
    STATE of Louisiana, Plaintiff-Appellee, v. James SNIDER, Defendant-Appellant.
    No. K83-937.
    Court of Appeal of Louisiana, Third Circuit.
    April 24, 1984.
    
      Richard P. Ieyoub, Steven Broussard, Lake Charles, for defendant-appellant.
    F. Wayne Frey, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOUCET, Judge.

The defendant, James Snider, is accused of the murder of his mother. The victim, apparently strangled to death, was found after her home was discovered ablaze and firemen responded. The defendant filed a Motion to Suppress based on the fact arson investigators failed to secure a warrant before a search of the remains of the house.

The State and defendant stipulated to the facts at the motion to suppress hearing. The stipulation was as follows:

1. The fire was extinguished and the premises watered down at 9:03 A.M. on June 10, 1983;
2. That prior to any search or seizure by police, Mr. Jessen with the Lake Charles Fire Department made a preliminary determination that the fire was the result of arson based on a carpet sample and the fact there were two points of origin;
3. Prior to any search and seizure, the premises were secured by both the police and fire department;
4. The search and seizure was conducted without a search warrant;
5. James Sanford Snider lived in the house with his mother, Peggy Snider;
6. That Officer Joanne Sensat arrived at the scene of the fire at 8:46 A.M. on June 10, 1983, and at 10:14 A.M. she removed three cans of flammable liquid from an area of the house which was not involved in the fire, and additionally, she removed the victim’s denture plate and a bedspread from the area where the victim’s body was found;
7. Officer Sensat left the home at 10:40 A.M., June 10, 1983, after she had ample time to inspect the area where the fire occurred and after photographs had been taken;
8. At 4:21 P.M. on the same day, Officer Pape arrived at the house with members of the crime lab for the express purpose of seizing evidence; and
9. The only items that had been seized, prior to Officer Pape arriving, were the items taken by Officer Sensat mentioned above, together with the victim’s body with her bra, corset, panties and one black stocking.

The trial judge denied defendant’s motion to suppress the evidence seized during the warrantless search. Defendant applied to this court seeking to invoke our supervisory jurisdiction. Defendant’s writ was granted.

Defendant contends the trial court erred in denying his motion to suppress. As stated in the stipulation, there was a war-rantless search and seizure in this case. According to LSA-C.Cr.P. art. 703(D) the State has the burden of proving the admissibility of any evidence seized without a warrant.

Searches and seizures which are conducted without a valid search warrant are considered unreasonable, unless they fall within one of the legally recognized exceptions to a warrantless search. State v. Huizar, 414 So.2d 741 (La.1982).

In Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) the United States Supreme Court held:

“(t)hat an entry to fight a fire requires no warrant, and that once in the building, officials may remain there for a reasonable time to investigate the cause of the blaze. Thereafter, additional entries to investigate the cause of the fire must be made pursuant to the warrant procedures governing administrative searches. Evidence of arson discovered in the course of such investigations is admissible at trial, but if the investigating officials find probable cause to believe that arson has occurred and require further access to gather evidence for a possible prosecution, they may obtain a warrant only upon a traditional showing of probable cause applicable to searches for evidence of crime.” (Cities Omitted).

Additionally, in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), the Court stated:

“(w)hen the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. Cf. Michigan v. Tyler, supra, 436 U.S. at 509-510, 98 S.Ct. at 1950-1951. ‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’ (Citations omitted). And the police may seize any evidence that is in the plain view during the course of their legitimate emergency activities. Michigan v. Tyler, supra.

Subsequent to our granting of the writ, the United States Supreme Court rendered its opinion in Michigan v. Clifford, — U.S. —, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984) wherein it was held, per Justice Powell joined by three Justices, that where reasonable expectations of privacy remain in fire-damaged premises, administrative searches into the cause and origin of a fire are subject to the warrant requirement of the Fourth Amendment absent consent or exigent circumstances. There are especially strong expectations of privacy in a private residence and respondents there retained significant privacy interests in their fire-damaged home. Because the warrant-less search of the basement and upper areas of respondents' home was authorized neither by consent nor exigent circumstances, the opinion stated that the evidence seized in that search was obtained in violation of respondents’ right under the Fourth and Fourteenth Amendments and must be suppressed.

