MICHIGAN v. TYLER
Legal provision: Amendment 4: Fourth Amendment
Argument of Jeffrey Butler
Chief Justice Warren E. Burger: We will hear arguments first this morning in Michigan v. Tyler and Tompkins.
Mr. Butler you may proceed whenever you are ready.
Mr. Jeffrey Butler: This Arson case presents the questions of when and to what extend of warrant is to be required for post fire and by analogy other post disaster investigations and of which evidence is admissible against in particular arsonists who burn their own buildings.
The case arises as out of facts which were the most part are typical of any arson for profit case with two small exceptions which we plan to elaborate upon later in argument.
In relating the facts and in attempting to justify, a warrant was post fire searches in general as well as the searches which occurred in particular in this case.
We have four principle themes.
The first is that the public interest in a post disaster or post fire search is significantly greater than the public interest in any inspection of the type touched upon and dealt with in Camara, say and Secretary of State against Barlow.
The second theme is that the privacy interests at issue as well as the potential for abuse are very minimal, primarily because of the extensive damage that has taken place.
The extent of the already lawful intrusion and because of the nature of the search for the cause or the origin of the fire.
Third, we contend that a warrant in circumstances like these whether administrative or criminal will provide no protection in the great majority of cases, very little protection in a very limited class of cases.
Our fourth theme is that, a fire investigation, there are certain costs, in fire investigation and in public safety to require any kind of administrative search warrant.
The general interest in a search, in conducting a search of this type are several.
The cause itself must be determined first as some type of exigent circumstance.
This is a theme which the Michigan Supreme Court seem not to acknowledge.
Now we grant that, it did say if there are exigent circumstances, the possibility of danger, of evidence burning, of danger to the fireman conducting the investigation, danger of water damage to the evidence that then they will excuse us a search that takes place at that time, but we think they should have concluded that until the clause is determined there should be a presumption if there is an exigent circumstance.
Chief Justice Warren E. Burger: In the local law applicable here, is every fire subject to some investigation as to cause?
Mr. Jeffrey Butler: There is a local statue which requires the local fire marshal to determine that conduct a physical investigation to determine a cause or origin of fire, and it states that he may enter without warrant any premises for making that determination.
Unknown Speaker: Well, now the Statue says, the State Statute says that the Director or any Officer is authorized to investigate and inquire, it does not direct him to --
Mr. Jeffrey Butler: If not that specific Statute, it is clear that under the fire Prevention Act, he does have the duty to determine the cause or origin of all fires that result in property damage or death.
Unknown Speaker: And did you say in an answer to the question of Chief Justice that he does in fact investigate the cause or origin of every single fire, large and small?
Mr. Jeffrey Butler: The Statute reads where there is injury or damage to property, he would have to investigate any fire that is called to his attention, very small fires that you would never hear of course --
Unknown Speaker: Is this Statue is simply an authorizing Statute.
It is a not a directory Statute.
But you say that in practice he will be under a duty to do it?
Mr. Jeffrey Butler: Yes Your Honor.
Unknown Speaker: And does do it?
Mr. Jeffrey Butler: Yes he does Your Honor.
Unknown Speaker: In every case where there is loss of life or damage to property.
Mr. Jeffrey Butler: That is brought to his attention.
Now it is a very small fire that, I mean of course that is never reported to any fire department.
No he does not do that.
Unknown Speaker: Well I am assuming it been reported to fire department.
There is always damage to property in a fire, isn't there?
Mr. Jeffrey Butler: Not always to real property.
Unknown Speaker: Well, then say real property.
Pretty hard a damage real property in fire.
Mr. Jeffrey Butler: I am saying real property, the building as well Your Honor, that is determined by that term.
Unknown Speaker: Did not the Michigan Court construe the State Statute?
Mr. Jeffrey Butler: We believe that he construed the State Statute to require a warrant only to make it Constitutional under the Fourth Amendment.
But they did read a warrant requirement in to that Statute.
We claim that it makes very little sense to do that because it is simply not the intent of the Legislature because they surely should be presumed to know that any fire investigator can (Inaudible) with the warrant, so by very clear implications, it would seem that the Statute on states would seem to allow warrant searches.
That is the Court said the Statute did not speak to the question.
Unknown Speaker: That are quite rebound by the Michigan construction.
Mr. Jeffrey Butler: I do not believe--
Unknown Speaker: To the extent that is relevant to this case.
Mr. Jeffrey Butler: I do not believe it will be bound by, if their construction depended upon an erroneous view only the Fourth Amendment.
If it depended upon any another view of Michigan law then the Court would be bound by it.
Chief Justice Warren E. Burger: This is not the only reason the case is here, is it because they have construed the federal constitution?
Mr. Jeffrey Butler: Yes it is Your Honor.
Unknown Speaker: Mr. Butler, did I correctly understand your view is that the exigent circumstances exception should survive until the cause of the fire is determined?
Mr. Jeffrey Butler: Precisely Your Honor.
Unknown Speaker: Even if it might take a year or two?
If the building has been reconstructed, would it still survive that long?
Mr. Jeffrey Butler: Not if the owner occupant had somehow re-taken over the premises and moved something back in or any other way it indicated that he is either living in them or using it as an operational--
Unknown Speaker: What if he just locks the premises and secures them against entry by third parties?
Mr. Jeffrey Butler: A lot of that would depend upon precisely when he did that.
We contend that fire --
Unknown Speaker: Would that ever terminate the exigency exception.
Mr. Jeffrey Butler: Yes it certainly would at some point we can--
Unknown Speaker: But can we do that in this case?
Mr. Jeffrey Butler: No in this case the proprietor of the premises was out of state for about seven days after the fire.
Until about seven days after the fire--
Unknown Speaker: But at the time of the search where they found that the fuse and the glass or whatever it was, some 22 or 23 days later, the premises were locked were they not?
Mr. Jeffrey Butler: They were locked and sealed by the Fire Department --
Unknown Speaker: Now, why did that not terminate the exigency then?
Mr. Jeffrey Butler: It clearly did -- by the time of that search the exigency was terminated.
Unknown Speaker: Well, then under your view of the law the search was improper, if I understand you?
Mr. Jeffrey Butler: No Your Honor we attempt -- we believe there is additional justification for that search.
We are speaking now primarily of the search that occurred the morning following the fire.
Unknown Speaker: Yes but some of the evidence that was excluded, I mean it was received over objection, it was found on January 22 or whatever date it was, about three or four weeks later.
Don't you have to sustain that search in order to sustain the conviction?
Mr. Jeffrey Butler: We had to sustain that search, yes Your Honor, but we do not believe we have to sustain it under the exigent circumstances exception to the warrant requirement.
Chief Justice Warren E. Burger: Who put the lock on the door?
Mr. Jeffrey Butler: The Fire Department perhaps in conjunction with the --
Chief Justice Warren E. Burger: The seal depending the completion of the investigation as I read the record is that correct?
Building was sealed by a lock put on it by the Fire Marshal both to protect the property and during the course of his investigation is that correct?
Mr. Jeffrey Butler: Yes Your Honor, the fire was put out at approximately 4 a.m. on January 22 at which time the fire department boarded up all the windows and put their own locks and chains on all the doors and then re-entered at eight o' clock, the next morning, and found what we agreed was indeed the cause of the fire by that time.
