY PERMISSIBLE.

The Michigan Supreme Court, in an opinion reversing

Respondents’ convictions, extended the Fourth

Amendment warrant requirement by holding that fire and

police officials need an administrative search warrant

under Camara v. Municipal Court, 387 US 523 (1967),

and See v. Seattle, 387 US 541 (1967), before searching

fire-damaged premises for the cause of the fire once it

9

has been extinguished. The opinion was based upon this

Court's distinction among regulate "v administrative, and

criminal investigative searches, the rationale for which is

the relative intrusiveness of each type of seurch.

Petitioner contends that the Michigan Supreme Couri s

analysis is inappropriate to post-disaster investigations,

which rarely deal with occupied homes and operational

businesses, and which usually are conducted prior to a

determination of whether a crime has occurred. But far

more significant than the appropriateness of that analysis

to post-fire searches in general is the fact that the court

below ignored the single most important fact in any

arson-for-profit case, that of the arsonist’s expectation of

privacy in his own burned premises.

A. AN ARSONIST WHO BURNS OWN PROPERTY

THEREBY ABANDONS THOSE PREMISES WITHIN

THE MEANING OF THE FOURTH AMENDMENT.

One who deliberately burns premises that he owns or

leases ordinarily does so to collect on a fire insurance

policy, and thereby maintains a property interest in the

premises which forms the basis of his claim. Petitioner

concedes that this property interest is sufficient to give

an alleged arsonist standing to contest any search of

those premises. Brown v. United States, 411 US 223, 229

(1973). However, we contend that such an arsonist has

by his actions shown that he has no expectation of

privacy, or any other interest protected by the Fourth

Amendment, in those premises. We believe that, by

showing an expectation of publicity rather than of

10

privacy, an arsonist has come full circle to a position

equivalent in all important respects to that of one who

lacks standing,’ in that searches of his premises involve

no intrusion into a constitutionally protected area.

There is nothing unlawful about the search or seizure

of abandoned property. Hester v. United States, 265 US

57 (1924); Abel v. United States , 362 US 217, 241 (1960).

Though persons sometimes give up all property rights in

goods that are determined to be abandoned for Fourth

Amendment purposes,® ‘“‘[t}he premise that property

interests control the right of the Government to search

and seize has been discredited.’’ Warden v. Hayden, 387

US 294, 304 (1967).* **[T]he Fourth Amendment protects

people, not places. What a person knowingly exposes to

the public, even in his own home or office, is not a

subject of Fourth Amendment protection.”” Katz v.

United States, 389 US 347, 351 (1967); United States v.

Santana, 427 US 38, 42 (1976). Accordingly, *‘the proper

test for abandonment [should be] not whether

* The United States Court of Appeals for the District of Columbia

Circuit could *‘see no reason for treating a person who abandons

property before the search any differently from a third party.”

Parman v. United States, 130 US App DC 188; 399 F2d 559, 565, cert

den, 393 US 858 (1968).

* E.g., United States v. Martin, 386 Fld 213 (CA3, 1967)

(narcotics discarded during chase); Vincent v. United States, 337 F2d

891, 896-897 (CAB, 1964) (same).

* A “‘mere trespass’’ or violation of local property law has never

been sufficient by itself to invoke the protection of the Fourth

Amendment. Hester v. United States, supra; McGuire v. United

States, 273 US 95 (1927); Air Pollution Variance Board v. Western

Alfalfa, 416 US 861 (1974).

all formal property rights have been relinquished, but

whether the complaining party retains a reasonable

expectation of privacy’’ in the premises alleged to have

been abandoned. United States v. Wilson, 472 F2d 901,

902 (CA9, 1972), cert den, 414 US 868 (1973). We

contend that one can abandon any interest protected by

the Fourth Amendment without at the same time giving

up all property rights in the items seized or the area

searched.

It is reasonable to assume that arson for profit will

always involve facts similar to those of the instant case.

The arsonist has complete control over the timing of the

fire, and can be presumed to have removed personal

items beforehand. Anything valuable will have been

removed, save for whatever might be judged necessary to

lend authenticity to an insurance claim. In short, besides

‘literally [having attempted to sell] his building back to

the insurance company because there is nobody else who

will buy it,’’> the arsonist has left his building precisely

as he knows it will be found by an invading army of

firemen, police, fire investigators (whether with or

without a warrant), insurance adjustors, vandals, looters,

and children attracted to vacant buildings, all of whom

arrive at what should be regarded as the arsonist’s

implicit invitation.