Where a warrant is necessary to search fire-damaged premises, an administrative warrant suffices if the primary object of the search is to determine the cause and origin of the fire, but a criminal search warrant, obtained upon a showing of probable cause, is required if the primary object of the search is to gather evidence of criminal activity. Michigan v. Clifford, supra.

The search in Clifford was held not to be a continuation of an earlier search, and the privacy interests in the residence made the delay between the fire and the midday search unreasonable absent a warrant, consent, or exigent circumstances. Michigan v. Tyler, supra, was distinguished. Because the cause of the fire was known upon search of the basement, the search of the upper portions of the house could only have been a search to gather evidence of arson requiring a criminal warrant absent exigent circumstances. Even if the basement search in Clifford had been a valid administrative search, the opinion stated it would not have justified the upstairs search, since as soon as it had been determined that the fire originated in the basement, the scope of the search was limited to the basement area. id.

Justice Stevens concurred, opining that search of respondents’ home was unreasonable, in contravention of the Fourth Amendment, because the investigators made no effort to provide fair advance notice of the inspection to respondents. His concurrence concluded that a non-exigent, forceful, warrantless entry cannot be reasonable unless the investigator has made some effort to give the owner significant notice to be present while the investigation is made.

As aforementioned, in the present case, the search occurred after the fire had been extinguished and a preliminary determination had been made that the fire resulted from arson. The premises had been secured. Thereafter, two warrantless searches were conducted: one search shortly after (one hour) the fire was believed to be extinguished, and another search five hours later.

No one questions the right of firefighters to enter a burning building without a warrant or remain for a sufficient time to insure there is no danger of rekindling. There is also no dispute that search of areas outside the area of the fire would require a warrant as does a search for criminal activity after any exigency has passed.

The need to protect or preserve life or avoid serious injury is justification for what would otherwise be illegal absent an exigency or emergency. Wayne v. United States, 115 U.S.App.D.C. 234, 318 F.2d 205 (1963). The Fourth Amendment does not bar police officers from making warrantless entries and searches when they believe that a person might be in need of immediate help. When police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if the killer is still on the premises. Cf: Michigan v. Tyler, supra. And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. Michigan v. Tyler, supra; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

Efforts to ascertain the cause of a fire may extend for a reasonable period of time with entry and re-entry without a warrant being required yet an inquiry must be made whether reasonable expectations of privacy exist in the fire-damaged premises at a particular time and, if so, whether exigencies justify the re-entries. Michigan v. Clifford, supra. Immediate threat that a blaze might rekindle presents an exigency justifying a warrantless and nonconsen-sual post-fire investigation into the cause of the fire.

There is no evidence that defendant possessed any reasonable privacy interest in the fire-damaged remains of his mother’s residence including the garage whereat the flammables were discovered. No claim has been made that any section of the house, such as defendant’s bedroom, was searched. Once firefighters lawfully entered the premises, it was permissible for them to remain there for a reasonable period thereafter to insure there was no danger of rekindling and their seizure of flammables was reasonable in view of the danger of such combustibles re-igniting the fire.

Each case, of course, must be evaluated on its own facts. Aside from the fact this case involves both a murder and arson, there is no showing that defendant possessed any reasonable expectation of privacy in the fire-damaged remains of the house owned by his mother who he is alleged to have murdered. Moreover, the defendant had notice of the search, therefore he was in a position to safeguard his privacy interests more so than the defendant in Clifford.

As aforementioned, fire investigators may remain on the premises for a reasonable period after extinguishment of the blaze and seize evidence of crime in plain view. Michigan v. Tyler, supra. A return to the scene of the fire site shortly thereafter may be considered a continuation of the prior search, id. This exception to the requirement of a warrant is a recognition that fires present an exigency which continues after the blaze is extinguished. Smoke, electrical problems, water damage and decreased security are but a few of the consequences which continue after the conflagration is put out.

Unlike Clifford, the inhabitants of the house herein had not arranged to have the house secured which evidenced an expectation of privacy. Here, the owner of the home was dead. The defendant was aware of the fire yet took no efforts to preserve any privacy interest he may have possessed in the remains of the house. Unlike Mincey where officers conducted an exhaustive four-day search which included ripping up carpets, tearing apart walls and seizure of 200-300 objects, the scope of the search herein was limited and involved a minimal intrusion into defendant’s privacy. We find the afternoon search on June 10, 1983 was a valid continuation of the earlier lawful search.

For the reasons assigned hereinabove, the trial judge’s denial of the Motion to Suppress is affirmed and the case is remanded for further proceedings.

