NCJ Number
52283
Journal
FBI Law Enforcement Bulletin Volume: 47 Issue: 11 Dated: (NOVEMBER 1978) Pages: 26-31
Date Published
1978
Length
3 pages
Annotation
THE QUESTION OF THE NEED FOR A SEARCH WARRANT AT THE SCENE OF A FIRE OR KNOWN CRIME IS INVESTIGATED.
Abstract
BECAUSE A FIRE MAY RESULT FROM A CRIMINAL ACT, SIMPLE NEGLIGENCE, OR ACCIDENT, THE U.S. SUPREME COURT VIEWS FIRE SCENE INVESTIGATIONS DIFFERENTLY FROM SEARCHES OF THE SCENE OF A KNOWN CRIME. IN THE MICHIGAN VERSUS TYLER CASE (1978), THE U.S. SUPREME COURT DEALT WITH THE APPLICABILITY OF THE FOURTH AND FOURTEENTH AMENDMENTS TO ENTRIES AND SEARCHES OF FIRE-DAMAGED PREMISES BY FIRE SERVICE AND LAW ENFORCEMENT OFFICIALS. THE MICHIGAN SUPREME COURT SEEMED TO INDICATE THAT, AS SOON AS THE FIRE WAS EXTINGUISHED, THE EMERGENCY WAS OVER AND NO FURTHER SEARCH OF THE PREMISES WAS PROPER (ABSENT CONSENT OR A WARRANT). THE U.S. SUPREME COURT STATED THAT THIS APPROACH WAS UNREALISTICALLY NARROW. IT STIPULATED THAT, IN GENERAL, ANY REENTRY AFTER A FIRE HAS BEEN EXTINGUISHED AND OFFICIALS HAVE LEFT THE SCENE SHOULD BE MADE PURSUANT TO A SEARCH WARRANT UNLESS JUSTIFIED BY RECOGNIZED EXCEPTIONS TO THE WARRANT REQUIREMENT (CONSENT, EMERGENCY CIRCUMSTANCES, OR ABANDONMENT). A PARALLEL WAS DRAWN BETWEEN A SEARCH NECESSARY TO DETERMINE THE CAUSE OF A FIRE WHERE NO CRIME IS INDICATED AND ADMINISTRATIVE SEARCHES OR INSPECTIONS OF RESIDENTIAL AND BUSINESS PREMISES UNDERTAKEN BY OFFICIALS TO ENFORCE HOUSING OR FIRE CODES AND GOVERNMENTAL REGULATIONS OF GENERAL APPLICABILITY. WITH REGARD TO CRIMINAL SEARCH WARRANTS, ANY SUBSEQUENT REENTRY TO SEARCH FOR EVIDENCE AFTER OFFICIALS HAVE PROBABLE CAUSE TO BELIEVE ARSON HAS BEEN COMMITTED MUST BE MADE PURSUANT TO A CRIMINAL INVESTIGATIVE SEARCH WARRANT ISSUED UPON A TRADITIONAL SHOWING OF PROBABLE CAUSE. IF PREMISES ARE ABANDONED, NO FOURTH AMENDMENT PROTECTIONS ARE VIOLATED BY A SUBSEQUENT SEARCH. THE USE OF THE HABITABILITY TEST, AT LEAST AS THE SOLE FACTOR TO ESTABLISH ABANDONMENT, IS MADE QUESTIONABLE BY THE MICHIGAN VERSUS TYLER CASE. THE EFFECT OF STATE STATUTES AUTHORIZING FIRE INSPECTIONS AND THE EMERGENCY OR EXIGENT CIRCUMSTANCES DOCTRINE AS AN EXCEPTION TO THE WARRANT REQUIREMENT ARE DISCUSSED. PROBLEMS RELATING TO CONSENSUAL SEARCHES AND POSSIBLE OBJECTIONS TO EVIDENCE OBTAINED FROM AN ALLEGEDLY ILLEGAL SEARCH OF PREMISES ARE CONSIDERED. FOOTNOTES ARE INCLUDED. (DEP)