We do not contend that arsonists therefore are so

guilty that they are not entitled to basic constitutional

rights intended for the protection of the guilty as well as

the innocent. In all other searches not involving

*’ The words are attributed to New York City Deputy Chief Fire

Marshal John Barracato in Time, Vol. 110, No. 18 (October 31, 1977),

p. 22.

12

abandonment, the subject's sanctity or right of privacy in

his home, business, car, person, or effects has been

invaded to some degree, and that right is wholly

independent of any underlying criminal activity in which

he may be engaged or of any evidence of criminal activity

which he may possess. Our point is rather that arson for

profit is unique in that the nature of the crime speaks

directly to the arsonist’s expectation of privacy in his

burned premises. It says that he has none whatsoever.

We contend that this fact, standing alone, is sufficient

to justify the searches in this case, as well as in every

criminal case involving arson for profit. Notwithstanding

that investigators may not know beforehand whether

a fire was deliberately set by the owner or lessee

of the premises and that they may have time to get a

search warrant (whether administrative or criminal

investigative), the fact remains that no constitutional right

will have been violated by such a search. The threshhold

question of any search and seizure case, before a

decision on the merits becomes necessary, is whether the

defendant has standing to raise the issue, because ‘‘it is

entirely proper to require of one who seeks to challenge

the legality of a search as the basis for suppressing

relevant evidence that he allege, and if the allegation be

disputed that he establish, that he, himself, was the

victim of an invasion of privacy.’ Jones v. United

States, 362 US 257, 261 (1960).° The case is at least as

strong for not allowing one who has abandoned his

* “The deterrent purpose of the exclusionary rule necessarily

assumes that the police have engaged in wilful, or at the very least

negligent, conduct which has deprived the defendant of some right.”

Michigan v. Tucker, 417 US 433, 447 (1974) (emphasis added).

—_—-

:

—__-

13

property or premises to benefit from a suppression of

items seized from those premises. By requiring a showing

of standing, evidence can be admitted notwithstanding

that it may have been seized in violation of a

constitutional right, albeit somebody else's. Brown v.

United States, supra. Allowing Respondents to benefit

from the suppression of evidence in this case would in

effect extend the Fourth Amendment exclusionary rule to

cases in which nobody's rights were violated, solely

because fire and police officials’ actions might have

invaded someone's privacy under similar but hypothetical

circumstances. If the decision of the court below is to

stand, it should do so to protect constitutional principles

that would otherwise go unprotected, or to protect people

who are likely to be aggrieved by post-fire searches and

who cannot readily vindicate the rights that are thereby

violated .

B. VICTIMS OF ACCIDENTAL FIRES OR OF MALI-

CIOUS ARSON ARE IN NO NEED OF PROTECTION

FROM POST-FIRE SEARCHES, AND WILL RE-

CEIVE NONE FROM ADMINISTRATIVE SEARCH

WARRANTS.

Once a fire has been extinguished, fire investigators are

faced with two possibilities: (1) The owner or proprietor

burned the premises himself, probably to collect under an

insurance policy, >r (2) the fire occurred accidentally or

was maliciously set. If the former, no investigation of the

premises will intrude upon a constitutionally protected

area for the reasons set forth supra, Part 1.A. If the

latter, the police are dealing with members of the public

as Victims, not as criminals or suspects, with everything

that implies.

14

It implies that firemen and police arrive in a benevolent

role and, after extinguishing the fire, investigate to find

the cause or origin of that fire to further important public

and private interests. If the fire is a malicious arson, it is

reasonable to conclude that the victims, whether or not

they are present during the post-fire search, would

concur in the police and fire department's desire to

process the crime scene, to gather evidence, and to

apprehend and prosecute the perpetrators.’

If the fire is accidental, the actions of fire investigators

after the fire is extinguished are fairly predictable. Once

’ While uncooperative victims are not unknown to law

enforcement, their recalcitrance usually shows when it is time to

testify, after they have experienced, or have had an opportunity to

reflect upon, the hazards and inconvenience of being witnesses. Even

these victims usually are most adamant, immediately after the crime

has occurred, about apprehending and punishing the perpetrators.

