State v. Lewis

November 8 2007

DA 07-0114

IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 295

STATE OF MONTANA,

Plaintiff and Appellant,

v.

ROBERT L. LEWIS,

Defendant and Appellee.

APPEAL FROM: District Court of the Tenth Judicial District,
In and For the County of Fergus, Cause No. DC 2004-060
Honorable E. Wayne Phillips, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Hon. Mike McGrath, Montana Attorney General, Mark W. Mattioli,
Assistant Attorney General, Helena, Montana

Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana

For Appellee:

Jeremy S. Yellin; Attorney at Law, Havre, Montana

Submitted on Briefs: July 11, 2007

Decided: November 8, 2007

Filed:

__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1 This is an interlocutory appeal by the State of Montana (“State”) from two orders

entered by the District Court for the Tenth Judicial District, Fergus County. The court’s

January 16, 2007 order suppressed physical and photographic evidence relevant to the

State’s prosecution of Robert Lewis (“Lewis”) for felony arson. The court’s January 26,

2007 order denied the State’s request for reconsideration. We affirm in part, reverse in

part, and remand for further proceedings consistent with this Opinion.

¶2 The dispositive issue on appeal is whether the District Court erred in granting

Lewis’s motion to suppress.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On November 26, 2004, at 10:39 p.m., Fergus County Deputy Sheriff Larry

McCord (“McCord”) received a dispatch to respond to a structure fire north of

Lewistown, Montana. The one-story structure contained two apartments, one of which

had been rented by Lewis. Elizabeth Massey (“Massey”), the tenant in the other

apartment, noticed smoke coming from Lewis’s apartment around 10 p.m. and reported

the fire. The following sequence of events ensued.

¶4 McCord arrived on the scene at 10:48 p.m. He was the first to respond to the fire,

and when he arrived, Massey and her two children were the only other persons there.

McCord asked Massey where the fire was and she directed him to the back of the

structure. Through a window, McCord observed flames behind a wood stove in Lewis’s

apartment. McCord broke the window and reached through it to discharge his fire

extinguisher onto the flames near the stove and also onto the flames coming from a

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nearby vacuum cleaner. After his extinguisher was emptied, McCord borrowed another

from Massey because the flames continued to flare up. He endeavored to suppress the

blaze until Dick Hassler (“Hassler”) with the Hilger Fire Department arrived.

¶5 The owner of the structure arrived at the scene and crawled through a broken

window to unlock the door and allow McCord to enter. Hassler entered the structure

along with McCord. Although there were no flames visible at that point, there was still a

lot of smoke coming from the structure. Additionally, McCord observed smoldering

embers inside the structure.

¶6 McCord later reported in his Incident Narrative that immediately upon entering the

structure,

I observed what I would call fuse [sic] on the table near the wood stove.
The “fuses” were match books with cigarettes in them. One had burned
and caught the matches on fire and the other had burned to the matches but
had not ignited the matches. I observed what appeared to be toilet paper on
one of the “fuses.” On the table near the “fuses” was a roll of toilet paper.

I also located a match/cigarette fuse on a bed in the same room. It had not
been lit.

¶7 McCord testified at the hearing on Lewis’s motion to suppress that, after entering

the structure and upon seeing the matchbooks in plain view on the table and the bed, he

went back to his patrol car to get a camera and then re-entered the structure to take

pictures, after which he seized the evidence. McCord explained that he wanted to

preserve the evidence and prevent it from being altered or damaged by efforts to suppress

the fire. “I believe[d] or thought that the--with the Fire Department coming I didn’t know

how much water they were going to use. I didn’t know what was going to happen so I

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latched onto them, yes. I recovered them as evidence, yes.” McCord then left the

structure to deposit the evidence in his patrol car.

¶8 At some point after depositing the evidence in his car, McCord called Sheriff

Killham with the Fergus County Sheriff’s Office to report that Lewis’s residence was a

possible crime scene. Approximately seventeen minutes later, a crew from the

Lewistown Rural Fire Department arrived and entered Lewis’s residence. The fire crew

removed some ceiling tiles in the kitchen area because they were concerned that the fire

may have spread into the ceiling. McCord re-entered the structure after the Lewistown

firefighters had removed the ceiling tiles. In his Incident Narrative, he explained:

I went back into the residence to look for further evidence. I located
several match books on the kitchen counter and a cigarette lighter on the
divider and I took them for evidence. An alcohol bottle was located on the
divider and had what appeared [to be] fingerprints on it. I took it for
evidence and placed it into my patrol vehicle.

McCord later testified that he had “collected the wine bottle for the fingerprints on it.”

Additionally, McCord testified that he had entered the structure at least four times that

evening.

¶9 On December 22, 2004, the State charged Lewis with felony arson and criminal

mischief. The State subsequently filed an Amended Information, adding a charge of

solicitation for assault. The State alleged that Lewis had offered to pay an inmate in the

Fergus County Jail to hurt or kill his former landlady.

¶10 On October 3, 2006, Lewis filed a motion to suppress the evidence obtained by

McCord. Lewis did not contest McCord’s initial entry; indeed, he conceded that McCord

was justified in entering the structure to put out the fire. However, he claimed that, after

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the fire was put out, McCord unlawfully re-entered the structure in order to gather

evidence. Lewis argued that McCord’s second and subsequent entries had to be justified

separately because they were separate entries. He further argued that there were no

exceptions to the warrant requirement for McCord’s second and subsequent entries and

searches. Thus, according to Lewis, McCord was required to apply for a search warrant

with supporting probable cause before re-entering the structure and invading Lewis’s

privacy.