The Michigan Supreme Court held that in the course of putting out the fire between midnight and approximately 4 a.m on January 22nd that the finding only of two plastic bottles, one partially filled with gasoline was itself the cause of the fire and that enabled them, that gave them enough probable cause to obtain a search warrant, we are contending that --
Unknown Speaker: Mr. Butler, I want to be sure.
Are there not three pieces of evidence here, the first what they picked up at the time of the fire, that is plastic container --
Mr. Jeffrey Butler: Yes Your Honor.
Unknown Speaker: And there was no objection to its submission as I recall.
Mr. Jeffrey Butler: At least it is – it was not challenged in the Court below and nor here.
Unknown Speaker: The second piece was what was discovered at the day light entry the very next day.
Mr. Jeffrey Butler: Yes sir.
Unknown Speaker: And that was submitted over objection and is at issue here.
Mr. Jeffrey Butler: Yes sir.
Unknown Speaker: And then the third one, am I correct was two or three weeks later?
Mr. Jeffrey Butler: About three or four weeks later there was a re-entry, the reason for the re-entry was that the photographs taken by an arson investigator were lost in the mail.
He apparently re-entered to retake some odd photographs and while doing that found a piece of fuse and pieces of glass and debris and those items were admitted in--
Unknown Speaker: But in any event we have these three levels of evidence, two of which are under challenge at this court.
Mr. Jeffrey Butler: That is correct Your Honor however in order to make this case re-triable under the opinion of the Michigan Supreme Court really there were other entries into the building and the principles of the opinion below would not allow for example, oral testimony by an arson investigator who went in four days after the fire.
Had he taken photographs or found physical evidence, it is clear that they would have been challenged.
Unknown Speaker: When you talk about a warrant requirement as imposed by the Michigan Supreme court here, what inquiry would the magistrate make in order to justify the issue on civil warrant.
Mr. Jeffrey Butler: The only possible inquiry which we can imagine is simply whether or not a fire occurred.
It seems that if an search warrant is to be allowed is to required to re-enter and determine the cause or origin of the fire, all that we should be able to have to show is that a fire occurred.
Justice Thurgood Marshall: Well, couldn't he show that there were two cans of gasolines in that?
Mr. Jeffrey Butler: Well,we can show that the fire occurred by the condition of the building.
I mean that is what we say that the fire occurred.
Justice Thurgood Marshall: Well, couldn't you show that?
I mean you do not have gasoline sitting around for fumigation purposes, do you?
Mr. Jeffrey Butler: I am not sure if Your Honors is suggesting that we need a criminal warrant, if that is the case then there is close question of whether those two bottles of gasoline are sufficient to prove that --
Justice Thurgood Marshall: I am talking about the warrant.
Mr. Jeffrey Butler: If we think if just an administrative warrant is required to determine the cause or origin of the fire, then the only --
Justice Thurgood Marshall: You keep saying re-entry, by that you mean search, are you (Inaudible) the word search?
Mr. Jeffrey Butler: No, we are not, we have used repeatedly throughout the brief that I --
Justice Thurgood Marshall: It stated here that you are saying re-entry and I mean the term, you keep saying entry.
Mr. Jeffrey Butler: Well, the entry is one intrusion and what they do inside is something else.
Justice Thurgood Marshall: But did they not search when they went in?
Mr. Jeffrey Butler: Yes, they did, Your Honor.
Justice Thurgood Marshall: Each time.
Mr. Jeffrey Butler: Yes, they did, it searched for the cause or origin of the fire.
Justice Thurgood Marshall: And when you say that do you mean search?
Mr. Jeffrey Butler: Yes, Your Honor.
Unknown Speaker: Would you be satisfied of the rule that you could enter the building any time you wanted to after a fire, and hunt for evidence and the cause but then nothing you found could be admitted an evidence in the criminal prosecution unless you had a warrant?
Mr. Jeffrey Butler: No, we would be very dissatisfied with the rule like that Your Honor.
Unknown Speaker: You really want to gather to any evidence, aren't you?
It is a criminal investigation among other thing.
Mr. Jeffrey Butler: Among other things exactly Your Honor.
Unknown Speaker: Now, why is this arson crime any different than any other crime in terms of your ability to enter property to find evidence.
Mr. Jeffrey Butler: We think it is different because there is a legitimate need to enter the property anyway, to make a valid civil inspection and search for the cause of the fire.
Another respect in which it is different is that --
Unknown Speaker: Well, I know but you could server that in by agreeing not to use the evidence in the criminal prosecution, unless you had a warrant.
Mr. Jeffrey Butler: That would be the most perverse imaginable Your Honor because that would say, and it is alright to make these searches because there is a public interest for them, but we are making one exception and give a benefit only to arsonists and say that the evidence can not be --
Unknown Speaker: No, but you are saying that only arsonists can object to entry, to a property without a warrant.
Mr. Jeffrey Butler: We are saying that a arsonists are in a special class and that the way they have treated their own property, suggests that they have no protectable interest and no interest remaining protected by the Fourth Amendment by nearly any test except one which requires total abandonment of any property interests --
Unknown Speaker: Like a man who shoots his children?
He is done something pretty bad, that you can not enter his house and search his property without a warrant, just to find evidence of the crime?
Mr. Jeffrey Butler: It is true Your Honor, we are not contending that he somehow as punishment for his crime loses a right.
We would make the same analysis, if arson for profit were not a crime.
Our point is that the way he treats his own property, the actions which make up the crime of arson also speak to what expectation he has in his own premises, and they say that he has none.
Justice Thurgood Marshall: To extend my brother White's question, and if a man shoots and kills four people in a place, you can not come in and investigate that , but if he burns him up you can.
Mr. Jeffrey Butler: If we see a gun shot in a building and I think they can usually go in without a warrant, just because --
Justice Thurgood Marshall: Now, if is that a silencer?
Just to make it tough.
Mr. Jeffrey Butler: Just because a crime is then committed in a building does not waive any kind of privacy or protection--
Justice Thurgood Marshall: Except the arson.
Mr. Jeffrey Butler: Except the arson of your own building.
We think that the deliberate destruction of someone's owned property is so inconsistent with any notion of how the law is supposed to protect private property, that in itself would be sufficient to waive at least temporarily any Fourth Amendment protection in the arsonists owned building.
Unknown Speaker: Mr. Butler I would like to go back to Mr. Justice Rehnquist's question, just what does a magistrate do if you have to get a warrant, if you went to prove a fire took place and some damage was incurred, isn't he automatically going to issue the warrant?
Mr. Jeffrey Butler: That is precisely our point, Your Honor, that needs no exercise in terms of --
Unknown Speaker: That is only on the assumption that you need not show probable cause to believe that a crime has been committed.
Whereas if you assume that while you have assumed the case away.
Mr. Jeffrey Butler: Okay, if we are speaking of administrative warrants, then you do not need any probable cause to show that a crime has occurred.
Unknown Speaker: Well that is -- you are assuming the case away again.
When the Marshall begins, is he looking for a crime or is he looking for a cause of a fire?
Mr. Jeffrey Butler: He is looking for the cause of a fire, which may--
Unknown Speaker: And incidentally, he may then come to the conclusion later that it was self-inflicted, that is, that it was arson, but does it become a criminal investigation, right at the outset?
Mr. Jeffrey Butler: Not at the outset, it cannot.
The point is once there is evidence of arson discovered, it becomes -- arson is still a cause of a fire and as far as using fire experience as a yard stick to test the success of fire codes that says that this was not a breakdown of the fire prevention system.
This was deliberately cause.
