Arson Evidence Restriction Eased By Latest Supreme Court Decision

Arson Evidence Restriction Eased By Latest Supreme Court Decision

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A fire in a small town in Michigan led to a recent decision of the United States Supreme Court that could have farreaching influence on the gathering of evidence in arson cases. This decision appears to he a departure from traditional beliefs on search and seizure because it allows the introduction of evidence gathered on a return visit to the premises without a warrant.

The Fourth Amendment to the United States Constitution states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Fourth Amendment requires a warrant for searches and seizures. The so-called “exclusionary rule” makes any evidence taken without a warrant inadmissible at a trial. This has long been interpreted to mean that if a fire department leaves the premises where a fire has occurred, a warrant must be obtained for a return visit to obtain evidence.

Significant case

But now comes the case which provides a specific exemption. Tyler and Tompkins, who conducted a business together, were convicted in Michigan for conspiracy to burn real property. Tyler was also convicted of burning insured property with intent to defraud. The convictions all resulted from a fire which was discovered in Tyler’s furniture store shortly before midnight on Jan. 21, 1970.

The fire chief arrived at Tyler’s at approximately 2 a.m. “as the smoldering embers were being doused.” The discovery of plastic containers of flammable liquid was reported to the chief, and after he entered the building to examine the containers, he summoned a police detective to investigate possible arson.

The detective took several pictures but ceased further investigation because of the smoke and steam. By 4 a.m., the fire was extinguished and the fire fighters left. The fire chief and detective removed the containers and left.

At 8 a.m., the chief and his assistant returned for a cursory examination of the building. About an hour later, the assistant and the detective made another examination and removed pieces of evidence. On Feb. 16, a member of the state police arson section took photographs at the store and made an inspection, which was followed by several other visits, during which additional evidence and information were obtained.¹

Lack of warrant cited

The defendants appealed on the grounds that evidence gained during a warrantless reentry was inadmissible. The Michigan Supreme Court granted the defendants a new trial and the state appealed to the U. S. Supreme Court. The latter court’s decision upholding the granting of the new trial spells out clearly the application of the Fourth Amendment in fire fighting as well as arson investigation.

In the U.S. Supreme Court decision, Associate Justice Potter Stewart held that: (1) an entry to fight a fire requires no warrant, and once in the building, officials may remain there for a reasonable time to investigate the cause of the blaze; (2) thereafter, additional inquiries to investigate the cause of the fire must be made pursuant to the warrant procedures governing administrative searches; and (3) evidence of arson discovered in the course of such investigations is admissible, but if investigating officials find probable cause to believe that arson has occurred and require further access to gather evidence for possible prosecution, they may obtain a warrant only upon traditional showing of probable cause applicable to searches for evidence of crime.²

The State of Michigan had also argued that an official entry into a premises to investigate the cause of a recent fire is outside the protection of the Fourth Amendment because no real individual privacy interests are threatened. The state argued that if the defendant had set the blaze to burn his own property, he had effectively abandoned his right to privacy in his business premises. The U. S. Supreme Court rejected that argument on the basis that the defendants, both business men, had a constitutional right to pursue their business free from unreasonable invasions of privacy. In this particular case, the Michigan Supreme Court stated that the “record does not factually support a conclusion that Tyler had abandoned the fire-damaged premises . . . and consent for the numerous searches were obtained from defendant Tyler.”³

This would still leave open the question of whether somebody could abandon his premises in such a way that he had in fact given up his right of privacy. It is “impossible to justify a warrantless search on the ground of abandonment by arson when that arson has not yet been proved, and a conviction cannot be used ex post facto to validate the introduction of evidence used to secure that same conviction.”⁴

Time is the issue

There was never any doubt that officials could enter a premises to extinguish a fire without having to stop at the local magistrate to obtain prior approval. The important question considered here was at what point a search warrant had to be obtained.

The defendants argued that the Michigan Supreme Court was correct in stating that when the fire department left at 4 a.m., that terminated any right the government might have had to have been there. So, the defendants argued, any reentry at all by the authorities was in fact a search, and without consent, the officials had no right to make a search after 4 a.m. without obtaining a warrant from a neutral magistrate or judge. In other words, “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 reentry four hours later that morning required a warrant.”⁵

The U.S. Supreme Court did not believe under the facts of the case that a warrant was necessary for the subsequent early morning reentries of-Jan. 22. The court ruled that “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 in 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.”⁶

However, because no warrant was obtained for the search of the premises occurring on or after Jan. 22, when there was sufficient time to obtain a warrant and no emergency, the court found any evidence seized on or after that date was inadmissible and violated the Fourth Amendment.

