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decided: June 23, 1986.


Appeal from the Order entered August 10, 1984 and Amended August 15, 1984 of the Superior Court of Pennsylvania at No. 2954 Philadelphia, 1982 Reversing and Remanding the Order of the Court of Common Pleas of Susquehanna County entered October 14, 1982 at No. 1982-38.


Robert A. Mazzoni, Paul R. Mazzoni, Scranton, Michael Giangrieco, Montrose, for appellant.

Laurence M. Kelly, Dist. Atty., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos,*fn* JJ. Larsen, McDermott and Hutchinson, JJ., join in this opinion. Larsen, J., filed a concurring opinion in which Hutchinson, J., joined. Zappala, J., filed a dissenting opinion in which Nix, C.j., and Flaherty, J., joined.

Author: Papadakos

[ 511 Pa. Page 39]


At about 8:00 p.m. on June 28, 1982, Appellant's residence was on fire when Raymond Cobb, a member of the Pennsylvania State Police, happened onto the scene. In addition to his highway duties, Officer Cobb was the Fire Marshall of Susquehanna County. As such, Officer Cobb was required to investigate any fire and determine its cause and origin. On the night in question, after the fire had been extinguished (somewhere between 9:00 p.m. and 9:30 p.m.) the local fire chief requested Officer Cobb's assistance in determining the cause of the fire. The electricity in the house in question had been turned off all day giving rise to the suspicion of arson. Neither Officer Cobb nor the chief

[ 511 Pa. Page 40]

    undertook to pursue their investigation at that time because entry into the premises was blocked by residual heat and dripping water. Darkness had also fallen. They decided to glance into the residence through a doorway and then departed the scene. At 9:00 a.m. the next day, Officer Cobb returned to investigate the premises, photographs were taken and floor and carpet samples were extracted from the first floor of Appellant's residence. Officer Cobb conducted his investigation without first obtaining a warrant.

Appellant was thereafter arrested and charged with arson*fn1 and risking a catastrophe.*fn2 Appellant filed a timely motion to suppress the evidence obtained by Officer Cobb on June 29, 1982. A hearing was held during which Appellant, his wife and Officer Cobb testified. In addition to the uncontroverted facts set forth above, at the suppression hearing, the Commonwealth attempted to establish that either Appellant or his wife gave Officer Cobb permission to search the residence. The suppression court found to the contrary, holding that the statement of Appellant's wife at the scene the night of the fire, "was too confused to find that she had granted permission to enter and search the building to anybody" (R. 25). The court also found that on the day after the fire Officer Cobb had already entered Appellant's residence without permission before Appellant appeared on the scene and offered assistance to him. The suppression court concluded that Officer Cobb's search was constitutionally infirm and ordered the suppression of all the obtained evidence.

An appeal was filed by the Commonwealth to Superior Court*fn3 which, in a 2-1 decision, reversed the suppression court. (Cavanaugh and Weiand, JJ.; Cirillo, J. dissenting), 331 Pa. Super. 66, 479 A.2d 1081. In so doing, Judge Weiand, writing for the majority, held that exigent circumstances

[ 511 Pa. Page 41]

    existed at the time of the fire, and that they continued to exist when Officer Cobb returned the next day, thus justifying a finding that a continuous entry existed against Appellant's property. Because of the late hour, and the remaining heat and water, Officer Cobb was held to have continued his warrantless investigation properly the next morning. Contrary to the Majority's determination, Judge Cirillo concluded that the primary object of Officer Cobb's warrantless search was to gather evidence of criminal activity, not to determine the cause and origin of the recent fire. Therefore, the dissent is of the view that the "exigent circumstance" exception was not applicable.

The Fourth and Fourteenth Amendments*fn4 to the United States Constitution protect citizens from "unreasonable searches and seizures." Those amendments also require an independent determination of probable cause and reasonableness prior to the issuance of a search warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The United States Supreme Court has, however, carved out exceptions to the requirement of a search based upon a warrant. For example, an individual's consent will obviate the necessity of obtaining a search warrant. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Likewise, "exceptional" circumstances may exist which will require immediate action rather than seeking a prior judicial determination of probable cause. In those "exceptional" circumstances, a law enforcement agent seeking to conduct a warrantless search may do so if incident to a lawful arrest or to prevent destruction or removal of contraband. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). If so, a warrantless search is valid so long as that search is reasonable.