We do not contend that a warrantless search and forcible entry over

the objections of the occupant would be permissible, Colonnade

Catering Corp v. United States, 997 US 72 (1970), or that warrantless

searches are not subject to the Fourth Amendment requirement of

reasonableness. United States v. Edwards, 415 US 800, 808 n. 9

(1974). We concede that, if one affirmatively asserts his property

rights as a bar to an inspection of his burmed-out premises, a warrant

should be obtained.

1S

the fire is out,* they will observe the apparent focal point

of the blaze to determine its source, and will examine

that area for clues as to how the fire started. They will

inspect any gas, fuel oil, or electrical lines and fixtures in

the area, and if pipes or vents lead somewhere else (e.g..

a vent leading to a furnace in the basement) they will

extend their investigation to any area of a possible

malfunction. Even when a mixture of curiosity and

suspicion leads an investigator to gather evidence with a

view toward possible prosecution, his motivation is not

likely to control the scope and relative intrusiveness of

* While firemen must do some “‘investigating’’ while they are

fighting a fire simply to locate its source and eliminate its cause (and

the potential cause of a recurring fire), the decision below . requinng

an administrative search warrant, puts a premium on as thorough an

investigation as is possible during the ‘exigent circumstances” stage

of firefighting. Fire investigators will be encouraged to gather as much

evidence as possible during the last stages of active firefighung. while

there is danger of water and smoke damage to evidence, United States

v. Gargotto, 510 F2d 409 (CA6, 1974), but also while steps and floors

are slipperiest and carry the greatest danger of injury to firemen. That

is also the time when smoke and steam make visibility its worst, with

the attendant dangers of falling ceilings and collapsing floors. See Wal!

Street Journal, Vol. LVI, No. 251 (October 6, 1977), pp. 1. 20.

16

his search for the cause or origin of the fire, which is

lumited by its nature to burnt areas and possible sources

of combustion. Though it will be detailed and focuced in

its technical aspect, it will be narrow and unobtrusive in

its potential for abuse and invasion of privacy.* Insofar as

the contact between citizens and official investigators will

come when the citizens are regarded as victims, not as

suspected criminals, much of the rationale for Fourth

Amendment protection is absent.

The court below would require an administrative

search warrant to protect whatever privacy interest may

remain in burned premises. Yet in requiring

administrative search warrants for area inspections, this

Court relied heavily upon factors which distinguish

Camara and See from the instant case. Where the

homeowner or occupant may have no way of knowing

the purpose or lawfulness of a routine building, fire, or

health code inspection, the need to search for the cause

or origin of an actual fire is obvious to anyone. There is

no need to search for code violations at any particular

time, whereas the timing of a post-fire inspection, after

smoke and steam have dissipated but at the first

* This generalization is not meant to be absolute. If investigators

are suspicious of arson for profit. they will be interested in the type of

goods. clothing. and furnishings remaining on the premises. Such a

search could extend into constitutionally protected areas of privacy.

such as closets. but those areas are constitutionally protected only if

the investigator's suspicions turn out to be unfounded. This possibility

is remote though real, but Petitionc r contends that, if the occupants of

the home are not present, the investigtors will look there if they are

cunous enough, with or without a warrant, and regardless of whether

such an imspection is within the scope of the warrant. If the occupants

are present, they will consent to, acquiesce in, or object to the search,

and any search and seizure question will likely turn upon their

reaction to that search.

17

opportunity for a thorough daylight visual examination of

the scene, is an important element of the need to search.

The general condition of the area, the passage of time

since the last inspection, and the type of building

involved are all irrelevant to post-disaster investigations.

The *‘condition of the particular dwelling’’ or structure is

important for the fact thai a fire has occurred, and this

alone should be sufficient to justify issuance of an

administrative search warrant. But the fact of a fire is so

readily ascertainable that there seems to be little need for

individualized review. The judgment or discretion of

anyone, much less of a disinterested magistrate, is

unnecessary to determine its occurrence.'®

While Camara and See dealt with the sanctity of

occupied homes and the private portions of operational

businesses, this case deals with permanently or

temporarily uninhabitable premises which already have

been disastrously disrupted and lawfully invaded to such

a degree that any remaining expectation of privacy is

likely to be negligible.'' To the extent that it exists, it is

not likely to be intruded upon by inspections of gas, fuel

oil, or electrical systems, or of burnt areas of the home

'* There is no realistic possibility that police or fire officials would

fabricate a story of a fire that never occurred, and the credibility of

the affiant will not be at issue in any meaningful sense.