But, at the same time, of course, it is evidence of a crime.
Unknown Speaker: Well, can the medical examiner go into a house to find the cause of the death?
Mr. Jeffrey Butler: Yes, he can, immediately.
Unknown Speaker: Well, I know but without a warrant, five days later, can he -- the door is locked, can he break in?
And find the evidence of what killed the person.
Mr. Jeffrey Butler: I would think in almost any circumstances, yes.
Your Honor --
Unknown Speaker: Without a warrant?
Mr. Jeffrey Butler: Speaking of an exigent circumstance where a body is discovered that appears to have died of unnatural causes, it -- now he cannot break into an occupied home.
Unknown Speaker: Okay, does he needs a warrant or does he not?
Mr. Jeffrey Butler: Your Honor those factors--
Unknown Speaker: Private house, private property?
Mr. Jeffrey Butler: It would depend --
Unknown Speaker: All it was to find out, is a cause of death, we are saying that it maybe very much, a great evidence of the crime.
Mr. Jeffrey Butler: It is very difficult to imagine circumstances that would arise where that he would have noticed somehow that there is a dead body that has been dead for five days and yet it is in a completely locked house where someone is denying admission to the public.
Unknown Speaker: No question about somebody, about -- no question that somebody's died, the body is in a morgue but the medical examiner would like to get into somebody's house to find out what killed him?
Mr. Jeffrey Butler: Oh, no clearly not Your Honor, I misunderstood the question, I thought the body was in the house.
Unknown Speaker: Well, why cannot he go in the house and find out the cause of death, that is all he wants to know.
He is supposed to make out a death certificate.
He does not know, so he would like to go find out.
Mr. Jeffrey Butler: We are dealing with a fully occupied home or business that has all the traditional Fourth Amendment protection.
Unknown Speaker: So, if this person had locked and when this fire was put out and put his own locks on his premises, would there warrant have to be obtained to get in?
Mr. Jeffrey Butler: Under most circumstances we would say, yes.
On the other hand --
Unknown Speaker: How about this circumstance, if he had locked them, if he had locked the door, the fireman put the fire out and went away and instead of the fire department putting locks – locking it up, he did.
Mr. Jeffrey Butler: We still contend that if we are going to look at how he treats the property, that is by putting a lock on it, we should also look at what he has done to the property to bring it into that condition, he has deliberately destroyed it.
He has attempted to sell it back to the insurance company involuntarily, which indicates he does not want it any more.
He is --
Justice Thurgood Marshall: I do not think he has done anything, yet he had been indicted to --
Mr. Jeffrey Butler: Whenever the issue is raised in a suppression hearing or on appeal, the Court will always have before it the facts which indicate what he did.
It is his guilt, this will be established to some legal degree.
Unknown Speaker: (Inaudible)
Mr. Jeffrey Butler: It is true that at the time they entered, they may not have the evidence, that occupant burned it himself, that is true, we are saying --
Justice Thurgood Marshall: But in this case, he had an evidence that he had two cans of gasoline?
Mr. Jeffrey Butler: That maybe evidence of arson, I am not sure its evidence that he burnt that he did himself.
It could have been a --
Justice Thurgood Marshall: But there is -- where is the evidence of arson?
Mr. Jeffrey Butler: We think that is very slim evidence of arson, we doubt that a warrant would ever issue simply upon a statement that two plastic bottles of gasoline were found in a burned building, that seems equally --
Justice Thurgood Marshall: What?
Mr. Jeffrey Butler: is consistent with innocent fire as --
Justice Thurgood Marshall: But what was this building?
Mr. Jeffrey Butler: No, Your Honor, it was retail furniture store.
Justice Thurgood Marshall: But, what do they use gasoline for?
Mr. Jeffrey Butler: Cleaning, at the time they just cleaned the building --
Justice Thurgood Marshall: Ah, I see.
Mr. Jeffrey Butler: It was hydrocarbon or some kind of flammable liquid.
It did smell gasoline in the building, those seem to be the only facts which indicated that the fire was arson.
Unknown Speaker: Mr. Butler, does the record tell us, at the time of the search on February 16th, the building was locked as I understand it, who had keys to the building at that time?
Just the fire people or did the -- did the --
Mr. Jeffrey Butler: I believe it is just the fire and or the police officials had keys to the building, at that time the respondent Tyler had returned from out of State and I believe January 29th, that is when he visited the premises and I do not -- nothing in the record indicates that he had a key to it.
Unknown Speaker: I see.
Mr. Jeffrey Butler: There is nothing that I was able to find.
Unknown Speaker: Do you distinguish at all between business premises and a home for purposes of your argument?
Mr. Jeffrey Butler: We have it in the briefs -- no we do not, Your Honor, we would of course concede that if there had been any fire in a home and the people are still living there or the damage was not extensive that yes a warrant should be obtained there.
Unknown Speaker: Did you hear argument in the Osha case yesterday in this court?
Mr. Jeffrey Butler: Yes, Your Honor.
Unknown Speaker: Mr, Butler let me add to your troubles if I may.
As you know we take the state law as construed by the court of the state.
Mr. Jeffrey Butler: Yes sir.
Unknown Speaker: We have no other choice.
My question is suggested by an earlier question by my brother Powell.
In this case the supreme court of Michigan pointed out that the statute itself is silent as to a warrant requirement, it does not say when it is is required does not say when it is not required but it said as the state court, we are now construing the law, the State law of Michigan as requiring a warrant.
Now, therefore, do not we have before us a state law as construed by the Highest Court of your State that in fact requires a warrant in this situation and if that is true is there any federal question before this court.
Mr. Jeffrey Butler: We contend that they construe it only to meet what they believe to be the requirements of Fourth Amendment.
Unknown Speaker: They did construe their state law as requiring a warrant in these situations.
The statute and then we take the combination of what was enacted by the legislature and construction of it put on it by the Michigan Courts.
And the Michigan Courts now tell us that the law of the State of Michigan as a matter of state law requires a warrant in this situation.
Mr. Jeffrey Butler: But they are doing it only to do what they believe what is necessary to conform the Federal constitution requirement.
Unknown Speaker: How they did it maybe they could not read but however they did it this is what they tell us the state law requires.
Mr. Jeffrey Butler: We contend that construing a statute to make it meet constitutional requirements is itself a federal question not a state question, if their construction of the Fourth Amendment's requirements is mistaken then they would presumably they would revise their judgment of what Michigan (Inaudible).
Unknown Speaker: We have the Zakini case late last term which I thinks supports your position.
Mr. Jeffrey Butler: I am not familiar with the case with case I am sorry.
Unknown Speaker: Mr. Butler, supposing the state legislature had expressly drafted a statute requiring a warrant and the legislative history showed that legislatures only did it because they thought the Federal Constitution required it.
They said we really do not want this requirement we think the Supreme Court will impose it on us, could we ignore that statute because they acted under a misguided interpretation of Federal Constitution.
Mr. Jeffrey Butler: No we could not Your Honor they would have bound by that, of course that would be a state law, because of it is a legislative act rather than a Court's decision or court judgment that could be reviewed.
Unknown Speaker: But here you are saying that even though the States Supreme Court is clear and what it tells us the statute means we should change that because we think they may have acted on an incorrect premise.
Mr. Jeffrey Butler: We are asking this court to if it agrees with our position state that the federal constitution does not require this construction.
It does not require a warrant.
Chief Justice Warren E. Burger: If they had to place their decision exclusively on Michigan law, would you be here.