Particularly relevant to this appeal, the United States Supreme Court has held that a fire official may, without a warrant enter a burning building to fight a fire. A burning building presents a clear exigency that renders a warrantless

[ 511 Pa. Page 42]

    entry reasonable and, once in the building, firefighters may seize evidence of arson that is in plain view and they may investigate the cause of the fire. Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). Under what circumstances, then, may a fire marshall not conduct an investigation without a search warrant, where consent has not been properly obtained? To answer this question, it is necessary to review in detail the two most recent United States Supreme Court cases on the subject.

In Tyler, the United States Supreme Court attempted to resolve the issue of when a fire marshall may conduct a non-consenting, warrantless search. While fighting a fire at the defendant's furniture store, fire officials found two plastic containers of flammable liquid. Immediately, the fire chief examined the containers and summoned a police detective to assist in his investigation to determine the origin and cause of the fire. This investigation had to be abandoned due to the smoke and steam present in the building. By 4:00 a.m., the fire had been extinguished and the firefighters had departed. At 8:00 a.m., the same fire officials, along with the assistant fire chief who had not been there previously,*fn5 again appeared on the scene to determine the origin and cause of the fire. After a cursory examination, the officials left and returned for a third time an hour later. During this last visit, the fire officials obtained various floor and carpeting samples. Approximately three weeks later, another police official visited the furniture store, took photographs, and conducted a more thorough search of the premises. At no time did any police or fire official obtain a search warrant or have the owner's consent.

In upholding the warrantless search conducted the next morning, the Supreme Court found as a significant factor the difficulty the fire officials encountered in continuing the initial investigation undertaken while fighting the

[ 511 Pa. Page 43]

    fire to determine its cause and origin. The majority further held that since a burning building presents an exigent circumstance sufficient to justify a fireman's entry into the building for the purpose of terminating the fire, any search incident thereto cannot be unreasonable. Because firefighters not only have a duty to extinguish the fire, but also have a duty to determine the cause of the fire, as a protection against reoccurrence, no search warrant or consent is necessary if any such investigation occurs promptly. The Court said:

436 U.S. 510, 98 S.Ct. 1950. In Tyler, the firemen did not remain at the scene to complete their investigation on the night of the fire because of physical impediments, but returned the next morning. Since the Court found no fault in leaving the damaged building, the Court determined that the warrantless search the next morning was merely a continuation of the properly initiated investigation.

Under the circumstances, we find that the morning entries were no more than actual continuation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence.

436 U.S. 511, 98 S.Ct. 1951. The Court, however, did invalidate subsequent warrantless searches as being detached from the "initial exigency and warrantless entry." Id.

Six years later, the United States Supreme Court attempted "to clarify doubt that appears to exist as to the application of our decision in Tyler," in Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984).

In Clifford, the defendants were arrested and charged with arson in connection with a fire at their residence,

[ 511 Pa. Page 44]

    occurring on October 18, 1980, while they were on vacation. By 7:00 a.m., the fire had been extinguished. Having been informed that arson was suspected, the fire investigator commenced his investigation of the fire at 1:00 p.m. without either a search warrant or the defendants' consent. Since a work crew was securing the house, the fire investigator had to wait until 1:30 p.m. to gain entry. While awaiting entry, the investigator found a fuel can in the driveway. Upon entry into the house, the investigator determined that the fire originated in the basement beneath the stairway. Further investigation uncovered other fuel cans and a crock pot with wires leading to an electrical timer. Thereafter, the investigating team conducted a thorough examination of the remainder of the house, parts of which had not suffered serious damage, gathering other evidence to support its suspicion of arson. The Cliffords moved to suppress all evidence seized as invalid under the Fourth and Fourteenth Amendments.

A majority of the United States Supreme Court upheld the supression of the evidence although no clear majority opinion was filed. Justice Powell writing for the four member plurality stated that:

The constitutionality of warrantless and nonconsentual entries onto fire-damaged premises, therefore, normally turns on several factors: whether there are legitimate privacy interests in the fire-damaged property that are protected by the Fourth Amendment, whether exigent circumstances justify the government intrusion regardless of any reasonable expectation of privacy; and, whether the ...

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