MA: Fire scene search was moot point since issue was lack of smoke detectors found in inspections up to day before fire; changing argument on appeal is waiver

Defendants were convicted of manslaughter in the deaths of three tenants in a fire in their house converted to apartments. There were numerous code violations, including lack of smoke detectors and enough exits, discovered as a result of a tenant complaint just days before the fire. One of the defendants was told to fix it, and the inspector would be back, and he was the day before the fire. The hardwired smoke detectors had been disabled, and battery powered ones were nonfunctional. Finally there was a fire in the basement apartment, and the rest of the building was filed with smoke. The three who died were from smoke inhalation in the top floor. The fire was accidental, caused by an electrical short in a small appliance. The fire marshal entered the property as soon as the fire department let him in, and it was still smoking. The fire scene entry was reasonable, but it really didn’t matter because defendants’ liability for the deaths didn’t turn on that. They also raised that the fire marshal conducted an unreasonable search by staying too long, but that issue wasn’t presented to the trial court and is waived for appeal. Commonwealth v. Zhan Tang Huang, 2015 Mass. App. LEXIS 11 (February 11, 2015):

Andy moved to suppress the piece of plastic and motor — the only physical evidence seized as a result of the trooper’s investigation. Andy argued that the inspection, which was conducted without a warrant, was an unconstitutional search because no exigency existed once the last flame of the fire had been extinguished. The motion judge correctly ruled that this argument was based on a misreading of Michigan v. Tyler, 436 U.S. 499, 510, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978), which (contrary to Andy’s argument) does not create a bright-line rule that a warrant is required to investigate the scene of a fire after the last flame has been extinguished. Instead, the Court 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.” Ibid. We have restated this same standard of reasonableness in our own cases. See Commonwealth v. Jung, 420 Mass. 675, 682-683, 651 N.E.2d 1211 (1995) (no warrant needed to enter home and investigate within reasonable time after fire was extinguished). “[I]f the warrantless entry to put out the fire and determine its cause is constitutional, the warrantless seizure of evidence while inspecting the premises for these purposes also is constitutional.” Michigan v. Tyler, 436 U.S. at 510. The judge did not err in denying Andy’s motion to suppress.

Changing tack on appeal, Andy now argues that the evidence should have been suppressed because the investigation continued for an unreasonable length of time. This argument was not presented below, and is accordingly waived. See Mass.R.Crim.P. 13(a)(2), as appearing in 442 Mass. 1516 (2004); Commonwealth v. Quint Q., 84 Mass. App. Ct. 507, 514, 998 N.E.2d 363 (2013). Even were we to conclude that the search continued an unreasonable length of time (a conclusion we assume only arguendo), that conclusion would not help Andy. The plastic piece and motor that were the subject of the motion to suppress were never offered or admitted into evidence. Although a photograph of the objects was admitted, Andy did not object to its admission and, moreover, the photograph was not the subject of the motion to suppress. Andy does not argue that the photograph should not have been admitted, nor does he claim that a substantial risk of a miscarriage of justice resulted from its admission. See Commonwealth v. Maylott, 43 Mass. App. Ct. 516, 519, 684 N.E.2d 10 (1997) (evidence admitted without objection at trial and without a pretrial motion to suppress will be examined only for substantial risk of a miscarriage of justice). Nor could such an argument credibly be made; there was no dispute about what sparked the fire, and the defendants’ liability did not turn on it.