'' Because of these extensive contacts, post-fire searches seem

akin to those in United States v. Biswell , 406 US 311 (1972), and Cady

v. Dombrowski, 413 US 433 (1973), wherein the warrantless searches

were justified at least in part by the fact that federally licensed

firearms dealers (Biswell) and motor vehicles (Cady v. Dombrowski)

already had such extensive legitimate contacts with law enforcement

personne! that there was a reduced expectation of privacy in the

or business. Fire insurance policies often contain a clause

requiring the insured to allow inspection of the premises

by an agent of the insurance company,'*? as did

Respondent Tyler's contracts (D. Ex. P & Q), indicating

further a diminished prospect of privacy in burned

premises. Finally, the frequency of state statutes allowing

warrantless searches for the cause or origin of fires'*

suggests that such searches are widely regarded as

reasonable.

'* E.g., Ariz Rev Stat 20-1503; Cal Code, Ins §2071; Conn Gen

Stat Ann, $38-98; Ga Code Ann §56-3201; Haw Rev Stat §431-420; Ida

Code §41-2401; lowa Code Ann §515.138; La Stat Ann 22:691; Mich

Comp Laws, 500.2832; Neb Rev Stat §44-501; NH Rev Stat Ann

407:22; NJ Stat Ann 17:36 - 5.20; NM Stat Ann 58-810; NY Consol

Laws, Ins Law §168; NC Gen Stat §58-176; ND Cen Code 26-03-40;

Okla Stat Ann 36 §4803; Pa Stat Ann, 40 §636; RI Gen Laws 27-5-3;

Va Code Ann §38.1-366; WV Code Ann 33-17-2; Wisc Stat Ann 203.01

'® Ala Code, 55 §34; Ark Stat Ann, 82-817; Cal Code, H & S,

13107, 13109; Colo Rev Stat 32-5-341; Conn Gen Stat Ann 29-57; Del

Code 16, §6607 (f); Ga Code Ann, 92A-723; Haw Rev Stat, §132-5; Il!

Rev Stat, 127% %&6; lowa Code Ann, 100.2, 100.10, 100.12; Kan Stat

Ann, 31-137; Ky Rev Stat 227.240; La Stat Ann 40:1566; Maine Rev

Stat Ann 25 §2394; Md Code Ann, 38A §8 (f); Mass Gen Laws Ann

148 §2; Mich Comp Laws, §29.6; Minn Stat Ann, 299F.04, 299F.08;

Miss Code Ann §45-11-1; Mont Rev Code §§82-1209, 82-1217; Neb

Rev Stat §§81-506, 81-511; NM Stat Ann §4-16-8; NC Gen Stat §69-1;

Oh Rev Code, $3737.08; Okla Stat Ann 74.314; Ore Rev Stat,

476.0701); Pa Stat Ann, 53 §16598; RI Gen Laws §23-28.2-10; SC

Code §37-84; SD Law 34-32-5; Vt Stat Ann T20 §§2861, 2863; Va

Code, 27-56; 27-58; Wash Rev Code Ann $48.48.030; WV Code Ann

§29-3-12; Wisc Stat Ann §165.55 (a); Wyo Stat Ann §§35-422, 35-425.

19

Only Michigan and Indiana'* require a search warrant

for an investigation of fire-damaged premises. Other

state'® and federal'® courts have permitted warrantless

searches for the source of a fire, though the decisions

sometimes strain to uphold the search as pursuant to an

exigent circumstance. Since an arsonist will never suffer

an intrusion into a constitutionally protected area by a

search of fire-damaged premises, and since the possibility

that victims will resent such an inspection or will thereby

suffer an invasion of what little is left of their privacy in

such premises is very slight, this Court should hold that

such warrantless searches are permissible.

