E-Newsletter Edition: May 2, 2007
Always note that state law may be more restrictive on police power than the U.S. Constitution.
A vehicle fire suspect arson removed to a private tow lot, no longer in police custody. If consent to search denied or unavailable, is a search warrant needed to conduct origin and cause and possible evidence collection?
The short answer to this question is the investigator probably does need to obtain a search warrant in the situation described above.
This answer is based upon several United States Supreme Court cases.
First, in Michigan v. Tyler, 436 U.S. 499 (1978), there was a fire at a furniture store. The fire department responded to the fire and made a report as to its initial findings. Later, the fire department reentered the premises without a warrant to determine the origin of the fire, and other warrantless searches were conducted on t he premises. The U.S. Supreme Court held that an entry to fight the fire required no warrant and that once in the building, the officials could remain there for a reasonable time to investigate the cause of the fire. However, subsequent searches of the premises required that a warrant be issued in order to gather evidence for possible prosecution.
Next, in Michigan v. Clifford, 464 U.S. 287 (1984), arson investigators began searching defendants’ home a half-day after firefighters left the home and after the home was secured. The investigators searched the upstairs of defendants’ home after finding the cause and origin of the fire in the basement. The court determined that d efendants had a reasonable expectation of privacy in their fire-damaged home and that a warrantless entry of their home was limited to an investigation immediately after the fire was extinguished and to exigent circumstances. Because the investigators in the case had delayed investigating the fire until after the firefighters had left and the home was secured, the court concluded that the search of defendants’ home, particularly the upstairs, was invalid without a warrant.
Now we look at the “automobile exception” to the search warrant requirement. While there is a long line of cases that establish that police can search a vehicle based upon probable cause but with a search warrant, the commonality in these cases is that the vehicles were mobile. The 11th Circuit Court of Appeals, in United States v. Watts, 329, F.3d 1282 (11th Cir. 2003), held that the automobile exception allows the police to conduct a search of a vehicle if (1) the vehicle is readily mobile and (2) the police have probable cause for the search. Further this same case held that the “mobility” requirement is satisfied “merely if the automobile is operational.”
When viewing Tyler and Clifford, it is important to note that one fire was at a business (Tyler) and the other at a residence (Clifford). Both of these locations are treated differently than automobiles. Therefore, because of the automobile exception, if probable cause exists to justify a search of the automobile and the automobile is mobile, then the search could proceed without a warrant. However, a vehicle, after a fire, may not be considered “operational” enough to qualify for the mobility factor under the automobile exception. Therefore, if the vehicle is not operational, a warrant should be obtained.