|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Jung, 420
Supreme Judicial Court of Massachusetts,
Submitted
Decided
Christopher Markey, Asst. Dist. Atty. (Elspeth Cypher, Asst. Dist. Atty., with
him), for the Commonwealth.
J. Drew Segadelli,
Orlando F. de Abreu,
Before [420
GREANEY, Justice.
The
defendants, George Jung and Wendy L. Degregorio, were indicted on charges of
burning a dwelling, in violation of G.L. c. 266, § 1 (1992 ed.); burning a dwelling with intent to defraud,
in violation of G.L. c. 266, § 10 (1992 ed.);
filing false insurance claims, in violation of G.L. c. 266,§ 111A (1992
ed.); conspiracy to burn a dwelling, in
violation of G.L. c. 274, § 7 (1992 ed.);
and conspiracy to burn a dwelling with intent to defraud,
also in violation of G.L. c. 266, § 1 (1992 ed.). The defendants filed a motion to suppress
evidence obtained in inspections of their fire‑damaged home by fire,
police, and insurance investigators and personnel, and statements made by them
to the police. In support of the motion,
they argued that the inspections were improper in the absence of valid
administrative and criminal search warrants, and that the statements were
obtained in violation of their rights against self‑incrimination. A judge in the Superior Court conducted an
evidentiary hearing on the motion and entered a memorandum of decision[420
We
summarize the relevant background based on the judge's findings of fact. On the night of
Seekonk
Fire Chief David Viera arrived on the scene in the early morning hours and
remained at least until late morning. At
some point in the early morning, Viera called Attleboro Fire Chief Ronald M.
Churchill and the State fire marshal's office for assistance in investigating
the fire. Churchill arrived at 8 A.M.,
and State Trooper Frank Hummel of the State fire marshal's office arrived
shortly thereafter. Viera also called
Detective Russell L. Brennan of the Seekonk police department to assist in the
investigation and to take photographs.
At 8:20
A.M., the four men entered the defendants' home without obtaining their consent
or a warrant. During this inspection
(first search), the investigators determined that the fire had originated in
the basement, which (the judge found) was then submerged under four feet of
water. They also observed that there
were no pictures on the walls of the home, despite the presence of picture
hooks. By 10:50 A.M., Churchill formed
the opinion that the fire was "probably set," and the investigators
left the home. Churchill then informed
the others that an administrative warrant should be obtained while the water
was pumped from the basement. He
provided [420 Mass. 678] Chief Viera with a form affidavit and
warrant application, and Viera authorized Detective Brennan to obtain the
warrant. An administrative fire
inspection warrant was issued by a clerk‑magistrate in the Taunton
District Court later that day pursuant to the affidavit and application filed
by Brennan. (FN2)
On May 27,
the defendants arrived at the fire scene where they were met by Detective
Brennan. Brennan arranged an interview
with the defendants to be held at police headquarters in Seekonk on May
29. Brennan did not obtain the
defendants' consent to search their home, but he did inform them that an
administrative warrant had been obtained.
On May 28,
after the water had been drained from the basement, Churchill, accompanied by
Hummel, Brennan, and Viera, investigated the home for a second time (second
search). In addition, the fire department
arranged for a local technician to examine the oil burner. The technician found the oil burner to be in
working condition and concluded that it had not caused the fire. The water heater was also excluded as the
fire's origin by Churchill, who had determined that the fire began in two
separate locations in the basement and had burned simultaneously in the two
locations during [420 Mass. 679] its early stages. Churchill also found evidence of a deliberate
arrangement of fuels designed to implicate the oil burner or water heater as
the point of the fire's origin.
Churchill concluded that the fire was incendiary in origin and that it
had no possible accidental source.
The four
investigators also noted that support beams had been removed from the basement,
observed once again that pictures were not on the walls despite the presence of
picture hooks, and observed that personal items and "knickknacks" one
would ordinarily expect to find in a home were not present. It was also noted that the skylights had been
left open and that this ventilation had accelerated the fire. The doors and windows to the house had been
locked prior to the fire and there was no sign of a break‑in. The home was subsequently ordered condemned
and boarded.
Detective
Brennan interrogated the defendants on the morning of May 29. At the time, he was aware that investigators
had concluded that the fire was the result of arson and that doors and windows
had been secured when the firemen arrived.
