Commonwealth v. Smith
| Decision Date | 10 August 1984 |
| Citation | 331 Pa.Super. 66,479 A.2d 1081 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Walter T. SMITH, Appellee. |
| Court | Pennsylvania Superior Court |
Argued March 15, 1984.
Laurence M. Kelly, Dist. Atty., Montrose, for Commonwealth, appellant.
Robert A. Mazzoni, Scranton, for appellee.
Before CAVANAUGH, WIEAND and CIRILLO, JJ.
Where darkness, residual heat and dripping water make it difficult if not impossible, to investigate the cause of a residential fire on the same night that the fire has been extinguished may a fire marshall return the following morning and continue his investigation without a search warrant? The trial court held that he could not reenter the fire-damaged building without a warrant and, therefore, suppressed evidence obtained by the fire marshall which tended to show that the fire had been of incendiary origin. The Commonwealth appealed. We reverse.
On the evening of June 28, 1982, a residence owned by Walter T. Smith and Cherry Lee Smith, husband and wife, in Great Bend, Susquehanna County, was found afire. Raymond Cobb, a member of the Pennsylvania State Police who also served as fire marshall in Susquehanna County, arrived at the fire while the home was still ablaze. He was told by the local fire chief that the origin of the fire seemed suspicious and was requested to determine the cause of the fire. After the fire had been extinguished at or about 9:30 p.m., Cobb found that he was unable to enter the premises and conduct an investigation because of residual heat and dripping water. Cobb told Mrs. Smith that he would come back to make his investigation at a later time. He returned the following morning at or about 9:00 a.m., when he entered to investigate and determine the cause of the fire. He did not then have a search warrant; he also did not have the owner's consent to enter the fire-damaged building. Nevertheless, he removed floor samples and took photographs of the interior and exterior of the building. The owner of the building, Walter T. Smith, was subsequently arrested and charged with arson. He moved to suppress evidence on grounds that Cobb had obtained the same as a result of an unlawful search. The trial court agreed, and suppressed all evidence thus obtained except photographs of the exterior of the building.
Initially, we observe that the Commonwealth has a clear right of appeal from the suppression order. The record supports its contention that the suppression of the evidence obtained by Cobb will substantially handicap it in its prosecution of Smith for arson. See: Commonwealth v. Markman, --- Pa.Super. ---, --- n. 1, 467 A.2d 336, 338 n. 1 (1983), citing Commonwealth v. Lapia, 311 Pa.Super. 264, 277, 457 A.2d 877, 884 (1983).
"The primary aim of the Fourth Amendment is to protect people from unreasonable intrusions of legitimate expectations of privacy." Commonwealth v. Tann, 500 Pa. 593, 598-599, 459 A.2d 322, 325 (1983). Accord: Commonwealth v. Flewellen, 475 Pa. 442, 446, 380 A.2d 1217, 1219 (1977); Commonwealth v. Vernille, 275 Pa.Super. 263, 272, 418 A.2d 713, 718 (1980). See: Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). As a general rule, with but few exceptions, warrantless searches are unreasonable. See: Payton v. New York, 445 U.S. 573, 586-587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639, 651 (1980); Commonwealth v. Silo, 480 Pa. 15, 20, 389 A.2d 62, 65 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94 (1979); Commonwealth v. Hartford, 313 Pa.Super. 213, ---, 459 A.2d 815, 817 (1983); Commonwealth v. Vernille, supra 275 Pa.Super. at 272, 418 A.2d at 718. See also: Commonwealth v. Westerfer, 294 Pa.Super. 459, 462, 440 A.2d 556, 558 (1982). If reasonable privacy expectations remain in fire-damaged property, "the warrant requirement applies, and any official entry must be made pursuant to a warrant in the absence of consent or exigent circumstances." Michigan v. Clifford, 464 U.S. ----, ----, 104 S.Ct. 641, 646, 78 L.Ed.2d 477, 483 (1984). [1] Where the owner of the building consents to an official entry to investigate the cause of the fire, there is no longer any need for a search warrant, for reasonable expectations of privacy, if any, have been waived. Commonwealth v. Markman, supra. "A burning building of course creates an exigency that justifies a warrantless entry by fire officials to fight the blaze." Michigan v. Clifford, supra at ----, 104 S.Ct. at 646, 78 L.Ed.2d at 483. Once in the building, officials need no warrant to remain for a "reasonable time to investigate the cause of a blaze after it has been extinguished." Michigan v. Tyler, 436 U.S. 499, 510, 98 S.Ct. 1942, 1950, 56 L.Ed.2d 486, 499 (1978) (footnote omitted). [2]
