MICHIGAN v. CLIFFORD ET AL.
No. 82-357
Supreme Court of the United States
Argued October 5, 1983—Decided January 11, 1984
464 U.S. 287
K. Preston Oade, Jr., argued the cause and filed a brief for respondents.
JUSTICE POWELL аnnounced the judgment of the Court and delivered an opinion, in which JUSTICE BRENNAN, JUSTICE WHITE, and JUSTICE MARSHALL joined.
This case presents questions as to the authority of arson investigators, in the absence of exigent circumstances or consent, to enter a private residence without a warrant to investigate the cause of a recent fire.
Respondents, Raymond and Emma Jean Clifford, were arrested and charged with arson in connection with a fire at their private residence. At the preliminary examination held to establish probable cause for the alleged offense, the State introduced various pieces of physical evidence, most of which was obtained through a warrantless and nonconsensual search of the Cliffords’ fire-damaged home. Respondents moved to suppress this evidence on the ground that it was obtained in violation of their rights under the Fourth and Fourteenth Amendments. That motion was denied and respondents were bound over for trial. Before trial, they again moved to suppress the evidence obtained during the search. The trial court conducted an evidentiary hearing and denied the motion on the ground that exigent circumstances justified the search. The court certified its evidentiary ruling for interlocutory appeal and the Michigan Court of Appeals reversed.
That court held that there were no exigent circumstances justifying the search. Instead, it found that the warrantless entry and search of the Clifford residence were conducted pursuant to a policy of the Arson Division of the Detroit Fire Department that sanctioned such searches as long as the owner was not present, the premises were open to trespass, and the search occurred within a reasonable time of the fire. The Court of Appeals held that this policy was inconsistent with Michigan v. Tyler, 436 U. S. 499 (1978), and that the warrantless nonconsensual search of the Cliffords’ residence violated their rights under the Fourth and Fourteenth Amendments. We granted certiorari to clarify doubt that appears to exist as to the application of our decision in Tyler. 459 U. S. 1168 (1983).
II
In the early morning hours of October 18, 1980, a fire erupted at the Clifford home. The Cliffords were out of town on a camping trip at the time. The fire was reported to the Detroit Fire Department, and fire units arrived on the
At 8 o‘clock on the morning of the fire, Lieutenant Beyer, a fire investigator with the arson section of the Detroit Fire Department, received instructions to investigate the Clifford fire. He was informed that the Fire Department suspected arson. Because he had other assignments, Lieutenant Beyer did not proceed immediately to the Clifford residence. He and his partner finally arrived at the scene of the fire about 1 p. m. on October 18.
When they arrived, they found a work crew on the scene. The crew was boarding up the house and pumping some six inches of water out of the basement. A neighbor told the investigators that he had called Mr. Clifford and had been instructed to request the Cliffords’ insurance agent to send a boarding crew out to secure the house. The neighbor also advised that the Cliffords did not plan to return that day. While the investigators waited for the water to be pumped out, they found a Coleman fuel can in the driveway that was seized and marked as evidence.1
By 1:30 p. m., the water had been pumped out of the basement and Lieutenant Beyer and his partner, without obtaining consent or an administrative warrant, entered the Clifford residence and began their investigation into the cause of the fire. Their search began in the basement and they quickly confirmed that the fire had originated there beneath the basement stairway. They detected a strong odor of fuel throughout the basement, and found two more Coleman fuel cans beneath the stairway. As they dug through the debris, the investigators also found a crock pot with attached wires leading to an electrical timer that was plugged into an outlet
After determining that the fire had originated in the basement, Lieutenant Beyer and his partner searched the remainder of the house. The warrantless search that followed was extensive and thorough. The investigators called in a photographer to take pictures throughout the house. They searched through drawers and closets and found them full of old clothes. They inspected the rooms and noted that therе were nails on the walls but no pictures. They found wiring and cassettes for a video tape machine but no machine.
Respondents moved to exclude all exhibits and testimony based on the basement and upstairs searches on the ground that they were searches to gather evidence of arson, that they were conducted without a warrant, consent, or exigent circumstances, and that they therefore were per se unreasonable under the Fourth and Fourteenth Amendments. Petitioner, on the other hand, argues that the entire search was reasonable and should be exempt from the warrant requirement.
III
In its petition for certiorari, the State does not challenge the state court‘s finding that there were no exigent circumstances justifying the search of the Clifford home. Instead, it asks us to exempt from the warrant requirement all administrative investigations into the cause and origin of a fire. We decline to do so.