The defendants had previously told Brennan that they were away for the
weekend in Pennsylvania. Brennan also
knew at the time of the interrogation that fire insurance coverage on the house
had recently been increased from $95,000 to $286,000.
Brennan
interviewed the defendants separately.
At some point during his interview, Brennan advised Jung of his Miranda
rights. He then questioned Jung about
the support beams, eliciting various responses.
Jung became agitated and ended the interview. Brennan never advised Degregorio of her Miranda
rights during the course of her interview.
Although neither defendant admitted to any criminal conduct, their
statements were inconsistent on certain important points on which both were
questioned. (FN3)
[420 Mass. 680] While Brennan was conducting these interviews on May 29, Vincent
Calenda, a private investigator, was conducting an investigation on behalf of
Cambridge Mutual Insurance Company, the carrier from whom the defendants had
purchased insurance. Viera allowed
Calenda access to the home and, because the second‑floor staircase had
partially collapsed, allowed him to use a Seekonk fire department ladder truck
to conduct an aerial inspection of the second floor (third search). Calenda's report detailed the evidence
discovered the previous day by Churchill as well as new evidence.
Brennan
returned the administrative warrant on May 31, indicating that he had complied
with the warrant requirements during the investigations of May 28 and 29. He made no mention of Calenda's
investigation. Officials never obtained
a criminal search warrant.
Based on
these findings, the judge ruled that the first search (conducted on the morning
of May 26) violated the Fourth Amendment to the United States Constitution
because the defendants maintained a reasonable privacy interest in their
property and no exigency existed justifying the warrantless entry. The judge upheld the second search (conducted
on May 28) on the basis that the administrative warrant, although issued on a
preprinted form, met all of the requirements set forth by the United States
Supreme Court in Michigan v. Clifford,
464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984). The judge concluded that a criminal search
warrant had not been necessary
because the search had not turned from an investigation of the cause and origin
of the fire into a criminal arson investigation. The judge ruled that evidence obtained by the
insurance investigator in the third search could not be used against the
defendants because the investigator had substantial assistance from government
officials who were, at that point, conducting a criminal investigation. Lastly, the judge concluded that the
interrogations of the defendants did not violate their rights against self‑incrimination,
protected by the Fifth Amendment to the United States Constitution, because the
interrogations had not been custodial in nature.
[420 Mass. 681] [1][2] In reviewing a motion to suppress, we accept the motion
judge's findings of fact absent clear error. Commonwealth v. Costa, 414 Mass. 618,
626, 609 N.E.2d 465 (1993). "[T]he
ultimate legal conclusion to be drawn from the fact[s] developed at the hearing
is a matter for our review, particularly where the conclusion is of
constitutional dimension." Commonwealth v. Accaputo, 380 Mass. 435,
448 n. 18, 404 N.E.2d 1204 (1980). Commonwealth v. Thinh Van Cao, 419 Mass.
383, 384, 644 N.E.2d 1294 (1995). We are
concerned only with issues of Federal constitutional law, the defendants having
raised no issue below under the Declaration of Rights to the Massachusetts
Constitution. See Commonwealth v. Garcia, 409 Mass. 675, 678‑679, 569 N.E.2d
385 (1991).
[3] 1.
First search. The judge
concluded that the first search, for which officials had neither a warrant nor
the consent of the defendants, constituted an illegal search under the Fourth
Amendment. The Commonwealth argues that
the judge erred in suppressing evidence gathered during this search because
officials needed no warrant to enter the home to investigate the origin and
cause of the fire so long as the entry occurred within a reasonable interval
after the fire was extinguished. We
agree with the Commonwealth that the limited first search was permissible, and
that any evidence obtained in the course of this incursion into the defendants'
home should not be suppressed.
[4][5] It
is beyond dispute that a burning building creates an exigency that justifies a
warrantless entry by firefighters. Michigan v. Tyler, 436 U.S. 499, 509, 98
S.Ct. 1942, 1949‑1950, 56 L.Ed.2d 486 (1978). It is also settled that officials do not need
a warrant to remain in a building for a reasonable time to investigate the
cause of a fire after it has been extinguished. Id. at 510, 98 S.Ct. at
1950. (FN4) "[O]nce in the building, officialsneed [420 Mass. 682] no warrant to remain
for 'a reasonable time to investigate the cause of a blaze after it has been
extinguished' " (footnote omitted;
emphasis in original). Michigan v. Clifford, 464 U.S. 287, 293,
104 S.Ct. 641, 646‑647, 78 L.Ed.2d 477 (1984), quoting Michigan v. Tyler, supra.
The
decisions in Clifford and Tyler grant fire officials some leeway
with respect to an initial inspection, so long as the inspection is aimed at
determining the cause and origin of a fire.
