*2 ROWLEY, BECK, Before WIEAND and JJ.
WIEAND, Judge: marshall,
Where a fire seeking while to determine the extent of smoke caused damage by extinguished recently fire, in plain observes view that which he believes to be drugs and drug paraphernalia and thereafter summons a officer, officer seize the evidence without first obtaining trial warrant? The court held that a search required warrant was and suppressed the by had which been observed fire marshall and seized police officer: The suppressed trial court also additional evidence which had found been seized given by search, consent holding consensual later fire had occurred where apartment of the the resident original search. illegality tainted was suppres- court’s from the trial has appealed Commonwealth reverse. sion order.1 We fire marshall Momorella, the assistant M.
Edward 2009B fire call at premises to a Moreland, responded Upper County. in Montgomery Drive, Huntingdon Valley, Jason firemen. extinguished by the fire had been after He arrived in a originated accidentally the fire had He determined removed from the chair, had been which covered plastic Mo- on the lawn. smoldering complex and apartment where the apartment to observe entered morella then chair had He confirmed that the situated. had chair been of the the interior fire and examined of the the source been damage the extent to determine apartment *3 He observed fire and smoke. by caused been open, and ventilating, with windows was apartment walls. apartment on the of soot was a small amount only damage, for smoke possible examining two bedrooms Upon slab, scale, bag a plastic a a marble observed Momorella containing residue, bag and a white, powdery a containing he told apartment, from the emerging Upon matter. green Depart- Police Upper Moreland of the Officer McGowen he about that which ment, apartment, outside the who was he like said that would and the bedroom had observed Thereafter, entered McGowen it. McGowen to see bag marijuana, a bedroom, he where observed apartment The bags. scale, razor, plastic mirror and triple beam who was Sgt. Levy, reported discovery was of the fire. the scene station, he summoned to and Person, defendant, and thereafter, C. William Shortly and identified shopping trip returned from a girlfriend his They were apartment. occupants as the themselves court’s order may only appeal from a trial 1. The Commonwealth suppres- good faith that the suppressing it certifies evidence when handicap prosecution of substantially its will terminate or sion order 537, Dugger, A.2d 382 506 Pa. v. the case. See: Commonwealth case, suppression order will (1985). it is clear that the In the instant prosecution. substantially handicap the Commonwealth’s Sgt. confronted them of by Levy, who told the observations by Momorella, made McGowen and said they wanted to apartment further, search the and that if the occupants consent, didn’t a search warrant be would obtained. Person consented further search. He also showed result, drugs where additional were stored. As a methamphetamine, seized from a dresser drawer marijuana, pills, drug paraphernalia. Person his girlfriend placed were under arrest.2 reviewing appeal taken Commonwealth from evidence,
an order suppressing only we consider must evidence of the defendant’s witnesses and so much the Commonwealth evidence that, whole, in the read context the record as a remains Hamlin, See Commonwealth v. uncontradicted. 503 Pa. 210, (1983). 469 A.2d Furthermore, our scope appellate primarily review is limited to questions of law. White, See Commonwealth Pa.Super. (1986). A.2d 1211 suppression are bound We if findings court’s of fact those findings supported by are Id. Factual the record. findings wholly lacking in evi- Id. dence, however, may rejected. Stine,
Commonwealth v. Pa.Super. 312, 539 A.2d James, See also: Commonwealth v. (1988). 526, 532-533, Commonwealth (1985); Pa. 486 A.2d Hamlin, 503 Pa. A.2d twice, United States Supreme Court has within the prosecutions arson, context of authority considered the *4 of fire department officials to conduct warrantless investi- Michigan Tyler, gations a at the scene of fire. 499, 1942, (1978), U.S. L.Ed.2d the Court said:
A burning building clearly presents of exigency proportions sufficient to render a entry warrantless “rea- Indeed, sonable.” it defy suppose would reason to firemen must secure a warrant or consent before enter- subsequently It belonged 2. all determined that items seized to Person, charges against girlfriend dropped. were And out once ing burning put a structure to the blaze. seize evi firefighters may for this building purpose, v. New Coolidge dence arson is view. 2037- U.S. Hampshire, S.Ct. 29 L.Ed.2d [1971]. extinguishing charged Fire are with only officials fires, determina- finding Prompt with their causes. but prevent to its origin may necessary tion of the fire’s recurrence, continuing dan- through as the detection faulty wiring or a defective furnace. Imme- gers such as preserve to investigation necessary diate also be And, or destruction. evidence from intentional accidental duties, course, complete sooner the officials their subsequent their interference with less will be efforts of the victims. For privacy recovery and the reasons, remain in a these need warrant to officials investigate to the cause of building for a reasonable time if extinguished. it has And the war- a blaze after been put the fire and determine its cause entry rantless out constitutional, seizure warrantless purposes also is inspecting premises while these constitutional. at at L.Ed.2d 498-499
Id.
S.Ct.
(footnote omitted).
later, in
Six
years
Michigan Clifford,
(1984), the
The aftermath not tolerate the to obtain delay necessary will inspect fire-damaged consent to or secure owner’s premises. determining origin Because the cause and of a *5 interest, a compelling public serves the re- quirement does not in such apply cases. object of the search is if important exigent even
circumstances exist. that justify Circumstances a war- rantless the search for cause of a fire may justify gather search to evidence of criminal once activity If, cause has been determined. for example, the adminis- trative search is justified by immediate need to ensure against of rekindling, scope the search no may be broader than reasonably necessary to its A achieve end. gather search to evidence of criminal not in activity pursuant view must be made to a criminal warrant upon traditional of showing probable cause. at
Id. 104 S.Ct. at L.Ed.2d 484-485 (1984) (footnotes omitted). Smith,
In
Commonwealth v.