¶11 In response, the State argued that McCord was not required to obtain a search

warrant. First, McCord had the right to enter the structure to suppress the fire. Second,

according to the State, exigent circumstances prompted McCord’s re-entries and

subsequent searches and provided an exception to the warrant requirement. Third, the

State also maintained that the plain view doctrine provided another exception to the

warrant requirement. Lastly, the State contended that Lewis had abandoned his residence

and, therefore, could not claim that his constitutional rights had been violated.

¶12 The District Court issued an order on Lewis’s motion on January 16, 2007. The

court stated that “[u]nequivocally, exigent circumstances existed for [McCord’s] first

entry.” The court also noted that “[d]uring this first entrance, Deputy McCord observed

‘fuses’ on the table (match books with cigarettes in them), toilet paper with one of the

fuses, and a match/cigarette fuse on a bed in the same room.” According to the court,

because “[t]hese first observations satisf[ied] the exigent circumstances exception to a

warrantless search,” and because these items “were in plain view,” the “Motion to

Suppress with regard to these first visit observations is Denied.”

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¶13 Regarding McCord’s second entry into the structure, the court stated that the

photographic and physical evidence obtained during this entry “poses a more difficult

analysis.” According to the court, testimony clearly reflected that the purpose of

McCord’s second visit was “to memorialize with pictures those pieces of evidence

observed in visit one. Consequently, that visit, despite some testimony about additional

fire danger spotted during the second visit, does not fall under the exceptions and

required a search warrant.” Further, the court reasoned that the purpose of McCord’s

third and fourth visits was to gather evidence and that each successive visit reflected “the

lack of exigency existing in visit two.” Therefore, the court granted Lewis’s motion to

suppress “with regard to evidence seized or obtained in visits two, three and four.”

¶14 The State filed a motion for reconsideration on January 24, 2007. The State

argued that the District Court’s decision was “internally inconsistent” and that the court’s

legal basis for suppression was “not judicially recognized.” According to the State,

because the District Court noted that McCord’s first entry was justified by exigent

circumstances and that the purpose of McCord’s second entry was to preserve evidence,

exigent circumstances certainly justified McCord’s second entry. The State questioned

why, if the fuses were in plain view when McCord entered for the first time, their seizure

upon McCord’s second entry was unlawful. The State argued that the District Court had

ignored this Court’s analysis in State v. Bassett, 1999 MT 109, 294 Mont. 327, 982 P.2d

410, when it analyzed the facts of the case at hand, even though both parties had relied on

Bassett in their respective arguments. Lastly, the State argued that the court had ignored

or misread the authority cited by the State on the issue of abandonment.

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¶15 On January 26, 2007, the District Court issued an order on the State’s motion for

reconsideration. The court stated that it

did not suppress evidence obtained during the deputy’s first foray into the
fire scene/home because the fireman (Dick Hassler) accompanying the
deputy saw smoke and clearly testified that entrance was necessary to
assess and control. However, no such “emergency” or “exigency” existed
on subsequent visits. Regardless of the deputy’s intentions . . . , his
subsequent re-entries did not rise to the level of suppression or
assessment – he wanted to memorialize the evidence seen in the first visit.
A search warrant was required for that purpose. Michigan v. Tyler (1978),
436 U.S. 499, 98 S.Ct. 1942.

Thus, the District Court denied the State’s motion for reconsideration.

¶16 The State now appeals.

STANDARD OF REVIEW

¶17 We review a district court’s decision to grant or deny a motion to suppress to

determine whether the court’s underlying findings of fact are clearly erroneous and

whether the court correctly interpreted and applied the law to those findings. State v.

DeWitt, 2004 MT 317, ¶ 21, 324 Mont. 39, ¶ 21, 101 P.3d 277, ¶ 21; State v. Lanegan,

2004 MT 134, ¶ 10, 321 Mont. 349, ¶ 10, 91 P.3d 578, ¶ 10; State v. Bassett, 1999 MT

109, ¶ 17, 294 Mont. 327, ¶ 17, 982 P.2d 410, ¶ 17. A trial court’s findings are clearly

erroneous if they are not supported by substantial credible evidence, if the court has

misapprehended the effect of the evidence, or if our review of the record leaves us with a

definite and firm conviction that a mistake has been made. Lanegan, ¶ 10.

DISCUSSION

¶18 Did the District Court err in granting Lewis’s motion to suppress?

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¶19 The Fourth Amendment to the United States Constitution and Article II, Section

11 of the Montana Constitution protect individuals against unreasonable searches and

seizures. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.

U.S. Const. amend. IV. “The basic purpose of this Amendment, as recognized in

countless decisions of this Court, is to safeguard the privacy and security of individuals

against arbitrary invasions by government officials. The Fourth Amendment thus gives

concrete expression to a right of the people which ‘is basic to a free society.’ ” Camara

v. Municipal Court, 387 U.S. 523, 528, 87 S. Ct. 1727, 1730 (1967) (quoting Wolf v.

Colorado, 338 U.S. 25, 27, 69 S. Ct. 1359, 1361 (1949)).

¶20 “Montana has a strong tradition of respect for the right to individual privacy.”