Mr. Jeffrey Butler: No we would not be Your Honor.
Chief Justice Warren E. Burger: Under the Ker case decided by this Court some years ago whenever we have been in doubt about whether the state court acted on federal or state grounds we have sent the case back to require the state Supreme Court or its highest Court to state clearly whether they acted under federal or state law but here they did place it on the Fourth Amendment did they not?
Mr. Jeffrey Butler: Yes they did Your Honor.
Chief Justice Warren E. Burger: And that is why you claim your right to be here.
Mr. Jeffrey Butler: Yes it is.
Our contention is that there will be no protection afforded by the administrative warrant because it should issue simply on the fact of fire occurring, there seems to be no need for any exercise of independent judgment, no real individual review by a magistrate.
Unknown Speaker: What is your basis for that?
Mr. Jeffrey Butler: That if the only question is did a fire occur.
Unknown Speaker: Is there some established law around that says that you need not show the probable cause to believe the crime has been committed?
Mr. Jeffrey Butler: I believe the administrative warrant requirement which the court below imposed did not have anything to do with whether a crime had occurred.
It had simply to do with whether a fire had occurred and the officials need to reenter the premises.
Unknown Speaker: What you are talking about what the federal constitution does or does not require, what authority is there for saying that under the Fourth Amendment you can investigate an arson by entering property without showing probable cause.
Mr. Jeffrey Butler: We think Camara stands for the proposition that you can have inspections without showing necessarily a crime has occurred.
You have to show their reasonableness by criteria which really do not apply to a post disaster investigation.
The length of time since a final last inspection has occurred is irrelevant, the only think that is relevant is the condition of the building.
Unknown Speaker: Camara, you say that your principle cases.
Mr. Jeffrey Butler: We are contending that they do not require an administrative search warrant even though--
Justice Thurgood Marshall: Even in an investigation we have a criminal investigation.
Mr. Jeffrey Butler: We contend we have a some kind of mixture of both Your Honor.
But to the extent --.
Justice Thurgood Marshall: Well, what in the world reason do you have to go in unless you want to find out whether or not a crime had been committed?
Mr. Jeffrey Butler: You still want to find, confirm the cause of the fire.
It was done in a very hasty manner in this case if it is contended --
Justice Thurgood Marshall: Estimated three weeks later?
Mr. Jeffrey Butler: Now, speaking of them, leaving at 4 a.m. and being satisfied, that they have determined the cause of the fire simply by finding two bottles of gasoline or nearly that does not seem sufficient.
Justice Thurgood Marshall: Well then after that all that time, they could think up getting a warrant?
Mr. Jeffrey Butler: It seems the reason they left was simply because there was no more they could do until day light, until smoke and steam had dissipated and they were able to --
Justice Thurgood Marshall: And until they could have gotten a warrant, there could have been another reason?
Mr. Jeffrey Butler: There were four hours and that is the rough time that even an administrative want which requires really no exercise of judgment would take so administrative warrant perhaps could have been obtained had there been the requirement at the time of the search.
Justice William H. Rehnquist: Well, even if they had found nothing, even if they had not found these two cans of gasoline might they not have wanted to go back feeling that they had not determined the cause of fire even though perhaps there was no arson involved?
Mr. Jeffrey Butler: Yes Sir, I believe they would have gone back to continue their investigation in daylight hours to do whatever they could not do at night while the building was filled with smoke and steam.
In addition they need to just check the structure or integrity of any of the building even before letting the occupants back in.
Unknown Speaker: We are just suggesting perhaps some of us that you do not necessarily have a crime involved so far as investigation is concerned.
Is that not the duty of the Fire Department under your system to find out the cause of a fire among other things to prevent its recurrence under similar circumstances, there might be no arson involved?
Mr. Jeffrey Butler: Yes it is Your Honor.
Determine the cause of the fire, to determine the extent of the damage and to check the structure or integrity of the building.
Unknown Speaker: It strikes me you have something not dissimilar to an internal revenue service investigation that initially might be all just to determine that everything has been included and that develop into a full fledged criminal investigation.
Sometimes depending on what they find.
Mr. Jeffrey Butler: It is correct Your Honor.
If there are no for the questions, if the court please, as to reserve my remaining time for rebuttal.
Chief Justice Warren E. Burger: Very well.
Argument of Jesse R. Bacalis
Mr. Jesse R. Bacalis: Mr. Chief Justice, may it please the Court.
I think I would like to begin my remarks by clarifying the factual record a little bit.
Allow me to say that the fire occurred at about 11:30, or just before 12 'O' clock on January 21st.
Unknown Speaker: At night?
Mr. Jesse R. Bacalis: At night.
Unknown Speaker: Yeah.
Mr. Jesse R. Bacalis: Then while the Fire Department was there until 4 a.m. on January 22nd, a lieutenant lost and then the Fire Department discovered gasoline on the premises and he thereupon called the attention to Chief See who was the Fire chief.
He came over and found the gasoline.
At that point Chief See then brought in Detective Webb and he too looked at the gasoline and at that point they removed the gasoline from the premises and went to the Police Headquarters and poured the gasoline that they had removed from the premises into another container which was marked for evidence purposes.
Chief Justice Warren E. Burger: Now do you say that is, that is was a proper taking of possession of that gasoline?
Mr. Jesse R. Bacalis: I have to concede that the Fire Department had a right to be there to put off fire and whatever they found in the course of being there present for that occasion.
They had a right to seize it.
Unknown Speaker: Well they certainly did not have a right to permanently take whatever they found there, did they?
Mr. Jesse R. Bacalis: No but, they have a right to at least identify it as being cause for determining what the cause and origin of the fire was.
Unknown Speaker: One of the reason they would remove the gasoline if they thought it was gasoline so that they fire might not reignite between four in the morning and daylight I suppose, would they not?
Mr. Jesse R. Bacalis: I can only tell the court what they did.
Chief Justice Warren E. Burger: Well does it not make sense?
We are dealing with the clause that has a word reasonable in it, unreasonable as a matter of fact.
Mr. Jesse R. Bacalis: I think we have to deal with the explosive nature and the danger of gasoline being present in premises just because it vaporises.
From that context there is a danger present just because gasoline is vaporising.
I would have to concede yes, there is a danger present whether that is the motive that prompted the police officer and the fireman to move the gasoline from the premises, I can not say, all I can tell you is what they did.
My own private opinion is that we are gathering evidence because as they indicate under cross-examination, they admitted that at point in time, before they left the premises at 4 a.m., they had determined the cause and origin of the fire.
And that the gasoline was the cause and origin of the fire.
Justice Thurgood Marshall: You said they, who is they?
Mr. Jesse R. Bacalis: The persons I have identified, Chief See who is fire chief and --
Justice Thurgood Marshall: Is he an expert to find a cause of fire?
Mr. Jesse R. Bacalis: In my opinion, he is not an expert but I am telling you what he determined--
Justice Thurgood Marshall: But you said they determine the cause.
What would they determine, if they are not experts.
Mr. Jesse R. Bacalis: Well, if your honor please, the general practice is in fire extinguishment that some body make a determination of cause and origin, that is usually done by the fire department personnel.
Now, whether or not they are experts and qualified to make that judgment--
Justice Thurgood Marshall: Well, the answer is if they determined it why did they have other investigation, and they had other investigation because they had not determined it.
Mr. Jesse R. Bacalis: Well, I do not think so Your Honor.