In Tyler, we rеstated the Court‘s position that administrative searches generally require warrants. 436 U. S., at 504-508. See Marshall v. Barlow‘s, Inc., 436 U. S. 307 (1978); Camara v. Municipal Court, 387 U. S. 523 (1967); See v. City of Seattle, 387 U. S. 541 (1967). We reaffirm that view again today. Except in certain carefully defined
A
We observed in Tyler that reasonable privacy expectations may remain in fire-damaged premises. “People may go on living in their homes or working in their offices after a fire. Even when that is impossible, private effects often remain on the fire-damaged premises.” Tyler, 436 U. S., at 505. Privacy 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. Some fires may be so devastating that no reasonable privacy interests remain in the ash and ruins, regardless of the owner‘s subjective expectations. The test essentially is an objective one: whether “the expectation [is] one that society is prepared to recognize as ‘reasonable.‘” Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring). See also Smith v. Maryland, 442 U. S. 735, 739-741 (1979). If reasonable privacy interests remain in
B
A burning building of course creates an exigency that justifies a warrantless entry by fire officials to fight the blaze. Moreover, in Tyler we held that once in the building, officials need no warrant to remain3 for “a reasonable time to investigate the cause of a blaze after it has been extinguished.” 436 U. S., at 510. Where, however, reasonable expectations of privacy remain in the fire-damaged property, additional investigations begun after the fire has been extinguished and fire and police officials have left the scene, generally must be made pursuant to a warrant or the identification of some new exigency.
The aftermath of a fire often presents exigencies that will not tolerate the delay necessary to obtain a warrant or to secure the owner‘s consent to inspect fire-damaged premises.4 Because determining the cause and origin of a fire serves a compelling public interest, the warrant requirement does not apply in such cases.
If a warrant is necessary, the object of the search determines the type of warrant required. If the primary object is to determine the cause and origin of a recent fire, an administrative warrant will suffice.5 To obtain such a warrant, fire officials need show only that a fire of undetermined origin has occurred on the premises, that the scope of the proposed search is reasonable and will not intrude unnecessarily on the fire victim‘s privacy, and that the search will be executed at a reasonable and convenient time.
If the primary object of the search is to gather evidence of criminal activity, a criminal search warrant may be obtained only on a showing of probable cause to believe that relevant evidence will be found in the place to be searched. If evidence of criminal activity is discovered during the course of a valid administrativе search, it may be seized under the “plain view” doctrine. Coolidge v. New Hampshire, 403 U. S. 443, 465-466 (1971). This evidence then may be used to establish probable cause to obtain a criminal search warrant. Fire officials may not, however, rely on this evidence to expand the scope of their administrative search without first making a successful showing of probable cause to an independent judicial officer.
The object of the search is important even if exigent circumstances exist. Circumstances that justify a warrantless search for the cause of a fire may not justify a search to gather evidence of criminal activity once that cause has been determined. If, for example, the administrative search is justified by the immediate need to ensure against rekindling, the scope of the search may be no broader than reasonably
The searches of the Clifford home, at least arguably, can be viewed as two separate ones: the delayed search of the basement area, followed by the extensive search of the residential portion of the house. We now apply the principles outlined above to each of these searches.
IV
The Clifford home was a two-and-one-half story brick and frame residence. Although there was extensive damage to the lower interior structure, the exterior of the house and some of the upstairs rooms were largely undamaged by the fire, although there was some smoke damage. The firemen had broken out one of the doors and most of the windows in fighting the blaze. At the time Lieutenant Beyer and his partner arrived, the home was uninhabitable. But personal belongings remained, and the Cliffords had arranged to have the house secured against intrusion in their absence. Under these circumstances, and in light of the strong expectations of privacy associated with a home, we hold that the Cliffords retained reasonable privacy interests in their fire-damaged residence and that the postfire investigations were subject to the warrant requirement. Thus, the warrantless and nonconsensual searches of both the basement and the upstairs areas of the house would have been valid only if exigent circumstances had justified the object and the scope of each.
As noted, the State does not claim that exigent circumstances justified its postfire searches. It argues that we either should exempt postfire searches from the warrant requirement or modify Tyler to justify the warrantless searches in this case. We have rejected the State‘s first argument and turn now to its second.
In Tyler we upheld a warrantless postfire search of a furniture store, despite the absence of exigent circumstances, on the ground that it was a continuation of a valid search begun immediately after the fire. The investigation was begun as the last flames were being doused, but could not be completed because of smoke and darkness. The search was resumed promptly after the smoke cleared and daylight dawned. Because the postfire search was interrupted for reasons that were evident, we held that the early morning search was “no more than an actual continuation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence.” 436 U. S., at 511.