State v. Bullock, 272 Mont. 361, 383, 901 P.2d 61, 75 (1995). Article II, Section 11 of

the Montana Constitution provides:

The people shall be secure in their persons, papers, homes and effects from
unreasonable searches and seizures. No warrant to search any place, or
seize any person or thing shall issue without describing the place to be
searched or the person or thing to be seized, or without probable cause,
supported by oath or affirmation reduced to writing.

Further, Article II, Section 10 of the Montana Constitution provides: “The right of

individual privacy is essential to the well-being of a free society and shall not be

infringed without the showing of a compelling state interest.” Our unique constitutional

language affords Montanans a greater right to privacy and, therefore, broader protection

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than does the Fourth Amendment to the United States Constitution in cases involving

searches of, or seizures from, private property. Bassett, ¶ 42 (citing State v. Hubbel, 286

Mont. 200, 211, 951 P.2d 971, 977 (1997)); Bullock, 272 Mont. at 384, 901 P.2d at 75;

State v. Sawyer, 174 Mont. 512, 515, 571 P.2d 1131, 1133 (1977), overruled in part on

other grounds, State v. Long, 216 Mont. 65, 67, 71, 700 P.2d 153, 155, 157 (1985). It is

well-settled that a person retains a “reasonable privacy interest in his home even when it

has been damaged by fire.” Bassett, ¶ 26.

¶21 Warrantless searches and seizures are per se unreasonable absent a few carefully

drawn exceptions. State v. Shaw, 2005 MT 141, ¶ 7, 327 Mont. 281, ¶ 7, 114 P.3d 198,

¶ 7; State v. Elison, 2000 MT 288, ¶ 39, 302 Mont. 228, ¶ 39, 14 P.3d 456, ¶ 39; accord

Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380 (1980) (“It is a ‘basic

principle of Fourth Amendment law’ that searches and seizures inside a home without a

warrant are presumptively unreasonable” (quoting Coolidge v. New Hampshire, 403 U.S.

443, 477, 91 S. Ct. 2022, 2044 (1971))). One such exception is the existence of exigent

circumstances. “Exigent circumstances for conducting a warrantless search exist ‘where

it is not practicable to secure a warrant.’ ” Bassett, ¶ 47 (quoting State v. McCarthy, 258

Mont. 51, 57, 852 P.2d 111, 114 (1993)). We have defined exigent circumstances as

“those circumstances that ‘would cause a reasonable person to believe that entry (or other

relevant prompt action) was necessary to prevent physical harm to the officers or other

person, the destruction of relevant evidence, the escape of a suspect, or some other

consequence improperly frustrating legitimate law enforcement efforts.’ ” State v.

Gomez, 2007 MT 111, ¶ 24, 337 Mont. 219, ¶ 24, 158 P.3d 442, ¶ 24 (quoting Cassady v.

9
Yellowstone County Sheriff, 2006 MT 217, ¶ 33, 333 Mont. 371, ¶ 33, 143 P.3d 148,

¶ 33); accord Bassett, ¶ 47 (“In determining whether exigent circumstances exist, the

court considers factors such as the possible destruction of evidence, the mobility of the

evidence, the safety of police officers, the gravity of the crime, and other emergency

situations.”).

¶22 Also relevant here is the plain view doctrine, which “allows peace officers, under

certain circumstances, to seize evidence in plain view without a warrant.” State v. Loh,

275 Mont. 460, 468, 914 P.2d 592, 597 (1996). If, while a law enforcement officer is

lawfully present on an individual’s property, and in the course of his or her lawful

presence, the officer discovers evidence in plain view, and if its incriminating nature is

“immediately apparent,” then that evidence may be seized and used against the defendant

at trial. DeWitt, ¶ 25; Bassett, ¶ 52; State v. Weaselboy, 1999 MT 274, ¶ 23, 296 Mont.

503, ¶ 23, 989 P.2d 836, ¶ 23; Loh, 275 Mont. at 473, 914 P.2d at 600.

¶23 We have, on occasion, suggested that the plain view doctrine is an exception to the

warrant requirement for searches. See e.g. State v. Copelton, 2006 MT 182, ¶ 15, 333

Mont. 91, ¶ 15, 140 P.3d 1074, ¶ 15; State v. Delao, 2006 MT 179, ¶ 15, 333 Mont. 68,

¶ 15, 140 P.3d 1065, ¶ 15; State v. Pierce, 2005 MT 182, ¶ 17, 328 Mont. 33, ¶ 17, 116

P.3d 817, ¶ 17; DeWitt, ¶ 25; State v. Snell, 2004 MT 269, ¶ 14, 323 Mont. 157, ¶ 14, 99

P.3d 191, ¶ 14; State v. Logan, 2002 MT 206, ¶ 14, 311 Mont. 239, ¶ 14, 53 P.3d 1285,

¶ 14; State v. Elison, 2000 MT 288, ¶ 54, 302 Mont. 228, ¶ 54, 14 P.3d 456, ¶ 54;

Weaselboy, ¶¶ 21-22; State v. Doyle, 1998 MT 195, ¶ 11, 290 Mont. 287, ¶ 11, 963 P.2d

1255, ¶ 11; Loh, 275 Mont. at 468, 914 P.2d at 597; State v. Romero, 224 Mont. 431,

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436, 730 P.2d 1157, 1160 (1986). This characterization, however, is inaccurate for the

following reasons.