My personal opinion is that they once they determined that gasoline was involved.
Justice Thurgood Marshall: Did they have a marshal that is solely responsible for determining the cause of fires?
Mr. Jesse R. Bacalis: In state we do -- we have a state fire marshal.
Justice Thurgood Marshall: That is his responsibility now I do not see a Chief of police or Chief of fire department can take up his responsibility, that is my problem.
Mr. Jesse R. Bacalis: Well I can not vouch for why they did your honor.
Justice Thurgood Marshall: Why don't you say that they said that was the cause.
Mr. Jesse R. Bacalis: Oh absolutely.
Justice Thurgood Marshall: Well no you said they say they found, they found you know what I mean?
Mr. Jesse R. Bacalis: They testified they had determined the --
Justice Thurgood Marshall: Testified fine.
Mr. Jesse R. Bacalis: They testified that they determine that gasoline.
Justice Thurgood Marshall: They testified that in their opinion.
Mr. Jesse R. Bacalis: That is right.
That is correct.
Chief Justice Warren E. Burger: Now that would to be required certainly to take away any Incendiary material and I suppose there were couple of cases of bourbon or couple of cases of shotgun shells, would it make any sense for them, to leave them in a fire that had not been totally and fully extinguished.
Mr. Jesse R. Bacalis: In the state of Michigan, the only one who removes liquor from premises is the department who administers alcohol licensing, Michigan Liquor Control Commission.
The liquor is destroyed under their direction.
Chief Justice Warren E. Burger: No I am not talking about destroying you know.
Mr. Jesse R. Bacalis: I am talking about removing, it also possesses what your honor asked.
Chief Justice Warren E. Burger: Would not the fire marshal, would not the fire department have the authority to remove inflammable material that might re-ignite the fire?
Mr. Jesse R. Bacalis: I think one could well hypothicate, he has a duty to protect further danger from developing, yes.
Chief Justice Warren E. Burger: He would not be thought to have much sense if he did not remove it would he?
Mr. Jesse R. Bacalis: I can not vouch for that, Your Honor because all I can tell you is what they generally do and in Michigan they do generally not remove alcohol.
Your honor please, the important thing about the factual situation here is that after this conversation and identification of exhibits at police headquarters the fire department personnel withdrew from the fire scene leaving the premises unguarded and unlocked, for four hours.
Now, some time later that day July 20 – I am sorry January 22, I can not tell you because the record does not show at what time of day, the premises were locked by the fire department but they were locked and they were boarded up and there is ample photographs in the record to show you exactly what that building looked like in its boarded up condition and they were secured from outsiders coming in.
It was done by lieutenant Summer Will of the fire department.
Unknown Speaker: Just to understand that what your view of the record might be perhaps it is not a issue here suppose the fire department or the investigators had got a magistrate and said we want authority to search the building, they went there the morning immediately after the fire, and said and here is what we found and here is what we want.
We want authority to search, we want authority to board up the building to avoid any destruction of evidence, would there have been ample bases for a warrant issue?
Mr. Jesse R. Bacalis: For warrant--
Unknown Speaker: In your view?
Mr. Jesse R. Bacalis: For administrative warrant.
Unknown Speaker: No, for a judicial warrant.
Mr. Jesse R. Bacalis: For the judicial warrant.
From my own personal experience any time you have gasoline present a fire scene suspected of being the accelerant, I believe that provides a reasonable cause to --
Unknown Speaker: So if they had gone to the Magistrate, you think the warrant could have issued for further searching --
Mr. Jesse R. Bacalis: I believe that under that state of facts that a reasonable Magistrate would have authorized the warrant.
Justice William H. Rehnquist: What if they have not found any gasoline but simply felt that their investigation was incomplete because of the smoky conditions and so forth, what is your contention that a Magistrate would have had to find if they had gone before on the next morning and asked for a leave to continue the investigation.
Mr. Jesse R. Bacalis: I believe that the fact that the fire personnel cannot determine the cause and origin of fire would be a legitimate basis for granting an administrative warrant to enter the premises, to determine what exact to do -- what the cause and origin is, if it is possible to be done.
Justice William H. Rehnquist: Well, what if the Magistrate were to conclude that the diligent fire personnel could have concluded it at four in the morning, would he be permitted under the Federal Constitution to turn down a warrant at that point on that basis.
Mr. Jesse R. Bacalis: Assuming the standard which you have given me to be factual then I would have to say that there would be no necessity.
Justice William H. Rehnquist: And only necessity would warrant the issuance of the type of administrative warrant we have been discussing --.
Mr. Jesse R. Bacalis: I believe so because I think that is the only reason that it exists.
The Fire Department is charged with a responsibly to keep track of the cause of the fire.
They are unable to do that in a particular situation and the owner would not give them consent to enter the premises then I believe that provides a legitimate basis to ask for an administrative search warrant and it does not impose a serious hardship or difficulty upon the Fire Department.
It does provide an additional safeguard and that a Magistrate now sits between the Fire Department or Police Department and their search for the cause and origin of the fire.
Unknown Speaker: What do you call an Administrative warrant if you are talking about the Magistrate.
That is a Judicial warrant.
It is not just a warrant issued by the Executive Branch or the Administrative Branch.
Mr. Jesse R. Bacalis: Well, perhaps the Court is not aware that Michigan in the same Act which was cited in the briefs and petitions to justify the Fire Marshal's entering the premises also has another section right following it which gives the Fire Marshal the right to investigate crime.
If he thinks one is precedent, part of that Statute grants immunity if the witness is called to produce and give testimony against himself and the procedure is there and it is in the Fire Act to safeguard the right of the person who is being called upon to produce evidence, to explain the cause and origin of the fire.
Chief Justice Warren E. Burger: Well this gentleman was away for a week or eight days, was he not?
Mr. Jesse R. Bacalis: Yes he was Your Honor.
Chief Justice Warren E. Burger: Well should they then stop all their inquiry under the fire clause until he got back?
Mr. Jesse R. Bacalis: No I think they had ample grounds and basis in this record to go to the Magistrate and ask for a warrant for a Criminal Investigation.
Not just an administrative but a criminal because they found gasoline.
Chief Justice Warren E. Burger: What if at that time they did not think in terms of a Criminal Investigation.
A lot of people leave gasoline in cans lying around.
Mr. Jesse R. Bacalis: Well, I think the record will reflect the opposite Your Honor because Chief See and Detective were both indicated in cross examination in their opinion at that point in time, they suspected foul play and they believe that Arson had been committed.
Chief Justice Warren E. Burger: So that you are saying as soon as they began to have suspicions then they must get a traditional warrant.
Mr. Jesse R. Bacalis: Well I am saying that as soon as there is a reasonable basis for those suspicions, yes, not just a mere fact that they have private suspicion but the fact that they have to go to a Magistrate and lay those suspicions out and what they consist of and if there is a reasonable basis for them and if that reasonable basis is the presence of gasoline, I say the Magistrate should issue a warrant.
Chief Justice Warren E. Burger: The Supreme Court of Michigan I take it in construing the Act that you referred to in the Administrative warrant provision that I understood you to say was contained and held that was inadequate under the Federal Constitution.
Is that correct?
Mr. Jesse R. Bacalis: No I do not believe the Supreme Court of Michigan reviewed the fire Marshal's Act to determine whether or not it was adequate.
All they have determined is that in this particular instance, the search and seizure in this case was unreasonable and in violation of the Constitutional Right.