'* State v. Buxton, 238 Ind 93; 148 NE2d 547 (1958). Though there

is an apparent split of authority in California, cf. Romero v. Superior

Court, 266 Cal App 2d 714; 72 Cal Rptr 430 (1968), with Swan v.

Superior Court, 8 Cal App 3d 392; 87 Cal Rptr 280 (1970), the most

recent case, People v. Saling, 48 Cal App 3d 724; 122 Cal Rptr |,

13-14 (1975), suggests that a warrantless investigation after the fire has

been extinguished is permissible.

'S State v. Cohn, 347 SW2d 691 (Mo, 1961); Bennet vy.

Commonwealth, 212 Va 863; 188 SE2d 215 (1972); Stone v.

Commonwealth, 418 SW2d 646, 652 (Ky App, 1967); State v. Rees.

258 lowa 813; 139 NW2d 406 (1966); State v. Murdock, 160 Mont 95,

SOO P2d 387 (1972); State v. Vader, 114 NJ Super 260; 276 A2d 1S!

(1971); State v. Felger, 19 Or App 39; 526 P2d 611 (1974); People v.

Patrick, 41 1 App 3d 1037; 35S NE2d 224 (1976).

'® United States v. Gargotto, 510 F2d 409 (CA6, 1974); United

States v. Green, 474 F2d 1385 (CAS, 1973); Steigler v. Anderson, 360

F Supp 1286 (D Del, 1973), aff'd, 496 F2d 793 (CA3, 1974); Bailey v.

Michigan , 493 F2d 1218 (CA6, 1974).

20

II.

A WARRANTLESS SEARCH OF FIRE-DAMAGED

PREMISES TO GATHER EVIDENCE OF THE CAUSE

OR ORIGIN OF THE FIRE, CONDUCTED UNDER

CIRCUMSTANCES WHICH INDICATED THAT THE

OCCUPANT HAD NO EXPECTATION OF PRIVACY

IN THOSE PREMISES, WAS CONSTITUTIONALLY

PERMISSIBLE, NOTWITHSTANDING THAT NO EX-

IGENT CIRCUMSTANCES EXISTED, THAT OFFIC-

ERS HAD WITHIN THEIR KNOWLEDGE FACTS

UNQUESTIONABLY SHOWING PROBABLE CAUSE,

AND THAT OFFICERS HAD AMPLE TIME TO GET

A SEARCH WARRANT.

Sergeant Hoffman conducted a search of the

burned-out building on February 16, three and one-half

weeks after the fire and two and one-half weeks after

having examined the premises with Respondent Tyler. At

that time Hoffman seized a piece of fuse, pieces of glass,

and other debris, all of which were admitted at trial over

objection. Since those items could have been seized from

the premises on the morning following the fire, we

contend that if our analysis in Part I, supra, is accepted,

this later search should be regarded merely as a

continuation of a search valid at its inception. If officers

at a later time conduct or continue a warrantless search

which does not exceed the scope of that which they were

allowed to conduct earlier, the passage of time is of no

constitutional significance. United States v. Edwards, 415

US 800 (1974).

21

Whether the investigators failed to get a warrant for

this search because of carelessness, contempt for

constitutional rights, or because they reasoned intuitively

that the premises had been abandoned cannot be

determined from this record. The thought of obtaining a

warrant seems never to have occurred to them. By the

time of the search, Oscar Frisch had already implicated

both Respondents by describing the elaborate

preparations for the burning.'’ There was, of course,

ample time to obtain a warrant, and there were no

exigent circumstances. While the officers should have

obtained a warrant, we contend that they should have

done so for reasons of prudent and careful police work,

not because a warrant was constitutionally required.

The repeated statements by this Court to the effect

that, “‘[E]xcept in certain carefully defined classes of

cases, a search of private property without proper

consent is ‘unreasonable’ unless it has been authorized

by a valid search warrant,’’'* rest upon the implied

premise that one raising the issue can complain of the

violation of one of his constitutional rights. Since we

contend that the record shows beyond a reasonable doubt

that Respondent Tyler burned his own premises, that he

thereby abandoned those premises within the meaning of

'' He first gave his story to Detective Webb on January 31, 1970

(R.265).

** Camara v. Municipal Court, supra, at 528-529, and cases cited

therein.

