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filed: April 25, 1989.


Appeal from Order of the Court of Common Pleas, Criminal Division, of Montgomery County, No. 3850-87.


Patricia E. Coonahan, Assistant District Attorney, Cheltenham, for Com., appellant.

Andrew F. Schneider, Bensalem, for appellee.

Rowley, Wieand and Beck, JJ. Beck, J., files a concurring and dissenting opinion.

Author: Wieand

[ 385 Pa. Super. Page 198]

Where a fire marshall, while seeking to determine the extent of smoke damage caused by a recently extinguished fire, observes in plain view that which he believes to be drugs and drug paraphernalia and thereafter summons a police officer, may the police officer seize the evidence without first obtaining a search warrant? The trial court held that a search warrant was required and suppressed the evidence which had been observed by the fire marshall and seized by the police officer. The trial court also suppressed additional evidence which had been found and seized in a

[ 385 Pa. Super. Page 199]

    later consensual search, holding that the consent given by the resident of the apartment where the fire had occurred was tainted by the illegality of the original search. The Commonwealth has appealed from the trial court's suppression order.*fn1 We reverse.

Edward M. Momorella, the assistant fire marshall of Upper Moreland, responded to a fire call at premises 2009B Jason Drive, Huntingdon Valley, in Montgomery County. He arrived after the fire had been extinguished by firemen. He determined that the fire had originated accidentally in a plastic covered chair, which had been removed from the apartment complex and was smoldering on the lawn. Momorella then entered the apartment to observe where the chair had been situated. He confirmed that the chair had been the source of the fire and examined the interior of the apartment to determine the extent of the damage which had been caused by fire and smoke. He observed that the apartment was ventilating, with windows open, and that only a small amount of soot was on the apartment walls. Upon examining two bedrooms for possible smoke damage, Momorella observed a marble slab, a scale, a plastic bag containing a white, powdery residue, and a bag containing green matter. Upon emerging from the apartment, he told Officer McGowen of the Upper Moreland Police Department, who was outside the apartment, about that which he had observed in the bedroom and said that he would like McGowen to see it. Thereafter, McGowen entered the apartment bedroom, where he observed a bag of marijuana, a triple beam scale, a razor, a mirror and plastic bags. The discovery was reported to Sgt. Levy, who was at the station, and he was summoned to the scene of the fire. Shortly thereafter, the defendant, William C. Person, and his girlfriend returned from a shopping trip and identified themselves as the occupants of the apartment. They were

[ 385 Pa. Super. Page 200]

    confronted by Sgt. Levy, who told them of the observations made by McGowen and Momorella, said that they wanted to search the apartment further, and that if the occupants didn't consent, a search warrant would be obtained. Person consented to a further search. He also showed police where additional drugs were stored. As a result, police seized from a dresser drawer methamphetamine, marijuana, pills, and drug paraphernalia. Person and his girlfriend were placed under arrest.*fn2

In reviewing an appeal taken by the Commonwealth from an order suppressing evidence,

     we must consider only the evidence of the defendant's witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983). Furthermore, our scope of appellate review is limited primarily to questions of law. See Commonwealth v. White, 358 Pa. Super. 120, 516 A.2d 1211 (1986). We are bound by the suppression court's findings of fact if those findings are supported by the record. Id. Factual findings wholly lacking in evidence, however, may be rejected. Id.

Commonwealth v. Stine, 372 Pa. Super. 312, 314, 539 A.2d 454, 455 (1988). See also: Commonwealth v. James, 506 Pa. 526, 532-533, 486 A.2d 376, 379 (1985); Commonwealth v. Hamlin, 503 Pa. 210, 215-216, 469 A.2d 137, 139 (1983).

The United States Supreme Court has twice, within the context of prosecutions for arson, considered the authority of fire department officials to conduct warrantless investigations at the scene of a fire. In Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), the Court said:

A burning building clearly presents an exigency of sufficient proportions to render a warrantless entry "reasonable." Indeed, it would defy reason to suppose that firemen must secure a warrant or consent before entering

[ 385 Pa. Super. Page 201]

    a burning structure to put out the blaze. And once in a building for this purpose, firefighters may seize evidence of arson that is in plain view. Coolidge v. New Hampshire, 403 U.S. 443, 465-466, 91 S.Ct. 2022, 2037-2038, 29 L.Ed.2d 564 [1971].

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. And if the warrantless entry to put out the fire and determine its cause is constitutional, the warrantless seizure of evidence while inspecting the premises for these purposes also is constitutional.

Id. at 509-510, 98 S.Ct. at 1950, 56 L.Ed.2d at 498-499 (footnote omitted). Six years later, in Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984), the Supreme Court limited its holding in Tyler as follows:

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. Because determining the cause and origin of a

[ 385 Pa. Super. Page 202]

    fire serves a compelling public interest, the warrant requirement does not apply in such cases.

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 necessary to achieve its end. A search to gather evidence of criminal activity not in plain view must be made pursuant to a criminal warrant upon a traditional showing of probable cause.

Id. at 293-295, 104 S.Ct. at 647, 78 L.Ed.2d at 484-485 (1984) (footnotes omitted).

