Com. v. Jung

• Decision Date: 26 June 1995
• Citation: 651 N.E.2d 1211,420 Mass. 675
• Parties: COMMONWEALTH v. George JUNG. (and nine companion cases 1 ). Bristol
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1211

651 N.E.2d 1211

420 Mass. 675

COMMONWEALTH v. George JUNG. (and nine companion cases ¹).

Supreme Judicial Court of Massachusetts,

Bristol.

Submitted March 8, 1995.

Decided June 26, 1995.

Christopher Markey, Asst. Dist. Atty. (Elspeth Cypher, Asst. Dist. Atty., with him), for the Commonwealth.

J. Drew Segadelli, Falmouth, for Wendy L. Degregorio.

Orlando F. de Abreu, Taunton (David O. de Abreu, with him), for George Jung.

Before LIACOS, C.J., and WILKINS, ABRAMS and GREANEY, JJ.

GREANEY, Justice.

The defendants, George Jung and Wendy L. Degregorio, were indicted on charges of burning a dwelling, in violation of G.L. c. 266, § 1 (1992 ed.); burning a dwelling with intent to defraud, in violation of G.L. c. 266, § 10 (1992 ed.); filing false insurance claims, in violation of G.L. c. 266, § 111A (1992 ed.); conspiracy to burn a dwelling, in violation of G.L. c. 274, § 7 (1992 ed.); and conspiracy to burn a dwelling with intent to defraud, also in violation of G.L. c. 266, § 1 (1992 ed.). The defendants filed a motion to suppress evidence obtained in inspections of their fire-damaged home by fire, police, and insurance investigators and personnel, and statements made by them to the police. In support of the motion, they argued that the inspections were improper in the absence of valid administrative and criminal search warrants, and that the statements were obtained in violation of their rights against self-incrimination. A judge in the Superior Court conducted an evidentiary hearing on the motion and entered a memorandum of decision in which he allowed the defendants' motion in part and denied it in part. A single justice of this court allowed applications by the Commonwealth and the defendants to pursue interlocutory appeals. See Mass.R.Crim.P. 15(b)(2), as amended, 397 Mass. 1226 (1986). We affirm the order of the judge in part and reverse it in part.

We summarize the relevant background based on the judge's findings of fact. On the night of May 25, 1991, a fire was reported at a single-family, two-story home in Seekonk owned by the defendants and occupied by them as their residence. The Seekonk fire department arrived on the scene at 11:23 P.M. and brought the fire under control by 2 A.M. on May 26. The fire was extinguished, and the fire apparatus recalled at 4:56 A.M. Overhaul operations, which included securing the premises, preserving salvageable property, and preventing rekindling of the fire began at that time and continued throughout the morning.

Seekonk Fire Chief David Viera arrived on the scene in the early morning hours and remained at least until late morning. At some point in the early morning, Viera called Attleboro Fire Chief Ronald M. Churchill and the State fire marshal's office for assistance in investigating the fire. Churchill arrived at 8 A.M., and State Trooper Frank Hummel of the State fire marshal's office arrived shortly thereafter. Viera also called Detective Russell L. Brennan of the Seekonk police department to assist in the investigation and to take photographs.

At 8:20 A.M., the four men entered the defendants' home without obtaining their consent or a warrant. During this inspection (first search), the investigators determined that the fire had originated in the basement, which (the judge found) was then submerged under four feet of water. They also observed that there were no pictures on the walls of the home, despite the presence of picture hooks. By 10:50 A.M., Churchill formed the opinion that the fire was "probably set," and the investigators left the home. Churchill then informed the others that an administrative warrant should be obtained while the water was pumped from the basement. He provided Chief Viera with a form affidavit and warrant application, and Viera authorized Detective Brennan to obtain the warrant. An administrative fire inspection warrant was issued by a clerk-magistrate in the Taunton District Court later that day pursuant to the affidavit and application filed by Brennan. ²

On May 27, the defendants arrived at the fire scene where they were met by Detective Brennan. Brennan arranged an interview with the defendants to be held at police headquarters in Seekonk on May 29. Brennan did not obtain the defendants' consent to search their home, but he did inform them that an administrative warrant had been obtained.

