MICHIGAN v. CLIFFORD

Transcript: 

ORAL ARGUMENT OF JANICE M. JOYCE BARTEE ON BEHALF OF THE PETITIONER

Chief Justice Burger: Mrs. Bartee, you may proceed whenever you are ready.

Mr. Bartee: Mr. Chief Justice, and may it please the Court:

Fifteen years ago this Court decided the landmark case of Terry versus Ohio.

It looked to the language of the Fourth Amendment to articulate a promise previously unrecognized; that is although all seizures of persons, while within the Fourth Amendment, not every seizure requires probable cause to arrest to be reasonable under the first clause of the Amendment.

Today we ask this Court to again focus its attention upon the language of the Fourth Amendment and recognize that it contains two separate, distinct, and coequal clauses, the reasonableness clause and the warrant clause, and to hold that administrative inspection oriented searches fall without the warrant and within the reasonableness clause.

More specifically, with regard to this case, we are urging this Court to hold if there is a fire and firefighters must enter the premises to distinguish the fire, fire investigators may also enter the premises within reasonable time after the flames have been extinguished to conduct an investigation of reasonable scope and intensity to determine the cause and origin of the fire.

We contend this initial uncontested, unwarranted investigative intrusion, with or without probably cause, is justified by the mere fact that a fire has occurred.

The bare language of the Fourth Amendment requires only that searches and seizures be reasonable and that if and when a warrant shall issue it must be based upon probable cause to believe sizeable items will be found in the premises, supported by a sworn affidavit and particularly describing the place to be searched and the items to be seized.

Two views have emerged from this Court regarding the Fourth Amendment requirements.

The prevailing view to date holds that a search warrant is always required except when the facts and circumstances fit within a few carefully defined exceptions.

This view focuses upon whether the failure to obtain a warrant is reasonable.

The second view recognizes that this Court, starting with Camara, has forced administrative searches unnaturally into the warrant clause and that this causes serious problems.

In applying the warrant preference indiscriminately to all searches, rather than simply applying them to the seizure-oriented searches as intended, this Court has been forced to distort the concept of probable cause.

It is our contention, as is maintained by the second view, that the Fourth Amendment guarantees searches will not be unreasonable and that neither the absence of a warrant nor the practicability of not obtaining a warrant is dispositive of whether the Fourth Amendment has been violated.

Unidentified Justice: Mrs. Bartee, I suppose you could also prevail if the Court were to say that the facts of this case fitted within the exigent circumstances exception to the warrant requirement, could you not?

Mr. Bartee: The precise holding by this Court in Michigan v. Tyler dealt with a subsequent entry which was made after initial entry was made while the flames were smoldering.

The precise issue before this Court now deals with an initial entry which was made six hours after the flames had been distinguished.

Unidentified Justice: Unless, Mrs. Bartee, the entry of the investigating arson squad is part and parcel of the initial entry of the firefighters.

In that connection, I would like to know whether, in the jurisdiction in question, the arson squad would have visited the Cliffords' home even without a report that the fire was of suspicious origin.

Is it a routine thing?

Do they always go?

Mr. Bartee: Fire investigators investigate approximately 130 to 160 fires a day.

Well, I am sorry, there are approximately 130 to 160 fires a day.

They investigate approximately 20 of them and they do that in a priority order which starts off... If there is a major explosion or a homicide on the scene, they leave wherever they are... If they are in the middle of an investigation, they leave and go to that site.

They then go down and determine what is priority from there on.

Unidentified Justice: What determines whether the arson squad would go to a fire scene?

Mr. Bartee: I think it is a matter... There are many arsons which are never investigated.

It depends upon the degree of damage.

And, in this case... This case was determined to be a priority case because a police officer was involved and they always investigate a police officer's house if they possibly can.

Unidentified Justice: Do you mean because the owner of the premises was a police officer?

Mr. Bartee: That is correct.

Unidentified Justice: I see.

So, what you are saying to me is that the arson squad would have gone in any even to this fire?

Mr. Bartee: That is correct.

Unidentified Justice: But, that might be suspected that somebody is after a policeman.

Mr. Bartee: That is correct.

There are several--

Unidentified Justice: So, there is always some thread of suspicious circumstances present in the cases that the arson squad investigates.

Mr. Bartee: --Well, there may be.

Arson investigators have several purposes which makes this case a particularly tough case in that it is not purely an administrative search.

It may have--

Unidentified Justice: I want to pursue Justice O'Connor's question.

How do you... Let's put it this way.

What are the cases they do not investigate, those that have no suspicious circumstances at all?

Mr. Bartee: --Those that have no suspicious circumstances, those for which there is not a high likelihood of rekindling, those for which the cause and origin is determined definitely, those that they can get to.

Many times they just have to cut--

Unidentified Justice: What about the case where they think it has been definitely determined that it is arson?

Won't the arson squad go and--

Mr. Bartee: --What the firefighters do themselves in the City of Detroit is they make a preliminary determination without further investigation.

And, that is what we have in this case, a preliminary determination, and they leave it to the fire investigators to follow up that determination and find out for sure.

Unidentified Justice: --When the investigator arrived there, there were still some of the post-arson, post-fire activity going on, was there not?

Mr. Bartee: Yes, there was.

Unidentified Justice: They were still boarding up the windows and pumping water out of the basement and cleaning up debris?

Mr. Bartee: That is correct.

Unidentified Justice: Following through on the other questions, wasn't there a formal report to the arson squad in this case?

Mr. Bartee: I believe there was some indication of that in the record, but that was not accurate.

A formal report is drawn up, but the fire investigators do not receive that report until two or three days later and that as the firefighters go back to their office, compile a formal report and sent it over the fire investigators when they are completed.

Unidentified Justice: Now, does the record show that?

Mr. Bartee: No, it does not.

Unidentified Justice: How are we to accept it then?

Mr. Bartee: I believe that the record indicates... It does not indicate anything specifically.

It indicates both views.

While the fire investigator was being cross-examined, he said, no, we do not receive a written report, yet the compiled facts indicate a written report and that was sort of a slip-up and which I checked out the question myself, because I think it does make a difference.