As the State conceded at oral argument, this case is distinguishable for several reasons. First, the challenged search was not a continuation of an earlier search. Between the time the firefighters had extinguished the blaze and left the scene and the arson investigators first arrived about 1 p. m. to begin their investigation, the Cliffords had taken steps to secure the privacy interests that remained in their residence against further intrusion. These efforts separate the entry made to extinguish the blaze from that made later by different officers to investigate its origin. Second, the privacy interests in the residence—particularly after the Cliffords had acted—were significantly greater than those in the fire-damaged furniture store, making the delay between the fire and the midday search unreasonable absent a warrant, consent, or exigent circumstances. We frequently have noted that privacy interests are especially strong in a private resi-
B
Because the cause of the fire was then known, the search of the upper portions of the house, described above, could only have been a search to gather evidence of the crime of arson. Absent exigent circumstances, such a search requires a criminal warrant.
Even if the midday basement search had been a valid administrative search, it would not have justified the upstairs search. The scope of such a search is limited to that reasonably necessary to determine the cause and origin of a fire and to ensure against rekindling. As soon as the investigators determined that the fire had originated in the basement and had been caused by the crock pot and timer found beneath
The warrantless intrusion into the upstairs regions of the Clifford house presents a telling illustration of the importance of prior judicial review of proposed administrative searches. If an administrative warrant had been obtained in this case, it presumably would have limited the scope of the proposed investigation and would have prevented the warrantless intrusion into the upper rooms of the Clifford home. An administrative search into the cause of a recent fire does not give fire officials license to roam freely through the fire victim‘s private residence.
V
The only pieces of physical evidence that have been challenged on this interlocutory appeal are the three empty fuel
It is so ordered.
JUSTICE STEVENS, concurring in the judgment.
Because I continue to hold the views expressed in my separate opinions in Michigan v. Tyler, 436 U. S. 499, 512 (1978), Marshall v. Barlow‘s, Inc., 436 U. S. 307, 325 (1978), Zurcher v. Stanford Daily, 436 U. S. 547, 577-578, 583 (1978), and Donovan v. Dewey, 452 U. S. 594, 606-608 (1981), I am unable to join JUSTICE POWELL‘s opinion. I do agree with him, however, that the holding in Tyler supports the judgment commanded by his opinion.
There is unanimity within the Court on three general propositions regarding the sсope of Fourth Amendment protection afforded to the owner of a fire-damaged building. No one questions the right of the firefighters to make a forceful, unannounced, nonconsensual, warrantless entry into a burning building. The reasonableness of such an entry is too plain to require explanation. Nor is there any disagreement concerning the firemen‘s right to remain on the premises, not only until the fire has been extinguished and they are satisfied that there is no danger of rekindling, but also while they
I
I agree with JUSTICE POWELL‘s conclusion that Lieutenant Beyer‘s entry at 1:30 p. m. was a postfire search rather than merely a continuation of an earlier valid entry, ante, at 296, and disagree with JUSTICE REHNQUIST‘s position that our decision in Tyler is indistinguishable in this regard, post, at 306-307. In Tyler the Court was willing to treat early morning reentries by the same officers who had been on the premises a few hours earlier1 as a “continuation” of their earlier valid investigation into the cause of the fire. 436 U. S., at 511. The attempt to ascertain the cause of the fire was temporarily suspended in Tyler because visibility was severely hindered by darkness, steam, and smoke. Under these circumstances, the return of the same2 investigators shortly after daybreak to ascertain the cause of the fire was indeed “no more than an actual continuation” of their earlier
II
Presumably most postfire searches are made with the consent of the property owner. Once consent is established, such searches, of course, raise no Fourth Amendment issues. We therefore are concerned with the fire investigator‘s right to make an entry without the owner‘s consent, by force if
In this context, the Amendment might be construed in at least four different ways. First, the Court might hold that no warrantless search of premises in the aftermath of a fire is reasonable and that no warrant may issue unless supported by probable cause that a crime has been committed. Such a holding could be supported by reference to the text of the two Clauses of the Fourth Amendment.3 No Member of the Court, however, places such a strict construction on the Amendment.
Second, the Court might hold that no warrantless search is reasonable but allow postfire searches conducted pursuant to a warrant issued without a showing of probable cause. Following Marshall v. Barlow‘s, Inc., supra, JUSTICE POWELL takes this position. In my judgment that position is at odds with the text of the Fourth Amendment and defeats the purpose of the Warrant Clause, enabling a magistrate‘s rubber stamp to make an otherwise unreasonable search reasonable.
