People v. Calhoun

• Decision Date: 14 February 1980
• Citation: 402 N.E.2d 1145,426 N.Y.S.2d 243,49 N.Y.2d 398
• Parties: , 402 N.E.2d 1145 The PEOPLE of the State of New York, Respondent, v. James CALHOUN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 243

426 N.Y.S.2d 243

49 N.Y.2d 398, 402 N.E.2d 1145

The PEOPLE of the State of New York, Respondent, v. James CALHOUN, Appellant.

Court of Appeals of New York.

Feb. 14, 1980.

Judith Preble and William E. Hellerstein, New York City, for appellant

Eugene Gold, Dist. Atty. (Julian L. Kalkstein, Brooklyn, of counsel), for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

In the circumstances of this case, we hold that the warrantless search of the defendant's residential apartment by two fire marshals in the aftermath of a fire whose cause they were intent on discovering did not abuse the proscriptions of either the Fourth Amendment to the Federal Constitution or the comparable protection to be found in section 12 of article I of our State Constitution.

The question arises in the following context:

A jury has convicted defendant, James Calhoun, of arson in the third degree, reckless endangerment in the second degree and assault in the third degree. The charges all stem from an extensive early morning fire that heavily damaged a three-story building, the second floor of which he occupied as living quarters. Having initially been summoned to the scene of the conflagration shortly after 4:30 a. m., the New York City firemen who responded thought they had brought the fire under control by the time they departed the premises at 8:30 a. m. However, because the firefighters were unable to determine how the blaze had started, they immediately asked for the assistance of fire marshals, fire department personnel especially trained to the task of investigating fires of unknown origin. The need for this help was apparent before the original firemen left the scene.

As it happened, however, the marshals did not arrive until about four hours later. At that time, proceeding up what was left of the building's common stairway, their attention was arrested by significant burn marks at a point several steps below the second floor landing. The character of the marks strongly suggested that the fire, at least in part, had started at that point. The marshals further observed that the trail so etched had spread up to and over the second-story landing and through the entranceway of defendant's then deserted apartment, the door to which had been burned away completely. Inspecting the apartment itself, the marshals came upon other areas evincing a pattern and intensity of charring which, in their expert judgment, were telltale traces of a liquid accelerant. Their investigation of the remainder of the structure, a path previously pursued by the firefighters, having eliminated other possible causes for the fire, photographs were then taken of the indicated points of origin.

Denying defendant's motion to suppress the evidence gleaned from the fire marshals' inspection, the Trial Judge rejected the argument that it was the product of an unreasonable and warrantless search and seizure separate and apart from that made by the firefighters and directed, in effect, to the unearthing of evidence of the commission of arson. In essence, the court was of the view that Calhoun had no reasonable expectation of privacy in the burned premises and that, in any event, on the facts here, the fire marshals' entry was part and parcel of the earlier and permissible warrantless response to the fire (90 Misc.2d 88, 393 N.Y.S.2d 529). On this appeal from the order of the Appellate Division which, without opinion, affirmed the judgment of conviction, defendant relies in the main on a renewal of his contention that the proof emanating from the fire marshals should have been excluded. Though we agree with the result arrived at by the courts below, we do so on an analysis considerably at variance with that employed at nisi prius.

We start by reference to the established proposition that the safeguards afforded by the Fourth Amendment and our State Constitution extend beyond searches motivated by reasonable suspicion of criminal behavior (Camara v. Municipal Ct., 387 U.S. 523, 530, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930; Matter of Finn's Liq. Shop v. State Liq. Auth., 24 N.Y.2d 647, 655, 301 N.Y.S.2d 584, 588, 249 N.E.2d 440, 443). Especially pertinent here is the breadth of this constitutional concern for an individual's interest in privacy (People v. Hodge, 44 N.Y.2d 553, 557, 406 N.Y.S.2d 736, 737, 378 N.E.2d 99, 101), which also encompasses arbitrary invasion by government officials who function in the areas of public health and safety (see See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943; Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305).

Nor is this treasured right forfeit simply because one's home has been ravaged by fire. The classic statement that even a " 'ruined tenement' " may be secure against the sovereign (see Miller v. United States, 357 U.S. 301, 307, 78 S.Ct. 1190, 1194, 2 L.Ed.2d 1332) is literally applicable. For, people often continue to live and work in buildings that have sustained fire damage and, even when the ensuing destruction has made that impossible, remaining personal effects may very well invoke continued and respected expectations of privacy. To reinforce this protection, a warrantless intrusion by a government official is presumptively unreasonable, the burden of justifying it devolving upon the People (Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409; People v. Hodge, supra, 44 N.Y.2d, p. 557, 406 N.Y.S.2d p. 737, 378 N.E.2d p. 101).

Without challenging these postulates, the People nevertheless correctly press the point that an exception to this contingent standard is to be found in entries effected to distinguish an ongoing conflagration. Such entries, though almost sui generis because of man's long-recognized dread of unfriendly and uncontrolled fires and the urgent need to snuff out forces that may feed their ruinous course, fall within the embrace of the so-called emergency exception to the warrant requirement. This doctrine sanctions warrantless searches and seizures in circumstances presenting immediate danger to life or property (see People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607; People v. Hodge, supra ), or, on the same general principle, threat of destruction or removal of contraband or other evidence of criminality (see People v. Vaccaro, 39 N.Y.2d 468, 384 N.Y.S.2d 411, 348 N.E.2d 886; People v. Farenga, 42 N.Y.2d 1092, 399 N.Y.S.2d 651, 369 N.E.2d 1184; see, generally, Mascolo, Emergency Doctrine Exception to the Warrant Requirement Under the Fourth Amendment, 22 Buffalo L.Rev. 419, 426; Note, 43 Fordham L.Rev. 571, 581-584).

The obvious rationale for these departures is to be found in the pressures posed by fire or other exigencies which do not allow for the delay that the securing of a warrant would entail. Needless to say, recognition of the reality of such situations does not signal weakening of our constitutional resolve. Rather, it simply refuses to ignore the existence of reflexive reactions, and the fact that, in certain circumstances, even a considered decision may compel alacrity of response. So the law does not deny leeway to official action undertaken in an exigency. Nor does it subject public officials to a standard which, made stricter by hindsight, would uniformly preclude them from all courses of conduct but the least intrusive. Instead, it requires only that public officials act reasonably in light of the particular exigent circumstances "reasonableness" being measured against the general constitutional injunction proscribing warrantless searches.

All this said, as defendant concedes, it would take well-nigh unforeseeable circumstances to raise any dispute over a fireman's incursion to eradicate an existing fire (see, e. g., Steigler v. Anderson, 3 Cir., 496 F.2d 793). The more difficult question, and the one to be faced in this case, is whether it was permissible for the subsequent search,...