State v. Moretti, 85-167-C

• Decision Date: 06 March 1987
• Docket Number: No. 85-167-C,85-167-C
• Citation: 521 A.2d 1003
• Parties: STATE v. John A. MORETTI. A.
• Court: Rhode Island Supreme Court

Page 1003

521 A.2d 1003

STATE v. John A. MORETTI.

No. 85-167-C.A.

Supreme Court of Rhode Island.

March 6, 1987.

Arlene Violet, Atty. Gen., Jane M. McSoley/Thomas Dickinson, Sp. Asst. Attys. Gen., for plaintiff.

William F. Reilly, Public Defender, Janice M. Weisfeld/Barbara Hurst, Asst. Public Defenders, for defendant.

OPINION

KELLEHER, Justice.

This tale of a West Warwick fire should serve to remind members of the State Fire Marshall's office as well as municipal firefighters assigned to investigate the cause of a fire that their investigatory efforts may be subject to the constitutional prohibition against unreasonable searches and seizures.

The defendant, John A. Moretti (Moretti), comes before this court on appeal from his conviction by a Providence County Superior Court jury on a charge of first-degree arson. Moretti claims that his conviction was obtained with evidence gathered in violation of the constitutional prohibition against unreasonable searches and seizures, and that the trial judge erred in allowing cross-examination of Moretti as to his prior misdemeanor convictions resulting from guilty pleas that were allegedly entered without benefit of counsel and did not bear upon his propensity for truth and veracity.

At approximately 8 p.m. on March 12, 1984, Moretti called and reported a fire in his apartment at 6 Robert Street in West Warwick. West Warwick firefighters responded and extinguished the blaze. Sometime after 9 p.m. Don A. Centracchio (Centracchio), chief inspector of West Warwick's Fire Prevention Bureau, arrived at the scene after receiving a call from a battalion chief. The chief informed Centracchio of the presence of irregular burn patterns and the strong odor of alcohol on a rug, thereby raising the possibility that the fire was incendiary rather than accidental in origin.

The firefighters had yet to complete their duties when Centracchio entered the premises to investigate the cause and origin of the fire. Still to be completed was an "overhaul" of the fire scene, a standard procedure whereby firefighters search for indications that an extinguished blaze could be rekindled.

After an examination of the premises Centracchio determined that the fire's point of origin was in the living room. He then began the process of "delayering," which is the removal of debris layer by layer to determine the origin of the fire as well as the course taken by the fire as it progressed. Centracchio testified at trial that wherever possible "delayering" is conducted prior to the "overhaul" process because overhauling tends to disturb the layers of debris, making it more difficult to reconstruct the cause and progression of the fire. After examining the debris, Centracchio ruled out the possibility that the fire was accidental in origin. He then seized samples from the living room and sent them to the University of Rhode Island Crime Lab, where tests confirmed his suspicion that the samples contained an unusually high amount of alcohol.

Subsequently, Moretti was indicted and charged with one count of first-degree arson, a violation of G.L.1956 (1981 Reenactment) § 11-4-2, as amended by P.L.1983, ch. 185, § 1. After a jury trial a guilty verdict was returned on September 21, 1984. He was later sentenced to ten years' imprisonment at the Adult Correctional Institutions.

According to Centracchio, upon his arrival at the fire's scene he observed that the fire was basically under control. He remained there until 10 p.m., during which time he conducted an inspection of the interior and exterior of the premises and learned that ordinarily the first floor of the dwelling was occupied by Moretti and that the second was occupied by another individual and his eight-year-old daughter. Entering the first-floor apartment through the living-room door, Centracchio first observed a significant amount of charring, particularly on the floor of the living room. He also noted an overstuffed couch located on a braided rug and he noted charring in this area.