Third, the Court might hold that no warrant is ever required for a postfire search. If the search is conducted promptly and if its scope is limited to a determination of the cause of the fire, it is reasonable with or without probable cause to suspect arson. JUSTICE REHNQUIST has persuasively outlined the basis for that position,4 and has noted that
A fourth position—the one I believe the two Clauses of the Fourth Amendment command—would require the fire investigator to obtain a traditional criminal search warrant in order to make an unannounced entry, but would characterize a warrantless entry as reasonable whenever the inspector either had given the owner sufficient advance notice to enable him or an agent to be present, or had made a reasonable effort to do so.5
Unless fire investigators have probable cause to believe the crime of arson has been committed, I believe that the homeowner is entitled to reasonable advance notice that officers are going to enter his premises for the purpose of ascertaining the cause of the fire. Such notice would give the owner a fair opportunity to be present while the investigation is conducted, virtually eliminating the need for а potentially confrontational forcible entry. Advance notice of the search is the best safeguard of the owner‘s legitimate interests in the privacy of his premises, allowing him to place certain possessions he would legitimately prefer strangers not to see out of sight, and permitting him to be present during the search
Since there was no attempt to give any kind of notice to respondents, this case does not provide a proper occasion for defining the character of the notice that must be given. I am convinced, however, that a nonexigent, forceful, warrantless entry cannot be reasonable unless the investigator has made some effort to give the owner sufficient notice to be present while the investigation is made. Naturally, if the owner is given reasonable notice and then attempts to interferе with the legitimate performance of the fire investigators’ duties, appropriate sanctions would be permissible.
If there is probable cause to believe that a crime has been committed, the issuance of a valid warrant by a neutral magistrate will enable the entry and subsequent search to be conducted in the same manner as any other investigation of suspected criminal conduct, without advance notice to the property owner. In such a case, the intrusive nature of the potentially forceful entry without prior notice is justified by the demonstrated reasonable likelihood that the owner of the property will conceal or destroy the object of the search if
In this case, as JUSTICE REHNQUIST has pointed out, post, at 310, n. 3, an argument may be made that the notice requirement is inapplicable because the owners were out of town. But no attempt whatever was made to provide them with notice, or even to prove that it would have been futile to do so. The record does not foreclose the possibility that an effort to advise them, possibly through the same party that notified the representatives of the insurance company to board up the building, might well have resulted in a request that a friend or neighbor be present in the house while the search was carried out and thus might have avoided the plainly improper search of the entire premises after the cause of the fire had already been identified.
I therefore conclude that the search in this case was unreasonable in contravention of the Fourth Amendment because the investigators made no effort to provide fair notice of the inspection to the owners of the premises. Accordingly, I concur in the Court‘s judgment.
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, JUSTICE BLACKMUN, and JUSTICE O‘CONNOR join, dissenting.
Six Terms ago in Michigan v. Tyler, 436 U. S. 499 (1978), we first addressed the applicability of the Fourth Amendment‘s Warrant Clause to the activities of firefighters and inspectors following a fire at a furniture store. A divided Court held that the fire itself was an “exigent circumstance” which allowed entry to extinguish the fire and authorized investigators to remain for a reasonable time to investigate the cause of the blaze. Id., at 509-510. We also held that a “re-entry” a few hours after these officials had departed was an “actual continuation” of the earlier investigation, but that subsequent visits more than three weeks after the fire required an administrative warrant. Id., at 511. These pre-
I
Judging simply by comparison of these facts to those in Tyler, I believe that the basement inspection conducted by Lieutenant Beyer about 1:30 p. m. on October 18th—some six hours after the fire was extinguished and the fire officials and police had left the Clifford premises—was an “actual continuation” of the original entry to fight the fire, as that term is used in Tyler. The firefighters who fought the blaze at the Clifford house had removed a can containing Coleman lantern fuel and placed it in the driveway of the home, where it was later seized and marked as evidence by the inspectors who arrived about 1 p. m. Thus here, as in Tyler, the investigation into the cause of the fire went on contemporaneоusly with the efforts to fight it, before the firefighters first left the premises in the early morning. I see no reason to treat the 6-hour delay between the departure of the firefighters and the arrival of the investigators in this case any differently than the Court treated the 5-hour delay between the departure of the investigators at 4 a. m. from the Tyler store and their return to the same premises at 9 a. m.