¶24 Unlike exigent circumstances, valid consent, and lawful arrest, “plain view” does

not permit the officer to proceed or intrude without a warrant to the location of the

evidence in question. To the contrary, the doctrine’s applicability depends on the

officer’s lawful presence and right of access to the evidence. We explained this

requirement in State v. Olson, 2002 MT 211, 311 Mont. 270, 55 P.3d 935, as follows:

[B]ecause the [plain view] doctrine presupposes the law enforcement
officer was lawfully on the premises at the time the evidence is observed,
the doctrine authorizes the seizure of—rather than the search for—evidence
without a warrant. To justify seizing evidence under the plain view
doctrine, a law enforcement officer must be lawfully located in a place from
which the evidence can be plainly seen, the incriminating nature of the
evidence must be immediately apparent and the officer must have a lawful
right of access to the object.

Olson, ¶ 10 (emphasis added). Thus, the plain view doctrine should not be misconstrued

as a “stand-in” for a search warrant. Rather, as we explained in Olson, it permits the

seizure of evidence that otherwise could not be seized without a warrant—so long as the

evidence can be plainly seen by the officer, the incriminating nature of the evidence is

immediately apparent, and the officer has a lawful right of access to the evidence.

¶25 Addressing this issue in Horton v. California, 496 U.S. 128, 110 S. Ct. 2301

(1990), the Supreme Court observed:

A search compromises the individual interest in privacy; a seizure deprives
the individual of dominion over his or her person or property. The “plain-
view” doctrine is often considered an exception to the general rule that
warrantless searches are presumptively unreasonable, but this
characterization overlooks the important difference between searches and
seizures. If an article is already in plain view, neither its observation nor its

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 seizure would involve any invasion of privacy. A seizure of the article,
however, would obviously invade the owner’s possessory interest.

Horton, 496 U.S. at 133-34, 110 S. Ct. at 2306 (citations and footnotes omitted); accord

Delao, ¶ 21 (“The plain view doctrine simply recognizes that if an article is in plain view,

neither its observation nor its seizure involves any invasion of privacy; rather, a seizure

of the article involves an invasion only of the owner’s possessory interest.”); see also

Horton, 496 U.S. at 133 n. 5, 110 S. Ct. at 2306 n. 5 (“ ‘It is important to distinguish

“plain view,” as used in Coolidge to justify seizure of an object, from an officer’s mere

observation of an item left in plain view. Whereas the latter generally involves no Fourth

Amendment search, [citations], the former generally does implicate the Amendment’s

limitations upon seizures of personal property.’ ” (quoting Texas v. Brown, 460 U.S. 730,

738 n. 4, 103 S. Ct. 1535, 1541 n. 4 (1983) (Opinion of Rehnquist, J.))). Therefore, the

Supreme Court concluded that “[i]f ‘plain view’ justifies an exception from an otherwise

applicable warrant requirement, . . . it must be an exception that is addressed to the

concerns that are implicated by seizures rather than by searches.” Horton, 496 U.S. at

134, 110 S. Ct. at 2306 (emphasis added). We, likewise, will henceforth refer to the plain

view doctrine as an exception to the warrant requirement applicable to seizures, not

searches.

¶26 With these principles in mind, we now turn to the State’s appeal.

¶27 At the outset, we note that Lewis’s motion to suppress was directed at the

following evidence seized by McCord: two matchbooks, cigarettes, and toilet paper

located on the table; a matchbook and cigarette located on the bed; and four matchbooks,

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an empty wine bottle, and a cigarette lighter located in the kitchen area. The District

Court suppressed all of this evidence. While we agree with the District Court’s ruling

with respect to the evidence seized from the kitchen area, we disagree with the court’s

ruling with respect to the evidence seized from the table and the bed. We thus will

examine these groups of evidence in turn.

The Evidence Seized from the Table and the Bed

¶28 McCord first observed the evidence seized from the table and the bed during his

initial entry. Neither Lewis nor the State disputes that this entry, prompted by the exigent

circumstance of a fire, was lawful. Indeed, we recognized in Loh that

“[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.”

Loh, 275 Mont. at 474, 914 P.2d at 601 (quoting Michigan v. Tyler, 436 U.S. 499, 509,

98 S. Ct. 1942, 1950 (1978), in turn citing Coolidge v. New Hampshire, 403 U.S. 443,

465-66, 91 S. Ct. 2022, 2037-38 (1971)).

¶29 It is also undisputed that the evidence McCord observed on the bed and the table

was in plain view. Thus, contrary to the District Court’s analysis, the initial entry and

McCord’s observations of the evidence on the table and the bed did not constitute a

“search.” Finally, no one disputes that the incriminating nature of the pieces of evidence

was “immediately apparent” in the context of the surrounding circumstances. Thus,

McCord was entitled to seize the evidence on the bed and the table during the course of

his initial entry. See e.g. Delao, ¶ 15. He did not do so, however. Rather, he seized this

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evidence on his second entry. The question, therefore, is whether he could do so lawfully

without a warrant.

¶30 The State maintains that McCord’s second entry into the structure after he went to

his patrol car to retrieve his camera was merely a continuation of his initial entry.

Approximately two minutes passed between the time that McCord left the structure,

retrieved his camera from his patrol car, and re-entered the structure. Therefore, the State

contends that McCord’s “reentry to photograph and seize the evidence was nearly

contemporaneous with his initial plain view observations.”

