State v. Buxton, 29534
| Decision Date | 20 March 1958 |
| Docket Number | No. 29534,29534 |
| Citation | 238 Ind. 93,148 N.E.2d 547 |
| Parties | STATE of Indiana, Appellant, v. Loran O. BUXTON, Appellee. |
| Court | Indiana Supreme Court |
Edwin K. Steers, Atty. Gen., Harry F. McCalla, Pros. Atty., Scottsburg, for the State.
Julian D. Pace, Indianapolis, for Jay L. Foster.
John R. Dollens, Scottsburg, for appellee.
In September, 1955 a restaurant building, owned by appellee, located near the town of Blocher, Indiana, caught fire causing the interior to be badly burned. On September 7, 1955, Howard Boegaholtz, a deputy state fire marshal, and Robert Campbell, a member of the National Board of Fire Underwriters, investigated the fire. The two men arrived at approximately 10 o'clock A.M. and entered through an unlocked door. During the investigation appellee Buxton arrived at the scene. He talked with the men for a few minutes. He neither consented nor objected to the investigation which continued after his departure.
The investigation indicated that the fire had originated in the utility room at a hole in the floor 10 to 12 inches in diameter. Boegaholtz and Campbell cleared the debris from the hole and found no defective wiring or other evidence that the fire was the result of accident, enither did they find evidence which pointed to an incendiary origin. At this point Boegaholtz went to Scottsburg, a distance of approximately eight miles, to call in a state police photographer at Seymour. No attempt was made to obtain a search warrant and none was had any time during the investigation.
Later Boegaholtz, Compbell and state trooper Loy, the photographer, met at the scene. While Loy was taking a picture of the hole he discovered a hot plate at the bottom. Further examination revealed a cord for the hot plate, a pile of torn newspapers and a gunny sack soaked in fuel oil. These materials were seized as evidence.
Upon the strength of this evidence Buxton was arrested and placed on trial for arson. At the trial the state attempted to introduce its Exhibit No. 5, which included the hot plate and its cord, the oil-soaked gunny sack and the torn newspapers. Appellee had previously made a motion to suppress the evidence and objected on the ground that it was obtained in violation of Art. 1, § 11 of the Indiana Constitution, which prohibits unreasonable search and seizure. The court sustained the objection and Buxton was acquitted. The state appeals to this court on a reserved question of law only, claiming that under the Fire Marshal's Act no search warrant was necessary and therefore that the court erred in sustaining the objection of appellee to the admission of the above evidence.
The general question then which this court must determine is whether the evidence so obtained was taken unlawfully in violation of appellee's constitutional rights under Art. 1, § 11, supra, which provides as follows:
'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.'
Incidental to the above major question the following specific questions must be determined. (1) Whereas the Fire Marshal Act provides that the fire marshal or his deputies '* * * may, at all reasonable hours enter an building, property or premises * * * for the purpose of making an inspection or investigation which, under the provisions of this act * * * he or they may deem necessary to be made.' § 20-808, Burns' 1950 Repl. (Acts 1927, ch. 115, § 5, p. 298). Does said provision purport to authorize searches and seizures without a search warrant and the subsequent use of the evidence so obtained in a criminal prosecution for arson against the owner of the property? (2) If so, do this and similar provisions of the Fire Marshal act make the act unconstitutional?
The right against unreasonable search and seizure is a right guaranteed by governments of free peoples as distinguished from the power formerly exercised by English kings and by the dictators of police states today. Since the advent of the writ of assistance issued in England under the statute of 12 Chas. II (1672), allowing the king's messengers to enter any and all places and search and seize papers and evidence of any kind, such infringement upon liberty was and has been continually fought. The early decision of Lord Camden in Entick v. Carrington (1765), 19 Howell's State Trials 1029, held these general writs to be invalid and laid the basis for the Fourth Amendment. Thus the doctrine 'Every man's home is his castle' was founded. 1
Our courts have consistently maintained the position that evidence obtained through unreasonable search and seizure may not be used in evidence in a criminal case. Callender v. State, 1922, 193 Ind. 91, 136 N.E. 10, 138 N.E. 817; Batts v. State, 1924, 194 Ind. 609, 144 N.E. 23. 2
In the more recent case of Dalton v. State, 1952, 230 Ind. 626, 632-633, 105 N.E.2d 509, 512, 31 A.L.R.2d 1071, this court stated:
The problem which we must resolve is that of harmonizing the constitutional right against unreasonable search and seizure with the rights of people collectively to life, liberty, safety and the pursuit of happiness as guaranteed by our state and federal constitutions. Art. 1, § 1 of the Constitution of the State of Indiana, among other things, provides as follows: '* * * that all power is inherent in the People; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and wellbeing. * * *' (Our italics.)
What kind of legislation may be passed for the safety of its people without violating other sections of the constitution? Admittedly the safety of the people is the first law of the land and will prevail as against private rights provided by the constitution. 3 But to be justified, such encroachment upon private rights must be reasonable and necessary.
Admittedly the authority which the fire marshal or his deputies had, if any, to enter said premises and to make inspections and investigations is by virtue of and pursuant to the provisions of what is known as the Fire Marshal law of the State of Indiana. Relevant parts of such legislative enactments deemed to have important bearing on this case are as follows:
'It shall be the duty of the state fire marshal to enforce all laws of the state and the ordinances of the several cities and towns in Indiana, providing for any of the following:
* * *
* * *
'4. The investigation, prosecution and suppression of the crime of arson and other crimes connected with the destruction or attempted destruction of property by fire or explosion, and the crime of swindling or defrauding an underwriter or attempting to do so; and for the investigation of the cause, origin and circumstances of fires.
'It shall be the further duty of the state fire marshal to make, * * * inspections of property and place orders thereon, when needed, for the prevention of fires and fire losses, and to enforce and carry out such orders, * * *.'
'* * * The state fire marshal, his deputies or assistants, upon the complaint of any person or whenever he or they shall deem it necessary, shall inspect all buildings, premises, property, conditions, and things comprehended in this act within their jurisdiction.'
'The state fire marshal or his deputies may, in addition to the investigation made by any of his assistants, at any time investigate as to the origin or circumstances of any fire occurring in this state. * * *
* * *
* * *
'The state fire marshal or his deputies or any of his assistants may at all reasonable hours enter any building, property or premises within his jurisdiction for the purpose of making an inspection or investigation which, under the provisions of this act or any law which may have been or may be from time to time enacted requiring the fire marshal to enforce or carry out, he or they may deem necessary to be made.'
It is urged by the state that investigations as to the cause of fires, authorized by the law, are necessary to the public safety as a means of fire prevention. Furthermore, the state argues that the circumstances surrounding such a situation makes it necessary that such investigations be initiated without a search warrant because, the cause of fire being unknown, there is no probable cause upon which a search warrant could issue. 4
Finally the state contends that it being necessary to initiate such investigations without a search warrant, evidence so obtained as to the cause of such fire, whether it was of accidental or incendiary origin, should be admissible in evidence by the state in any action wherein the cause of such fire is an issue.
The state contends that to hold other wise would, for all practical purposes, be to deny the state the right to prosecute persons for arson in every instance where, at the outset, the cause of a fire is unknown. Upon this issue the state's contention is not well taken. Under the facts before us, it cannot well be maintained that...
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