Chief Justice Warren E. Burger: But did not they say the Statute did not speak to this point.
Mr. Jesse R. Bacalis: Oh yes, oh yes, in terms of requiring a warrant.
That is correct Your Honor.
They make that comment in their opinion.
Unknown Speaker: Mr Bacalis, I have one problem, you could actually help me with, the key to the premises was retained by the public authority, usually the Fire Marshal--
Mr. Jesse R. Bacalis: That is correct.
Unknown Speaker: Did the owner of the premises or the tenant have access at all?
Or did he demand access at all, it is kind of a strange privacy interest where he can get his own -- ?
Mr. Jesse R. Bacalis: The last page of our Appendix indicates the owner's statement, he could not get a thing out of that building.
The fire department had in effect seized and sealed it off.
Justice Thurgood Marshall: Well did he asked for it?
Mr. Jesse R. Bacalis: Sir?
Justice Thurgood Marshall: Did he ask to get in?
Mr. Jesse R. Bacalis: No.
Justice Thurgood Marshall: Is there anything in this record that would convince any of us that he had not abandoned that building?
Mr. Jesse R. Bacalis: There is no indication in the record that he did abandon the building, none whatsoever.
Justice Thurgood Marshall: That was my question.
Mr. Jesse R. Bacalis: Sir.
Justice Thurgood Marshall: Was there any evidence in the record that he had not abandoned the building?
He locked up the building and went overseas?
Mr. Jesse R. Bacalis: That is right.
Justice Thurgood Marshall: And what did he do to get in the building after that?
Mr. Jesse R. Bacalis: The record reflects that he went to the building and that there was various points in time when anyone may enter the building because the vandal would frequently pull apart the board which boarded up the windows and freely enter the building.
And in this manner, he had entered the building himself, I am sure, now the record does not reflect that he did enter.
Justice Thurgood Marshall: Well, if you please, I want the record on this. Is there anything in the record that shows that he tried to get in the building?
Mr. Jesse R. Bacalis: The record would reflect that.
Justice Thurgood Marshall: And the next question is, is there anything that he did to keep anybody out of the building?
Mr. Jesse R. Bacalis: The only things that he did to keep people out of the building is not -- the statements of what he did prior to the fire occurred.
Justice Thurgood Marshall: You are talking about after the fire occurred.
Mr. Jesse R. Bacalis: The record does not contain any evidences as to what he did to protect the building from invasion by anyone.
That is right.
There is absolutely no disclosure in the record as to that.
Justice Thurgood Marshall: Neither did he put up a sign to say private property?
Mr. Jesse R. Bacalis: No sir, not in this record.
Unknown Speaker: Did he make any effort to remove the contents of the building like the furniture that had not been sold presumably something was not damaged?
I do not know.
Mr. Jesse R. Bacalis: Well, so far as the furniture and the contents that were in the building were concerned, they were fairly well destroyed.
Unknown Speaker: They were, I see.
Mr. Jesse R. Bacalis: Sir.
The things which were not destroyed of course were the business records and there is evidence in the record that the fire department and or the police department, no I guess it was the State police, State Fire Marshall's division took a box of records, business records to the fingerprint laboratory for purposes of having fingerprints taken off.
Unknown Speaker: It seems to me, it is a kind of a strange privacy interest where an owner does not even ask to get his records back or anything back and let somebody else have the key to the place for about a month.
Mr. Jesse R. Bacalis: The record would reflect that Sergeant Hoffman who is from the State Fire Marshall's office told my client Mr. Tyler, he was not to remove anything from the building, that is in the record.
In fact, when they went there to get on January 29th, there is a discussion between them and it is on the record to that effect.
Unknown Speaker: Was there any Statutory authority for a public official taking possession of premises like these?
Mr. Jesse R. Bacalis: Not in my opinion.
Justice Thurgood Marshall: Well, did you make any move in any Court to get possession of the building?
Mr. Jesse R. Bacalis: Well like I said Your Honor.
Justice Thurgood Marshall: That is a very simple answer.
Mr. Jesse R. Bacalis: No we did not go into Court because we did not need to.
Justice Thurgood Marshall: But he did not have possession?
Mr. Jesse R. Bacalis: No.
Your Honor please, what happened was the police and firemen locked up the building but vandals kept breaking it open.
Anyone could and did that if they wanted to go into that building.
Justice Thurgood Marshall: Well was your client denied access to the building?
Mr. Jesse R. Bacalis: He was denied the right to remove documents from, evidence from the building according to Sergeant Hoffman.
Justice Thurgood Marshall: Did you do anything to get him access to the building?
Mr. Jesse R. Bacalis: I did not, I do not think I represented him at that time Your Honor.
Justice Thurgood Marshall: Well did anybody do anything to get him access to the building?
Mr. Jesse R. Bacalis: Not according to the record.
Justice Thurgood Marshall: Well how can you tell me he had not abandoned it?
Mr. Jesse R. Bacalis: Because he was still paying rent on the building Your Honor.
And that is in the record.
Not only he was paying rent on the building, he had his records.
What was remaining of his business records in the file and Sergeant Hoffman told him, he was not to take those from the building because he wanted to preserve them as evidence.
My client not knowing any better yield it to his direction an order.
Now I did not goto Court and ask for an order to receive those records.
Justice Thurgood Marshall: But you said you did not represent him at that time?
Mr. Jesse R. Bacalis: I know, I understand it, nor did anyone else according to the record.
The thing that intrigues me about this case is the fact that the State Supreme Court has justifiably concluded from the testimony of the participants that this was in fact a criminal investigation from the early morning hours of January 22nd beginning with Chief See's declaration as to what the cause and origin was.
I think that is significant when you view what was done here by the authorities as the government's representative in literally sealing of this building and keeping the occupant from his records, that in effect we have not only a specific seizure but we have a total seizure of all business records and the so called tools of the crime.
Now unfortunately, my brothers want a bootstrap, the jury determination that there was an arson committed by my clients to say that because of such a determination, they have no expectation of privacy which this court or the constitution of Michigan or of United States protect and that to me is nothing more than saying that the -- and justifies the means, and I just cannot accept that kind of reasoning to say that there cannot be any expectation of privacy simply because there has been a determination that an arson has been convened.
It also runs up against the presumption of innocence when this representative of the government is seeking evidence, if he forms an opinion whether it be reasonable or not that the occupant has been guilty of the crime of arson, that should not by itself extinguish any expectation of privacy nor should it give the government the right to intrude as it did in this case totally by sealing off the premises.
Particularly, under circumstances of where we have the department, both the fire department and the police department involved.
Justice William H. Rehnquist: Does the sealing of the premises add anything more to your argument that would not be present if the fire department had simply come in at these additional dates and taken the additional evidence?
Mr. Jesse R. Bacalis: Only to the extent of the scope of the invasion Your Honor, because I think they took more than they needed to take in terms of a reasonable search that they had want in the first place.
Let us assume they had a warrant to search for a criminal cause in the first place, I do not believe that would give them the right to take possession of entire premises.
Justice William H. Rehnquist: Oh you may well be right but I get the impression from the record that your client was not overly concerned.
Mr. Jesse R. Bacalis: Well, unfortunately we did not develop that in evidence.
That is correct, there is nothing in the record to indicate one way or the other, how my client felt about it?
Justice William H. Rehnquist: Well, is it likely that he would have wanted a lot of cardboard furniture returned, do you think?