¶31 In response, Lewis contends that McCord’s second entry was not a continuation of

his first entry; rather, he maintains that it was an entirely separate entry. In this regard,

Lewis directs our attention to ¶ 41 of Bassett, where we stated that “[i]n this case, there

were two separate reasons for entering the house, and there thus must be two entirely

separate justifications for each entry.” Based on this language, Lewis argues that because

there was a separate entry by McCord, there must be a separate justification for that

second entry. Lewis reasons that if McCord was concerned about the destruction of

evidence by efforts to suppress the fire, he should have seized the items during his initial

entry. Additionally, Lewis maintains that McCord had “limited, if any knowledge about

fires, or fire investigation. Both Hassler, and the Lewistown Assistant Fire Chief testified

that they try (tried) to keep the scene intact when doing suppression.” Thus, according to

Lewis, McCord’s “concern about destruction of evidence was based upon speculation.”

¶32 We agree with the State that McCord’s seizure of the table and bed evidence

during the course of the second entry was lawful for the following two reasons. First, we

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observe that exigent circumstances existed to justify McCord’s second warrantless entry

and the corresponding seizure. “Exigent circumstances are those circumstances that

‘would cause a reasonable person to believe that entry (or other relevant prompt action)

was necessary to prevent physical harm to the officers or other person, the destruction of

relevant evidence, the escape of a suspect, or some other consequence improperly

frustrating legitimate law enforcement efforts.’ ” Cassady, ¶ 33 (emphasis added)

(quoting State v. Anyan, 2004 MT 395, ¶ 34, 325 Mont. 245, ¶ 34, 104 P.3d 511, ¶ 34).

McCord testified that he believed that efforts by the Lewistown Rural Fire Department to

suppress the fire could destroy the evidence he had observed on the table and the bed

because “I didn’t know how much water they were going to use. I didn’t know what was

going to happen.” Given these circumstances, we hold that it was reasonable for McCord

to believe that efforts to suppress the fire might destroy the relevant evidence that he had

observed in plain view and, thus, that exigent circumstances justified his second entry

and the seizure of the evidence. In reaching this conclusion, we reject Lewis’s suggestion

that McCord needed to have special knowledge about firefighting or fire investigation in

order to ascertain whether there was a risk that the evidence would be destroyed. The

standard is what a “reasonable person” would believe under the circumstances; and under

the circumstances presented here, a reasonable person would believe that entry into the

structure was necessary to prevent the destruction of the evidence on the table and the

bed.

¶33 Second, we agree with the State that McCord’s second entry was a continuation of

his initial entry into the structure. McCord was lawfully in the structure, the evidence on

15
the bed and the table was in plain view, and the incriminating nature of the evidence was

immediately apparent. However, the incriminating nature of the evidence was only

apparent when viewed as it was arranged on the table and the bed. More specifically, it

was the strategic positioning of the cigarettes inside the matchbooks and the location of

the toilet paper, which together appeared to be a “fuse,” that made this evidence

immediately incriminating. Had McCord simply collected the evidence upon his first

visit, the incriminating nature of the evidence would have been destroyed. Thus, it was

appropriate for him to photograph the evidence before seizing it. Additionally, according

to McCord’s approximation, only two minutes passed between the time that he left the

structure after his initial entry and the time that he re-entered. Finally, we note that

McCord did not seize or photograph any more evidence than he had observed during his

initial entry. Thus, we conclude that McCord’s second entry was not “clearly detached

from the initial exigency and warrantless entry,” Tyler, 436 U.S. at 511, 98 S. Ct. at 1951,

and we hold that McCord’s second entry, therefore, was a continuation of his initial

entry.

¶34 For these reasons, we reverse the District Court’s order granting Lewis’s motion to

suppress the evidence obtained by McCord during his second entry into the structure—

namely, the physical evidence seized from the bed and the table and McCord’s

photographs of that evidence.

The Evidence Seized from the Kitchen Area

¶35 In its reply brief on appeal, the State notes that it would have gone to trial without

seeking review in this Court of the District Court’s orders had the District Court not

16
suppressed the evidence seized from the table and the bed. That said, the State then

proceeds with an argument concerning the suppression of the evidence seized from the

kitchen area. Thus, we will evaluate whether the District Court erred in granting Lewis’s

motion to suppress with respect to this evidence.

¶36 The State argues that “McCord’s subsequent seizures and photographs were

permissible because, like McCord’s reentry to photograph the fuses before seizing them,

they were a continuation of McCord’s initial, lawful entry.” According to the State,

“McCord was at the scene for only about two and [sic] half hours,” and, consequently,

the State maintains that McCord’s investigation lasted a reasonable period of time.

Therefore, the State argues that the District Court erred when it suppressed the evidence

seized by McCord from the kitchen area.

¶37 In response, Lewis maintains that our decision in Bassett controls in this case.

Again, we stated in Bassett that “there were two separate reasons for entering the house,

and there thus must be two entirely separate justifications for each entry.” Bassett, ¶ 41.

Lewis also contends that “[i]f law enforcement is not allowed on the premises, it matters

not what law enforcement is investigating.” Essentially, Lewis argues that McCord’s

third and subsequent entries were not continuations of his first, lawful entry. Therefore,

according to Lewis, the District Court properly suppressed the evidence obtained by

McCord from the kitchen area.

¶38 We observe that at the time of McCord’s third entry, the fire had been suppressed

and the cause and location of the fire had been determined. Thus, McCord’s search of the

kitchen area could only have been a search to gather evidence of criminal activity.