511 Pa.
Reading Tyler together, and certain principles Clifford regarding investigations Fourth Amendment of and origins causes and of fire are clear. Firemen have right a private enter residence without warrant violating without the Fourth and Fourteenth Amend- Constitution, ments of United States if so done for the purpose extinguishing a fire. performing While task, evidence, firemen seize is in plain view, of the and origin cause the fire. In fighting the fire, immediately officials are also charged with de- termining the origin cause the fire. The purposes of the investigation into origin the cause and the fire may properly prevention include rekindling of the fire, prevention evidence, destruction either accidentally or intentionally. When the search is conduct- is neces- of these search warrant purposes, ed for one *6 if granted, but the only if consent has not been sary, even If the noncon- entry. of an initial search is a continuation begun, must be termi- entry is but senting, warrantless building, of the then nated due to the condition the reentry continued at first instance search be if the search is clearly it is shown possible. Finally, determining origin cause and not for the the purpose fire, obtain of criminal of the but rather to evidence or must either with consent activity, then such search with a search warrant. valid Smith, supra, Commonwealth 511 Pa. at A.2d 800-801. case,
In of the assistant fire purpose the instant the was to uncover criminal marshall’s search evidence fire to determine the cause of the and activity but to damage had been caused determine the extent examination, fire out his by carrying fire. fire, indeed, had marshall determined that the source of the the living from been the chair which had been removed for check smoke proceeded room. He then to the bedrooms damage. It the check of the second bedroom during was drugs paraphernalia plain and were observed on Commonwealth court, suppression relying view. The Smith, supra, “in a fire mar- Pennsylvania concluded that investigat- shall is to while allowed seize evidence arson origin or cause fire ing may supply of the informa- to view’ regarding ‘plain tion evidence [other] determined, however, criminal that “at activity.” The court is no a fire present, authority Pennsylvania there allow marshall seize related criminal non-arson [of] Thus, evidence, it activity.” though even suppressing view, suppression court been observed reasoned as follows: in the instant case the had been re- exigency
Because origin moved and source and had been removed, determined the apart- necessary though ment a fire marshall’s even admin- investigation istrative of the extent of smoke damage illegal from the fire had in “plain uncovered contraband investigation view.” The value of the the fire only for damage smoke was to provide regular material for report prove and not to criminality. Coincidentally, the provided view sufficient information for an affidavit of probable cause to obtain a search warrant either on information received or an affidavit on the police’s request marshall behalf of for a search warrant.
Therefore, when
lawfully present
the fire marshall was
*7
on the
for an
premises
administrative search and survey
of the
non-arson
damage,
smoke
the
source and sole
containing
having
removed,
object
been
fire mar-
shall
to the
he
reported
police
should have
what
saw “in
plain
allowing
without
illegally
view”
to search
and thereafter
requiring the
to obtain a search
warrant on information
from
received
the marshall. This
been
probable,
would have
sufficient
cause for an affida-
obtained,
vit to
a search
obtain
warrant. Once it was
then
thorough
apartment
search of
of “plain
both
“not in
objects
plain
proper.
view”
those
view”
legitimacy
The
would
unquestioned
be then
and consent would not
been an issue.
have
appellate
in
While the
courts
this Commonwealth have
not determined whether
fireman
can seize evidence of
non-arson related crimes
he
which
view
finds
during
legitimate
the performance
duties,
firefighting
other
courts
have considered this issue have refused
to suppress evidence thus seized. See: United States v.
Green,
(5th Cir.1973),
denied,
F.2d
474
1385
414
cert.
U.S.
829,
55,
(1973);
S.Ct.
L.Ed.2d
United States v.
Johnson,
F.Supp.
(D.Del.1981),
rev’d on other
(3d Cir.1982),
denied,
In United States v.
supra,
the United States
suppress drugs
District Court
Delaware refused to
paraphernalia,
papers
as well as various
defen-
bearing the
name,
dant’s
by firefighters
during
which had been found
normal
performance
their
duties
the aftermath of
holding
fire.
warrantless
seizure
such
proper,
the court
as
evidence was
reasoned
follows:
per
A
search is
se
warrantless
unreasonable under
States,
fourth amendment. Katz
v. United
507, 514, 19
govern
L.Ed.2d 576
establishing
challenged
ment bears the burden of
that the
carefully
excep
search fell within one of the
delineated
requirement
tions to
the fourth amend
ment. Coolidge
Hampshire,
v. New
454-
Katz v.
(1971);
Once the functions, any evi- firefighting out their carrying proper plain could seized inadvertently dence saw view they v. Michigan Tyler, a warrant. See 499, 436 U.S. without Coolidge 1942, 1949, (1978); 509, L.Ed.2d 486 Hampshire, v. New 443, 466, 91 S.Ct. The firemen’s of what discovery
29 L.Ed.2d drug paraphernalia drugs to be appeared excep- this clearly floor rear bedroom falls within second tion, nature of the evidence incriminatory because was inadvertent. Cool- discovery apparent their was v. idge Hampshire, supra, New at 91 S.Ct. John- papers 2040. The seizure of various with reasonable under the same son’s name on them was rationale.