In Commonwealth v. Smith, 511 Pa. 36, 511 A.2d 796 (1986), cert. denied, 479 U.S. 1006, 107 S.Ct. 643, 93 L.Ed.2d 700 (1986), the Supreme Court of Pennsylvania, also in the context of an arson prosecution, was called upon to interpret the Tyler and Clifford decisions. In doing so, the Court said:

Reading Tyler and Clifford together, certain principles regarding the Fourth Amendment and investigations of the causes and origins of fire are clear. Firemen have the right to enter a private residence without a warrant without violating the Fourth and Fourteenth Amendments of the United States Constitution, if done so for the purpose of extinguishing a fire. While performing the task, firemen may seize any evidence, which is in plain view, of the cause and origin of the fire. In fighting the fire, fire officials are also immediately charged with determining the cause and origin of the fire. The purposes of the investigation into the cause and origin of the fire may properly include prevention of the rekindling of the fire, and prevention of the destruction of evidence, either accidentally or intentionally. When the search is conducted

[ 385 Pa. Super. Page 203]

    for one of these purposes, no search warrant is necessary, even if consent has not been granted, but only if the search is a continuation of an initial entry. If the non-consenting, warrantless entry is begun, but must be terminated due to the condition of the building, then that search may be continued at the first instance re-entry is possible. Finally, if it is clearly shown that the search is not for the purpose of determining the cause and origin of the fire, but rather to obtain evidence of criminal activity, then such search must either be with consent or with a valid search warrant.

Commonwealth v. Smith, supra, 511 Pa. at 45-46, 511 A.2d at 800-801.

In the instant case, the purpose of the assistant fire marshall's search was not to uncover evidence of criminal activity but to determine the cause of the fire and to determine the extent of the damage which had been caused by the fire. In carrying out his examination, the fire marshall determined that the source of the fire, indeed, had been the chair which had been removed from the living room. He then proceeded to check the bedrooms for smoke damage. It was during the check of the second bedroom that the drugs and paraphernalia were observed in plain view. The suppression court, relying on Commonwealth v. Smith, supra, concluded that "in Pennsylvania a fire marshall is allowed to seize evidence of arson while investigating the cause or origin of the fire and may supply information to police regarding 'plain view' evidence of [other] criminal activity." The court determined, however, that "at present, there is no authority in Pennsylvania to allow a fire marshall to seize evidence [of] non-arson related criminal activity." Thus, in suppressing the evidence, even though it had been observed in plain view, the suppression court reasoned as follows:

Because in the instant case the exigency had been removed and the source and origin of the fire had been determined and removed, a warrant to search the apartment was necessary even though a fire marshall's administrative

[ 385 Pa. Super. Page 204]

    investigation of the extent of smoke damage from the fire had uncovered illegal contraband in "plain view." The only value of the investigation of the fire for smoke damage was to provide material for a regular report and not to prove criminality. Coincidentally, the view provided sufficient information for an affidavit of probable cause to obtain a search warrant either for the police on information received or by an affidavit by the fire marshall on behalf of the police's request for a search warrant.

Therefore, when the fire marshall was lawfully present on the premises for an administrative search and survey of the smoke damage, the non-arson source and sole object containing fire having been removed, the fire marshall should have reported to the police what he saw "in plain view" without allowing the police to search illegally and thereafter requiring the police to obtain a search warrant on information received from the marshall. This would have been sufficient probable cause for an affidavit to obtain a search warrant. Once it was obtained, then a thorough search of the apartment both of "plain view" objects and those "not in plain view" was proper. The legitimacy of the search would be then unquestioned and consent would not have been an issue.

While the appellate courts in this Commonwealth have not determined whether a fireman can seize evidence of non-arson related crimes which he finds in plain view during the performance of legitimate firefighting duties, other courts which have considered this issue have refused to suppress evidence thus seized. See: United States v. Green, 474 F.2d 1385 (5th Cir.1973), cert. denied, 414 U.S. 829, 94 S.Ct. 55, 38 L.Ed.2d 63 (1973); United States v. Johnson, 524 F.Supp. 199 (D.Del.1981), rev'd on other grounds, 690 F.2d 60 (3d Cir.1982), cert. denied, 459 U.S. 1214, 103 S.Ct. 1212, 75 L.Ed.2d 450 (1983); State v. Bell, 108 Wash.2d 193, 737 P.2d 254 (1987). See generally Annot.,

[ 385 Pa. Super. Page 205]

    was for the sole purpose of extinguishing the fire in the second floor bedroom. They did not need a warrant for this entry, nor did they need a warrant to conduct the routine procedures of searching for and rescuing occupants, ventilating the building, searching for any additional fires, and securing the premises. Steigler v. Anderson, supra, at 795. In addition, Firefighter Wilson's warrantless investigation of the cause of the fire was reasonable and justified by exigent circumstances. Id. at 797.

Once the firemen were legitimately on the premises carrying out their proper firefighting functions, any evidence they inadvertently saw in plain view could be seized without a warrant. See Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978); Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). The firemen's discovery of what appeared to be drugs and drug paraphernalia in the second floor rear bedroom clearly falls within this exception, because the incriminatory nature of the evidence was apparent and their discovery was inadvertent. Coolidge v. New Hampshire, supra, at 466, 469-70, 91 S.Ct. at 2022, 2040. The seizure of various papers with Johnson's name on them was reasonable under the same rationale.

Id. at 203-204.

It has been held also that after a fireman has lawfully observed evidence in plain view, he may summon a policeman to seize the evidence without first obtaining a warrant. See: United States v. Green, supra. See also: Steigler v. Anderson, 496 F.2d 793 (3d Cir.1974), cert. denied, 419 U.S. 1002, 95 S.Ct. 320, 42 L.Ed.2d 277 (1974); United States v. Johnson, supra; State v. Bell, supra. Contra: United States v. Hoffman, supra. In United States v. Green, supra, a deputy state fire marshall for the City of Jacksonville, Florida, had found plates used for ...

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