Well, it does make a difference to some extent, depending on what this Court's holding is, but it would be our contention, even if these fire investigators entered the premises with probable cause to believe that the cause and origin was arson, and with probably cause to believe that sizeable evidence of arson could be found on the premises, that the fire presents and independent justification aside from that to enter those premises.

Let me give you an analogy just so we can see that this would be correct.

If, for example, a border inspector has probably cause to believe that "X" will be crossing the border with a suitcase full of cocaine, even though he has probable cause to believe sizeable evidence of a crime will be found in that suitcase, and even though it may be practicable to obtain a warrant, no warrant is required, because a border search, which is made to protect the sovereignty of our country, requires no cause of warrant.

Unidentified Justice: But, you can't extend a border search to an arson investigation, can you?

Mr. Bartee: I would like to analogize the border situation to the fire situation in that there is no greater threat to the lives--

Unidentified Justice: Well, the border one is limited to a border.

Mr. Bartee: --The fire situation would be limited to those instances where a fire occurs.

Unidentified Justice: Well, one is oranges and one is apples or stones.

Mr. Bartee: My only analogy would go to the extent that if probable cause does exist for the border situation, the independent justification for the search, which is the border search, requires no warrant.

Similarly, in a fire... If this Court accepts that a fire presents a situation which would allow the fire investigators to enter and determine what was the cause for this fire, then the fact that probable cause exists cannot defeat that independent justification for entering the premises.

Unidentified Justice: I take it from the position you have suggested that if the men who were working to pump out the excess water out of the basement found some incriminating evidence, that that would be admissible as part of the whole process of extinguishing the fire and restoring safe conditions.

Mr. Bartee: The people that were on the premises were not government officials, but I believe if that was... Those were insurance people, I believe, and if that evidence... Once that evidence was left there in the basement, I believe that should be admissible evidence as part of that first initial investigative entry.

It is--

Unidentified Justice: May I ask you another question as long as you are interrupted?

Suppose that after the fire, the firefighters as they put it out or as they were pumping out the water, discovered in the basement what appeared to be to them an illicit drug laboratory.

Could the police then have entered six hours later without a warrant to investigate that like the arson squad did?

Mr. Bartee: --Absolutely not, because I think what I would have to have is that the person who finds this evidence is validly on the premises.

We are urging this Court to hold that a valid purpose for entering those premises, once a fire has occurred, would be to investigate the cause of an origin of that fire and to prevent rekindling if it is possible, or if a fire is rekindled, to put that rekindled fire out and to assure that a dangerous and volatile situation still does not exist.

Unidentified Justice: Mrs. Bartee, when you advance those justification, does it really differ much, your theory, from the question posed to you by Justice O'Connor that it could come within the exigent circumstances, etcetera in Clifford?

Mr. Bartee: Well, we would urge this Court to first reach the constitutional question and that is does a fire investigation require a warrant?

If this Court follows my analysis, as is urged, then this Court would find a fire investigation falls within the reasonableness clause and we would never reach the Tyler question and it would never have to determine an exigency.

Unidentified Justice: But, you must realize you have a fairly strong laboring ore to bear with the Court having decided the Clifford case.

Now, your petition for certiorari was granted, but that doesn't necessarily indicate, I think, that the Court wants to have a brand new ball game in this area after having decided Clifford.

Tyler.

I am sorry, Tyler.

Mr. Bartee: I believe that the Clifford--

Unidentified Justice: I am sorry to have confused you.

Mr. Bartee: --I believe that the Tyler case... I can understand Justice O'Connor's position, but I believe that the Tyler case itself dealt with the initial investigative entry by the investigators and I think there has to be a distinction between the firefighters entering, because I think no matter how you view that entry, it has got to be justified.

The tougher question comes with that initial investigative entry.

And, that initial investigative entry in Tyler occurred while the flames were still smoldering.

And, Tyler precisely dealt with additional entries.

In my case, the initial investigative entry occurred six hours after the flames were extinguished.

Unidentified Justice: Which way does that cut?

Mr. Bartee: Well, that cuts that this Court would either have to modify Tyler or this Court would have to go with the more prominent issue which would be that the fire investigation falls within the reasonableness clause of the Fourth Amendment.

Unidentified Justice: And, hence... What would that do to Tyler?

Mr. Bartee: It would cause this Court to overrule Tyler.

Unidentified Justice: Yes.

Well, in addition to the exigent circumstances possibility, we have never said that every administrative search needs a warrant.

There are certain kinds of administrative searches that fall within a unique context and no warrant is required.

The investigators can just enter.

And, I would suppose your position subsumes that I would think.

Mr. Bartee: Our position is that the present day warrant exceptions are in actuality reasonable searches under the reasonableness clause.

Those which do not focus on seizure-oriented probable cause, such as the heavily regulated business, search incident arrest, inventory search, are reasonable in light of the high governmental interest involved.

Unidentified Justice: Suppose your investigators that you are saying were legally on the property, what if they had found the illegal drug apparatus?

Mr. Bartee: I believe that would have been in plain view.

Unidentified Justice: So that would have been sizeable because they were legally where they were?

Mr. Bartee: Because they validly invaded that privacy interest already.

Unidentified Justice: But, they couldn't tell the police and the police couldn't come in?

Mr. Bartee: That is correct.

Unidentified Justice: May I ask one question?

Your exception that you seek, you want us to establish, is for fire investigation.

I am curious to know what you mean by a fire investigation.

Is it an investigation to determine the cause of the fire or is it an investigation to determine whether there was arson?

Mr. Bartee: A fire investigation is an investigation to determine the cause and origin of the fire.

But, as I have indicated, there may be multiple purposes and one of the purposes might be the seizure of criminal evidence.

Unidentified Justice: To prove arson?

Mr. Bartee: If evidence of arson happens to be on the premises, yes, that is correct.

Unidentified Justice: Or to put it another way, the Fourth Amendment doesn't apply to arson.

Mr. Bartee: The Fourth Amendment would apply to a fire inspection in the same manner which this Court allows border inspections or seizure of the person and this Court could set out demarcation of categories--

Unidentified Justice: Are you aware that there are statutes on the border--

--Are you aware that there are federal statutes involving border searches?