Id. at 203-204. a fireman lawfully
It has been held also that after
has
view,
police
he
summon a
observed evidence
obtaining
first
a warrant.
man to seize the evidence without
Green,
Steigler
v.
supra.
See: United
v.
States
also:
Anderson,
denied, cert.
(3d Cir.1974),
F.2d
United States v.
(1974);
United States v. supra 1390. The Supreme Court of Washington, Bell, State v. supra, considered a case which suppression court con- ceded “factually is closest to the instant Bell, case.” In firefighters had been summoned to the scene of a fire and had removed from a house a appeared woodstove which be the cause of Thereafter, the fire. the firefighters attic, checked which was located directly above where *10 been, had to make that there no the woodstove certain were attic, checking firefighters the the smoldering embers. In the the determined that area above woodstove was had charred. then longer burning They but that it been observed, view, to be they marijuana what believed fire mar- firefighters The summoned an assistant plants. scene, deputy prosecutor to contacted a shall the who then plants. deputy to the A sheriff and was advised confiscate thereafter, assist; and, sheriffs officers summoned to The plants removed the from the house. and firemen the suppression plants for the defendant moved removed, had been neces- arguing been that warrant exigent present, circumstances had not been sary because He also i.e., extinguished. argued already fire had been to needed enter that the sheriffs officers the warrantless upholding house in the seizure. to assist Washington rea- seizure, Supreme search Court soned as follows: like are to Fourth fighters, policemen, subject
Fire
v.
Tyler,
499, 504, 508,
Amendment. Michigan
436 U.S.
Therefore,
1942, 1949,
“plain view” following requirements if the “plain seizure is valid view” intrusion; (2) inad for “(1) prior are justification met: evidence; (3) im incriminating discovery vertent officer he had knowledge mediate before him.” [State v.] Myrick, 102 Wash.2d [506] at 514, 688 P.2d 151 [1984] (quoting [State v.] Chrisman, 819, [1984]). P.2d 419 We now at 676 100 Wash.2d [814] elements. analysis turn those fire fighters’ for the prior justification There was burning building “A the attic. original intrusion into justifies a warrantless exigency course creates
209 by entry fight officials the blaze.” v. Michigan 287, 293, 641, 646, Clifford, U.S. S.Ct. 78 L.Ed.2d (1984). Moreover, exigent circumstances continue beyond time when the fire been extinguished. has Tyler, S.Ct. at 1950. Fire fighters need no warrant to remain in building a reasonable make rekindle, time to sure fire does not fires, additional and to ventilate building. 4, 104 647, 4; 293 n. Clifford, U.S. at S.Ct. n. Steigler Anderson, (3d Cir.), denied, F.2d 795-96 cert. (1974); L.Ed.2d 277 State Olsen, (Minn.1979). N.W.2d attor Bell’s *11 the ney fighters even concedes that permitted “were to be where when they they were found the plants.” Thus, exigent circumstances the justify fighters’ presence not in Bell’s only residence but also in his attic.
The also discovery was inadvertent. The fire fighters had the duty to ensure the fire fully extinguished was fighters would not rekindle. The fire had to check the attic’s condition because the wall beneath it been up ceiling. burned to the The investigate to duty became even more compelling when the they saw extent smoke The fire fighters attic. had not exceeded scope of these happened duties when they upon marijuana-growing operation.
Finally, the fire fighters
immediately
were
aware that
they had
purpose
evidence before them. The
this
requirement
immediate
so
knowledge
‘plain
is
that “the
view’ doctrine
be used
extend
general
to
exploratory search from one
another
object to
until some-
thing incriminating at last emerges.”
New
Coolidge v.
443, 466,
2038,
Hampshire,
2022,
403
29
91
(1971).
564
L.Ed.2d
The fire
did
fighters
engage
this
type
extended search. All that
is required to
satisfy
“immediate
element
knowledge”
is a reason-
Lair,
able belief that evidence is present. State v.
95
(1981);
Wash.2d
fighters
first
testified
“I sus-
who
entered
attic
plants]
were—chances are
were
pected
they
[the
marijuana.”
assistant marshal testified that “[t]his
me.”
operation
to
appeared
marijuana-growing
in the
case.
present
The third element is met
contends, however,
Bell
hold
present
that we should
there was
of time
plenty
seizure unconstitutional because
operation
after
discov-
obtain a search warrant
seizures
argues
ered. Bell
that warrantless
should be
exigent
if
exist
held
circumstances
only
constitutional
throughout
of the search and seizure.
the duration
state, however,
recog-
and again
in this
have time
Courts
nized
not a
element
exigency
necessary
“plain
is
Lair,
716,
at
P.2d
seizure. State v.
Wash.2d
view”
427;
741,
Marchand,
749,
684 P.2d
Wash.App.
State v.
434,
(1984),
grounds,
rev’d
other
104 Wash.2d
on
(1985);
Johnson, Wash.App.
Bell
officers needed
argues
next
that the sheriff’s
property
to enter
residence and to seize the
warrant
they
found
the fire
because
constituted
by
fighters
Fourth Amendment
separate
A handful of
agency.
state
issue. The
of those
analyzed
majority
cases
this
have
is not needed because
cases holds that the warrant
longer
expectation
has a
defendant no
reasonable
officer is
of the residence
one
area
where
privacy
Green, 474 F.2d
States v.
already present. See United
(5th Cir.),
denied,
414
94
38
U.S.
cert.
