APPEAL from the Circuit Court of Macoupin County; the Hon.
JOHN W. RUSSELL, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendants were charged by indictment with three counts each of arson in violation of section 20-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 20-1); Moore was also charged by indictment with one count of criminal damage to property in violation of section 21-1 of the Code (Ill. Rev. Stat. 1977, ch. 38, par. 21-1). In addition each of the defendants was charged by information with three counts of conspiracy to commit arson in violation of section 8-2 of the Code (Ill. Rev. Stat. 1977, ch. 38, par. 8-2). Holloway filed a written motion to suppress evidence illegally seized pursuant to section 114-12 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114-12). Moore orally joined in the motion. A hearing was held in the circuit court of Macoupin County on the motion, and it was allowed by the trial court. A motion to reconsider was denied, and the State has appealed pursuant to Supreme Court Rule 604(a)(73 Ill.2d R. 604(a)). We affirm.
There is no substantial dispute over the facts except in one or two details of no great significance, and the parties agree that our decision will be governed by the recent case of Michigan v. Tyler (1978), 436 U.S. 499, 56 L.Ed.2d 486, 98 S.Ct. 1942.
The issues presented are two: (1) whether a fire investigator's search of the burned premises without a warrant violated the defendants' fourth amendment rights prohibiting unreasonable searches and seizures; and (2) whether defendant Moore has standing to contest the search.
The factual background of the case is this: Holloway and his wife owned in joint tenancy a house in Virden, Illinois. On February 2, 1977, at about 2 a.m., a member of the Virden Police Department, and also a member of the Virden Volunteer Fire Department, received a call that there was a fire on the premises. He notified the police dispatcher who in turn notified the fire department. The officer then repaired to the scene, and went next door to a new apartment complex, in order to alert any occupants concerning the danger from the fire. He found Moore lying on the floor of the first apartment in a bedroom with a television set on. He pounded on the window to waken Moore.
The fire chief of Virden testified at the suppression hearing, and stated that this was a major fire requiring the services of 40 to 45 firemen, four pumpers and a rescue van from Virden, and one pumper and one tanker truck from Girard. The call was received at about 2:40 a.m. on February 2, 1977, and the fire extinguished at 7 a.m. when the firemen and the equipment left the scene.
At about 7:30 a.m. on the same morning, the fire chief called on the telephone to a fire investigator of the State Fire Marshall's office. This investigator lived in Benld, about 30 miles from Virden. The fire chief requested an investigation because the fire appeared "suspicious," a gasoline can having been found near the building lying in the snow.
The investigator arrived in Virden about 9:30 a.m. on the same morning, and first went to the police station to talk to the officer who made the report of the fire. He then went to the scene, arriving about 9:45 a.m., and recalled seeing some firemen and one truck there. There was testimony to indicate that the fire had rekindled at about 9:30 a.m. and again about noontime.
The investigator entered the premises during his 9:45 a.m. visit but was unable to take any pictures because of smoke and steam. He did enter during the noontime rekindling, and caused pictures to be taken at that time, and finally left the premises at about 4:30 p.m. on February 2, 1977.
The investigator returned the following day, February 3, 1977, and talked with defendant Holloway at the scene. Holloway showed the investigator where a fire had occurred in the apartment complex next door on February 1, 1977. He also stated that certain flammables had been stored on the burned premises. The investigator felt that the places of storage were compatible with the type of fire pattern which he had observed, and that he did not have an arson case. Therefore he ceased the investigation.
He reopened the investigation in the autumn of 1978, about a year and one-half later, upon the request of the State's Attorney, to whom a witness had come forth and testified as to defendants' involvement.
As indicated above, the trial court allowed the motion to suppress and in ruling on the motion to reconsider said:
"It's also the court's understanding from the testimony that Mr. Scott was not a fireman who was fighting this fire but an investigator who went upon the scene after the firemen had retreated or left the fire scene. It's my understanding from this United States Supreme Court decision (Michigan v. Tyler) that he or any other person must go through the warrant procedures before he has any right to go upon the premises and violate the privacy of this citizen or any citizen."
The parties differ in their interpretation of Tyler as applied to the facts in the instant case. The State maintains that the fire was still in progress and therefore the investigator went lawfully upon the premises without a warrant. Defendants, on the other hand, stand on the ...