Mr. Bartee: --I believe that--

Unidentified Justice: And you don't have a federal statute involving state arson, do you?

Mr. Bartee: --Correct.

Unidentified Justice: Isn't that a difference?

Mr. Bartee: There is a difference between the two, but not to the extent that each one may present an independent justification for entering the premises.

I believe that if this Court were to require a neutral magistrate to determine that for a fire investigator to go onto the premises to determine the cause and origin of a fire, all that fire investigator need say to that neutral magistrate would be there is a fire on those premises and we don't know what the cause and origin of that fire is.

Unidentified Justice: Well, Mrs. Bartee, supposing that Al Capone had lived in Detroit rather than Chicago and the government had wanted to search his house for a long while but could never find grounds for a warrant.

Then all of a sudden one day the police found out that his house had burned.

Now, do you think they could call the Detroit arson squad and say, go over and search Al Capone's house and see if you can't find some evidence of income tax violation?

Mr. Bartee: I believe that the purpose of the fire itself would determine the appropriate scope and intensity which would be they could not look in desk drawers to determine the cause and origin of a fire.

I am not here to--

Unidentified Justice: Is that what the inquiry is direct at, to the cause and origin of a fire, and not to just any sort of miscellaneous criminal conduct that the person might have otherwise engaged in?

Mr. Bartee: --I think the primary focus is for the cause and origin of the fire and if a search of inappropriate scope and intensity occurs, this court has always recognized that that would be a reason to exclude the evidence.

We believe, which may be helpful, that a four-prong analysis should be undertaken whenever the government contemplates invading a person's privacy.

First, the reasonableness clause would require a balancing of the government's interest in achieving the search against the individual's interest in privacy to determine whether the type or class of search is reasonable and permissible.

For example, a search of a private dwelling for criminal evidence is a permissible class of search once the balancing is applied.

A search of a private dwelling to see how firearms are on the premises or to see what I can find about a crime is not a permissible class of search and may never take place.

The second question then, once we have a permissible class of search, would be is the sole purpose of this search seizure oriented?

If the sole purpose is not seizure oriented, then the third question simply is what quantum of information is required to justify this particular search.

For example, an administrative search might be justified by a legislative scheme which authorizes periodic inspections.

The fourth question then is, once the quantum of information is met and once the search is deemed permissible, the fourth question would be what safeguards does the reasonableness clause require in order to insure that the execution of this search is reasonable.

Once again, in the administrative arena, the reasonableness clause might require prior notice and no inconvenient time of execution.

Now, if, on the other hand, the answer to the second question is that the search is... the sole purpose of the search is to seize items, then the answer to the third question, as to the quantum of information, is always probable cause.

And, the fourth question would still apply in that the search must be executed in a reasonable manner.

This Court has recognized that a warranted search which exceeds appropriate scope and intensity is unreasonable.

And, I submit it violates the reasonableness clause and that the reasonableness clause requires that all governmental intrusions be done in a reasonable fashion.

It is our contention that Camara and its progeny recognize that administrative searches are justified, but felt compelled to apply the warrant preference, and were, thus, presented with a dilemma of defining the quantum of information necessary in terms of probably cause in a situation where probable cause was never intended to apply, and, thus, it resulted in the distortion of the concept of probable cause and the creation of a new type of warrant.

Those who advocate the primacy of the warrant have delineated out two separate and distinct types of warrants based upon the warrant language of the Fourth Amendment.

First, the seizure-oriented warrant which authorizes a government official to go on to designated premises and seize evidence of a crime or property to which the government has a superior claim of possession must be based upon probably cause; that is facts and circumstances which lead a reasonably prudent person to believe that this sizeable evidence of a crime or or property to which the government has a superior claim of possession will be found in the premises.

Secondly, the inspection-oriented warrant, which is applicable in the administrative arena, authorizes a government official to go on to designated premises and inspect the condition of those premises and determine whether that condition violates a regulatory code.

This inspection-oriented warrant is necessarily based upon something less than probable cause and may even be based upon the legislative scheme with neutral criterion.

It is our position that as stated by the Fourth Amendment a warrant may not issue but upon probably cause to believe that sizeable items--

Unidentified Justice: You have got your eye not only on Tyler, but Camara and See and that whole string of administrative--

Mr. Bartee: --In all due deference, I believe I do.

Unidentified Justice: --You certainly do.

The Court has changed its mind on previous occasions, hasn't it?

Mr. Bartee: That is correct.

And, I believe this Court changed its mind before Camara and See and its progency came and that Frank versus Maryland existed.

And, I believe that the goals of this Court would allow this Court once again to look at this analysis and determine whether the Constitution does require a warrant in the administrative arena.

Unidentified Justice: Mrs. Bartee, as a matter of curiosity, I never know the Michigan practice, on page 83A of your Joint Appendix is something called "Statement of Facts and Proceedings".

Is that a stipulation?

Mr. Bartee: That was a stipulation in the lower court, but I believe... And, that is where there is the incorrect statement as to whether a written report was received, was found.

However, I don't believe this Court is limited to that stipulation of facts as the whole record is before it.

Unidentified Justice: Well, in other words, in Michigan you call a stipulation a statement?

Mr. Bartee: Statement of facts, that is correct.

Unidentified Justice: And, I was going to ask you whether we can accept the facts therein stated as true and correct and I take it you are saying for the most part, but not entirely so.

Mr. Bartee: That is correct.

Unidentified Justice: Just a matter of curiosity, has the insurance company ever paid off?

Mr. Bartee: They are still calling me.

Unidentified Justice: They are still what?

Mr. Bartee: They are calling me to find out the decision which this Court is going to hold.

Unidentified Justice: So, I take it your answer to me is no.

Mr. Bartee: That is correct.

Unidentified Justice: May I ask a question about your reasonableness theory?

As I read your brief, you seem to agree with something I had written that there ought to be notice if they go in without a warrant and yet there was no notice here.

So, I was just wondering if you didn't concede yourself out of court.

Mr. Bartee: No, I did not.

I believe that a fire investigative search, the initial entry, does not require a warrant or notice or no inconvenient time and that is to some extent because of the exigency which this Court has recognized in Michigan versus Tyler.