S.Ct.
(1973) (warrant not
secret
necessary when
L.Ed.2d 63
of coun-
custody
entered residence to take
agent
service
fire marshal
terfeiting plates
by deputy
investigat
found
fire);
Anderson,
ing
Steigler
cause of a
496 F.2d
(3d Cir.),
denied,
320, cert.
(1974) (warrant
police
L.Ed.2d 277
when
necessary
officers
of arson found
by
deputy
seized evidence
during
investigation
marshal
a warrantless
which oc
curred
and
after a fire
extin
during
immediately
(6th
476 F.2d
guished);
Gargotto,
United States v.
Cir.1973) (warrant
necessary
betting
when records of
activity
agents days
were microfilmed
IRS
after they
investigator
seized
police
been
arson
officer);
Brand,
(5th
United States v.
L.Ed.2d 763 warrant when officers another police entered house after officer had helped drug handle an overdose the sec emergency group ond officers observed evidence which warrant). subsequent formed the for a basis position case Bell’s that the second only supporting needs a is United agency Hoffman, States (9th Cir.1979). F.2d directly conflicts with Hoffman in that it holds that a majority cases reasonable expectation fight- remains areas where fire privacy ers reasonably expect have entered. citizen should “[N]o ... sort of officer thereafter invade public purposes his home for unrelated to the initial intrusion.” at 285. Hoffman, persuasive
We find the rationale of the cases majority reject analysis. privacy and we Once the Hoffman invaded, the residence has it is lawfully been senseless to require a warrant for others to enter and complete what those on the scene already justified doing. would be Green, 1390; at 798. We hold that Steigler, where firefighters lawfully have discovered evidence criminal doctrine, under the it is not activity necessary view entering for sheriff’s officers to obtain a warrant before a residence to seize the evidence. are, course,
There on the police. limits actions of the *13 residence, When the enter the are not they allowed the scope fighters’ the of fire earlier intrusion. exceed Green, essence, they into shoes step at 1390. In the fighters. They of enter area that the any the fire cannot in nor seize justified entering, any were not fighters fire fighters fire were in seiz- justified the case, present deputies In the the sheriff’s did ing. permitted They their of entered scope activity. exceed residence, the discovered already by seized property did more. Their fighters, the fire and warrantless Fourth Amendment. seizure was valid under the Bell, 737 P.2d at supra State v. Wash.2d (footnotes omitted). 257-260 Washington rationale persuaded by are of We Therefore, hold that the evidence Supreme Court. we case, by had observed in view instant been premises per was on the an assistant fire marshall who duties,3 his task and which forming scope within by seized officer summoned by been marshall, Upon seized without a warrant. properly was Code, County which defines the 3. Section 3104 the Second Class assistants, specifically powers or his and of a fire marshall duties property of the nature and value authorizes ascertainment provides: damaged destroyed a fire. section or This attend, practica- if or one of his assistants shall marshal ble, occurring county, and fires in the and shall endeavor save all protect property danger protect therefrom and to from the fire all by pillage injury and property and theft and from such from loss manner, any power to any shall and he have take destruction expedient purpose, and may proper he deem and for measures constable, policeman upon any or power to also have call he shall ward, county any borough township to aid city, or in the citizen of aforesaid, saving property, and protecting as and assist him in and carrying execution measures he aid and assist in into aforesaid, investigate proper expedient, shall and as and he deem and, every possible, origin and fire occur- ascertain cause if injured county, property or ring the nature and value in the not, property or if destroyed thereby, insured whether said insurance, effected, insured, whom the amount of such taken, risk was the names and benefit and whom the whose places parties or and of all residence of the owner owners injured destroyed property or nature and in the interested amount of such interest. XXXI, 28, 1953, July 16 P.S. 6104. § Act P.L. art. § (A) County. Montgomery County as a Second Class is classified *14 view, the fire marshall plain in discovering the evidence the seizing in evidence. justified himself have been would did to seize evidence policeman That he summoned warrant, long policeman so as the of a obtaining require the policeman of the search. scope not extend did and could seize the fire marshall in shoes of stood seized. could have the marshall which hold, as the author We do holding is narrow. Our police that fire or suggested, has dissenting opinion fire, “rummage” of a in the aftermath personnel may, gener- therein a or conduct apartment through an unburned hope finding in evidence al warrantless by the Fourth precluded a search is Such activity. criminal marshall, a fireman or only hold We Amendment. of his fire- in the course premises inside properly iswho contraband or may seize responsibilities, and fighting duties he than arson which activity other of criminal evidence Further, contra- in when plain view. inadvertently observes by a fire marshall who plain view is observed band police summon a officer may he premises, on the properly contraband without war- and seize the may who observe rant. appel search of case, general there was
In this marshall, lawfully was The fire who apartment. lee’s fire, inadvertently of a ob appellee’s apartment because to contra he believed that which served view officer to confirm summoned a thereupon He band. It drugs drug paraphernalia. and his and seize belief shop had been defendant-appellee, who only was after home, the fire mar- confronted with returned was ping, search of observations, consented to a further shall’s found and additional evidence was apartment, then led the Indeed, it who appellee was seized. conducte evidence, and no further search was the additional this alone which are before these circumstances d.4 It is holding is based. upon today’s Court initially assistant was summoned McGowan who 4. It was Officer drugs which Momorella had to observe the marshall Momorella The “plain view” doctrine is not dependent upon the existence of statutory authority to make or searches seize were, If evidence crime. it then the of statutory absence authority Pennsylvania would preclude seizure firemen of any evidence of crime from fire, the site of a whether the evidence pertinent or arson some other crime. This is contrary the law in this Commonwealth. Smith, Commonwealth v. supra See: (firemen seize arson found in plain view while investigating fire). and origin cause of a The absence of express *15 statutory authority crime, seize evidence of moreover, would not be an adequate basis for the suppression of Morgan, Commonwealth v. evidence. Cf. 93, 517 Pa. 96 n. 2, 1054, 1056 (1987) 534 A.2d 2 (suppression n. of evidence is appropriate remedy for violation of every rule of crimi nal procedure dealing seizures; rather, with searches and is suppression warranted only where fundamental constitu tional rights have implicated, police been acted in have faith, bad or the defendant has suffered preju substantial Mason, Commonwealth v. dice); 507 Pa. See also: Commonwealth v. 421, (1985) (same).