Mr. Jesse R. Bacalis: Well, I do not know about the cardboard furniture but I do know about his business Your Honor.
I am sure that one would have a hard time convincing this court that he would want his cardboard deposits in the fire scene to be returned but of more significance are his private records, his business records.
Because now we are talking about possible Fifth Amendment implications.
Unknown Speaker: Does the record indicate any condition of inherent dangerousness after the fire in the structure?
Mr. Jesse R. Bacalis: There is absolutely in the record to indicate there was inherit danger present after the fire department left the scene.
Chief Justice Warren E. Burger: Would you say that the fire department or the some public authority had an obligation to try to seal that building and lock it and protect in from vandalism until the owner could take over that responsibility himself?
Mr. Jesse R. Bacalis: No I did not say that Your Honor.
Chief Justice Warren E. Burger: No I say would you say so.
Mr. Jesse R. Bacalis: No I do not think so.
Chief Justice Warren E. Burger: Do you think they should just walk away and leave the doors open?
Mr. Jesse R. Bacalis: I can guarantee you Your Honor they do it everyday in Michigan, everyday--
Unknown Speaker: Mr. Bacalis, your emphasis on the business records I can not recall, were they admitted in the evidence?
Mr. Jesse R. Bacalis: No Your Honor.
But they were seized.
Unknown Speaker: But then, they are not really before us.
Mr. Jesse R. Bacalis: No I only offer that as an extent of the scope of the intrusion here.
Unknown Speaker: But is it not the constitutional question that we are supposed to decide here, precisely the same as if there had never been any business record in the place at all?
Mr. Jesse R. Bacalis: Well, that part is true Your Honor, but I think in looking at what took place I thought it would be helpful to the court to understand the scope of the invasion by the governmental authority.
Chief Justice Warren E. Burger: But for all we know on this record they may have returned those papers and records to him as soon as he came and claimed them.
Mr. Jesse R. Bacalis: There is nothing in the record one way or the other Your Honor.
Unknown Speaker: Well suppose Mr. Bacalis, there has been no gasoline found in the course of putting out the fire, no evidence of the cause at that time but the fire department has a duty to determine cause, whether there is a crime suspected or not so the fire department does or does the next day get in a so called administrative warrant but it nevertheless comes back either with or without the warrant looks around the property and it determines cause right there on the spot and it determines it from the fact that finds some gas and unimpeachable evidence that there was arson and it finds the cause and it takes away, is that admissible in evidence?
Mr. Jesse R. Bacalis: I do not believe it is Your Honor.
Unknown Speaker: So that you think that without a warrant, without a probable cause warrant issued by a magistrate, the public authorities are entitled to determine cause but if they find evidence of a crime they cannot admit it?
They cannot introduce it unless they have a warrant.
Mr. Jesse R. Bacalis: Not unless they obtained that evidence through the means of a warrant, that is correct Your Honor.
Chief Justice Warren E. Burger: What if instead of taking something they merely took photographs of objective factors that would be evidence in support of arson would those photographs be admissible without a warrant?
Mr. Jesse R. Bacalis: I believe that they would be improper Your Honor because they represent a search, they do not represent a seizure but at least the represent the search.
The photograph is the next best substitute for giving a visual presentation to the triar.
Chief Justice Warren E. Burger: Well I suppose instead of taking pictures the Fire Marshall's man who makes these investigation to determine cause of fire merely looks at them, sees them makes notes and remembers them and they tender him as a witness would you say his testimony is excludable?
Mr. Jesse R. Bacalis: I would think so Your Honor on the theory of search being just what it is, a search and without a warrant, I do not want to appear to not acknowledge that when the fire department is there for the purpose of putting out the fire.
They have every right in the world to look and see what is there to be seen.
Unknown Speaker: And if they see some evidence of what caused the fire, even though it might indicate a crime, they can take it.
Mr. Jesse R. Bacalis: At the time they are there for putting out the fire yes Your Honor.
Unknown Speaker: All you are saying is that if they are legally on the premises they can cease evidence of crime that in plain sight.
Mr. Jesse R. Bacalis: That is right and that is why.
Unknown Speaker: But what about the next day if they are legally on the premises and if there is an evidence.
Mr. Jesse R. Bacalis: If they are legally on the premises and I assume by that Your Honor means they have obtained a warrant.
Unknown Speaker: Well, no, let us assume that suppose they have no evidence the night before that there has been any crime committed but they must determine cause, are you not suggesting they need to show probable cause of some crime before they can go back on the premises to determine the cause they can at least get an administrative warrant and go back in.
Mr. Jesse R. Bacalis: Yes Your Honor.
Unknown Speaker: Well suppose they get the administrative warrant as you call it whatever that is and they are legally on the premises, you would agree they are legally on the premises?
Mr. Jesse R. Bacalis: Yes under those circumstances.
Unknown Speaker: Well and then they find some evidence.
Mr. Jesse R. Bacalis: Well I think then that is part of being in the on the premises in the lawful function.
Unknown Speaker: Legally, so they could then introduce their evidence that they legally find.
Mr. Jesse R. Bacalis: Yes sir I believe so.
Chief Justice Warren E. Burger: Who issues this administrative warrant as you speak out of under Michigan law?
And how do you distinguish an administrative warrant from judicial warrant or traditional warrant?
Mr. Jesse R. Bacalis: Well unfortunately there is nothing spelled out in the statute in reference to a procedure as to what magistrate to go before to obtain warrant in an administrative area.
Chief Justice Warren E. Burger: Well is there in then in Michigan law any such thing as an administrative warrant that would be creature of statute would it not?
Mr. Jesse R. Bacalis: I think the whole phraseology has come out of the Camara decisions in terms of recognizing a differentiation between an administrative search of the premises and a criminal search and from that distinction has now emerged the new language administrative warrant.
Unfortunately so far as I know, there is no legislative pronouncements as to how that is to be implemented nor at this point are there any judicial decisions that spell out how it should be done.
Chief Justice Warren E. Burger: Or Maybe all this Court had in mind in that conversation in the opinion was that States could enact legislation, creating an administrative warrant procedure, but if you do not have a statute of Michigan authorizing an administrative warrant then I wonder why any discussion of the administrative warrant is relevant here.
Mr. Jesse R. Bacalis: We do have a statute which is been alluded to already Your Honor, which allows the Fire Marshall if he suspects a crime a procedure of testimony and subpoena by which he can require people to bring in records and evidence and part of that statute also grants immunity to anybody who brings in such evidence.
Now, that does not answer your question but that is the only thing that I know of in Michigan law at this time that comes close to answering your question.
Unknown Speaker: Mr. Bacalis, did you want in this case, before the second day when they went in, where should they have gone and what should they have gotten?
Mr. Jesse R. Bacalis: In my opinion, after they found gasoline they had reasonable cause if they wanted to pinpoint as they appeared to do.
They wanted to pinpoint with exact accuracy, how the gasoline got triggered to cause the fire.
Then all they had to do was go to the Local Circuit Court and ask for a criminal search warrant in the usual manner.
Unknown Speaker: Do you want a judicial search warrant?
Mr. Jesse R. Bacalis: That is right Your Honor.
Unknown Speaker: Mr. Bacalis.
Mr. Jesse R. Bacalis: Yes sir.
Unknown Speaker: Let me make Justice White's factual assumptions little stickier, because I am concerned about what they found the very next morning, when daylight came.
Assume that they found something that was not visible at night but was visible in the daytime.