(FN5) General Laws c. 148, § 2
(1992 ed.), requires that "[h]eads of fire departments in cities, towns or
fire districts shall investigate the cause and circumstances of every fire or
explosion in their respective jurisdictions by which property has been
destroyed or damaged, especially to ascertain whether it was caused by
carelessness or design". In Tyler, the United States Supreme Court
upheld a warrantless search by officials attempting to determine the cause and
origin of a fire. Hampered by darkness,
steam and smoke, they had left the scene of the fire at 4
A.M., and reentered after daybreak to continue their investigation.
Michigan v. Tyler, supra at 511, 98 S.Ct. at 1951. In
Clifford, where officials reentered a single‑family home some five to
six hours after the fire had been completely extinguished, a majority of the
United States Supreme Court concluded that their warrantless entry constituted
a violation of the homeowners' constitutional rights. In a concurring opinion filed in Clifford, however, it was observed that
there was unanimous agreement among the Justices that firefighters who enter a
home to fight a fire may remain on the premises without a warrant "while
they continue to investigate the cause of the fire." Michigan v. Clifford, supra
at 299‑300, 104 S.Ct. at 649‑650 (Stevens, J., concurring). We think the following considerations are
significant in this case. In contrast to
the situation in Clifford, Viera
arrived at the scene before the fire was extinguished and remained there for
the remainder of the night and into the next morning, when [420 Mass. 683] the
search was conducted. (FN6) Other firefighters also remained on the
premises. Overhaul operations, which
included preventing a rekindling of the fire, continued throughout the
morning. The entry into the home around
8:20 A.M. was conducted in conjunction with the overhaul operations. The fact that Viera was joined by other
officials who had not participated in fighting the fire does not have
significance in a constitutional sense.
See State v. Grant, 67 Ohio
St.3d 465, 470‑471, 620 N.E.2d 50 (1993), cert. denied, 513 U.S. 836, 115 S.Ct. 116, 130 L.Ed.2d 62
(1994). See also Michigan v. Clifford, supra at 300 n. 2, 104 S.Ct. at 651 n. 2
(Stevens, J., concurring). Because of
darkness, the presence of firefighters, and the apparent extent of the damage,
there would have been scant opportunity before daybreak to conduct an initial
investigation into the cause of a fire which had produced obvious signs of
structural damage to the home.
(FN7) See State v. Hoffman, 567 A.2d 1134, 1137 (R.I.1990) (citing Tyler and holding that legitimate
concerns about structural collapse justified warrantless reentry for
investigation into cause and origin of fire in single‑family home). Nothing in the record suggests that fire
officials had any clear notion of the cause or origin of the fire prior to
their initial investigation. Nor does it
appear that the scope of the initial investigation extended beyond a general
survey of the premises calculated to shed light on these questions. We conclude that Viera and his companions
were justified in entering the defendants' home without a warrant on the
morning of May 26, and that evidence obtained during this entry should not be
suppressed. See Commonwealth v. Smith, 511 Pa. 36, 511 A.2d 796, cert. denied, 479 U.S. 1006, 107 S.Ct.
643, 93 L.Ed.2d 700 (1986) (upholding warrantless morning reentry into single‑family
home where fire officials sought to determine cause and origin of fire).
[420 Mass. 684] [6] 2. Second search. The defendants contend that the judge erred
in refusing to suppress evidence gathered during the search conducted May 28
pursuant to an administrative warrant.
The defendants argue that a criminal search warrant supported by full
probable cause was necessary to conduct the search because its purpose was to
seize evidence to be used in a criminal prosecution. Alternatively, the defendants argue that,
even if a criminal search warrant was not necessary, the administrative warrant
was invalid because it lacked sufficient particularity. We agree with the latter contention.