Take, for example, if--

Unidentified Justice: In Tyler, the point was to remain, not to enter.

Mr. Bartee: --That is correct.

That is why this Court would have to modify Tyler.

Unidentified Justice: Well, that is different.

Mr. Bartee: That is correct.

Let me give this Court an example.

If, for example, a gas station develops a leak in its underground tank and gas seeps through the soil and into the basement of this house and flames ignite in that house, the extinguishing of those flames in that basement does not extinguish the potentially dangerous and volatile situation that might be life threatening and, therefore, a fire may rekindle in that basement, a fire may rekindle somewhere else.

It is our position that the local government spent a great deal of money and risked lives putting out fires.

There is no greater threat to the property and residence than fires.

That they have the right to determine the cause and origin of the fire and they have the right to determine why that fire existed in the first place and to ensure that a dangerous situation does not still exist.

Unidentified Justice: Let's not talk about rights.

Do they have a duty to determine it?

Mr. Bartee: I believe to some extent they do and as the fire marshal is given the duty of inspecting every fire which occurs in the City of Detroit and these fire investigators fall within the fire marshal.

Unidentified Justice: Now, your example about the leak, wouldn't that give you a whim in that case under Tyler itself?

I guess I am repeating Justice O'Connor's inquiry.

Why do you have to cut back on Tyler to win this case?

Mr. Bartee: Because I believe in Tyler this Court was looking at the investigative entries and that the investigators arrived while the flames were still smoldering.

They were not looking at when did the firefighters arrive.

I believe this case looks at it too, the first initial investigative entry and this initial investigative entry occurred while the... six hours after the flames were extinguished.

Unidentified Justice: Had they stayed there for those six hours, would the case be here?

Mr. Bartee: Absolutely.

Had they arrived when the flames were smoldering, no.

I think it is a matter of when does the first investigative entry occur.

I believe that there would be little modification--

Unidentified Justice: I can frankly say--

Mr. Bartee: --There would be little modification to the--

Unidentified Justice: --Will you let me speak, please.

I do not understand your negative answer to my inquiry.

I said, had they stayed there the entire six hours, would not the case be different?

Mr. Bartee: --That is correct, I am sorry.

I was thinking if they stayed after the six hours.

That is correct.

Unidentified Justice: And, had they stayed there for six hours, they still couldn't investigate because of six inches of water in the basement, isn't that correct?

Mr. Bartee: That is correct.

Unidentified Justice: Then why do you have to go outside Tyler?

Mr. Bartee: Because they did not arrive to stay there the six hours.

So, it would require modification of Tyler.

Then a new question--

Unidentified Justice: So, even if they had arrived and could do nothing, the case is different?

Mr. Bartee: --Because they didn't know they couldn't do anything until they did arrive.

Unidentified Justice: How could the understanding of the officers make any possible difference?

It is very hard to understand your argument frankly.

Mr. Bartee: Well, because my argument would be had they arrived six hours after the flames were extinguished and they could have gone right on to the premises.

That that was a reasonable time for which to enter the premises and that the investigation could have occurred without a warrant if the investigation is seen as falling within the reasonableness clause of the Fourth Amendment and that they couldn't possibly... Well, a fire presents an independent justification for entering those premises.

Let me apply--

Unidentified Justice: Aren't you, Mrs. Bartee, trying to pass up a first down for a touchdown, you know, by trying to suggest some distinctions from Tyler which some of my colleagues have suggested are by no means self evident?

Mr. Bartee: --I believe if you limit Tyler to its holding, and that is that there may be investigative entries which can be deemed a continuous entry, a continuum of the initial entry.

If you limit Tyler to its holding, we do not fit exactly under the facts.

However, if you want to say that reasonably that Tyler should be held to say that fire investigators may enter within a reasonable time after the flames have been extinguished, then I believe you are correct.

Let me just shortly apply my four-prong test to the fire situation.

Unidentified Justice: Before you do, I am still not sure you have cleared up my concern about the lack of notice here.

You gave me hypothetical example of where we would not have needed notice.

But, why, on the facts of this case, wasn't it perfectly simply to give notice?

As I understand it, the insurance... everybody else gave the owner notice.

Mr. Bartee: The question is not is it practicable to give notice.

It is notice required and I believe--

Unidentified Justice: You seem to concede it was required on the facts of Tyler as I understand it.

Mr. Bartee: --I will concede for additional entries it would be required unless notice would defeat the purpose.

And, in an arson situation, it is conceivable that notice might defeat the purpose of the search.

But, for the initial investigative entry, I believe just the exigency of the fire itself and the local governments, they have expended money and risked lives, they have an interest and a right to determine the cause and origin and to make that initial entry without a warrant.

Unidentified Justice: You would say the same thing even if the initial entry were three days later?

Mr. Bartee: Absolutely not.

I would have to say reasonable time.

The entry... The quantum of information required, that is my third prong, would be reasonable time and reasonable time is not subject to a precise definition.

Unidentified Justice: Well, let's say it was two hours after the water had been cleaned up in the basement instead of they had to wait.

Could they have gone in?

Mr. Bartee: I believe so.

Unidentified Justice: I see.

Mr. Bartee: I believe that reasonable time, to follow up your answer... The starting point for reasonable time would be that time within which the fire may rekindle, but it could not end within time within which a fire may rekindle because there may also be factors beyond the control of the investigators which precludes or hinders their initial investigation.

For example, in Tyler the steam and darkness hindered the investigation.

It may be unsafe to make that initial investigation.

A bulldozer may be required to remove some debris to make that initial investigation or, as in the instant case, water may have to be pumped out of the basement to make that initial investigation.

So, reasonable time would require several factors.

Some of these factors were discussed by this Court in Tyler such as the attempt to secure the premises, the continued use of the premises.

Unidentified Justice: If you are responding to the question, you may complete, but then you have used up all your time.

Mr. Bartee: Thank you.

Chief Justice Burger: Mr. Oade?