22

the Fourth Amendment, and that police and fire officials

knew of his culpability at the time of the February 16

search, the only question remaining is whether a

disinterested magistrate should have made a deter-

mination on the question of abandonment before the

search took place.

The Fourth Amendment requires that a neutral

magistrate determine the question of probable cause, of

‘*[w]hen the right of privacy must reasonably yield to the

right of search. . ."’ Johnson v. United States , 333 US 10,

14 (1948). By contrast, it has never been held that a

neutral magistrate need make an _ antecedent

determination of whether a proposed search is likely to

intrude upon a constitutionally protected area,

notwithstanding that such a requirement would provide at

least an increment of protection for those whose premises

were searched after officers had wrongly estimated that

their actions were unobtrusive. In general, the police are

free to conduct any investigation as they see fit, so long

as no individual rights are violated in the process.

Even when there has been ample opportunity to obtain

a warrant, it has never been suggested that a magistrate

first pass upon the question of consent, Zap v. United

States, 328 US 624 (1946), vacated on other grounds, 330

US 800 (1947); Bumper v. North Carolina, 391 US 543

(1968); of whether a car was properly seized pursuant to

forfeiture proceedings, Cooper v. California, 386 US 58

(1967), or was being safeguarded or inventoried pursuant

to standard procedures, Harris v. United States, 390 US

234 (1968); South Dakota v. Opperman, 428 US 364

(1976); of whether a search was conducted in ‘open

23

fields’’ rather than within the curtilage of a structure,

Hester v. United States, supra; Air Pollution Variance

Board v. Western Alfalfa, supra; or, as in the instant

case, of whether the premises searched or the items

seized had been abandoned within the meaning of the

Fourth Amendment, Hester v. United States, supra; Abel

v. United States, 362 US 217 (1960).'*

Because officers had probable cause and ample time to

obtain a warrant, and were faced with no exigency, this

second search closely resembles those in which this

Court has required that a warrant be obtained. Were

the focus in this case to be exclusively upon the

'® The United States Courts of Appeals have repeatedly allowed

the searching officers to determine the question of abandonment.

subject only to subsequent judicial scrutiny, e.g., Rees v. Peyton, 341

F2d 859, 863 (CA4, 1965) (en banc) (hidden suitcase); Friedman v.

United States, 347 F2d 697 (CA8), cert den, 382 US 946 (1965)

(leasehold abandoned); Elledge v. United States, 359 F2d 404 (CA9,

1966) (package); Argo v. United States, 378 F2d 31 (CA9, 1967)

(apartment tenancy); United States v. Cowan, 396 F2d 83, 87 (CA2.

1968) (luggage left at hotel); United States v. Dzialak, 441 F2d 212

(CA2, 1971) (garbage); United States v. Kress, 446 F2d 358 (CA9),

cert den 404 US 947 (1971) (tenancy); United States v. Jackson, 448

F2d 963, 970-971 (CA9, 1971), cert den sub nom Willis v. United

States, 405 US 924 (1972) (motel room); United States v. Wilson,

supra (tenancy); United States v. Brown, 473 F2d 952 (CAS, 1973)

(interior of buried suitcase); United States v. Colbert, 474 F2d 1974

(CAS, 1973) (en banc) (suitcases); United States v. Edwards , 441 F2d

749 (CAS, 1971) (defendant flees automobile during chase); United

States v. Moody, 485 F2d 531 (CA3, 1973) (same), even where the

officers were not aware of facts sufficient to show abandonment at the

time of the search. Feguer v. United States, 02 F2d 214 (CAB), cert

den, 371 US 872 (1962) (tenancy); Parman v. United States, supra

(same). ,

24

officials’ conduct, a close question would be presented.

We contend that the approach should be two-fold, so as

to focus as well upon the presence or absence of the

violation of a constitutional right. Cf. United States v.

Edwards, 415 US 800 (1974). The fact remains that the

record shows a clear abandonment of any interest entitled

to constitutional protection. If this Court is ever to make

an abrupt break with all past decisions, and for the first

time hold that one may benefit from the Fourth

Amendment exclusionary rule without first showing that

he is the victim of a constitutional violation, but rather by

arguing that the rights of others might have been violated

under similer, though abstract and hypothetical

circumstances, ti should do so in a case in which the

hypothetical Fourth Amendment violation is a serious

one. One, in other words, in which the privacy interest

which might be intruded upon is substantial, not slight; in

which the police conduct is egregious and flagrantly

abusive, not relatively innocuous; and in which innocent

property owners are likely to be seriously aggrieved,

rather than one in which resentment or apprehension of a

possible invasion of privacy is likely to be the farthest

thing from their minds. A case involving a post-fire

investigation is not such a case.