Dissenting opinion

The decision was not unanimous. In dissenting, Associate Justice Byron R. White agreed with the Michigan Supreme Court that the warrantless searches at 8 and 9 a.m. were not continuations of the earlier entry under exigent circumstances.

Therefore, it appears that this particular case hinged on the circumstances which caused the fire chief’s departure and subsequent return, namely that the conditions of smoke, steam and darkness precluded a proper search and warranted postponement for a “reasonable” time. How much time is reasonable and what other circumstances may be grounds for warrantless reentry are not clear.

Nevertheless, several parts of the U.S. Supreme Court opinion deserve close scrutiny by the fire service.

One portion states: “Although the Michigan Supreme Court appears to have accepted this principle, its opinion may be read as holding that the exigency justifying a warrantless entry to fight a fire ends, and the need to get a warrant begins, with the dousing of the last flame.

“We think this view of the fire fighting function is unrealistically narrow, however. 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.

“The circumstances of particular fires and the role of the firemen and investigating officials will vary widely. A fire in a single-family dwelling that clearly is extinguished at some identifiable time presents fewer complexities than those likely to attend a fire that spreads through a large apartment complex or that engulfs numerous buildings. In the latter situations, it may be necessary for officials—pursuing their duty to both extinguish the fire and to ascertain its origin—to remain on the scene for an extended period of time, repeatedly entering or reentering the building or buildings, or portions thereof. In determining what constitutes a reasonable time to investigate, appropriate recognition must be given to the exigencies that confront officials serving under these conditions.”⁷

Reasonable time allowed

In the court’s summation of this case is another statement that the fire service should pay particular attention to:

“In summation, we hold that an entry to fight a fire requires no warrant, and that once in the building, officials may remain there for a reasonable time to investigate the cause of the blaze. Thereafter, additional entries to investigate the cause of the fire must be made pursuant to the warrant procedures governing administrative searches … Evidence of arson discovered in the course of such investigations is admissible at trial, but if the investigating officials find probable cause to believe that arson has occurred and require further access to gather evidence for a possible prosecution, they may obtain a warrant only upon a traditional showing of probable cause applicable to searches for evidence of crime.”⁸

There isn’t much doubt that a warrant should be procured for reentry whenever possible. However, there must be reasonable cause for such reentry in order for a warrant to be issued.

The Fourth Amendment orders a neutral judge or magistrate to determine from facts given to him by authorities whether there is probable cause to issue a warrant. “Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.”⁹ Note that it is not the judgment of the officer but the judgment of the neutral judge or magistrate that is to determine whether there is probable cause to issue a warrant.

Unreasonable searches banned

It is well recognized that “the Fourth Amendment protects people—and not simply areas—against unreasonable searches and seizures.”¹⁰

“A man’s house is his castle, and (is) not to be invaded by any general authority to search and seize his goods and papers … It is not the breaking of doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, liberty and private property. . ,”¹¹ So, electronic surveillance of a person in a phone booth requires a warrant to use any of that conversation as evidence in a court of law.

“The Fourth Amendment applies alike to residences and businesses.

“The business man, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property.”¹² It is likely that all exceptions hinge on the phrase, “the right of people to be secure … against unreasonable searches and seizures” in the Fourth Amendment. The question of reasonableness is the real basis for permitting searches without a warrant.

References:

1. Michigan vs. Tyler 98 S.Ct.1942, at the Syllabus 1944(1978).
2. Ibid.
3. Michigan vs. Tyler Id, at 583,570; 250 N.W.2d, at 476,470.
4. Tyler at 1948.
5. Tyler at 1951.
6. Tyler at 1951.
7. Tyler paragraph 16-19 and S. Ct. Footnote 6.
8. Ibid, at paragraph 22 and 23.
9. Henry vs. U.S., 361 U.S. 98,80 S. Ct. 507 (1959).
10. Katz vs. U.S. 389 U.S. 347,88 S. Ct. 507 (1967).
11. Elkins vs. U.S. 364 U.S. 206,80 S. Ct. 1437 (1960).
12. See vs. Seattle 367 U.S. 541,87 S. Ct. 1737 (1967).