Com. v. Person

• Decision Date: 07 July 1989
• Citation: 385 Pa.Super. 197,560 A.2d 761
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. William Charles PERSON, Appellee. 1189 PHILA. 1988
• Court: Pennsylvania Superior Court

Page 761

560 A.2d 761

385 Pa.Super. 197

COMMONWEALTH of Pennsylvania, Appellant, v. William Charles PERSON, Appellee.

1189 PHILA. 1988

Superior Court of Pennsylvania.

Argued Oct. 12, 1988.

Filed April 25, 1989.

Reargument Denied July 7, 1989.

Patricia E. Coonahan, Asst. Dist. Atty., Cheltenham, for Com., appellant.

Andrew F. Schneider, Bensalem, for appellee.

Before ROWLEY, WIEAND and BECK, JJ.

WIEAND, Judge:

Where a fire marshall, while seeking to determine the extent of smoke damage caused by a recently extinguished fire, observes in plain view that which he believes to be drugs and drug paraphernalia and thereafter summons a police officer, may the police officer seize the evidence without first obtaining a search warrant? The trial court held that a search warrant was required and suppressed the evidence which had been observed by the fire marshall and seized by the police officer. The trial court also suppressed additional evidence which had been found and seized in a later consensual search, holding that the consent given by the resident of the apartment where the fire had occurred was tainted by the illegality of the original search. The Commonwealth has appealed from the trial court's suppression order. ¹ We reverse.

Edward M. Momorella, the assistant fire marshall of Upper Moreland, responded to a fire call at premises 2009B Jason Drive, Huntingdon Valley, in Montgomery County. He arrived after the fire had been extinguished by firemen. He determined that the fire had originated accidentally in a plastic covered chair, which had been removed from the apartment complex and was smoldering on the lawn. Momorella then entered the apartment to observe where the chair had been situated. He confirmed that the chair had been the source of the fire and examined the interior of the apartment to determine the extent of the damage which had been caused by fire and smoke. He observed that the apartment was ventilating, with windows open, and that only a small amount of soot was on the apartment walls. Upon examining two bedrooms for possible smoke damage, Momorella observed a marble slab, a scale, a plastic bag containing a white, powdery residue, and a bag containing green matter. Upon emerging from the apartment, he told Officer McGowen of the Upper Moreland Police Department, who was outside the apartment, about that which he had observed in the bedroom and said that he would like McGowen to see it. Thereafter, McGowen entered the apartment bedroom, where he observed a bag of marijuana, a triple beam scale, a razor, a mirror and plastic bags. The discovery was reported to Sgt. Levy, who was at the station, and he was summoned to the scene of the fire. Shortly thereafter, the defendant, William C. Person, and his girlfriend returned from a shopping trip and identified themselves as the occupants of the apartment. They were confronted by Sgt. Levy, who told them of the observations made by McGowen and Momorella, said that they wanted to search the apartment further, and that if the occupants didn't consent, a search warrant would be obtained. Person consented to a further search. He also showed police where additional drugs were stored. As a result, police seized from a dresser drawer methamphetamine, marijuana, pills, and drug paraphernalia. Person and his girlfriend were placed under arrest. ²

In reviewing an appeal taken by the Commonwealth from an order suppressing evidence,

we must consider only the evidence of the defendant's witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983). Furthermore, our scope of appellate review is limited primarily to questions of law. See Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986). We are bound by the suppression court's findings of fact if those findings are supported by the record. Id. Factual findings wholly lacking in evidence, however, may be rejected. Id.

Commonwealth v. Stine, 372 Pa.Super. 312, 314, 539 A.2d 454, 455 (1988). See also: Commonwealth v. James, 506 Pa. 526, 532-533, 486 A.2d 376, 379 (1985); Commonwealth v. Hamlin, 503 Pa. 210, 215-216, 469 A.2d 137, 139 (1983).

The United States Supreme Court has twice, within the context of prosecutions for arson, considered the authority of fire department officials to conduct warrantless investigations at the scene of a fire. In Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), the Court said:

A burning building clearly presents an exigency of sufficient proportions to render a warrantless entry "reasonable." Indeed, it would defy reason to suppose that firemen must secure a warrant or consent before entering a burning structure to put out the blaze. And once in a building for this purpose, firefighters may seize evidence of arson that is in plain view. Coolidge v. New Hampshire, 403 U.S. 443, 465-466, 91 S.Ct. 2022, 2037-2038, 29 L.Ed.2d 564 [1971].

....

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 necessary 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. at 509-510, 98 S.Ct. at 1950, 56 L.Ed.2d at 498-499 (footnote omitted). Six years later, in Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984), the Supreme Court limited its holding in Tyler as follows:

Where, however, reasonable expectations of privacy remain in the fire-damaged property, additional investigations begun after the fire has been extinguished and fire and police officials have left the scene, generally must be made pursuant to a warrant or the identification of some new exigency.

The aftermath of a fire often presents exigencies that will not tolerate the delay necessary to obtain a warrant or to secure the owner's consent to inspect fire-damaged premises. Because determining the cause and origin of a fire serves a compelling public interest, the warrant requirement does not apply in such cases.

....

The object of the search is important even if exigent circumstances exist. 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.

Id. at 293-295, 104 S.Ct. at 647, 78 L.Ed.2d at 484-485 (1984) (footnotes omitted).

In Commonwealth v. Smith, 511 Pa. 36, 511 A.2d 796 (1986), cert. denied, 479 U.S. 1006, 107 S.Ct. 643, 93 L.Ed.2d 700 (1986), the Supreme Court of Pennsylvania, also in the context of an arson prosecution, was called upon to interpret the Tyler and Clifford decisions. In doing so, the Court said:

Reading Tyler and Clifford together, certain principles regarding the Fourth Amendment and investigations of the causes and origins of fire 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 fighting the fire, fire officials are also immediately charged with determining the cause and origin of the fire. The purposes of the investigation into the cause and origin of the fire may properly include prevention of the rekindling of the fire, and prevention of the destruction of evidence, either accidentally or intentionally. When the search is conducted for one of these purposes, no search warrant is necessary, even if consent has not been granted, but only if the search is a continuation of an initial entry. If the nonconsenting, warrantless entry 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 possible. 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.

Commonwealth v. Smith, supra at 45-46, 511 A.2d at 800-801.

In the instant case, the purpose of the assistant fire marshall's search was not to uncover evidence of criminal activity but to determine the cause of the fire and to determine the extent of the damage which had been caused by the fire. In carrying out his examination, the fire marshall determined that the source of the fire, indeed, had been the chair which had been removed from the living room. He then proceeded to check the bedrooms for smoke damage. It was during the check of the second bedroom that the drugs and paraphernalia were observed in plain view. The suppression court, relying on Commonwealth v. Smith, supra, concluded that "in Pennsylvania a fire marshall is allowed to seize...