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Indeed, the purpose of McCord’s third and subsequent entries into the structure was,

according to his Incident Narrative, “to look for further evidence.” In this regard, we also

note that before McCord re-entered the structure for the third time, he notified Sheriff

Killham that Lewis’s residence was a possible crime scene. As a matter of fact, McCord

testified that he “collected the wine bottle [from the kitchen area] for the fingerprints on

it.” Therefore, unless McCord’s third and subsequent warrantless entries were

continuations of his earlier lawful entries, or unless exigent circumstances existed to

justify these entries, the entries and corresponding searches required a warrant. See

Bassett, ¶ 41.

¶39 With respect to continuation, we note that McCord’s second entry was a

continuation of his initial entry for the purpose of documenting the incriminating nature

of the evidence observed in plain view on the table and the bed, seizing that evidence,

and placing it in his patrol car. The same, however, cannot be said of McCord’s third and

subsequent entries. As McCord stated in his Incident Narrative, the purpose of his third

and subsequent visits was “to look for further evidence”—i.e., evidence of which he was

not yet aware. By this point, McCord had already determined that Lewis’s residence was

a possible crime scene. Therefore, McCord’s third entry was “clearly detached” from the

initial exigency and warrantless entry, Tyler, 436 U.S. at 511, 98 S. Ct. at 1951, and

constituted a separate entry, not a continuation of his initial and second entries.

¶40 A separate entry to search for and gather evidence pursuant to a criminal

investigation requires a separate justification, such as a warrant, consent, or an exigency.

See Bassett, ¶ 41. The State claims that an exigency existed here—namely, that fire

18
suppression efforts were ongoing. Even if this assertion is factually accurate, however, it

is entirely inapposite because McCord was not participating in efforts to suppress the fire.

In point of fact, McCord noted in his Incident Narrative that while his second foray into

the structure was to preserve and collect evidence that might have been damaged by

efforts to suppress the fire, the purpose of his third and subsequent visits was “to look for

further evidence.” Furthermore, we note that while a concern for the destruction of

evidence is an exigent circumstance that provides an exception to the warrant

requirement, McCord had already retrieved the evidence that he was concerned might be

destroyed. Therefore, McCord’s search of the kitchen area and his subsequent seizure of

the evidence from the kitchen area were not justified by an exigent circumstance.

¶41 The Dissent contends that McCord’s third and subsequent warrantless entries were

due to an exigency—namely, “to prevent further evidence from being destroyed or

displaced by firefighters.” This contention, however, is not supported by the record.

After McCord photographed the evidence on the table and the bed during his second

entry, he exited the apartment and deposited this evidence in his car. He did not then re-

enter the structure to prevent evidence from being destroyed or displaced. Rather,

approximately seventeen minutes later, a crew from the Lewistown Rural Fire

Department arrived. The fire crew entered Lewis’s residence and removed some ceiling

tiles in the kitchen area to ascertain whether the fire had spread into the ceiling. At some

point thereafter, McCord re-entered the structure—as he candidly admitted—“to look for

further evidence.” The totality of these record-based facts simply does not support the

view that McCord’s third and subsequent entries were designed “to prevent further

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evidence from being destroyed or displaced by firefighters.” Quite the contrary, it

establishes that no such exigency existed. McCord waited well over seventeen minutes,

and until after the firefighters had directed their efforts to the kitchen area, to look for

evidence in that area. Moreover, as noted above, the fire had been suppressed and the

cause and location of the fire had been determined by the time of McCord’s third entry.

Thus, McCord’s search of the kitchen area was not justified by an exigency.

¶42 The Dissent also argues that McCord’s third and subsequent entries were justified

because they were all part of his “brief” arson investigation. As just noted, however, the

cause of the fire—the “fuse” on the table—and the location of the fire—behind the wood

stove and a nearby vacuum cleaner—had already been ascertained and documented.

Moreover, there is nothing in the record to suggest that by the time of his third entry,

circumstances precluded McCord from applying for a search warrant, and we reject the

Dissent’s suggestion that warrantless entries into burned structures are per se lawful if the

officer is merely trying to ascertain the cause of the fire. It is well-settled that a person

retains a privacy interest in his home even when it has been damaged by fire. Bassett,

¶ 26.

¶43 We agree with Lewis and the District Court that McCord’s searches beginning

with the third entry were unlawful. We therefore affirm the District Court’s suppression

of evidence with respect to the matchbooks, wine bottle, and cigarette lighter seized in

the kitchen area upon McCord’s third and subsequent visits to the structure.

¶44 Before concluding, it is necessary to address the State’s contention concerning

abandonment. In its response to Lewis’s motion to suppress, the State argued that Lewis

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had “abandoned the property and cannot now claim that his constitutional rights were

violated.” However, the State does not raise this as a separate issue on appeal. The State

merely addresses the issue of abandonment in one sentence, as follows: “Because

McCord’s entry was lawful, the seizure of the items did not implicate a privacy interest.

Rather, the seizure implicated only Lewis’s right to dominion over personal property of

negligible value (cigarettes, matchbooks, toilet paper) which the owner had ostensibly

abandoned” (emphasis added). This is wholly insufficient to raise an issue on appeal.