[7] As has
been previously mentioned, local fire officials are required by G.L. c. 148, §
2, to investigate the cause and circumstances of any fire in their city, town
or district. The Tyler and Clifford
opinions acknowledge that "determining the cause and origin of a fire
serves a compelling public interest." Michigan v. Clifford, supra at 293, 104
S.Ct. at 647. Accordingly, an
investigator seeking to determine the cause and origin of a fire may enter
a fire‑damaged building on the basis of an administrative warrant issued
on a showing "that a fire of undetermined origin has occurred on the
premises." Id. at 294, 104 S.Ct. at 647. (FN8)
When the investigators left the defendants' home after the first search,
they had determined that the fire originated in the general area of the
basement, which remained submerged under four feet of water. It appeared that the fire had two points of
origin. Although at least one of the
investigators[420 Mass. 685]
had formed a suspicion of arson, the exact origin and the causes of the
fire remained unknown. In these
circumstances, the investigators did not require a criminal search warrant to
enter the defendants' home. Entry was
permissible on the showing required to obtain an administrative warrant.
[8][9][10]
We turn now to the validity of the administrative warrant involved in this case
and the search conducted pursuant to it.
To obtain an administrative warrant, in addition to showing that a fire
of undetermined origin has occurred, officials must show "that the scope
of the proposed search is reasonable and will not intrude unnecessarily on the
fire victim's privacy, and that the search will be conducted at a reasonable
and convenient time." Michigan v. Clifford, supra at 294, 104
S.Ct. at 647. The proper scope of an
administrative warrant issued to conduct an investigation pursuant to G.L. c.
148, § 2, is limited by the purpose for which the warrant is sought (to
determine the cause and circumstances of a fire), see Commonwealth v. Frodyma, 386 Mass. 434, 438, 436 N.E.2d 925
(1982), and any warrant that is issued should limit the search in keeping with
that purpose. See Commonwealth v. Accaputo, 380 Mass. 435, 441, 404 N.E.2d 1204
(1980) (lesser standard of probable cause required to obtain administrative
search warrant linked to limited scope of administrative search).
[11] After
their first search of the defendants' home, the investigators had concluded
that the fire had originated in the basement.
(FN9) Nevertheless, the affidavit
in support of the administrative warrant described the area to be searched as
"the entire structure." A
search of such a broad scope was unreasonable and unwarranted as an
administrative search. Because the
investigators had concluded, prior to their application for the administrative
warrant, that the fire had originated in the basement, their application and
the resulting warrant should have been limited to that area. "An administrative[420 Mass. 686] search into the cause of a recent fire does
not give fire officials license to roam freely through the fire victim's
private residence." Michigan v. Clifford, supra at 298, 104
S.Ct. at 649. The investigators could
have used whatever evidence they discovered in the basement to establish
probable cause to search the remainder of the house. Id. In the absence of exigent circumstances or
consent, however, a criminal search warrant was necessary to conduct an
expansive search. Because its undue
breadth invalidated the administrative warrant, evidence discovered by
officials during the search conducted pursuant to the warrant must be
suppressed. See Commonwealth v. Frodyma, supra at 434, 436 N.E.2d 925. (FN10)
[12] 3.
Third search. The
Commonwealth asserts that the motion judge erred in suppressing the evidence
gathered by the insurance investigator because the search did not involve State
action sufficient to trigger the protections of the Fourth Amendment. We conclude that the evidence before the judge
was not sufficient for a decision on this point, and we remand this matter for
consideration of additional evidence.
[13][14][15]
The Fourth Amendment's prohibition against unreasonable search and seizure does
not extend to a search or seizure conducted by a private party. See
Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048
(1921). The protection of the Fourth
Amendment is fully applicable, however, to a search or seizure by a private
party acting as an agent of the State. Coolidge v. New Hampshire, 403 U.S. 443,
487, 91 S.Ct. 2022, 2048‑2049, 29 L.Ed.2d 564 (1971). A private party becomes a State agent when
government officials have instigated the party to search or participated with
the party in a search in which they could not themselves have legally
engaged. See Commonwealth v. Leone, 386 Mass. 329, 333, 435 N.E.2d 1036 [420 Mass. 687] 1982); Commonwealth v. Richmond, 379 Mass. 557,
561‑562, 399 N.E.2d 1069 (1980).
In
allowing suppression, the judge relied on the fact that personnel from the fire
and police departments provided access to the home to Calenda and that Viera
allowed Calenda the use of a ladder truck for a visual inspection of the second
floor, which was no longer accessible by the stairs. Allowing access was not a significant
contribution to Calenda's search if, as is likely, he had a consensual right to
enter the home based on the terms of the insurance contract between Degregorio
and Cambridge Mutual Insurance Company.