ORAL ARGUMENT OF K. PRESTON OADE, JR., ESQ. ON BEHALF OF THE RESPONDENTS

Mr. Oade: Mr. Chief Justice, and may it please the Court:

As the Court is well aware petitioner in this case is, in effect, asking this Court to overrule Camara versus Municipal Court of City and County of San Francisco, a 1967 case, dealing with warrantless searches of the physical condition of premises by building inspectors; asking the Court to overrule See versus City of Seattle, a fire inspection case, 1967; asking the Court to overrule Marshall v. Barlows, Inc., a warrantless search under the occupational heath and safety provisions; and they are asking the Court to overrule Michigan v. Tyler.

The reason that petition perceives it necessary to ask this Court to overrule those cases is because whether this search is viewed in the context of an administrative search or whether it is viewed in the context of a criminal search, it is clear a warrant was required under any case.

I submit to this Court that the Court need not reach the question of whether these cases should be overruled.

And, the reason it need not reach those questions is because clearly a police officer has no right to enter a private home, which this Court through the years has protected and drawn the line that the threshold of the home which the police officers or not officials may enter, absent compelling cause, exigent circumstances for a warrant.

Unidentified Justice: Now, some of the questions, Mr. Oade... We are getting back to fundamentals about the Fourth Amendment.

What is the purpose of the Fourth Amendment protection, the warrant protection?

Mr. Oade: I think this case illustrates very well, Mr. Chief Justice, the purpose of the Fourth Amendment.

Unidentified Justice: Well, without the merits of this case, what is the broad purpose?

To protect privacy, is it not?

Mr. Oade: That is correct.

Unidentified Justice: Now, in this place they had anywhere from six to a dozen firemen filing around the place for many, many hours, and carpenters and whoever the people were manning the water pumps.

There had been quite an interference with privacy by that time, hadn't there?

Mr. Oade: Mr. Chief Justice, the firefighters had a duty to fight that fire and they had a duty to extinguish that fire and they had a duty to ensure that that fire was put out.

Thereafter, when the firefighters had left the scene of those premises, the Cliffords had their insurance agent boarding those premises up.

The purpose of the Fourth Amendment is so a police officer will not enter someone's private bedroom, go through that person's closets, go through the drawers of their dresser drawers to see if there is any evidence in there that they can convict them of a crime.

Unidentified Justice: What if the firefighters had discovered, in the process of their work while the fire was still going on, bales of marijuana or kegs of heroin and that sort of thing?

Is it admissible?

Mr. Oade: Mr. Chief Justice, I think that I can fairly concede that that is within plain view.

And, in fact, in this case we have a plain view situation and the plain view is because the origin of the fire here was very easily determined as being in the basement... There was an odor of flammable liquid, there was a definite burn pattern emerging from the stairwell of the basement stairwell and there was a can of Coleman fuel found in that basement next to the point of origin.

The firefighters found that can of fuel and they took that can of fuel and seized it because it was in plain view and they put it outside and then they gave a report to the arson squad of probable arson.

This fire is probable arson, started in the basement.

Now, at that point, it is our contention that it turned into a criminal investigation and if it was not criminal at that point it was certainly criminal by the time Lieutenant Beyer, who, by the way, I would like the Court to know is a police officer.

Lieutenant Beyer is a member of the Detroit Police/Fire Arson Squard.

His function is to investigate criminality and prosecute it as evidenced by the fact he was a witness in this case, he performed their exam, as evidenced by the fact he has powers of arrest, as evidenced by the fact that he went out there not to find cause and origin, because he found cause and origin in the basement.

He then went through this entire home for three hours, Mr. Chief Justice.

Unidentified Justice: Is that different than the officers in Tyler?

Mr. Oade: I think it is very different in this sense.

The officers in Tyler was the Fire Chief, I believe Chief See.

They went there while the fire was still smoldering.

When the fire was extinguished, they were sure what the cause and origin was.

In fact, they couldn't even see any.

Unidentified Justice: I meant as to their official duties and the powers and so forth.

You made something to the effect that this was a police officer, he had the power to arrest.

Did the officers in Tyler not have the power to arrest?

Mr. Oade: I am not sure, Justice Rehnquist, whether they had the power to arrest or not, but I think that this Court has distinguished between administrative and criminal searches based on the objects and intrusiveness of the search.

So, I submit to the Court, that, number one, the object of the search was, what, criminal evidence?

Look what was seized.

What was seized here was old clothes.

Old clothes were seized from the Cliffords' bedroom and that was viewed as evidence of arson, to wit, somebody that is going to burn their house down takes all their new clothes and expensive things out of their home.

Unidentified Justice: Was all of that in evidence?

Mr. Oade: This is part of the evidence that we are seeking to suppress.

So, they have... They didn't confine their activities to cause and origin.

This was a three-hour search of this home.

The Court has the investigator's report, which is a five-page report... it is not in the Appendix, but I know it has been submitted to the Court... that describes the scope of this search.

They started in the basement and they found clearly a crock pot and a wire.

Unidentified Justice: Is that report in evidence?

Mr. Oade: Yes, I believe it is.

Unidentified Justice: Because it certainly is not in the Joint Appendix.

Mr. Oade: It is not in the Joint Appendix and we had some confusion in putting the Joint Appendix together as far as counsel contacting me and asking me what we wanted in there.

It should be in the Joint Appendix and I did get a request from the Clerk of the Court.

I have sent the Court copies of the investigator's report.

Unidentified Justice: Are you representing that it was received in evidence in the case?

Mr. Oade: This investigator's report?

Unidentified Justice: Yes.

Mr. Oade: No.

It was not marked.

It was, in fact, referred to by Lieutenant Beyer throughout his testimony.

He used it in his testimony.

The transcript reflects that.

He would say I have to refer to my report.

Unidentified Justice: Mr.... Go ahead.

It is not in the record?

Mr. Oade: It is not.

Unidentified Justice: Or it is not before us.

Mr. Oade: It has not been marked as an exhibit and put in for identification.

Certainly there is no question on the authenticity of it.

The prosecution has a copy of it.

We obtained it from the state.

I believe it certainly is pertinent and I have cited it in my brief without objection from the petitioner.

Unidentified Justice: Mr. Oade, to get back for a moment to the similarities or dissimilarities between the officers in your case and in Tyler, reading from page 502 of 436 US, the Court's opinion in Tyler, the first person to arrive was Chief See, who I take it was the Fire Chief, and then at 3:30 A.M. he called Police Detective Webb.