“ ‘Under Rule 23, M.R.App.P., it is not this Court’s obligation to conduct legal research

on appellant’s behalf, to guess as to his precise position, or to develop legal analysis that

may lend support to his position.’ ” State v. St. Germain, 2007 MT 28, ¶ 41 n. 1, 336

Mont. 17, ¶ 41 n. 1, 153 P.3d 591, ¶ 41 n. 1 (quoting In re Estate of Bayers, 1999 MT

154, ¶ 19, 295 Mont. 89, ¶ 19, 983 P.2d 339, ¶ 19). Therefore, we will not address the

question of abandonment.

CONCLUSION

¶45 In summary, we reverse the District Court’s grant of Lewis’s motion to suppress

with respect to the evidence seized by McCord from the table and the bed and McCord’s

photographs of that evidence. This evidence was observed by McCord in plain view

during his lawful initial entry, and his second entry to photograph and seize the evidence

was justified by an exigent circumstance and, in addition, was a continuation of his initial

entry.

¶46 However, we affirm the District Court’s grant of Lewis’s motion to suppress with

respect to the evidence seized in the kitchen area during McCord’s third and subsequent

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warrantless entries and searches. A separate entry to search for and gather evidence

pursuant to a criminal investigation requires a separate justification, such as a warrant,

consent, or an exigency. No such justification existed here.

¶47 Affirmed in part, reversed in part, and remanded for further proceedings consistent

with this Opinion.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS

Justice Jim Rice concurs in part and dissents in part.

¶48 I concur with the Court’s conclusion that evidence photographed and seized by

McCord on his first and second visits into the structure was improperly excluded by the

District Court and join in reversing the District Court on those grounds. However, I

dissent from the Court’s conclusion that McCord’s third and subsequent entries into the

structure were not continuations of h i s initial entry and justified by exigent

circumstances, and would likewise reverse this holding of the District Court.

¶49 “In assessing exigent circumstances, we have said that the court must consider the

totality of such circumstances.” State v. Lanegan, 2004 MT 134, ¶ 16, 321 Mont. 349,

¶ 16, 91 P.3d 578, ¶ 16. Here, the Court ignores the continuous nature of McCord’s

presence at the “crime scene,” characterizes McCord’s third and subsequent entries into

the structure as though they were a fishing expedition for some smoking gun, and reaches

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a result that is impractical and unrealistic in the context of a rural arson investigation.

Exigent circumstances justified McCord’s initial entries, and the totality of the

circumstances indicates that McCord’s subsequent entries were also mere continuations

of the first two entries.

¶50 The Court has failed to acknowledge obvious distinctions between Bassett and the

present case. In Bassett, a fire broke out at a residential home during the middle of the

night, and firefighters fought the blaze until the following morning. Law enforcement

officers were not present and played no role in the fire suppression efforts. Bassett, ¶ 6.

However, while the firefighters were “mopping up,” they discovered a florescent light

and marijuana plants in the defendant’s bedroom closet. They reported their findings to

the sheriff’s office, and a deputy sheriff arrived at the home shortly thereafter. Bassett,

¶¶ 8-9. By the time the deputy sheriff arrived, the fire was extinguished, no fire fighting

equipment remained, the firefighters had all been released, and the assistant fire marshal

had installed fire line tape around the defendant’s home to keep people away. Bassett,

¶ 10. Despite his later admission that no pressing reason or exigency existed to prevent

him from obtaining a search warrant, the deputy sheriff entered the home and seized the

plants, equipment, and supplies. Bassett, ¶ 11.

¶51 The defendant moved to suppress the fruits of the deputy sheriff’s search. We

relied on language from the Ninth Circuit’s holding in United States v. Hoffman, 607

F.2d 280 (9th Cir. 1979), which stated:

[The police officer’s] only purpose in entering appellant’s trailer, as he
forthrightly admitted, was to seize evidence of an unrelated federal crime.
. . . One whose home is ablaze certainly should expect that firemen will

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 enter in order to extinguish the fire. Likewise, one should also expect that
these same firefighters will be looking for the source or cause of the fire
while within the home. But, no citizen should reasonably expect that,
because a fire has occurred in his home, and certain few officials may enter,
any sort of public officer may thereafter invade his home for purposes
unrelated to that intrusion.

Hoffman, 607 F.2d at 284-85 (internal citations omitted) (emphasis added). In adopting

the analysis from Hoffman, we reiterated that simply because firefighters enter a home to

extinguish a fire does not mean that other government officers may enter the home to

search for evidence of unrelated criminal activity. Bassett, ¶ 37. Moreover, we

emphasized that “[b]ecause the fire appeared to be extinguished and there was no

imminent danger that the evidence would be destroyed, this was not a situation where it

was impracticable to obtain a warrant.” Bassett, ¶ 48. Indeed, the firefighters had left,

the equipment was gone, and the scene had been taped off.

¶52 The present case is entirely distinguishable from Bassett, but is analogous to Tyler.