Nor would fire officials' presence on the scene, coupled with the use of
the ladder truck for a visual inspection, necessarily establish
"participation" in the investigation sufficient to establish State
action. See State v. Grant, supra at 471, 620 N.E.2d 50 (fire officials'
presence and provision of lighting for private insurance investigator
characterized as "courtesy" not constituting State action). Additional inquiry is needed to ascertain the
circumstances under which the police and fire officials gave assistance to
Calenda, the extent of the assistance, and what resulted from it in terms of
aid to the investigation. We conclude,
therefore, that there must be further findings as to the cooperation and
involvement of police and fire officials with Calenda on May 29, if the
Commonwealth desires to rely on information obtained by Calenda at trial. See
Commonwealth v. John G. Grant & Sons Co., 403 Mass. 151, 161, 526
N.E.2d 768 (1988). (FN11)
[16] 4. The
defendants' statements. Finally,
the defendants argue that all statements made by Jung in his interview with
Detective Brennan on May 28, prior to being advised of his Miranda rights, and
all statements made by Degregorio, who was never given her Miranda warnings,
should be suppressed [420 Mass. 688] because they were obtained in
violation of their Fifth Amendment rights against self‑incrimination. See
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694
(1966). We agree with the motion judge,
however, that Miranda warnings were not required because the interrogations of
the defendants were not custodial in nature.
[17][18]
Miranda warnings are only necessary for "custodial interrogations." Id. See
Commonwealth v. Haas, 373 Mass. 545, 551, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154
(1986). "By custodial
interrogation, we mean questioning initiated by law enforcement officers after
a person has been taken into custody or otherwise deprived of his freedom of
action in any significant way." Miranda v. Arizona, supra at 444, 86 S.Ct. at 1612. We have recognized that four factors in
particular are helpful in determining whether an individual's freedom of action
is sufficiently curtailed so as to require Miranda warnings: "(1) the place of the
interrogation; (2) whether the
investigation has begun to focus on the suspect, including whether there is
probable cause to arrest the suspect;
(3) the nature of the interrogation, including whether the interview was
aggressive or, instead, informal and influenced in its contours by the
suspect; and (4) whether, at the time
the incriminating statement was made, the suspect was free to end the interview
by leaving the locus of the interrogation or by asking the interrogator to
leave, as evidenced by whether the interview terminated with the defendant's
arrest." Commonwealth v. Bryant, 390 Mass. 729,
737, 459 N.E.2d 792 (1984).
[19][20][21]
The defendants' contention that they were in custody at the time of their
respective interrogations has some support in the record. The defendants were interviewed separately
and at a time when the investigation was focused solely on them. The interviews, however, were not conducted
in an aggressive manner or in a coercive environment. The defendants went to the police station
voluntarily and were free to leave or otherwise terminate the interrogation at
any time. Jung, in fact, did terminate
the interview when he became uncomfortable with the tenor of the
questions. Neither interview terminated
with an arrest. "[P]olice officers
are not required[420 Mass. 689]
to administer Miranda warnings
to everyone whom they question. Nor is
the requirement of warnings to be imposed simply because the questioning takes
place in the station house, or because the questioned person is one whom the
police suspect. Miranda warnings are required only where
there has been such a restriction on a person's freedom as to render him 'in
custody.' It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is
limited" (emphasis in original). Oregon v. Mathiason, 429 U.S. 492, 495,
97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977).
The judge did not err in declining to suppress the defendants'
statements to police.
5. Disposition. The order entered on December 28, 1993, on
the defendants' motion to suppress is vacated.
Further consideration of the motion is to be made as directed in part 3
above, and a new order thereafter entered on the motion in accordance with this
opinion.
So ordered.
(FN1.) Four additional indictments against George
Jung, and five indictments against the codefendant, Wendy L. Degregorio.
(FN2.)
The administrative fire inspection warrant, and the affidavit in support of the
application for the warrant, were on preprinted forms. The affidavit form contained blank spaces for
(1) an applicant's identity; (2) the
nature of his or her employment; (3) the
date, location and particular description of the premises to be searched; (4) the date and time at which the fire under
investigation was reported, and at which it was brought under control and
extinguished; (5) a list of the previous
entries onto the subject premises for purposes of investigation; (6) the reason for entry (or reentry); (7) a description of the specific area to be
searched; and (8) the time at which the
search would be conducted.
