dissenting.
I respectfully dissent. I believe the court of appeals correctly concluded that the evidence should have been suppressed. The firefighters left the scene at approximately 6:26 a.m. because the fire was extinguished and the emergency was over. One hour and twenty minutes later, the Drug Enforcement Bureau (“DEB”) detectives arrived on the scene. DEB detective Kozeliski entered the storage unit to confirm that the plants were contraband and to seize them. Because the purpose of this warrantless entry was unrelated to putting out the fire or investigating its cause, the search and seizure of the contraband does not fall within any clearly established exception to the Fourth Amendment and is invalid.
I. Unlawful Search
The Fourth Amendment to the United States Constitution and Article II, Section 8 of the Arizona Constitution proscribe unreasonable searches and seizures. State v. Ault, 150 Ariz. 459, 463, 724 P.2d 545, 549 (1986). Warrantless searches are “per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); State v. DeWitt, 184 Ariz. 464, 468, 910 P.2d 9, 13 (1996). It is uncontroverted that a firefighter’s warrant-less entry to put out a fire and investigate its cause falls within the exigent circumstances exception. Michigan v. Tyler, 436 U.S. 499, *203509-10, 98 S.Ct. 1942, 1950, 56 L.Ed.2d 486 (1978). Even so, the scope of the intrusion must be “strictly circumscribed by the exigencies which justify its initiation.” Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978). Once the fire is out and the exigency has dissipated, any subsequent warrantless entry unrelated to determining the cause of the fire is unlawful. See United States v. Hoffman, 607 F.2d 280, 284-85 (9th Cir.1979).
The effect of the majority opinion is to create a new exception to the Fourth Amendment’s requirement of a warrant. As long as one state agent is lawfully inside a private building, that state agent can authorize another state agent to come in later and seize property for a purpose different from that which led to the first agent’s presence. The majority concludes that a defendant has no reasonable expectation of privacy for any physical area in which a state agent’s initial presence was lawful. Presumably, this loss of a reasonable expectation of privacy is not permanent but, under the majority’s view, continues at least as long as one state agent’s presence on the property overlaps the later entries by other state agents for unrelated purposes.
The majority seeks to minimize the scope of the new exception by pointing to a nexus between the police and the firefighters, which, it is contended, is unlike a situation where, for example, a building inspector discovers contraband and calls police. Majority Opinion at 200 n. 5, 940 P.2d at 928 n. 5. But no nexus in fact exists here: the firefighters’ purpose was to find the cause of the fire; the police officer and the DEB detective’s purpose was to find the marijuana. The searches were entirely separate, requiring two separate justifications.
The majority’s holding is at odds with the holding of the Ninth Circuit Court of Appeals in a case arising in Arizona, United States v. Hoffman, 607 F.2d 280 (9th Cir.1979). In Hoffman, Tucson firefighters responded to a fire in the defendant’s trailer. Twenty-seven minutes after the fire was under control, Officer Heiden of the Tucson Police Department arrived on the scene. As Officer Heiden got out of his car, a fireman approached and told him that there was a sawed-off shotgun inside the trailer. Officer Heiden entered the trailer and seized the shotgun. The court held that the warrantless entry of the police officer after the firefighters’ valid entry exceeded the scope of the initial intrusion by the firefighters and was illegal.
The disagreement between this court’s majority and the Ninth Circuit lies primarily in contrary definitions of “scope of intrusion.” The majority here allows police officers to intrude upon defendant’s expectation of privacy as long as the intrusion is within the physical boundaries set by the firefighters’ valid intrusion. In contrast, the Ninth Circuit Court of Appeals held:
The fact that the officer’s actual physical intrusion was not greater than that of the firemen does not control our examination of appellant’s Fourth Amendment claims. The physical invasion of a property interest is not the essence of a Fourth Amendment violation. Rather, “the Fourth Amendment protects people not places.” Fire victims do not abandon all reasonable expectations of privacy. One whose home is ablaze certainly should expect that firemen will 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 the initial intrusion.
Hoffman, 607 F.2d at 284-85 (citations omitted). The scope of intrusion allowed by the fire exigency is limited to putting out the fire and determining its cause. Thus, a police officer could have entered lawfully to put out the fire or assist in the arson investigation. But, if an officer intrudes upon a person’s expectation of privacy for the sole purpose of seizing contraband unrelated to the fire, the officer has exceeded the scope of intrusion allowed by the fire exigency exception.
