Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Macoupin
County, the Hon. John W. Russell, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 19, 1981.
The defendants, Fred Holloway and Steve Moore, in the circuit court of Macoupin County, were charged by indictment with three counts of arson, in violation of section 20-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 20-1). Defendant Moore was also charged by indictment with one count of criminal damage to property (Ill. Rev. Stat. 1977, ch. 38, par. 21-1). In addition, each of the defendants was charged by information with two counts of conspiracy to commit arson (Ill. Rev. Stat. 1977, ch. 38, par. 8-2). All of these charges arose out of an early-morning fire on February 2, 1977, that destroyed a two-story residence owned jointly by defendant Holloway and his wife, located in Virden. Prior to trial, defendant Holloway filed a written motion pursuant to section 114-12 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114-12) to suppress evidence illegally seized. The basis for the motion was that after the blaze had been extinguished and the firemen had left the scene, a fire investigator, acting in his official capacity, made several entries into the premises in order to determine the cause of the fire. During these entries, which were made without permission or a warrant, the evidence sought to be suppressed was seized. Defendant Moore, who had no property or possessory interest in the premises, orally joined in this motion, which was granted by the trial court. On appeal by the State, pursuant to our Rule 604(a) (73 Ill.2d R. 604(a)), the appellate court, with one justice dissenting, affirmed the order suppressing the evidence based upon its interpretation of Michigan v. Tyler (1978), 436 U.S. 499, 56 L.Ed.2d 486, 98 S.Ct. 1942. The court also held that the State waived its right to challenge defendant Moore's standing to join in the motion by having failed to raise the issue at the hearing. (82 Ill. App.3d 703.) We granted leave to appeal pursuant to Rule 315(a) (73 Ill.2d R. 315(a)).
For the reasons expressed in this opinion, we find the motion to suppress was properly granted and that the State has waived its right to challenge defendant Moore's standing.
Fire broke out in the unoccupied Virden premises at about 2 a.m. on February 2, 1977. Officer Gary Plessa, a member of both the Virden police department and the volunteer fire department, received the call. After notifying the police dispatcher, who in turn notified the Virden volunteer fire department, Officer Plessa went to the scene, by which time the fire had completely engulfed the premises. Officer Plessa went to a nearby apartment complex to awaken residents and warn them of the impending danger. Defendant Moore was found in one of the apartments.
The blaze was described as a "major fire" requiring the services of 40 to 45 firemen with equipment from Virden and the nearby town of Girard. During the course of fighting the fire, a gasoline can was found lying in the snow some 50 feet away from the burning structure, but nothing else unusual or suspicious was found while the fire was being fought. The fire was extinguished by about 7 a.m., at which time the firemen and the equipment left the scene.
At about 7:30 a.m. the Virden fire chief contacted James R. Scott, a fire investigator who lived in the town of Benld, 30 miles from Virden. Scott was informed that his presence was required to investigate a "suspicious" fire, but it was not indicated that this "request was in any way of an emergency nature" which required his immediate presence. Scott arrived in Virden some two hours later, at approximately 9:30 a.m., but instead of going directly to the burned premises, went to the police station. Inspector Scott next went to the fire scene, where he examined the exterior of the structure and the gasoline can. Scott first entered the premises at about 9:45 a.m. and stayed until about 1 p.m. He went to the police station to get a photographer to take some pictures. He reentered the premises sometime that afternoon accompanied by a local photographer and caused pictures to be taken. Scott ceased his investigation that day at about 4:30 p.m. Testimony was produced at the hearing on the motion to suppress that the fire had rekindled twice during the period of Scott's investigation but the nature and extent of these "rekindlings" were never clearly established. In any event, the "rekindlings" were not sufficient to hamper Scott's investigation in any way, nor were they considered to be unusual. Scott did not accompany the fire fighters when they returned to the premises to extinguish the rekindled fires, and his presence and his investigation were not related to the rekindling of the fires.
On the following day, February 3, 1977, Scott returned to the scene with defendant Holloway, who explained that certain flammable liquids had been stored in the burned premises. Scott was satisfied that the places of storage were compatible with the type of fire pattern he had observed inside the building on the previous day and that he did not have an arson case. The investigation was closed until the autumn of 1978, when a witness implicated the defendants in the occurrence.
In People v. Tyler (1977), 399 Mich. 564, 250 N.W.2d 467, fire had broken out shortly before midnight on January 21, 1970, in a furniture store leased to defendant Tyler. Around 2 a.m. the fire was out but still smoldering when Chief See, who was responsible for determining the cause of the blaze, appeared on the scene. Lieutenant Lawson, present during the actual fire, informed See that two containers of flammable liquid had been found inside the building. The two men then entered the gutted premises without obtaining permission or a warrant and examined the containers. Based upon See's observations during this entry, a police detective was called and several reentries were made and evidence seized throughout the morning. On February 16, 26 days later, several other warrantless entries were made and additional evidence seized pursuant to an arson investigation. The Michigan Supreme Court held that all of the evidence obtained from the premises had to be suppressed since the exigent circumstances created by the fire had abated when the blaze was extinguished, making the initial entry by See illegal.
On certiorari (Michigan v. Tyler (1978), 436 U.S. 499, 56 L.Ed.2d 486, 98 S.Ct. 1942) the Supreme Court rejected as "unrealistically narrow" the dousing-of-the-last-flame rule as the test for determining when the exigent circumstances permitting warrantless entry into fire-damaged premises abate. The court observed that the owner of fire-damaged premises retains a privacy interest in the property. Therefore, entries into the premises by fire investigators, even for the purpose of ascertaining the cause of a fire, must be made pursuant to the warrant requirements of the fourth amendment.
"Thus, there is no diminution in a person's reasonable expectation of privacy nor in the protection of the Fourth Amendment simply because the official conducting the search wears the uniform of a firefighter rather than a policeman, or because his purpose is to ascertain the cause of a fire rather than to look for evidence of a crime, or because the fire might have been started deliberately. Searches for administrative purposes, like searches for evidence of crime, are encompassed by the Fourth Amendment." (Michigan v. Tyler (1978), 436 U.S. 499, 506, 56 L.Ed.2d 486, 496, 98 S.Ct. 1942, 1948.)
However, the court noted that the warrant requirement is suspended by exigent circumstances created by the fire itself.
"A burning building clearly presents an exigency of sufficient proportions to render a warrantless entry `reasonable.' Indeed, it would defy reason to suppose that firemen must secure a warrant or consent before entering a burning structure to put out the blaze." (Michigan v. ...