The
administrative fire warrant form authorized an "administrative fire
inspection" for purposes of "investiga[ting] the cause, origin and
circumstances of the fire," and authorized the applicant for the warrant
to enter and visually inspect and photograph the defendants' home without
limitation as to the area to be searched.
The warrant further authorized seizure of samples of burned materials,
and elements of the heating and electrical systems or appliances if necessary,
for the purpose of determining the cause and origin of the fire. The search was to be conducted "in light
of Michigan v. Tyler, 436 U.S. 499
[98 S.Ct. 1942, 56 L.Ed.2d 486] (1978)."
(FN3.) Although the judge made no finding on
this point, the undisputed testimony at the hearing was that, after the
interviews ended, the defendants left the police station.
(FN4.) It was suggested in Michigan v. Clifford, 464 U.S. 287, 292, 104 S.Ct. 641, 646, 78
L.Ed.2d 477 (1984), that if the damage to a home is "devastating,"
there may remain no reasonable expectation of privacy "in the ash and
ruins." The damage to the
defendants' home, although serious, was not sufficient to vitiate their
expectation of privacy in the premises.
Although unsafe, the home was still standing and personal effects
remained inside the structure. See Michigan v. Tyler, 436 U.S. 499, 505,
98 S.Ct. 1942, 1947‑1948, 56 L.Ed.2d 486 (1978) (where private effects
remain in home damaged by fire, owners generally retain reasonable expectation
of privacy in home).
(FN5.) In
State v. Grant, 67 Ohio St.3d 465, 470, 620 N.E.2d 50 (1993), cert. denied, 513 U.S. 836, 115 S.Ct.
116, 130 L.Ed.2d 62 (1994), the Supreme Court of Ohio observed that
"[a]lmost uniformly, courts have sustained warrantless searches into the
cause of fires conducted within a few hours of fire fighters' leaving the
scene."
(FN6.)
It was observed in Clifford that
firefighters do not normally remain within a building while they are fighting a
fire. "Thus, the effort to ascertain
the cause of a fire may extend over a period of time with entry and
reentry." Michigan v. Clifford, supra at 293 n. 3,
104 S.Ct. at 647 n. 3.
(FN7.) Viera testified that the kitchen floor
was sagging visibly on May 26. By May
29, the chimney had collapsed, destroying access to the second floor of the
structure.
(FN8.) In
Tyler, a majority of the Justices agreed that an administrative warrant was
required for entry into a fire‑damaged building after the exigency
connected with the fire had dissipated.
In Clifford, however, a
divided court cast doubt on this rule. A
commentator has observed that after the plurality decision in Michigan v. Clifford, supra, it appears
"that a majority of the Supreme Court is of the view that no warrant is
required for a with‑notice post‑fire inspection into the cause of a
fire." W.R. LaFave, Search and
Seizure § 10.4(c), at 703 (2d ed. 1987).
The Commonwealth has not argued that searches subsequent to the one
which occurred on May 26 could be made without an administrative warrant. We assume, therefore, that an administrative
warrant, at a minimum, was required, and that such a warrant was obtainable
under the general provisions of G.L. c. 148, §§ 2 et seq., even though that statute
does not expressly authorize or require a warrant.
(FN9.) At the hearing on the defendants'
motion to suppress, Chief Viera testified that, by 10:30 A.M. on May 26, the
investigators had concluded "that the fire had started in the basement
definitely."
(FN10.) Despite the defendants' argument to
the contrary, a preprinted form application for a postfire administrative
warrant can satisfy the particularity requirements of the Fourth
Amendment. In the application used in
this case, there was space provided to describe the premises to be
searched. There was no reason why the
portion of the premises to be searched could not have been described with
greater specificity. See note 2, supra.
See also Commonwealth v. Frodyma,
386 Mass. 434, 448, 436 N.E.2d 925 (1982).
(FN11.) To the extent that Calenda's
information reflects evidence gathered by government officials on May 28,
pursuant to the administrative warrant that has been ruled violative of the
defendants' Fourth Amendment rights, that part of the information may in no
event be offered at trial. Evidence
illegally obtained may not be cleansed of its taint by inclusion in a document
that may otherwise be admissible.