A.2d Corley, 540, 552, 507 Pa. (1985) (Larsen, 491 A.2d concurring) (“the J. exclusionary rule will be extended to areas application where its would not tend to achieve its primary purpose deterring conduct.”). of police unlawful It is only where a defendant’s constitutional right to be free of unreasonable searches and seizures has been violated that suppression is There required. is no such violation where plain observed in supervi- view. Officer McGowan then contacted his sor, Sgt. Levy, appellee’s apartment purpose who also entered for the observing of plain the same evidence which had been discovered in dissenting opinion view. The states that an Officer DiSonni also appellee’s apartment. testimony suppression entered hear- ing only present disclosed that Officer DiSonni was at the scene of the actually appellee’s apart- fire and it is not clear that DiSonni entered suppression hearing testimony, ment. What is clear from the how- ever, general search was conducted Rather, appellee’s apartment. Sgt. Levy Officer McGowan and limited activity observing seizing
their and the evidence which had been view, home, plain appellee discovered in until such time as returned search, actually consented to a further and led to the additional evidence. plain view inadvertently of crime is observed evidence lawfully government who is representative make such observation. See: Com from which to position Kendrick, Pa.Super. monwealth (1985) (discussing requirements plain A.2d 926-927 Pine, 370 doctrine). See also: Commonwealth view (1988); 410, 419, A.2d Common Pa.Super. 450, 468, A.2d Casuccio, Pa.Super. wealth v. view Having that the evidence was concluded seized, suppression court’s con reject we also properly in the found later consensual clusion that Accordingly, tree. poisonous of a fruit suppression order be reversed. will proceedings. for further Juris-
Reversed and remanded diction is not retained.
BECK, J., dissenting opinion. files concurring BECK, Judge, concurring dissenting: We in this with a series invasions deal case home culminated in seizure evi- the warrantless as a suppressed dence. The trial court this evidence fruit *16 I an search of affirm the illegal private residence. would suppression trial court’s order. Momorella, F. the assistant fire
On Edward May Upper Township, responded of Moreland to a marshal1 apartment complex Hunting- in an report of a small fire time Momorella Montgomery County. By don the Valley, scene, extinguished by the the had been arrived on blaze originated that the fire had firemen. Momorella determined room a three room living in a rubber chair the foam Person, and the rented fire had apartment by William first smoking. inspect- Momorella by been caused careless living room, ed and then examined the other rooms the powers perform 1. have the same the same Assistant marshals (Purdon 1956). I § tit. duties as fire marshals. Pa.Stat.Ann. throughout opinion refer Momorella as a fire marshal this simplicity. sake of apartment order to ensure proper ventilation and to damage. ascertain extent smoke one bedrooms, he what he observed believed be controlled and drug paraphernalia. substances After viewing this evidence, he summoned Officer John McGowan of the Mont- gomery County apartment Police who entered without first obtaining a search warrant. McGowan then notified his superior, Sergeant Alex Levy, apart- who entered the obtaining ment without first a search warrant. At some point, DiSonni, officer, Mark another uniformed police also entered the apartment without obtaining first warrant. When Mr. Person home arrived and entered his he apartment, greeted by policeman him placed who under arrest. Person admitted that he owned the controlled and drug paraphernalia, substances and these effects were then seized officers.
I agree with the majority inspec that the marshal’s apartment tion of the did violate the fourth amendment. with disagree majority’s conclusion the subse quent by police warrantless searches seizures officers did violate the fourth amendment.2
I. LEGAL BY FIRE SEARCH MARSHAL At very heart of the fourth amendment concern is a privacy for the home. A resident’s interest privacy in his home is so warrantless, substantial that noncon- home entry agent sensual into the of the government ordinarily to be an deemed unreasonable search. See York, Payton New required, L.Ed.2d 639 warrant is No
however,
government
where
are
agents
confronted with
exigent circumstances, such as a
fire.
raging
No one could
opinion justifying
suppression
2.
In his
evidence as the fruit of
seizure,
an unreasonable search and
the trial court did not refer to the
Pennsylvania
presume
Constitution. We must
court
trial
*17
suppressed the evidence
the basis
federal
on
of the
constitution.
applicability
protection against
of the fourth amendment’s
unreason-
only
able searches and seizures to the facts of
instant case
Toanone,
presently
issue
before us.
v.
