PRESENTED BY Gregory J. Townsend Assistant Attorney General Michigan Attorney General’s Office
MICHIGAN STATUTE DEFINING BURNING • Setting fire to or doing any act which results in starting a fire or aiding, counseling, inducing, persuading, or procuring another to do such acts
ELEMENTS NECESSARY TO OBTAIN AN ARSON CONVICTION • That burning did occur • The burning was due to an incendiary act • The accused individual is responsible for the criminal act
BURNING • Charring no matter how slight • Property does not have to sustain major fire damage • Confession alone will not prove burning • Expert fire investigation usually necessary to prove the corpus delicti (body of the crime)
INCENDIARY ACT • Michigan law presumes all fires are accidental • Must be a willful act • Accidental causes must be eliminated
CRIMINAL ACT • Must show intent • Criminal intent should be shown with evidence of a motive, however motive is not necessary for conviction • Prosecutor must be able to prove beyond a reasonable doubt that the fire was intentionally set
BURNING OF A DWELLING HOUSE • MCL 750.72 • Willful and malicious burning • Must be a dwelling • Intentionally set fire, careless/reckless not sufficient • Dwelling need not be occupied, but must be in a condition that it could be occupied • 20 year felony
House which has been unoccupied and boarded up for some time, and was not habitable unless renovated, is not a dwelling within the statute. Reed, 13 MA 75 (68) • Burning building not a dwelling is a lesser included offense of burning a dwelling. Antonelli, 66 MA 138 (76)
Testimony by a victim/spouse regarding her husband’s arson of her dwelling is not precluded by the marital privilege statute. Butler, 430 M 434 (88)
BURNING REAL PROPERTY • MCL 750.73 • Willful and malicious burning • Building or contents of the building • Value not relevant • 10 year felony
BURNING PERSONAL PROPERTY • MCL 750.74, et seq • Willful and malicious burning of personal property • Less than $200=93 day misd. • $200 less than $1000=1 year misd. • $1000 less than $20,000=5 year felony • $20,000 or more=10 year felony
Defendant knew that the property was insured • Intent to defraud the insurer • Value not an issue • 10 year felony
BURNING INSURED PROPERTY • MCL 750.75 • Willful burning of any building or property which at the time of the fire was insured against loss or damage by fire • Does not have to be the defendant’s property
Double jeopardy does not preclude separate convictions for arson of a dwelling and burning of insured property arising from a single act. Ayers, 213 MA 708 (95)
INSURANCE FRAUD • MCL 500.411 • False statement of material fact with regard to an insurance claim (or application) • Common scheme in arson-fraud crimes • 4 year felony • Conspiracy to commit is 10 year felony • Formerly charged as false pretenses
PREPARATION TO BURN • MCL 750.77, et seq. • To arrange, devise, or distribute any combustible, flammable liquid in or about any building or property with intent to burn • Same penalties as burning personal property
FELONY MURDER • MCL 750.316 • Murder of a human being • During the perpetration or attempted perpetration of a listed crime • Prior to 4-1-96 only arson of dwelling house was “arson” under the felony murder statute
Effective 4-1-96, any felony violation of chapter X, MCL 750.71 et seq, constitutes arson for felony murder; • 1996 PA 21 superseded reeves, 448 M 1 (95), which held that only burning a dwelling house was arson for felony murder purposes
FALSE STATEMENT FINANCIAL CONDITION • MCL 750.219 • Fraudulent loan app. • Failure to disclose liens • Insured may have made false statements regarding income to obtain loan/mortgage • Arson/fraud schemes may involve a plan to purchase property then inflate the insured value with the plan to burn and collect • 1 year misd.
What if Defendant Starts one fire and Other Buildings Catch Fire? • “Accordingly, the required mental state for arson is either: 1) an intent to burn the dwelling house of another, or 2) doing an act in circumstances where a plain and strong likelihood of such a burning exists…Proof of common law arson does not require a specific intent to cause injury to a particular person or damage to particular property.
To establish that a defendant acted willfully or maliciously and voluntarily, the prosecution must prove one of the following: 1) that the defendant intended to do the physical act constituting the actus reus of arson, i.e., starting a fire or doing an act that results in the starting of a fire (intentional arson); or 2) that the defendant intentionally committed an act that created a very high risk of burning a dwelling house, and that, while committing the act, the defendant knew of the risk and disregarded it (wanton arson). People v. Nowack, 462 Mich 392 (2000).
MCL 750.72 and MCL 750.73 “ are intended to prevent the burning of a dwelling, building, or other real property, we conclude that the proper unit of prosecution in this case is each separate house. Even though defendant started only a single fire, it spread to ultimately harm three separate houses (two vacant houses were consumed and an occupied dwelling was partly charred). Defendant’s three convictions of arson (two counts of burning of other real property and one count of burning of a dwelling house) based on a single fire do not violate his right against double jeopardy.” P v. Barber, 255 Mich App 288 (2003)
REASONABLE EXPECTATION TO PRIVACY • Fourth amendment protection applies to areas in which an individual has a reasonable expectation of privacy Katz v. United states, 390 U.S. 347, (1967)
FACTORS TO CONSIDER • Whether defendant took normal precautions to maintain privacy • How did defendant use location? • Whether exclusive control over premises existed • Whether history supports defendant’s position that search was an unjustifiable intrusion People v. Smith, 420 mich 1 (1984)
WHAT IS A “SEARCH” • Looking for or seeking that which is otherwise concealed from view. People v. Carlson 677 P2d 310, 316 (1984). • Unreasonable or unlawful searches are prohibited • Warrantless searches are presumed to be unlawful
EXCLUSIONARY RULE • Evidence obtained in violation of the defendant’s constitutional rights (unreasonable or unlawful search) will be suppressed • Purpose: to deter future unlawful police conduct • Michigan does recognize the good faith exception. See: People v. Goldston 470 Mich 523 (2004)
FRUIT OF THE PIOSONOUS TREE • Search unreasonable=evidence excluded AND • If evidence obtained in violation of the fourth amendment leads to other evidence, the new evidence will be excluded as well • Everything stemming from the unlawful search is considered “fruit of the poisonous tree”
EXCEPTIONS TO SEARCH WARRANT REQUIREMENT • Emergency (community care taking) • Consent • Plain view • Administrative searches • Exigent circumstances • Incident to arrest • Inventory • Hot pursuit
DRAMATIC CHANGE!!! • On April 21st, 2009, the United States Supreme Court issued a case that DRAMATICALLY changed the law concerning searches incident to arrest where automobiles are involved.