"The constitutionality of warrantless and nonconsensual entries onto fire-damaged premises ... normally turns on several factors: whether there are legitimate 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 expectations of privacy; and, whether the object of the search is to determine the cause of the fire or to gather evidence of criminal activity." Michigan v. Clifford, supra 464 U.S. at ----, 104 S.Ct. at 646, 78 L.Ed.2d at 483. The validity of warrantless, nonconsensual entries by law enforcement officials--including fire personnel--has uniformly been upheld "when there is compelling need for official action and no time to secure a warrant." Michigan v. Tyler, supra 436 U.S. at 509, 98 S.Ct. at 1949, 56 L.Ed.2d at 498 (citing cases). See: United States v. Velasquez, 626 F.2d 314 (3rd Cir.1980); United States v. Moskow, 588 F.2d 882 (3rd Cir.1978); Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978); Commonwealth v. Hinkson, 315 Pa.Super. 23, 461 A.2d 616 (1983); Commonwealth v. Henkel, 306 Pa.Super. 346, 452 A.2d 759 (1982).
In Michigan v. Tyler, supra, the defendants argued that the exigency created by the blaze had terminated upon the suppression of the fire. Under this theory, a warrant would have been necessary for all searches occurring after containment of the fire. The Supreme Court of the United States disagreed. It found that the defendants' view of the fire-fighting function was "unrealistically narrow." The Court said:
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.
The respondents argue, however, that the Michigan Supreme Court was correct in holding that the departure by the fire officials from Tyler's Auction at 4 a.m. ended any license they might have had to conduct a warrantless search. Hence, they say that even if the firemen might have been entitled to remain in the building without a warrant to investigate the cause of the fire, their departure and re-entry four hours later that morning required a warrant.
On the facts of this case, we do not believe that a warrant was necessary for the early morning re-entries on January 22. As the fire was being extinguished, Chief See and his assistants began their investigation, but visibility was severely hindered by darkness, steam, and smoke. Thus they departed at 4 a.m. and returned shortly after daylight to continue their investigation. Little purpose would have been served by their remaining in the building, except to remove any doubt about the legality of the warrantless search and seizure later that same morning. Under these circumstances, we find that the morning entries were no more than an actual continuation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence.
Id. 436 U.S. at 510-511, 98 S.Ct. at 1950-1951, 56 L.Ed.2d at 498-499 (emphasis added) (footnote omitted).
The narrow issue in the instant case is whether the exigent circumstances existing at the time of the fire continued to exist when Trooper Cobb returned to the structure at 9:00 a.m., after the fire had been extinguished on the prior evening, so as to permit him to enter reasonably without a warrant to determine the cause of the fire. We hold that Cobb's re-entry was a continuation of his prior, necessary entry.
In Tyler, the fire officials had been at the scene of the fire when it was suppressed at or about 4:00 a.m. After entering the building briefly, they had departed and left the building unattended. They returned at or about 8:00 a.m. to make a cursory examination. They left once again and returned in an hour to take samples of the flooring which had not been visible when they were first on the scene because of heat, steam and darkness. The circumstances of the case sub judice are similar. Trooper Cobb testified without contradiction that he had not entered the building after the fire was extinguished because of heat and dripping water. It may also be...
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