On May 28, after the water had been drained from the basement, Churchill, accompanied by Hummel, Brennan, and Viera, investigated the home for a second time (second search). In addition, the fire department arranged for a local technician to examine the oil burner. The technician found the oil burner to be in working condition and concluded that it had not caused the fire. The water heater was also excluded as the fire's origin by Churchill, who had determined that the fire began in two separate locations in the basement and had burned simultaneously in the two locations during its early stages. Churchill also found evidence of a deliberate arrangement of fuels designed to implicate the oil burner or water heater as the point of the fire's origin. Churchill concluded that the fire was incendiary in origin and that it had no possible accidental source.

The four investigators also noted that support beams had been removed from the basement, observed once again that pictures were not on the walls despite the presence of picture hooks, and observed that personal items and "knickknacks" one would ordinarily expect to find in a home were not present. It was also noted that the skylights had been left open and that this ventilation had accelerated the fire. The doors and windows to the house had been locked prior to the fire and there was no sign of a break-in. The home was subsequently ordered condemned and boarded.

Detective Brennan interrogated the defendants on the morning of May 29. At the time, he was aware that investigators had concluded that the fire was the result of arson and that doors and windows had been secured when the firemen arrived. The defendants had previously told Brennan that they were away for the weekend in Pennsylvania. Brennan also knew at the time of the interrogation that fire insurance coverage on the house had recently been increased from $95,000 to $286,000.

Brennan interviewed the defendants separately. At some point during his interview, Brennan advised Jung of his Miranda rights. He then questioned Jung about the support beams, eliciting various responses. Jung became agitated and ended the interview. Brennan never advised Degregorio of her Miranda rights during the course of her interview. Although neither defendant admitted to any criminal conduct, their statements were inconsistent on certain important points on which both were questioned. ³

While Brennan was conducting these interviews on May 29, Vincent Calenda, a private investigator, was conducting an investigation on behalf of Cambridge Mutual Insurance Company, the carrier from whom the defendants had purchased insurance. Viera allowed Calenda access to the home and, because the second-floor staircase had partially collapsed, allowed him to use a Seekonk fire department ladder truck to conduct an aerial inspection of the second floor (third search). Calenda's report detailed the evidence discovered the previous day by Churchill as well as new evidence.

Brennan returned the administrative warrant on May 31, indicating that he had complied with the warrant requirements during the investigations of May 28 and 29. He made no mention of Calenda's investigation. Officials never obtained a criminal search warrant.

Based on these findings, the judge ruled that the first search (conducted on the morning of May 26) violated the Fourth Amendment to the United States Constitution because the defendants maintained a reasonable privacy interest in their property and no exigency existed justifying the warrantless entry. The judge upheld the second search (conducted on May 28) on the basis that the administrative warrant, although issued on a preprinted form, met all of the requirements set forth by the United States Supreme Court in Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984). The judge concluded that a criminal search warrant had not been necessary because the search had not turned from an investigation of the cause and origin of the fire into a criminal arson investigation. The judge ruled that evidence obtained by the insurance investigator in the third search could not be used against the defendants because the investigator had substantial assistance from government officials who were, at that point, conducting a criminal investigation. Lastly, the judge concluded that the interrogations of the defendants did not violate their rights against self-incrimination, protected by the Fifth Amendment to the United States Constitution, because the interrogations had not been custodial in nature.

In reviewing a motion to suppress, we accept the motion judge's findings of fact absent clear error. Commonwealth v. Costa, 414 Mass. 618, 626, 609 N.E.2d 465 (1993). "[T]he ultimate legal conclusion to be drawn from the fact[s] developed at the hearing is a matter for our review, particularly where the conclusion is of constitutional dimension." Commonwealth v. Accaputo, 380 Mass. 435, 448 n. 18, 404 N.E.2d 1204 (1980). Commonwealth v. Thinh Van Cao, 419 Mass. 383, 384, 644 N.E.2d 1294 (1995). We are concerned only with issues of Federal constitutional law, the defendants having raised no issue below under the Declaration of Rights to the Massachusetts Constitution. See Commonwealth v. Garcia, 409 Mass. 675, 678-679, 569 N.E.2d 385 (1991).

1. First search. The judge concluded that the first search, for which officials had neither a warrant nor the consent of the defendants, constituted an illegal search under the Fourth Amendment. The Commonwealth argues that the judge erred in suppressing evidence gathered during...