Pa.Su-
Commonwealth
336, 342-344,
(1989).
per.
553 A.2d
1000-1001
magistrate
argue that firemen must consult a
reasonably
burning
put
to
out a
entering
building
blaze.
before
1942, 1950, 56
Michigan
Tyler,
S.Ct.
v.
Moreover,
(1978).
created
a the exigency
L.Ed.2d 486
dissipate the moment the flames are extin
fire
not
does
in
fighters
compelling
Fire
have a
interest
search
guished.
that the fire
fire-damaged premises
order to ensure
ing
in order to
the destruction of
prevent
does not rekindle and
287, 293, 104
464 U.S.
Michigan Clifford,
evidence.
S.Ct.
(1984). Thus,
641, 646,
it is
established
78 L.Ed.2d
well
fire,
fighters may
aftermath of a
fire
the immediate
investigate
origin
the cause and
fire
thoroughly
securing a warrant.
without
first
Commonwealth
Smith,
Pa.
511 A.2d
cert.
denied,
1006, 107
My disagreement with the majority concerns whether a
fire marshal may conduct a warrantless search which bears
no relation to his efforts to determine the
origin
cause and
of
or
a fire
to
potential danger
address a
to public health.
would
majority
apparently
the admission
allow
into
of any
items
discovered
a fire marshal who was
“performing a task within the
his
scope of
Majori-
duties.”
ty Op.
notes,
As
majority
at 769.
a fire marshal’s
duties include determining the nature and
of
value
fire
property destroyed by a
and whether such property
Thus,
was insured. Pa.Stat.Ann. tit.
6104.
under the
§
formulation, following a
majority’s
basement,
small fire in a
rummage
fire marshal
through
could
the papers in a
hope
homeowner’s bedroom desk
fire
finding
policies
insurance
or
receipts
sales
for damaged merchan-
dise. This would
an unprecedented
be
interference with the
right to privacy.3
homeowner’s
I would therefore hold
may
fire marshal
conduct a
warrantless
to
determine the extent of smoke dam-
age when the search is
part
a broader
to
effort
discover
and origin
cause
of the fire or to safeguard public
health and when the search takes place within a reasonable
period of time
after
blaze
extinguished. would
fire
allow a
marshal to conduct a
warrantless search of
portion of the fire-damaged premises
in order to
solely
A
upon by
majority
3.
careful
examination
the cases relied
fighters
indicates that the
evidence admitted was discovered
fire,
investigating
origin
who
ventilating
were
the cause and
of a
premises,
rescuing trapped
taking
occupants,
necessary
or
action
prevent
rekindling,
shutting
from
such as
off utilities or search-
hand,
ing
smoldering
embers. On
other
States v.
United
Parr,
(11th Cir.1983),
suppressed
II.
SEARCH
ILLEGAL
majority,
from that of the
reasoning differs
Although my
appellee’s
Momorella’s search of
agree
that Fire Marshall
The same cannot
said
constitutional.
apartment was
Officer
apartment by
subsequent
invasion of
Officer
Unlike
McGowan,
Levy, and
DiSonni.
Sergeant
marshal,
exigent
on
rely
any
police
could
justify
to
their warrantless
circumstance
in
a
This is not
case
seizure of contraband.
apartment and
police
him
assist
requested
a fireman
a
a fire. Nor is this
origin of
the cause and
investigating
in order
fireman
assistance
required
case which a
chemicals discovered
potentially explosive
dispose
Urban,
States v.
during
post-fire inspection.
See United
Callabrass,
(6th Cir.1983);
States
710 F.2d
United
Cir.1979),
denied,
U.S.
(2nd
cert.
607 F.2d
Here, a fire marshal who
(1980).
L.Ed.2d
S.Ct.
origin of
investigation of the cause and
completed his
had
and some
marijuana
small amount
fire came across a
posed
immediate
These materials
drug paraphernalia.
secure
ample
danger.
opportunity
the contra
apartment to seize
entering the
warrant before
to do
that their failure
correctly
The trial court
held
band.
requires
the evidence.
suppression
so
under our fourth amendment
It is of course true that
ato warrantless
object
a defendant cannot
jurisprudence,
legit-
he does
have
of an area which
police entry
Illinois,
See Rakas v.
expectation
imate
of privacy.
[The] —that protectible have no expectations of privacy in whatever remains of their property contrary to experi- common —is People may go ence. their living on working homes or in their offices after a fire. Even when that impossi- ble, private effects often remain in the fire damaged premises.
Id.,
Thus,
U.S. at
At the it must be the fact that drugs plain the fire marshal observed view is irrelevant. might argued public It that a official’s observation of plain legitimate expectation all destroys contraband view privacy in the contraband. follow, It how- would ever, the observation of contraband can destroy building in the legitimate expectation privacy the contraband is stored. Commonwealth regard, In this Weik, (1987) Pa.Super. 521 A.2d is instructive. Weik, through officers looked the windows of a shed on the defendant’s slot ma- property observed probable chines therein. The officers had cause to believe illegally maintaining the defendant was the slot ma- gambling purposes. securing chines for Instead of a search warrant, the officers the shed and seized forcibly entered A concluded that panel Superior the machines. Court view, although clearly the machines were obser- legit- of the machines did not alter the defendant’s vation *21 interior of his expectation privacy imate shed. illegal conducted an search Accordingly, police when shed took of the machines. they custody entered the Hampshire, v. New generally Coolidge 443, 468, 2022, (plain justify 91 S.Ct. view alone cannot seizure). subsequent entry warrantless Weik, Under could not appellee’s have entered if apartment even they personally observed the contra- through appellee’s then, band bedroom window. Clearly the police could not have entered the apartment simply public because another official—a fire marshal —had ob- served the The question contraband. thus becomes wheth- er entry the mere of the fire marshal into appellant’s apartment appellee’s defeated expectation of so as privacy an independent entry allow by police. would hold that it did not.