II. Unlawful Seizure
The police officers could not seize the contraband under the “plain view” doctrine. To *204invoke the plain view exception to the warrant requirement, the police officer must be lawfully in a position to view the object, its incriminating character must be immediately apparent; and the officer must have a lawful right of access to the object. Minnesota v. Dickerson, 508 U.S. 366, 373-77, 113 S.Ct. 2130, 2136-37, 124 L.Ed.2d 334 (1993); State v. Millan, 185 Ariz. 398, 402 n. 4, 916 P.2d 1114, 1118 n. 4 (App.1995); see also State v. Apelt, 176 Ariz. 349, 362, 861 P.2d 634, 647 (1993) (police can seize items in plain view if warrant authorized police’s location and evi-dentiary value of item was immediately apparent). As the discussion above indicates, the officers had no lawful right of access to the marijuana.
The majority opinion proposes, however, that the firefighters could have seized the contraband under the “plain view” doctrine, and thus, the police officers merely need to “step into the shoes” of the firefighters and seize the contraband. In support of this proposition, the majority opinion cites to four cases where the courts found that the firefighters were authorized, under the plain view doctrine, to seize evidence unrelated to arson. Not coincidentally, in the majority of the cases cited, the firefighters were vested with statutory authority to exercise police powers.1 Arizona arson investigators, on the other hand, are granted law enforcement powers of peace officers only to the extent necessary for the investigation, detection, and apprehension of persons who have violated or are suspected of violating the laws concerning arson. See A.R.S. §§ 9-500.01 and 41-2163(E). Because the firefighters have no authority to seize contraband unrelated to arson, the police cannot “step into their shoes” and seize the contraband.
In any event, discussion of the firefighters’ statutory authority or lack thereof to seize the marijuana is moot for the simple reason that the firefighters neither seized nor attempted to seize the marijuana. Had they seized the marijuana, there would have been no occasion for the police to enter and seize it later. Furthermore, the majority fails to recognize that the police here seized bags of marijuana that were never even seen by the firefighters and could not have been, because the police had to move objects to find them. It is hard to imagine how the firefighters “seized” something they didn’t know was there.
The majority does not rely solely on the “plain view” doctrine for the firefighters’ authority to seize. It also relies on the firefighters’ duty and authority to salvage property and prevent further damage. This authority includes removing property such as “refuse, garbage and things that have been burned up” to the outside to be picked up by a refuse company. Majority Opinion at 199, 940 P.2d at 927. Items that are not thrown away are covered up while the firefighters continue their “overhaul,” that is, pulling down the ceiling and walls to ensure that the fire is completely extinguished.
Regardless of whether the firefighters could have placed the contraband outside the storage unit in plain view of the police officers, they, in fact, did not do so, nor was there any reason for them to do so. The firefighters who fought the fire put it out and left the scene without removing any of the property that was later seized by the police. Important constitutional issues should be resolved on the facts as they exist, not on hypotheticals that could have existed.
The information given to the police in this case is sufficient to establish probable cause. Nonetheless, according to the United States Supreme Court:
[N]o amount of probable cause can justify a warrantless search or seizure absent ‘exi*205gent circumstances.’ Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.
Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564 (1971). The police officers saw the plants while standing outside the storage unit and were told that the plants were marijuana. Once the police officers had this information, the prudent and lawful next step was to secure a search warrant. Having failed to do so, their entry into the unit was illegal because the exigent circumstance had long since passed.
I agree with the majority that exigent circumstances are “those in which a substantial risk of harm to the persons involved or to the law enforcement process would arise if the police were to delay until a warrant could be obtained.” Majority Opinion at 197, 940 P.2d at 925 (quoting State v. Greene, 162 Ariz. 431, 432, 784 P.2d 257, 258 (1989)). But there were no exigent circumstances here: the fire was extinguished, the marijuana was not going to rekindle the fire, and the evidence was not about to be destroyed. There was no substantial risk of harm to any person or to the law enforcement process which would justify a warrantless search.
Because no exigent circumstances existed at the time DEB detective Kozeliski entered the storage unit to seize the contraband, the entry and seizure of the evidence was unlawful. For that reason and for the further reason that the majority opinion adopts a rule for Arizona state courts at variance to that which must be followed by federal courts sitting in Arizona, see Hoffman, 607 F.2d at 282-85,1 respectfully dissent.
ZLAKET, C.J., concurs.. State v. Bell, 108 Wash.2d 193, 737 P.2d 254, 260 n. 1 (1987) (Pearson, C.J., concurring) (“RCW 48.48.060(2) provides that fire marshals are vested with police powers to enforce the laws of this state. ”); United States v. Green, 474 F.2d 1385, 1389 (5th Cir.1973) (Fla.Stat.Ann. § 633.14 provides that Agents of the state fire marshal shall have the same authority to ... make searches and seizures, as the sheriff or his deputies.”); see United States v. Gargotto, 476 F.2d 1009, 1012 (6th Cir.1973) (Court notes statute enacted after incident but before decision gave arson investigators "the general powers of peace officers for the enforcement of other offenses against the Commonwealth.”). But see People v. Harper, 902 P.2d 842, 845-46 (Colo. 1995).