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filed: August 10, 1984.


No. 2954 Philadelphia, 1982, Appeal from Suppression Order of the Court of Common Pleas, Criminal Division, of Susquehanna County, No. 1982-38.


Laurence M. Kelly, District Attorney, Montrose, for Commonwealth, appellant.

Robert A. Mazzoni, Scranton, for appellee.

Cavanaugh, Wieand and Cirillo, JJ. Cirillo, J., filed a dissenting opinion.

Author: Wieand

[ 331 Pa. Super. Page 67]

Where darkness, residual heat and dripping water make it difficult, if not impossible, to investigate the cause of a residential fire on the same night that the fire has been extinguished, may a fire marshall return the following morning and continue his investigation without a search warrant? The trial court held that he could not re-enter the

[ 331 Pa. Super. Page 68]

    fire-damaged building without a warrant and, therefore, suppressed evidence obtained by the fire marshall which tended to show that the fire had been of incendiary origin. The Commonwealth appealed. We reverse.

On the evening of June 28, 1982, a residence owned by Walter T. Smith and Cherry Lee Smith, husband and wife, in Great Bend, Susquehanna County, was found afire. Raymond Cobb, a member of the Pennsylvania State Police who also served as fire marshall in Susquehanna County, arrived at the fire while the home was still ablaze. He was told by the local fire chief that the origin of the fire seemed suspicious and was requested to determine the cause of the fire. After the fire had been extinguished at or about 9:30 p.m., Cobb found that he was unable to enter the premises and conduct an investigation because of residual heat and dripping water. Cobb told Mrs. Smith that he would come back to make his investigation at a later time. He returned the following morning at or about 9:00 a.m., when he entered to investigate and determine the cause of the fire. He did not then have a search warrant; he also did not have the owner's consent to enter the fire-damaged building. Nevertheless, he removed floor samples and took photographs of the interior and exterior of the building. The owner of the building, Walter T. Smith, was subsequently arrested and charged with arson. He moved to suppress evidence on grounds that Cobb had obtained the same as a result of an unlawful search. The trial court agreed, and suppressed all evidence thus obtained except photographs of the exterior of the building.

Initially, we observe that the Commonwealth has a clear right of appeal from the suppression order. The record supports its contention that the suppression of the evidence obtained by Cobb will substantially handicap it in its prosecution of Smith for arson. See: Commonwealth v. Markman, 320 Pa. Super. 304, 308 n. 1, 467 A.2d 336, 338 n. 1 (1983), citing Commonwealth v. Lapia, 311 Pa. Super. 264, 277, 457 A.2d 877, 884 (1983).

[ 331 Pa. Super. Page 69]

"The primary aim of the Fourth Amendment is to protect people from unreasonable intrusions of legitimate expectations of privacy." Commonwealth v. Tann, 500 Pa. 593, 598-599, 459 A.2d 322, 325 (1983). Accord: Commonwealth v. Flewellen, 475 Pa. 442, 446, 380 A.2d 1217, 1219 (1977); Commonwealth v. Vernille, 275 Pa. Super. 263, 272, 418 A.2d 713, 718 (1980). See: Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). As a general rule, with but few exceptions, warrantless searches are unreasonable. See: Payton v. New York, 445 U.S. 573, 586-587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639, 651 (1980); Commonwealth v. Silo, 480 Pa. 15, 20, 389 A.2d 62, 65 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94 (1979); Commonwealth v. Hartford, 313 Pa. Super. 213, 217, 459 A.2d 815, 817 (1983); Commonwealth v. Vernille, supra 275 Pa. Super. at 272, 418 A.2d at 718. See also: Commonwealth v. Westerfer, 294 Pa. Super. 459, 462, 440 A.2d 556, 558 (1982). If reasonable privacy expectations remain in 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." Michigan v. Clifford, 464 U.S. 287, , 104 S.Ct. 641, 646, 78 L.Ed.2d 477, 483 (1984).*fn1 Where the owner of the building consents to an official entry to investigate the cause of the fire, there is no longer ...

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