Whether
the fourth amendment bars a warrantless
search by particular government
official must be assessed
light
identity of
official and the reason for his
search. A defendant may be entitled to full fourth amend
ment protection
against police
as
searches even where a
search
by
employee of another government
agency
the same location would fall
an exception
within
to the
requirement.
warrant
See generally Commonwealth v.
Black,
365 Pa.Super.
530 A.2d
427-30
(1987) ,
allocatur granted, 518 Pa.
223
fact
that
premises.
in the club
interest
privacy
to
exception
industries”
regulated
“closely
to
agents
Board
Liquor Control
permitted
requirement
legitimate
Mr. Black’s
destroy
club did
search the
case, the
in the instant
Similarly,
privacy.
expectation
to the war-
exception
exigent circumstances
fact
did
marshal’s
the fire
permitted
requirement
rant
expectation
privacy.
legitimate
destroy appellee’s
however,
recognize
appel
to
refuses
The majority,
infringed when
privacy
expectation
legitimate
lee’s
during his
apartment
entered his
policemen
uniformed
three
rationale,
if one
offi
public
majority’s
absence. Under
four,
residence,
two, three,
or a dozen
a
cial
enters
lawfully
this
is consist
I do not believe that
view
more
follow.
understandings
regarding
held societal
commonly
ent with
A tenant or
should
of the home.
homeowner
sanctity
prior
a
simply
forced to endure an intrusion
because
not be
an area is so
gone
has
At least where
intrusion
before.
core of fourth amendment
very
it falls at the
private
ordinarily produces
intrusion
governmental
each
protection,
is true of
dignity.
to
This
separate injury
privacy
Kean,
Commonwealth v.
and the home.
body
both
Cf.
587, 613,
(“To
382
be
Pa.Super.
(1989)
374,
556 A.2d
387
stranger
priva
is an invasion
forced
disrobe before
and a
stranger
forced to
before a second
cy;
be
disrobe
spied
To
stranger
privacy.
third
is a further
invasion of
be
Tom
is an invasion of
upon by
Peeping
while
bed
upon
Peeping
a series of
Toms
privacy;
spied
Thus,
greater
privacy.”)
then
is a
invasion of
fighter
salutary purpose
a fire
enters a home for the
who
general
extinguishing
pave
way
a fire does not
warrantless
search for evidence of crime.
acknowledge
jurisdictions
that certain courts
other
a search for
policeman may piggyback
have held that a
on a fireman’s
search to determine the
criminal evidence
Anderson,
Steigler
(3rd
F.2d 793
cause of a fire.
denied,
cert.
Cir.),
1002,
320,
42 L.Ed.2d
419 U.S.
Green,
(5th
United States
(1974);
F.2d 1385
Cir.1973),
denied,
cert.
94 S.Ct.
38 L.Ed.2d
(1973);
Johnson,
United States v.
F.Supp.
(D.Del.1981),
(3rd
grounds,
rev’d on other
L.Ed.2d 450 State v. 108 Wash.2d *23 P.2d 254 Each of these on cases rests the false premise fighter’s search wholly exhausts a resident’s legitimate expectation of in privacy the home.
The
in
better view is reflected United States v. Hoffman,
(9th Cir.1979).
case,
following
firefighters,
that of the
exceeded the scope of
the initial intrusion by the firemen. Officer
did
Heiden
not enter the trailer to
in extinguishing
aid
or to
blaze
investigate the cause. His
only purpose
entering ap
trailer,
admitted,
pellant’s
as he forthrightly
was to seize
evidence of an unrelated crime. The fact that the officer’s
physical
actual
intrusion
no greater
than
that of the firemen does not control our examination of
appellant’s Fourth Amendment violation. Katz v. United
States,
(1967);
U.S. at
Hoffman, it. adopt reasoning persuasive would this imposes the majority that the limits which I further note consequences far potential home has on the privacy inspections. Several post-fire context beyond adopts majority theory inherent dangers Justice Pearson of the by Chief perceptively analyzed were concurring opinion in his Washington Supreme Court expressed follow- I share the concerns State v. Bell. commentary. of his ing portion agent one government holds that once majority home, remains in an individual’s lawfully enters and *24 other destroyed, is and expectation privacy reasonable agent’s first foot- agents may follow the government of such a conclusion are steps____ implications expectation if no troublesome. First ... reasonable home, police may in the then officers privacy remains is: justification probable without without enter —that warrant, cause, a of the circum- without and without Sup- a warrantless typically justify entry. stances that fighters had not discovered contraband pose that fire just home wandered petitioner’s but might hopes something to enter in that unlawful decided analysis, a dozen officers up. majority’s turn Under the into home for no whatsoever: purpose could crowd no Fourth Amendment claim to petitioner would have raise, expectation of for have no reasonable he would privacy. the fire majority's analysis, under the once
Secondly, home, agent, fighters agent, entered the the IRS INS As be free to enter. and the state social worker would above, expectation priva- indicated when reasonable location, agent may enter. any government exists a cy A call city to the ambulance for a medical emergency suddenly opens one’s home to the tax assessor marines. How can a Fourth petitioner raise Amendment when he has no reasonable objection expectation priva- cy?