So, there was a police detective on the premises at all times after 3:30 in Tyler.

So, I would think that your argument that these were police officers rather than fire officers is pretty well foreclosed by Tyler.

Mr. Oade: Well, I don't believe it is entirely foreclosed, Mr. Justice Rehnquist.

Unidentified Justice: Why not?

Mr. Oade: And, the reason I don't is because of the scope of the search itself in this case.

In the Tyler case I think it was limited to a reasonable search into cause and origin.

Unidentified Justice: But, you are talking... It may be differentiated on the scope of the search.

I certainly am not saying it isn't.

But, I thought you were trying to distinguish on the basis of the type of officer who came.

Mr. Oade: I wanted to make it clear to the Court, because I am maintaining that this is a criminal investigation.

Unidentified Justice: But, if Detective Webb was involved in Tyler, there is certainly every presumption there was a criminal investigation in Tyler too.

Mr. Oade: I think there was certainly a criminal investigator present.

I would certainly concede that, but I will not concede that the focus and object of the search in Tyler was solely to gather fruits and instrumentalities of crime.

And, I think it is clear in this case that the scope of the search and what was seized was fruits and instrumentalities of the crime.

I think the case illustrates why--

Unidentified Justice: Mr. Oade, every time you discover evidence of arson, it becomes the fruits of a crime, doesn't it?

Mr. Oade: --It does, but--

Unidentified Justice: So you would just say there can never be an arson investigation under any circumstances, that the exigent circumstances would never allow that, is that your position?

Mr. Oade: --No, that is not my position.

My position--

Unidentified Justice: Well, if the officers were there at the time the firefighters were there, would you think they could have conducted this same search?

Mr. Oade: --No, they could not.

And, I would like to illustrate my point as follows:

Let's suppose they would have gotten an administrative warrant to search for cause and origin.

I submit to the Court that one of the purposes of a warrant is to limit the scope of a search.

And, I believe that a proper administrative warrant would have instructed, whether they be police officers or firefighters, would have instructed them to search for cause and origin.

Cause and origin of the fire was in the basement.

Unidentified Justice: But, don't you concede under Tyler, if they had been there when the firefighters were there, that that much would have authorized them to make the search they did?

Mr. Oade: It would not have authorized--

Unidentified Justice: You are asking us to overrule Tyler in another way then.

Yes.

Mr. Oade: --No, I am not.

No, I am not.

Maybe I am not making myself clear.

Let's suppose that the firefighters in this case had stayed at the scene and let's suppose that they had stayed there for six hours and the water was pumped out and they are trying to determine cause and origin.

If that happened, and it didn't happen, but if it did happen, and under Tyler they had a right to remain there to search--

Unidentified Justice: And, under Tyler they would have had a right to call a police detective too.

Mr. Oade: --They would have had a right to call a police detective.

They would have had the right to go down in the basement where the cause and origin of the fire was.

They would have had a right to search through the fire debris and they would have had a right to seize evidence at the cause and origin, but they would not have a right, Justice Rehnquist, to go in the man's living room, to rummage through his personal effects.

They would not have a right--

Unidentified Justice: Would you say the evidence of only old clothes in the closet is not probative of arson?

Mr. Oade: --I find the fact that is probative of arson irrelevant.

The fact is they took it upon themselves to go up in this man's bedroom, to search their closets, to search their dresser drawers, and I find that to be an extreme evasion of privacy that far exceeds the scope of the search.

The cause and origin of the fire had nothing to do with--

Unidentified Justice: What if the fire had originated in the bedroom?

Mr. Oade: --Pardon me?

Unidentified Justice: What if the fire had originated in the bedroom?

Mr. Oade: Well, at least they would have an arguable case that they were confining their search to the less intrusive means.

Unidentified Justice: Well, you suggest it is only arguable that they could go into the bedroom if the fire had originated there?

Mr. Oade: I am saying that it is clear to me, Justice Rehnquist, that the cause and origin of the fire had no relationship to whatever personal effects might have been present in my clients' bedroom.

Unidentified Justice: But, I asked you what if the cause of the fire had been found in the bedroom and you say, I believe that it is only arguable that the fire people could have gone into the bedroom, even though the cause of the fire was there.

Mr. Oade: I will concede if the origin of the fire was in the bedroom they had a right to be present in the bedroom.

I don't think they had a right to go through somebody's diary or open their dresser drawers and see what is in there.

I don't think they had a right to do that.

That has nothing to do with cause and origin and that is why you need a warrant so that people will know, so police officers will know, so arson investigators will know what is the limit of their authority.

Unidentified Justice: You mean in this case you wouldn't be here if they had limited their search to the basement?

Mr. Oade: If they had gotten an administrative warrant and limited the search to the basement.

Unidentified Justice: So you would be here if all they did was they entered without a warrant and went down the basement to verify the cause and origin of the fire.

And, if they found some evidence in that search, you would still be here, even if they stayed a hundred miles from the bedroom.

Mr. Oade: Justice White, I think perhaps--

Unidentified Justice: Can't... Yes, you would be here, you just wouldn't have as much to argue about?

Mr. Oade: --That is true.

I wouldn't have as many strings in my bow, but I would like to say, Justice White, that in Michigan v. Tyler the Michigan Supreme Court... In People v. Tyler, the Michigan Supreme Court set forth a clear rule for arson investigators to follow.

The Michigan Sumpreme Court said when the fire has been extinguished, there is no danger of its recurrence, and you have left the scene, your duties are over.

If you want to go back in to determine cause and origin, get a warrant.

This Court said in Tyler, well, that took an unrealistic and narrow view of the firefighting function.

The Court viewed the re-entry by Chief See four hours later as a continuation of the original entry.

And, Justice White, I think you said in Tyler, in your concurring opinion, that that line of demarcation, the continuation, will not aid firefighters, it will confuse them.

In other words, you predicted that there are going to be situations, because of this continuation theory, where firefighters or arson investigators could have easily have gotten a warrant and they are not going to do so because of this continuation theory in Michigan v. Tyler.