Centracchio told the jury that fire normally burns upward and outward, so when he observed horizontal charring across the living-room-floor surface, he saw this as an indication that a flammable liquid used to spread fire, an accelerant, was present in the area. This belief had additional support because of the existence of fire damage even in those corners of the room's floor that were not level, the normal situation being that the area of the floor burned during a similar blaze absent an accelerant is less extensive. More charring was found in the narrow area between the bottom of the couch and the rug's surface, an area, according to Centracchio, that is usually safe from charring. This condition was a further indication of the use of an accelerant. ¹

During his inspection of Moretti's premises, Centracchio determined that the point of origin of the fire had been the "couch area of the living room," from under and in front of the couch where the rug and floor came together. He took samples from the kitchen linoleum, the couch, the rug, the wooden leg of the couch, and a leather, straw-filled hassock. He forwarded the samples to the university's laboratory and asked that a determination be made as to whether any flammable liquid was present in the materials. In due course, the laboratory furnished a written report to Centracchio indicating that "light volatile hydrocarbons in the classification of alcohols" were present in the rug and hassock. This report was later admitted in full at Moretti's trial during the direct examination of Dennis Hillard, the senior chemist at the laboratory.

Moretti's suppression motion was based upon the seminal United States Supreme Court cases dealing with the warrantless searching of a burned building by fire-inspection personnel, Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), and Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984), a more recent plurality opinion.

Except in special situations, the entry into a home to conduct a search is unreasonable under the Fourth Amendment unless done pursuant to a warrant. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Exigent circumstances, however, often require that a warrantless search be undertaken. ² A fire- damaged building presents such an exigency; therefore, a firefighter does not need a warrant to enter a building to fight a fire. The law presumes that the warrantless entry of a burning building is reasonable and therefore also permits firefighters to seize evidence of arson in plain view as well as investigate the cause and origin of the fire. Michigan v. Tyler, supra. As the Supreme Court held in Tyler, "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." 436 U.S. at 510, 98 S.Ct. at 1950, 56 L.Ed.2d at 499.

The Supreme Court did, however, in Tyler, invalidate subsequent warrantless searches that were clearly detached from the initial exigency and warrantless entry and not merely a continuation of the properly initiated investigation. Id. at 511, 98 S.Ct. at 1951, 56 L.Ed.2d at 499. In Tyler the invalidated searches consisted of searches of the premises that took place a number of weeks after the original searches.

In Michigan v. Clifford, the Supreme Court attempted "to clarify doubt" that existed after the Tyler decision. Clifford, 464 U.S. at 289, 104 S.Ct. at 645, 78 L.Ed.2d at 481. In a plurality opinion, Justice Powell wrote that whether a warrantless and nonconsensual entry onto a fire-damaged premises is constitutional turns on three factors: (1) whether there are legitimate privacy interests in the fire-damaged property that are protected by the Fourth Amendment, (2) whether there are exigent circumstances that justify the governmental intrusion regardless of any reasonable expectation of privacy, and (3) whether the object of the search is to determine the cause of the fire or to gather evidence of criminal activity. Id. at 292, 104 S.Ct. at 646, 78 L.Ed.2d at 483. We must therefore apply these factors to determine whether the warrantless search and seizure conducted in this case passed constitutional muster.

Turning to the first factor, the Supreme Court has recognized "that reasonable privacy expectations may remain in fire-damaged premises." Id. at 292, 104 S.Ct. at 646, 78 L.Ed.2d at 483. The test is objective: Whether "the expectation [is] one that society is prepared to recognize as 'reasonable,' " Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576, 587-88 (1967) (Harlan, J., concurring), and the "expectations will vary with the type of property, the amount of fire damage, the prior and continued use of the premises, and in some cases the owner's efforts to secure it against intruders." Clifford, 464 U.S. at 292, 104 S.Ct. at 646, 78 L.Ed.2d at 483. "If reasonable privacy interests remain in the 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." Id. at 292-93, 104 S.Ct. at 646, 78 L.Ed.2d at 483.

In Clifford the Court found that the Cliffords retained a reasonable expectation of privacy in their fire-damaged residence. Large portions of the Clifford home were undamaged by the fire, and the Cliffords had taken measures to secure the house against invasion, indeed boarding up their burned-out residence. Id. at 296-97, 104 S.Ct. at 648, 78 L.Ed.2d at 486. In the present case, the state accurately points out that Centracchio entered Moretti's home while the exigency, presenting a...