250 N.W.2d 467 (Mich. 1977), 18, People v. Tyler

Docket Nº:18.
Citation:250 N.W.2d 467, 399 Mich. 564
Opinion Judge:LEVIN, Justice.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Loren TYLER and Robert Tompkins, Defendants-Appellants.
Attorney:[399 Mich. 568] L. Brooks Patterson, Pros. Atty., Oakland County by Robert C. Williams, Chief Appellate Counsel, Pontiac, Thomas D. Brooks, Law Clerk, for plaintiff-appellee. [399 Mich. 569] Jesse R. Bacalis, Bacalis, Kostecke & Associates, P.C., Detroit, for defendants-appellants.
Case Date:February 14, 1977
Court:Supreme Court of Michigan
 
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Page 467

250 N.W.2d 467 (Mich. 1977)

399 Mich. 564

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Loren TYLER and Robert Tompkins, Defendants-Appellants.

No. 18.

Supreme Court of Michigan.

February 14, 1977

Page 468

[Copyrighted Material Omitted]

Page 469

[399 Mich. 568] L. Brooks Patterson, Pros. Atty., Oakland County by Robert C. Williams, Chief Appellate Counsel, Pontiac, Thomas D. Brooks, Law Clerk, for plaintiff-appellee.

[399 Mich. 569] Jesse R. Bacalis, Bacalis, Kostecke & Associates, P.C., Detroit, for defendants-appellants.

LEVIN, Justice.

Loren Tyler and Robert Tompkins were convicted of conspiracy to burn real property.

Page 470

1 Tyler was also convicted of burning real property 2 and burning insured property with intent to defraud. 3

The fire occurred in premises leased by Tyler where he conducted a retail furniture business. Tompkins was a business associate of Tyler.

Physical evidence, taken by police and fire officials without a search warrant from the premises after the fire was extinguished, was admitted at the trial over objection.

The question is whether the authorities may enter fire-damaged premises without a warrant after the fire is extinguished for the purpose of investigation and, if discovered, collection of evidence of arson.

The Court of Appeals held that the provisions of the Fourth Amendment and the corresponding provisions of this state's constitution, 4 prohibiting 'unreasonable searches and seizures', do not 'apply to the investigation of burned premises to determine whether the fire was the result of arson where some evidence of arson is found during the process of extinguishing the fire.' The court reasoned that 'the investigation of a fire to determine if arson has been committed does not place a person under criminal investigation. It places the cause of the fire under investigation.' 5

We reverse and remand for a new trial.

[399 Mich. 570] The fire broke out shortly before midnight on January 21, 1970. The fire department arrived soon thereafter. Fire Chief See discovered and seized two plastic containers, one partially filled with a flammable liquid, before the firefighters left. Defendants do not challenge the admissibility of that evidence.

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.

By 4 a.m. the fire was extinguished. The premises were thereafter left unattended until 8 a.m., when See returned with an assistant fire chief and together they briefly surveyed the interior of the building.

The officials again returned to the scene of the fire between 9 and 9:30 a.m. and discovered a thin linear burn in the carpet of one room. 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 at the trial admitted over objection.

Four days later, on January 26, a sergeant of the Michigan State Police, Arson Section, took photographs of the interior of the building which were lost in the mail. The sergeant returned with Tyler three days later, on January 29, but no evidence was then obtained. The sergeant returned again without Tyler three weeks later, on February 16, and took more pictures and removed part of a fuse found in the building and several pieces of glass, which were admitted in evidence over objection.

The Court of Appeals found that '(c)onsent for the numerous searches was never obtained from [399 Mich. 571] defendant Tyler'. 6 While Tyler did accompany the State Police sergeant when he visited the premises on January 29, and may not have objected to that inspection, none of the evidence admitted over objection was obtained at that time.

The people contend that Tompkins, who, in contrast with Tyler, did not have a leasehold interest in the burned premises, has no standing to raise the search and seizure issue. 7 The prosecutor did not raise

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this issue in the Court of Appeals, 8 and, therefore, it will not be considered. 9

I

The primacy of the warrant requirement is well established. 10 '(E)xcept in certain carefully defined classes of cases, a search of [399 Mich. 572] private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant.' Camara v. Municipal Court v. City & County of San Francisco, 387 U.S. 523, 528-529, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967).

The proscription of 'unreasonable searches and seizures' and the warrant requirement

'must be read in light of 'the history that gave rise to the words'--a history of 'abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution. * * *.' (United States v. Rabinowitz), 339 U.S. (56), 69, 70 S.Ct. 436, (94 L.Ed. 653 (1950)). The Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence. In the scheme of the Amendment, therefore, the requirement that 'no Warrants shall issue, but upon probable cause,' plays a crucial part. As the Court put it in McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 ((1948)):

"We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. * * * And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the [399 Mich. 573] situation made that course imperative.' Id., at 455--456, 69 S.Ct. at 193.' Chimel v. California, 395 U.S. 752, 761, 89 S.Ct. 2034, 2039, 23 L.Ed.2d 685 (1969). 11

In the development of the probable cause and warrant requirements, the United States Supreme Court has recognized three kinds of searches.

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The first is the regulatory search, in which inspection is a 'crucial part of the regulatory scheme'. '(I)f inspection is to be effective and serve as a credible deterrent, unannounced, even frequent, inspections are essential. In this context, the prerequisite of a warrant could easily frustrate inspection; and if the necessary flexibility as to time, scope, and frequency is to be preserved, the protections afforded by a warrant would be negligible.' United States v. Biswell, 406 U.S. 311, 315, 316, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87 (1972). 12 The Court concluded that 'effective regulation of licensed firearm businesses is impractical without resort to a broad inspection power.' 13

Unannounced prophylactic inspections by fire department officials of theatres, department stores and other places where large crowds gather may be necessary to assure that unblocked exits and adequate fire extinguishers are maintained. In light of the public nature of the premises and the relative unintrusiveness of the inspection, a warrant may not be required.

[399 Mich. 574] A second kind of search is the so-called administrative search. Where an investigation is to determine the cause of a fire (E.g., faulty wiring, malfunctioning furnace, natural gas leak) and to prevent such fires from occurring or recurring, the need for a warrant and the standard of probable cause are governed by Camara, supra.

In Camara, the United States Supreme Court held that a warrant was required for a routine annual inspection for housing code violations, rejecting the argument that 'the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.'

'(W)e cannot agree that the Fourth Amendment interests at stake in these (administrative) inspection cases are merely 'peripheral.' It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior. For instance, even the most law-abiding citizen has a very tangible interest in limiting the circumstances under which the sanctity of his home may be broken by official authority, for the possibility of criminal entry under the guise of official sanction is a serious threat to personal and family security. * * * (I)nspections of the kind we are here considering do in fact jeopardize 'self-protection' interests of the property owner. Like most regulatory laws, fire, health, and housing codes are enforced by criminal processes. In some cities, discovery of a violation by the inspector leads to a criminal complaint. Even in cities where discovery of a violation produces only an administrative compliance order, refusal to comply is a criminal offense, and the fact of compliance is verified by a second inspection, again without a warrant. Finally, as this case demonstrates, refusal to permit an inspection is itself a crime, punishable by fine or even by jail sentence.' Camara, supra, 387 U.S. pp. 530--531, 87 S.Ct. p. 1731.

[399 Mich. 575] In the companion case of See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), the Court applied the Camara analysis in holding that a warrant was...

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