In Tyler, a fire broke out in a furniture store shortly before midnight, and upon entering

the store firefighters found two plastic containers of flammable liquid. After concluding

that the fire could have been caused by arson, the firefighters summoned a police

detective, who arrived around 3:30 a.m. Tyler, 436 U.S. at 502, 98 S. Ct. at 1946. The

detective “took several pictures of the containers and of the interior of the store, but

finally abandoned his efforts because of the smoke and steam.” Tyler, 436 U.S. at 502,

98 S. Ct. at 1946. The firefighters thereafter removed and preserved the two containers

of flammable liquid. At 9:00 a.m. the following morning, the detective returned to the

store with another detective and “searched through the rubble ‘looking for any other signs

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or evidence that showed how this fire was caused,’” in the process seizing several pieces

of carpet and stairs as “evidence suggestive of a fuse trail.” Tyler, 436 U.S. at 502, 98

S. Ct. at 1946.

¶53 In upholding the firefighters’ and detectives’ search and seizure of evidence, the

United States Supreme Court rejected the notion that “the exigency justifying a

warrantless entry to fight a fire ends, and the need to get a warrant begins, with the

dousing of the last flame.” Tyler, 436 U.S. at 510, 98 S. Ct. at 1950. The Supreme Court

characterized this view of the firefighting function as “unrealistically narrow,” and held

that “officials need no warrant to remain in a building for a reasonable time to investigate

the cause of a blaze after it has been extinguished.” 436 U.S. at 510, 98 S. Ct. at 1950.

Implicit in this holding, based on the facts of that case, is the rule that such an

investigation does not require officers to stay physically present inside the structure

throughout the time they are investigating, or that law enforcement must be actively

participating in suppression efforts, as this Court would require. Indeed, the detective in

Tyler left the premises for five hours, and even upon returning, left the structure again to

obtain tools. The United States Supreme Court nonetheless held that “the morning

entries were no more than an actual continuation of the first, and the lack of a warrant

thus did not invalidate the resulting seizure of evidence.” Tyler, 436 U.S. at 511, 98

S. Ct. at 1951.

¶54 The present case is distinguishable from Bassett because, in contrast to the

defendant in that case, here McCord was not entering the structure on a fishing

expedition for evidence of unrelated criminal activity. In Bassett, the deputy sheriff was

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looking for evidence of drug possession. Here, McCord was looking for evidence of

arson—the crime resulting in McCord’s presence at the structure in the first place.

Indeed, McCord’s original entry was in fact in a firefighting capacity, and his third and

subsequent visits were to further investigate the cause of the fire, intending to prevent the

destruction of evidence. Had McCord simply stayed in the smoky structure the entire

time, it seems apparent that this Court would have no issue with his actions. Nonetheless,

because he entered and exited the building over the course of a few hours, this Court

excludes all evidence discovered after his second entry into the home.

¶55 McCord never left the premises, as the detective did in Tyler, but instead

conducted an efficient investigation for evidence that could easily be moved, thereby

completing his survey of the house less than an hour and a half after the structure had

been ventilated by the Lewistown Fire Department, and less than three hours after he first

arrived. The evidence seized by McCord was not only in danger of destruction from

firefighting efforts, but was small, mobile and could have easily been disrupted or

removed by such firefighters. See Bassett, ¶ 47 (“In determining whether exigent

circumstances exist, the court considers factors such as the possible destruction of

evidence, the mobility of the evidence . . . .”).

¶56 The result the Court reaches today creates an unrealistic, unworkable standard by

drawing an ambiguous line as to when law enforcement’s preliminary investigation at the

scene of a possible arson must cease. According to the Court, McCord’s subsequent

entries into the structure became “clearly detached” from his initial entry—thus

necessitating a warrant—as soon as McCord determined that Lewis’s residence was a

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“crime scene.” This is an unworkable and ambiguous standard, and directly contradicts

the United States Supreme Court’s holding in Tyler, where that detective’s presence only

came about after firefighters notified police that the fire was a possible arson. To require

law enforcement to abandon a structure as soon as it is determined that the area is a

“crime scene” requires law enforcement to draw a line in their investigation that has not

been, and cannot be, easily characterized or identified.

¶57 The “totality of the circumstances” dictated that McCord finish his ongoing,

continuous investigation to prevent further evidence from being destroyed or displaced

by firefighters. As the United States Supreme Court stated in Tyler, the exigency

justifying McCord’s presence did not end “with the dousing of the last flame.” To

require McCord to pack up and head back to town when he determined he was at a

“crime scene,” and when he was no longer helping with fire suppression efforts, simply

does not comport with common sense, the realities of a rural arson investigation or the

requirements of the constitution. I would hold that all of the evidence discovered during

McCord’s brief arson investigation was admissible and improperly excluded by the

District Court.

¶58 The Court’s response to this dissent perfectly illustrates the lack of common sense

in its decision. In the Court’s view, this case turns on the fact that McCord had walked

outside to deposit evidence in his car and that the fire crew arrived at this remote fire

location seventeen minutes later, after which McCord reentered the premises. To the

Court, these facts demonstrate that there was no exigency and that McCord was then

required to retreat and apply for a search warrant. The Court can cite no case—no case,

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state or federal—which has ever required a warrant under such circumstances, or any

authority for such a rigid view of exigency. Indeed, all of the cited authority stands

precisely for the contrary. There is no authority for the Court’s conclusion because it

cannot withstand a simple, logical query: was it possible that further evidence was in the

house which could have been lost during firefighting efforts? Of course it was possible.

Although the Court asserts that, by that time, the source of the fire had already been

determined and there was no further evidence to be recovered, the Court is blinded by the

sharp effects of 20/20 hindsight. For all McCord knew, there may well have been

additional evidence, and it may just as well have been destroyed during firefighting

efforts—efforts which would have been ongoing while McCord rushed back to town to

apply for a warrant. McCord was doing his job well, and the Court’s decision, hinging as

it does on the “seventeen minute gap” in the course of McCord’s investigation, lacks

connection to the reality of the circumstances or the requirements of the law.

/S/ JIM RICE

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