And further assume instead of leaving at 4 a.m., the fire department just stayed there until the sun came up and then they picked it up, admissible in evidence or not?
Mr. Jesse R. Bacalis: I think I would have to agree with you that it is admissible in evidence because the fire personnel from the description are still on the premises in this function of putting out the fire in determining the cause.
Unknown Speaker: But the fire was out at 4 a.m. And they were just waiting now for the sun to rise so they can see the little mark, and then it would be admissible, in fact they went home and came back, it makes it inadmissible.
Mr. Jesse R. Bacalis: Well, not only the fact that they went home Your Honor, the fact that they went home and left the premises unguarded for four hours.
That I think is significant because that to me indicates an abandonment.
They were through.
Now had they wished to do what Your Honor is suggesting and kept fire department personnel there and they do, do that Your Honor.
They do seal off premises for 24 and 48 hours.
It is not unusual in Michigan.
But, in this case they did not.
They went home for four hours.
Unknown Speaker: The shift did not change?
Mr. Jesse R. Bacalis: I cannot answer that, Your Honor.
I can only tell you what the facts are in the record.
It is my remark unless you have some more questions?
Chief Justice Warren E. Burger: Do you have anything further, Mr. Butler?
Rebuttal of Jeffrey Butler
Mr. Jeffrey Butler: Mr. Chief Justice, may it please the court.
Number of questions were asked about what an administrative search warrant is in Michigan and there it is clear that an administrative search warrant is issued by a judge, it is just issued for a different purpose for an administrative search rather than for a criminal investigation and according to the opinion of the Court below, there is a varying standard of probable cause under command.
That is the lower Court's understanding and that is the practice in Michigan.
There is no one else to issue an administrative search warrant but a judge.
Unknown Speaker: Has it ever been issued in connection with a fire situation, to your knowledge?
Mr. Jeffrey Butler: Not to my knowledge Your Honor, so far.
Unknown Speaker: Mr. Butler, under your view of the case, who had possession of the premises on February 16th?
Mr. Jeffrey Butler: On February 16th, the premises were sitting in exactly the condition they had been sitting in ever since the fire.
As far as we know respondent Tyler had been back there only once.
At least until his return, it is I think the fire and police officials were responsible more as custodians or caretakers for the building.
Unknown Speaker: Under your view of the back situation, who had possession of the premises on February 16th?
Mr. Jeffrey Butler: Respondent Tyler on February 16th.
Justice Thurgood Marshall: Well, he did not have the key.
I mean not as involved in this case, it would not have been better at sometime to say look, here is the key to your building, withdrew it.
Mr. Jeffrey Butler: Tyler did not own the building, he leased it.
He had absolutely nothing of value left in there.
The evidence in the case--
Justice Thurgood Marshall: But he was still paying rent, according to you?
Mr. Jeffrey Butler: That is we believe the records in the case, they did not pay as rent according to the landlord, he did not pay it.
There is one reference and I do not have the site to the record because I did not know it would be regarded as important that he may have paid and the check did not clear the bank or something for that effect.
But the cinder block shell of the building was intact.
The inside was the exception of the North East and North West corners were totally destroyed and there was -- as best we could tell, nothing of value.
Unknown Speaker: Mr. Butler, until the decision of this case by the Michigan Supreme Court, what do you consider the Law of Michigan to have been on this subject?
Mr. Jeffrey Butler: There is case from the 1920s which held merely the obvious that the fireman who went in were allowed to seize whatever they could find while they were putting out the the fire.
Since that time and before this case, there were four Court of Appeal's cases.
Three of them upheld the warrant was searched for the cause or origin of the fire.
Unknown Speaker: Upheld?
Mr. Jeffrey Butler: The validity of a warrant was search for the cause or the origin of the fire.
Unknown Speaker: It required a warrant?
Mr. Jeffrey Butler: Pardon me.
Unknown Speaker: Require a warrant.
Mr. Jeffrey Butler: It did not require a warrant.
Unknown Speaker: It did not require a warrant.
And what the fourth case was?
Mr. Jeffrey Butler: The fourth case was written, at least was joined in by one of the Justices who wrote the opinion that is under review now when he was on the Court of Appeals and it held that an Administrative search warrant was required.
That holding was expressly rejected by two later panels of the Court of Appeals and was never joined in by anyone other than one panel.
Unknown Speaker: Was that the Denowitz case.
Mr. Jeffrey Butler: Yes Your Honor?
Unknown Speaker: And in Michigan Courts of Appeals were relatively recent, they act only (Inaudible) due Constitution.
Mr. Jeffrey Butler: The 65.
Unknown Speaker: The 65.
Your Courts of Appeals have territorial Jurisdiction.
Mr. Jeffrey Butler: They are elected from Territorial Districts.
There Jurisdiction then it is a mixture of statewide.
Unknown Speaker: So that is not like the Federal System where there could be a conflict between them.
Mr. Jeffrey Butler: Not at all.
We do have conflicts that arise but they simply apply it to the Statewide.
Unknown Speaker: I understand you to say that Denowitz case was subsequently overruled by two other decisions of the Court of Appeals.
Mr. Jeffrey Butler: They cannot really -- they do not really overrule --
Unknown Speaker: But two panel.
Mr. Jeffrey Butler: Two panels expressly considered it, found it not persuasive and refuse to follow it.
Unknown Speaker: So at the time of this fire, in fact as in Michigan operating under decisions of your Appellate Court had the authority to do what they did?
Mr. Jeffrey Butler: Yes they did Your Honor.
This was a pre Denowitz fire in trial.
Unknown Speaker: Dajnowicz (ph) case was in 1972.
Mr. Jeffrey Butler: Yes Your Honor this fire occurred 1970 in the trial Court in 1971.
So this search occurred prior to Denowitz.
Unknown Speaker: So they were acting in accordance for their understanding for the law at that time.
Mr. Jeffrey Butler: Yes Your Honor.
Unknown Speaker: Has the four Courts the Court of Appeals decisions that you have referred to was the Dajnowicz (ph) case but not the most recent.
Mr. Jeffrey Butler: It is not the most recent, following Denowitz is a case called people against Kulick and also this decision people against Tyler would be wrote in.
Unknown Speaker: Who wrote the Dajnowicz (ph) opinion?
Mr. Jeffrey Butler: I am not sure Your Honor.
Unknown Speaker: Okay.
Mr. Jeffrey Butler: Okay.
Justice who is now Justice even was a Judge in that panel.
I do not believe he wrote that.
Unknown Speaker: But even under the Denowitz case, the nine o' clock siege, the second siege would have been perfectly valid because I have read that case, that said that at the time of the fire or probably thereafter, was authority to siege withour a warrant.
Mr. Jeffrey Butler: The question is, does that mean that if they continue a search while there are exigent circumstances the exigent circumstances dissipate and they continue the search maybe that would have been upheld.
Whether Denowitz would have allowed it a re-entry to be dealt?
Unknown Speaker: Now these Court of Appeals opinions that you have been discussing were they placed on the Fourth Amendment of the Federal Constitution or on the State Constitution of Michigan?
Mr. Jeffrey Butler: The Fourth Amendment primarily one or two of them does mention -- the state cases frequently do that.
This case raises a question under the Fourth Amendment of the US Constitution as well as Article One section over the State Constitution and then proceed to discuss nothing but Federal cases.
It is a frequent happening in State Appellate Court.
Chief Justice Warren E. Burger: Thank you gentleman.
The case is submitted.