Although no one expects outrageous such scenarios to arise, actually they problem do illustrate with A majority’s reasoning. home is not navigable like air- store, a or space, public pathway, a where or any federal state officer may freely. wander We cannot dispense the requirement government with entering officers person’s home have some justification entry. for their on justification may depend What be will the circum- stances, it certainly but must more than the be observa- government tion that some other already officer “is grave disfigurement there”. It would be of the consti- tution to hold otherwise.
Finally, reasoning the majority’s permit would a differ- perhaps ent but likely more scenario —and one is equally impermissible: of the probable circumvention cause and warrant requirements____
Under the ... majority’s analysis inspector once a lawfully building enters to determine or cause fire, origin pursuing officers a criminal investi- gation on inspector’s follow heels without bother- ing to obtain traditional “criminal” warrant. Wheth- er such probable circumvention of the cause and warrant requirements investigations criminal likely is ever a prevalent practice point; beside the the critical *25 question is whether the constitution the prevent would practice. would, I although believe it the majority opin- ion would suggest otherwise.
Bell,
(Pearson,
Wash.2d at
I believe that the best policy protect against is to erosion of the fourth by adhering general amendment to the rule of that each the entry government home a official must recognized traditionally or to a warrant a made pursuant I the follow requirement. would exception entry and hold in of the Ninth Circuit lead Hoffman circumstances exigent by fire official under the home into police- the home a later intrusion into support cannot I therefore objective. different would wholly man with a in this case was the seizure of contraband conclude apartment, search of police of an unconstitutional fruit order. suppression I affirm the trial court’s would and BY III. ILLEGAL SEIZURE POLICE argument police if I accept majority’s Even could that the police still find apartment, enter the would could seizure. The illegal sub conducted an judice the case evidence only holds that the can seize such majority seizing. justified the fire marshall would have as been I do not majority, See 210-212. Unlike Majority Op. at is fire marshal justified that a Montgomery County believe in a home which unrelated seizing evidence of of or crime in the absence investigation any arson related Thus, validly could not exigent circumstances. in the shoes guise “[standing] under the of seize contraband marshall.” Id. at 213. fire fire marshal is question which evidence types of state law. The primarily authorized to seize is matter governed by are responsibilities duties and of a marshal tit. 6101-6110 Code. Pa.Stat.Ann the Counties §§ 1956). that a fire (Purdon 6104 of the Code states Section fire, attempt pillage, to save from property marshal shall theft, grants marshals and destruction. Section buildings set power persons willfully to arrest who have Nothing in the that fire marshals on fire. Code indicates general police powers may seize Pennsylvania have prosecu- to a solely because it would be relevant evidence of controlled Common- possession tion substances. Cf. Smith, (“[Foremen Pa. 511 A.2d at wealth seize is in view the cause added)). origin (emphasis Instead fire” *26 seizing own, contraband on his a fire marshal should ordi- narily policeman inform a of the existence of the contra- policeman The band. should then seize the contraband securing after a proper warrant.
In reaching the opposite conclusion, the
relies
majority
upon cases from other
In
jurisdictions.
cases,
these
of fire
powers
officials were governed by statutes which do
apply
Bell,
this
In
Commonwealth.
supra,
State v.
where an assistant fire
organized
marshal
the seizure of
marijuana plants, a Washington statute vested fire mar-
“police
shals with
powers
enforce the
laws
state.”
108 Wash.2d at
(Pearson, C.J.,
203 n.
737 P.2d at
n. 1
concurring) (citing
48.48060(2)).
RCW
Similarly, United
Green,
States v.
an
supra,
applicable
grant-
Florida statute
ed the
fire
state
marshall
same
“the
authority
... make
seizures,
searches and
as the sheriff or his deputies____”
I would conclude that in the absence such statutory language, marshal would not be authorized to seize evidence evidence under the present in circumstances this case. Momorella acted if would have he improperly seized the contraband himself instead contacting Officer Furthermore, McGowan. the police when seized the contra- band, they exceeded limits of legitimate Momorella’s power. seizure seizure cannot be viewed as the equivalent functional of any seizure which the fire marshal could have carried out. confis- hypothetical to whether a opinion as express have been marshal would drugs by
cation of
*27
of the fourth
meaning
“unreasonable
seizure” within
government official
Not
act
every
amendment.
rises to
level
authority
of his
scope
exceeds
Mason, Commonwealth
constitutional violation. Yet,
since
A.2d
Pa.
contraband, he
seize the
not authorized to
Momorella was
justified
even
seizing
the contraband
could
have been
And since Momorella
he
it in
view.
though
observed
seizure,
making
no justification
would have had
upon what
their own seizure based
justify
cannot
the warrantless
Accordingly,
done.
might
Momorella
have
fall within
this case does
even
seizure of evidence
majority
that the
requirement
to the
exception
new
suppressed.
should be
recognizes. The evidence
today
dissent.
respectfully
Superior Court 24, 1989. Argued Jan. 4,May 1989.
Filed Reargument July 1989. Denied