I submit to the Court that if you create an exception to the warrant requirement, and I think the Court has in effect created an exception in Michigan v. Tyler called the continuation exception.

The exception will be expanded.

The police and the firefighters will take it to the limits.

And, that is why, I think, we are before this Court.

If this Court in Michigan v. Tyler had set down a clear rule and said once you leave the premises, once the fire is out, and you want to come back, then have an administrative warrant or have a probable cause warrant or, as Justice Stevens says, fair notice.

Unidentified Justice: Mr. Oade, you have referred to administrative warrants several times.

Does Michigan have an administrative warrant procedure for determining the cause and origin of the fire?

Mr. Oade: I am not aware of any particular legislative standards, and in the absence of those standards, I think that it is incumbent--

Unidentified Justice: So at the time of this incident, there wasn't such an animal that these people could have tried to get?

Mr. Oade: --Oh, I believe they could have.

In fact, Lieutenant Beyer conceded that he knew how to get an administrative warrant.

He said it could have taken him an hour.

So, there was apparently a mechanism where local magistrates will allow administrative searches based on showing of need to enter and a reasonable scope and search.

Unidentified Justice: Just a showing that there had been a fire, is that all they need?

Mr. Oade: I think a showing that there has been a fire and it is of suspicious origin, that is correct.

But, Justice Stevens, they had much more in this case.

They had--

Unidentified Justice: I know they had more, but there is no finding of probable cause here so I think we have to decide the case as though it presents a question that might arise when there is no probable cause.

Mr. Oade: --I think that is true.

I think you should decide the case that way, even though I take the view, and we take the view, that this was a criminal search.

They had probable cause.

They knew the fuel was there.

When they went out to the house, Lieutenant Beyer talked to the neighbors, gathered information that there had been a prior fire there reported by arson.

Unidentified Justice: I understand that.

But, if you had a case in which there was suspicion of arson, say, rather than probable cause to believe it, and an uncertain origin of fire, your view of the Constitution is that they could not enter at all or without an administrative warrant?

Mr. Oade: I think they would have to... I think they should, according to Tyler, they would have to get an administrative warrant and the reason for that is--

Unidentified Justice: Tyler doesn't talk about an administrative warrant, does it?

Maybe my recollection is poor about it.

I thought that talked about the old fashioned kind of warrant.

Mr. Oade: --Probable cause type of warrant.

Unidentified Justice: I don't think Tyler even mentions administrative warrant.

Mr. Oade: Well, you might be correct.

I have been so brainwashed by this administrative search idea that perhaps you are correct.

Clearly, in any event, they could have gotten a warrant in this case and I maintained in my brief that they could have gotten a probable cause warrant and should have gotten a probable cause warrant because they knew before they went into the house that it was arson and they not only knew it was arson, they suspected and had probable cause to believe who had committed the arson.

Unidentified Justice: Do you concede that a magistrate would have issued a warrant?

Mr. Oade: I think in all likelihood a magistrate would have issued a probable cause warrant in this case.

I can't speculate on what the magistrate would have done, but I think certainly under the tests set forth by this Court in Illinois v. Gates, I think that there was probable cause that there was evidence of arson inside that home.

And, of course, I think given that fact, there is a compelling reason to require resort to the warrant.

Unidentified Justice: I suppose it would be a rare case where, in a suspected arson case, a probable cause warrant wouldn't arise, wouldn't issue.

Mr. Oade: I think that may be true, Justice Blackmun.

Unidentified Justice: This is totally irrelevant, but I am curious.

I have done a lot of camping in my day.

How did it happen the Cliffords were so conveniently available by telephone on a camping trip?

Mr. Oade: I am not aware of that, Justice Blackmun.

I think they had told their neighborhood... There was a Boy Scout troop.

They were going up north with a Boy Scout troop, so I believe it is because the parents wanted to know where their kids were and wanted to know how to get ahold of the Cliffords and their children up north.

So, I think Mr. Mott knew how to get ahold of Mr. Clifford.

Unidentified Justice: So, there were other youngsters than the Cliffords' children?

Mr. Oade: That is correct.

That is correct.

But, I think the main purpose for a warrant is, number one, to limit the scope of a search to a reasonable degree and it is our position that in this case this was an intrusive search.

It went far beyond a determination of mere cause and origin.

Unidentified Justice: Well, if a magistrate had issued a warrant, as you seem to concede he would have or any judicial officer would have, arson being the subject of the inquiry, how do you think the search could be limited?

Would it not be to inquire into everything that would bear upon the arson?

Mr. Oade: I would agree with that, Mr. Chief Justice, and the fact is they did not get a warrant.

They should have.

Unidentified Justice: Let's just stay with the warrant would not be limited.

Had they had that warrant they could have gone into the closets to determine what they did find, in fact, and into every part of the house where they might find something that would bear on the arson, is that true?

Mr. Oade: I am not sure that is correct, Mr. Chief Justice.

I think it would depend on the type of probable cause that was submitted to the magistrate and the type of search that the magistrate would have authorized.

Perhaps the magistrate would have authorized to search the basement area and then when they found more evidence of arson, they could have come back and gotten another warrant to further enlarge the scope of their search.

Unidentified Justice: Do Michigan magistrates and judicial officers issue warrants seriatim?

Mr. Oade: Oh, I think absolutely.

Unidentified Justice: Is that common practice?

Mr. Oade: A magistrate has a duty to--

Unidentified Justice: Well, is that a common practice in Michigan?

Mr. Oade: --It certainly happens, Mr. Chief Justice.

It does happen where you have probable cause to search a certain area or a certain building or a certain apartment and then you make you search and based on what you find that gives you probable cause to search somewhere else.

It certainly happens there and it happens in the wire tapping area where you authorize a search and you find something out and on the basis of that search you go back and you get further authorization.

I would like to turn now to the question that Justice O'Connor raised earlier about exigent circumstances.

I would like to emphasize that, in fact, this started as an exigent circumstance case.

That is the only ground upon which the petitioner defended the search in the trial court.

It is the only ground upon which the petitioner defended the search in the Court of Appeals and the Michigan Court of Appeals specifically found as fact that there were no exigent circumstances.

That, in fact, the firefighters had completely left the scene.

They were in no hurry to go back.