The plurality seeks to distinguish the two situations on the basis of differences which seem to me both trivial and imma-
The plurality also purports to distinguish the facts in Tyler by the statement that “the privacy interests in the residence—particularly after the Cliffords had acted—were significantly greater than those in the fire-damaged furniture store. . . .” Ante, at 296. But if the furniture store in Tyler is to be characterized as “fire-damaged,” surely the Cliffords’ residence deserves the same characterization; it too was “fire-damaged.” It is also well established that private commercial buildings in this context are as much protected by the Fourth Amendment as are private dwellings. See See v. City of Seattle, 387 U. S. 541, 542-543 (1967) (citing cases). And certainly the public interest in determining the cause and origin of a fire in a commercial establishment applies with equal, if not greater, force to the necessity of determining the cause and origin of a fire in a home.
On the authority of Tyler, therefore, I would uphold the search of the Clifford basement and allow use of the evidence resulting from that search in the arson trial.
In Camara v. Municipal Court, 387 U. S. 523 (1967), and See v. City of Seattle, supra, this Court imposed a warrant requirement on city housing and fire inspectors requiring them to obtain an administrative search warrant prior to entering a building to inspect for possible health or fire code violations. To protect the privacy interests of building owners from the unbridled discretion of municipal inspectors, the Court held that administrative searches had to be conducted pursuant to a warrant obtained from an independent magistrate. Camara, supra, at 534. But in light of the important public interest in abating public health hazards, the relatively limited invasion of privacy inhering in administrative searches, and the essentially noncriminal focus of the inspection, a different kind of warrant was established, a warrant described by the dissent in that case as “newfangled.” See, supra, at 547 (Clark, J., dissenting). Probable cause to issue this kind of warrant did not sound in terms of suspicion of criminal activity, but in terms of reasonable legislative or administrative standards governing the decision to search a particular building. Camara, supra, at 538.
One may concede the correctness of the Camara-See line of cases without agreeing that those cases should be applied to a prompt postfire inspection conducted to determine the cause and origin of a fire. The practice of investigating the cause and origin of fires has longstanding and widespread acceptance. The public interest in conducting a prompt and careful investigation of the cause and origin of all fires is also undeniably strong. An investigation can reveal whether there is a danger of the fire rekindling and assess the effectiveness of local building codes in preventing аnd limiting the spread of fire. It may bring to light facts suggesting the crime of arson. Entry is also necessary because the causes of a fire may also not be observable from outside a building or by an uninformed occupant. See United States v. Green, 474 F. 2d 1385, 1388-1389 (CA5 1973). Certainly these reasons justify a search to determine the cause and origin of a fire.
The concerns regarding administrative searches expressed in Camara and See to justify the imposition of a warrant requirement simply do not apply to a postfire investigation conducted within a reasonable time after a fire.1 Under the emergency doctrine, it is beyond dispute that firefighters may enter a building in order to extinguish the flames. Michigan v. Tyler, 436 U. S., at 509. In their efforts to control the blaze firefighters may knock in doors and windows, chop holes in roofs and walls, and generally take full control of a structure to extinguish a fire. In the aftermath of a fire an individual is unlikely to have much concern over the limited intrusion of a fire inspector coming into his premises to learn why there had been a fire. Fire victims, unlike occuрants at ordinary times, generally expect and welcome the intrusions of fire, police, and medical officials in the period following a fire. Likewise, as here, relative strangers such as insurance agents will frequently have authority to enter the structure. In these circumstances, the intrusion of the fire inspector is hardly a new or substantially different intrusion from that which occurred when the firefighters first arrived to extinguish the flames. Instead, it is analogous to intrusions of medical officials and insurance investigators who may arrive at the scene of the fire shortly after its origin.
Ample justification exists for a State or municipality to authorize a fire inspection program that would permit fire inspectors to enter premises to determine the cause and origin of the fire. But in no real sense can the investigation of
In my view, the utility of requiring a magistrate to evaluate the grounds for a search following a fire is so limited that the incidental protection of an individual‘s privacy interests simply does not justify imposing a warrant requirement. Here the inspection was conducted within a short time of
Notes
“¹ ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .’ Id., at 326, n. 1.
“² [A]nd 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.” Id., at 326, n. 2. The Tyler majority stated that a major function of the warrant requirement was to provide a property owner with sufficient information to reassure him of the legality of the entry. Michigan v. Tyler, 436 U. S. 499, 508 (1978). The relationship of this informational function and the privacy interest protected by the Fourth Amendment is not clear. Proper identification or some attempt at notifying the owners could allay any reasonable fears that the inspectors are impostors or lack authority to inspect for the origin and cause of the fire.