AFFIRMED AND REMANDED.

STOKER, J., concurs and assigns written reasons.

STOKER, Judge,

concurring.

I concur in the position stated in the majority opinion in this case. In order to emphasize certain points and posit others, I add this concurring opinion.

The only facts before us for consideration concerning the challenged searches are those expressly stipulated to by counsel for the State and the defendant as set out in the majority opinion.

In arson eases in which the accused is the alleged arsonist and is being tried for arson, the constitutional protection against unconstitutional searches and seizures has pertinence in the context of such cases. The arguments of counsel and the majority opinion focus primarily on the legal principles developed in such arson cases. However, this is not an arson case. James Snider is charged in this case with having murdered his mother in her house. Therefore, the searches and seizures in question relate to a murder scene rather than an arson scene. Proof of arson may bear on determining the defendant’s guilt for the crime of murder, but the prosecution here is for murder and not arson. Therefore, in my opinion this case requires a different focus and a different approach.

The holding of the Supreme Court of the United States in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), indicates that the scope of a search at a homicide scene is broader than that justified by the crime of simple arson. In such cases, for example, the police may search the area for other victims or the killer. As this case is concerned with homicide, I think the following points should be considered.

A most persuasive point made by the majority opinion is the fact that the defendant had no reasonable expectation of privacy in the fire-damaged premises of his mother’s home. Apparently, the defendant was present when authorities arrived to put out the fire but he chose to leave the premises. The authorities became aware that the homeowner was the victim of a homicide and conducted the investigation with that knowledge. In any event, the majority correctly points out that there is no claim that defendant’s bedroom was searched. The only person with a privacy interest in the house and grounds was dead. Any privacy interest she had cannot be asserted in order to suppress evidence which could lead to the conviction of her killer. Such a result would be absurd. In fact, in my opinion, it can be reasonably asserted that, being dead, she could have no legal or constitutional privacy interests. Considerations of decency would lead considerate persons to desire that the privacy of her corpse and private belongings be respected. However, this is not the same thing as holding that a deceased person has constitutionally protected rights.

In Louisiana, in addition to satisfying the constitutional guarantees of the Fourth Amendment of the federal constitution, searches and seizures must pass the test of Article I, Section 5 of the Louisiana Constitution of 1974. The section provides:

“Sec. 5. Right to Privacy
“Section 5. Every person shall be secure in his person, property, communication, houses, papers and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.”

Thus, if defendant, James Snider, is a person “adversely affected” by a search or seizure in violation of that section, he has standing to challenge the constitutionality of the search. If, as asserted above, the deceased mother of Snider had no constitutional privacy interest because she was dead, then there was no violation which could “adversely affect” the defendant. However, even viewed from a broader perspective, and without application of technical interpretations, I would find that James Snider had no privacy interest under this section of the Louisiana Constitution.

In State v. Ragsdale, 381 So.2d 492 (La. 1980), the Louisiana Supreme Court considered the right to privacy of a person for whom the law enforcement authorities held a warrant of arrest who is found in the home of a third person. The Court’s opinion includes the following pronouncement:

“The test for determining whether one has a reasonable expectation of privacy is not only whether the person had an actual or subjective expectation of privacy, but also whether that expectation is of a type which society at large is prepared to recognize as being reasonable. State v. Wilbourn, 364 So.2d 995 (La. 1978); State v. Dupuis, 378 So.2d 934 (La.1979).”

In the factual context of this case it does not seem to me that if James Snider harbored any expectation of privacy at all with reference to his mother’s house, it nevertheless was not of a type which society at large is prepared to recognize as being reasonable. The police were legitimately investigating, not merely suspected arson, but an evident case of homicide. They were investigating in the home of the victim. They certainly had a duty to search and seize evidence of foul play. If exigent circumstances were not present, it seems to me nevertheless that the situation justified the searches and seizures in this case. I can not see that the defendant had any privacy interest at all; but if he did have any, it did not override the interest of the public in establishing the fact and cause of the homicide and the identity of the killer. Not all entries into the houses of third persons unauthorized by warrant “adversely affect” defendants to the extent that suppression of evidence is required by the Louisiana constitutional provision in question. Cf. State v. Johnson, 437 So.2d 350 (La.App. 4th Cir.1983) and State v. Barrett, 408 So.2d 903 (La.1981).  