THE PROSECUTION SHOULD BE ENTITLED TO A

DECISION ON THE MERITS OF A QUESTION OF

STANDING AT ANY STAGE OF THE CRIMINAL

PROCEEDINGS.

Respondent Tompkins was not on the premises at the

time of the contested searches, was not charged with a

possessory offense, and appears to have had no

25

proprietary or possessory interest in Tyler's action. He

lacks standing to raise the issue of an unconstitutional

search and seizure under this Court's holding in Brown v.

United States, supra.

The prosecution failed to raise this issue in the trial

court and in the Michigan Court of Appeals, and can

offer no good reason for having failed to do so. The

Michigan Supreme Court refused to consider the issue on

the merits, 399 Mich at 571; 250 NW2d at 470-471; Pet. at

19-20, although under Michigan law it has the power to

consider any question not properly raised and preserved

in order to prevent a serious injustice. People ¥. Crittle,

390 Mich 367, 370-371; 212 NW2d 196, 197-198 (1973);

People v. Moore, 391 Mich 426, 431; 216 NW2d 770, 773

(1974). Under these circumstances, this Court has

jurisdiction to decide the substantive issue. Williams v.

Georgia, 349 US 375, 382-389 (1955).

We contended in our petition for certiorari that,

**Respondent Tompkins was not prejudiced in any way

by the prosecution's failure to raise this issue in a timely

manner’ (Pet. 16). That is incorrect because, though he

had to endure the trial and appellate process nonetheless,

had the issue been raised at trial he would have been

entitled to an opportunity to establish his standing at a

hearing. Simmons v. United States, 390 US 377 (1968).

Accordingly, should one or both of the search and

seizure issues in this case be decided in Respondents’

favor, we ask not for a decision on the merits of the

standing issue but rather for a Simmons hearing in the

2® This issue was poorly framed in the petition for certioran, in

that the question answered itself. We believe the present framing of

the issue more clearly reflects the argument actually put forward in

the petition.

26

trial court. Should Respondent Tompkins fail to establish

standing at that hearing, his judgment of conviction

should be reinstated.

Though the prosecution rarely if ever is granted the

procedural latitude allowed defendants in raising federal

questions, this waiver rule should be relaxed when two

factors coincide: (1) a serious miscarriage of justice will

result if the federal question is not decided; and (2) no

federal right of the defendant wil! have been violated.

A finding of no standing would mean, of course, that

Respondent Tompkins’ Fourth Amendment rights have

not been violated. He would be given his right to a

Simmons hearing upon remand.

The public interest requires that those duly convicted,

by a process in which none of their rights have been

violated, remain convicted. Should Respondents’ position

on the search and seizure issues prevail, and should

Tompkins in fact lack standing, the reversal of his

judgment of conviction would entitle him to a retrial

identical in all constitutional respects to his original trial.

This would involve a vast expenditure of judicial

resources, an undeserved second chance at a not guilty

verdict, and a prosecution case likely to have been

weakened by the passage of over seven years. This

injustice can be avoided by allowing the prosecution a

Simmons hearing, with instructions to reinstate the

judgment of conviction should no standing be found.

27

CONCLUSION

WHEREFORE, Petitioner respectfuily requests that

this Honorable Court reverse the judgment of the

Supreme Court of the State of Michigan on the Fourth

Amendment issues presented. If that judgment is upheld,

Petitioner requests in the alternative that a hearing on the

standing issue be ordered, with instructions to reinstate

Respondent Tompkins’ judgment of conviction should no

standing be found.

Respectfully submitted,

L. BROOKS PATTERSON

Prosecuting Attorney

ROBER!) —. WILLIAMS

Chief Appellate Counsel

JEFFREY BUTLER

LAWRENCE J. BUNTING

ROBERT F. DAVISSON

Assistant Appellate Counsel

Dated: November 15, 1977