{¶ 22} I respectfully dissent from the majority's disposition of this case.
{¶ 23} A burning building presents an exigency of sufficient proportions to render a warrantless entry reasonable. Michiganv. Tyler (1978), 436 U.S. 499, 509, 98 S.Ct. 1942,56 L.Ed.2d 486 (1978); Steigler v. Anderson (C.A.3, 1974), 496 F.2d 793,795; United States v. Green (C.A.5, 1973), 474 F.2d 1385, 1389.
{¶ 24} However, six years later, in Michigan v. Clifford (1984), 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477, the Supreme Court limited its holding in Tyler as follows:
{¶ 25} "The object of the search is important even if exigent circumstances exist. Circumstances that justify a warrantless search for the cause of a fire may not justify a search to gather evidence of criminal activity once that cause has been determined. If, for example, the administrative search is justified by the immediate need to ensure against rekindling, the scope of the search may be no broader than reasonably necessary to achieve its end. A search to gather evidence of criminal activity not in plain view must be made pursuant to a criminal warrant upon a traditional showing of probable cause." Id. at 293-295, 104 S.Ct. 641, 78 L.Ed.2d 477.
{¶ 26} In the case at bar, the fire did not take place in the dwelling that officials later searched, as was the case inTyler. Rather, the fire took place 50 to 75 feet away from the searched dwelling and some two hours after the fire had been extinguished. Thus, there was never an "entry to fight a fire" as in Tyler. The initial exigency of fighting a fire inside the dwelling that permitted a warrantless entry in Tyler is nonexistent in this case.
{¶ 27} The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." Katz v.United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576.
{¶ 28} Interestingly, none of the firefighters on the scene found it necessary to enter the second mobile home to search for an extension of the fire. Additionally, *Page 740 Corder had time to call the prosecuting attorney before entering the second mobile home. Accordingly, he clearly had time to attempt to contact the owner of the second mobile home or to obtain a warrant before entering the second mobile home.
{¶ 29} This case does not present an issue as to the need to protect or preserve life or avoid serious injury. Accordingly, I would find that there was no exigency or emergency to justify what would be an otherwise illegal search. Accordingly, I would sustain appellant's sole assignment of error.