The Former “Belton” Rule • The longstanding rule has been that when an occupant of a motor vehicle is arrested, the police may search the passenger compartment of the vehicle and any containers therein as an incident to that arrest.
The Former “Belton” Rule • This was the rule even if the defendant had been removed from the vehicle, placed in handcuffs, and put in a squad car at the time of the arrest. It did not matter. It was a per se/bright line rule. New York v Belton, 453 US 454; 101 SCt 2860 (1981)
The Former “Belton” Rule • This was the rule even when the defendant was not in the vehicle at the time of the arrest, but rather had been observed departing the vehicle just before the contact with the police.
ARIZONA V. GANT, 129 S.CT. 1710 (2009) • FACTS: Rodney Gant was arrested for DWLS. The officers arrested him and placed him in the back of a patrol vehicle and locked it. They then searched Gant’s car, and discovered cocaine in the pocket of a jacket in the backseat area.
ARIZONA V. GANT, 129 S.CT. 1710 (2009) • The Court did not overrule New York v Belton, but said that “our opinion has been widely understood to allow a vehicle search of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.
ARIZONA V. GANT, 129 S.CT. 1710 (2009) • In Gant, The US Supreme Court instead imposed much stricter limitations on such searches. An arrest of a vehicle occupant (or recent vehicle occupant) no longer automatically authorizes a search of the passenger compartment.
ARIZONA V. GANT, 129 S.CT. 1710 (2009) • The Court said that a search incident to arrest of the passenger compartment of a vehicle can occur in one of two limited situations. The first is when: • The arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search
ARIZONA V. GANT, 129 S.CT. 1710 (2009) • When is this ever really going to be the situation??? • Even the Supreme Court said in a footnote: “Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that the possibility of access to the arrestee’s vehicle remains.”
ARIZONA V. GANT, 129 S.CT. 1710 (2009) • The second basis for a search for incident to arrest that remains after Gant is: • the interior of the vehicle can be searched incident to arrest if there is a “reasonable basis” to believe it contains evidence for which the occupant was arrested, which appears to require a showing of less than probable cause.
ARIZONA V. GANT, 129 S.CT. 1710 (2009) • The new ruling ONLY APPLIES TO searches incident to arrest (and to the interior of vehicles), and it is possible that in a given case other exceptions to search warrant requirements may apply. For instance, probable cause, “container specific” probable cause, impound consistent with a valid impound policy, reasonable suspicion to believe that a dangerous weapon is present in the vehicle.
AUTHORITY TO ENTER FIRE SCENE • Fire dept. Response to an emergency • Consent • Administrative search warrant • Criminal search warrant
FIRE SCENE ENTRY Fire is an emergency that justifies a warrantless entry. Mincy v. Arizona 437 U.S. 385; 98 SCt 2480 (1978) RATIONAL Exigent circumstances exist in an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the destruction of evidence. People v. Ramsey 436 U.S. 499 (1976)
Michigan v. Tyler (commercial) An immediate entry for cause and origin is proper for a reasonable time after the fire is extinguished Three weeks later the exigencies which justified the initial search were no longer present Consent or search warrant should have been obtained Michigan v. Clifford (residential) House boarded up-demonstrated the owners expectation of privacy . . . investigator must determine if this expectation is reasonable (yes: residence not completely destroyed) Exigencies created by the fire had disappeared (fire extinguished and firefighters left scene) Need a warrant or an exception to the warrant requirement TWO VERY IMPORTANT CASES
MI V. TYLER436 US 499 (1978) • Initial entry require neither consent nor warrant • Evidence discovered and seized while fire is burning is proper • Officials may remain for a reasonable period of time to investigate the cause of the fire
Entries made after the emergency related investigation require consent or search warrant • Once arson determination made evidence must be gathered by a search warrant supported by probable cause
REASONABLE TIME: CIRCUMSTANCES • Amount of time since fire has been suppressed • Whether firefighters and/or police have left the scene • Whether the entry can be considered a continuation of an earlier search • Entry occurred at the first reasonable opportunity • Whether the building owner had taken steps to secure the building prior to the entry • The nature of the premises
CONSENT TO SEARCH • Must obtain from someone with authority to consent (your job to determine who that person actually is) • Owner • Legal representative of owner • Leasee • Get it in writing • When in doubt of authority, get warrant
VOLUNTARY • Consent allows an investigator to conduct a search without a warrant, but the consent must be voluntarily given • Consent may not be the result of coercion • Consent cannot be obtained during an illegal detention • Consent not valid if given due to show of force or claim of authority