Lieutenant Beyer had processed a prisoner, investigated another fire, stopped for lunch, and he and his partner came to the Clifford home.

Then they had to wait around an additional half an hour to wait for the water to go down.

So, they had ample time, ample opportunity to obtain a warrant.

Unidentified Justice: Is that the justification for getting a warrant, that there is time to get one?

Mr. Oade: I think that exigent circumstances certainly in Michigan is a need for an immediate search.

If there is a need for an immediate search... If you don't search now, the car is going to be gone, or if you don't search now, they are going to flush the dope down the toilet, then maybe that is an exergent circumstance.

But, there was no reason for an immediate search.

There were two of them there.

They could have waited.

They could have posted a guard and gone and gotten a warrant and came back.

They could have probably have gotten a warrant while the water was being pumped out.

There was absolutely no reason for an immediate search.

The firefighters left.

This rekindling thing is a red herring.

There is no rekindling.

The firefighters had gone.

The fire was out.

If there was any danger of rekindling, why did they go to lunch and process another prisoner and take their sweet time in getting out there?

This wasn't an exigent circumstance.

Unidentified Justice: Maybe it was because there was six inches of water in the basement.

Mr. Oade: Well, they didn't know that, but even if they did, I don't see what significance that has to exigent circumstances.

The Michigan Court of Appeals viewed the water as merely increasing the time for them to go and get a warrant.

Unidentified Justice: Wasn't the Michigan Court basing its ruling on this Court's holding in Michigan versus Tyler?

Mr. Oade: Well, I don't agree with that, Justice O'Connor, and I would like to--

Unidentified Justice: At least that is what it said it was doing.

Mr. Oade: --It said that, but I would like to also take this opportunity to correct a misstatement in the reply brief of the petitioners where they say that we, in the lower court, did not raise any Michigan constitutional grounds.

In the motion to suppress, which I hope you have in the file, we said the search violates the Fourth Amendment and the Michigan Constitution.

When we went to the Court of Appeals, we said the search violates the Fourth Amendment and the Michigan Constitution.

In our brief in the Court of Appeals, we cited I believe a total of seven cases and most of those cases were state cases and they were state cases on exigent circumstances.

Unidentified Justice: Suppose the people, the firemen come into a burning house and they put out the fire.

Now, I take it from what you say that you agree they could search around immediately for the cause.

Mr. Oade: I agree with that.

Unidentified Justice: Even if it wasn't in plain sight.

Mr. Oade: I agree with that also.

Unidentified Justice: Suppose though as soon as the fire is out they get an emergency... the chief gets an emergency call from another terrific blaze down the street.

They go put it out.

And, they want to now go back in that building and just search.

They haven't any reason to think that it is arson.

You seem to agree if they were there in the first place, even if they had no suspicion at all of arson, they could look around to see if there was arson right on the spot.

Mr. Oade: I think that is correct.

Unidentified Justice: Yes.

Well, the only thing is they couldn't do it right then because they had an emergency somewhere else.

An hour later they come back.

The fire is out and they are going to do precisely then what they were going to do before except they had to go somewhere else.

Mr. Oade: I think that would be an exigent circumstance.

Some emergency compelled them to leave the scene and come back.

I don't think that any court would say--

Unidentified Justice: Well, the justification for the search without a warrant or even just a search for evidence, even without any suspicion, the exigent circumstance is what?

It is the public interest in knowing what causes fires, isn't it?

Mr. Oade: --I don't view, Justice White, that the exigent--

Unidentified Justice: Well, you tell me what the exigent circumstance is.

When the fireman is there, he puts out the fire.

He has no idea whether it is arson or not.

But, you tell me that he may look around in places that are not in plain sight for evidence of the cause of the fire.

Mr. Oade: --I think that is--

Unidentified Justice: What is the exigent circumstance?

Mr. Oade: --There is no exigent circumstance.

Unidentified Justice: Well, why may he search around?

Mr. Oade: The exigent circumstance was the fact that there was a fire in the first place.

Unidentified Justice: All right.

So, you tell me why may he look around?

It is just the public interest in knowing what causes fires.

Mr. Oade: And, the firefighter has the duty to determine that.

Unidentified Justice: Why does he have a duty?

Because it is in the public interest for him to have it.

Mr. Oade: It is in the public interest.

Unidentified Justice: And for him to discharge that duty without a warrant.

Mr. Oade: I think this Court said that in Tyler.

That is what this Court said in Tyler, but this Court also said in Tyler--

Unidentified Justice: Yes, but you just agreed with me that to discharge that duty he doesn't have to stay on the premises.

Mr. Oade: --You posited a situation where some exigent circumstance called him away.

Unidentified Justice: Well, there may be a lot of others.

Mr. Oade: And, one of those others was in Tyler where there was smoke and steam and the firefighters could not perform that public duty and because--

Unidentified Justice: And here there was water in the basement.

Mr. Oade: --But that had nothing to do with the fact of an exigent circumstance, because who came back were not firefighters and that gets to my earlier point.

These weren't firefighters.

The firefighters had ceased to be involved in this.

They had extinguished the fire.

The exigent circumstance was over.

And, now they turn it over to an arson squad to investigate it and the arson squad comes out there, could have gotten a warrant, and took it upon themselves to search this entire house.

And, I hope this Court will agree with me that firefighters or arson investigators do not have a right to rummage at will among people's personal effects in search of whatever may convict them without having a warrant.

Firefighters do have a duty to investigate fires, but that doesn't given them a license to rummage through people's personal effects.

The Fourth Amendment struck the balance on that situation in favor of the individual.

Unidentified Justice: If the arson squad investigators had just happened to show up during the fire and entered... And the fire was out and they entered the building just when the fire was going out.

You would say the arson squad could make a search, a limited area.

Mr. Oade: I would say a limited search.

The fire here was clearly in the basement.

Let them go in the basement.

Let them determine what caused the fire, but keep them out of the bedroom, keep them out of the dresser drawers, keep them out of going through and searching this man's badge and uniform cap and everything else.

Thank you.

Chief Justice Burger: Thank you, counsel.

The case is submitted.

We will hear arguments next in Welsh against Wisconsin.