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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Fourth Circuit Upholds Arson Conviction Over Claim No Interstate Commerce
  2. Supreme Court Upholds Barring Suspect From Home Pending a Warrant
  3. First Circuit Discusses the Importance of Motive in an Arson Ship Fire


In U.S. v. Milligan, No. 00-7068, the Fourth Circuit Court of Appeals reviewed the defendant's federal arson conviction. In Jones v. United States, the Supreme Court had held that 18 U.S.C. section 844(i) covered only property currently used in commerce or in an activity affecting commerce, and that an owner occupied home used as a dwelling place for everyday family living is not property "used in interstate commerce." .

The defendant argued that the vacant, uninhabitable building at 1311 N. Rose Street, previously leased as a private residence, was not actively used for any commercial purpose at the time of the fire, and therefore, is not property "used" in commerce or commerce affecting activity and was not subject to federal prosecution under section 844(i).

The Court of Appeals disagreed finding that the defendant's claim, that the building he burned was not a "rental property" affecting commerce at the time of the fire because the building was vacant at the time of the fire strained credibility under the facts of this case. The record revealed that he moved the tenant out only twelve hours before the first arson attempt, he had rented the unit for years prior to the arson, he planned the crime while the unit was still occupied, and he renewed the insurance the day before the arson attempt, again while it was still occupied by a tenant. These, and other facts, including his history of burning that specific property, collecting the insurance, and then re-renting it, strongly supported the conclusion that the unit was not a vacant building, but rather was actively being used commercially at the time of the fire.


In Illinois v. McArthur, No. 99-132, the United States Supreme Court reviewed a lower court decision suppressing evidence seized by a warrant but only after two hours passed while the defendant was precluded from entering his own home. Police officers, with probable cause to believe that respondent McArthur had hidden marijuana in his home, prevented him from entering the home unaccompanied by an officer for about two hours while they obtained a search warrant. Once they did so, the officers found drug paraphernalia and marijuana, and arrested McArthur. He was subsequently charged with misdemeanor possession of those items. He moved to suppress the evidence on the ground that it was the "fruit" of an unlawful police seizure, namely, the refusal to let him reenter his home unaccompanied. The Illinois trial court had granted the suppression motion, and the State Appellate Court had affirmed.

The Supreme Court disagreed. Given the nature of the intrusion and the law enforcement interest at stake, the brief seizure of the premises was permissible under the Fourth Amendment.

The Amendment's central requirement is one of reasonableness. Although, in the ordinary case, personal property seizures are unreasonable unless accomplished pursuant to a warrant, there are exceptions to this rule involving special law enforcement needs, diminished expectations of privacy, minimal intrusions, and the like. The circumstances here involve a plausible claim of specially pressing or urgent law enforcement need. Moreover, the restraint at issue was tailored to that need, being limited in time and scope, and avoiding significant intrusion into the home itself. Consequently, rather than employing a per se rule of unreasonableness, the Court must balance the privacy related and law enforcement related concerns to determine if the intrusion here was reasonable. In light of the following circumstances, considered in combination, the Court concluded that the restriction was reasonable, and hence lawful.

First, the police had probable cause to believe that McArthur's home contained evidence of a crime and unlawful drugs. Second, they had good reason to fear that, unless restrained, he would destroy the drugs before they could return with a warrant. Third, they made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy by avoiding a warrantless entry or arrest and preventing McArthur only from entering his home unaccompanied. Fourth, they imposed the restraint for a limited period, which was no longer than reasonably necessary for them, acting with diligence, to obtain the warrant.


In Ferrar & Dimercurio v. St. Paul Mercury, No. 00-1137, the First Circuit Court of Appeals reviewed a case which had for separate reasons been tried three times in the District Court. The case involved a ship fire found not covered under the insurance policy because of an exclusion covering arson. The Court of Appeals reviewed the plaintiff's objection of admitting evidence of motive.

Evidence was presented that the plaintiff company F&D, along with its principle shareholders (various members of the Ferrara-DiMercurio family), was in dire financial trouble. The company, organized as a commercial fishing venture in 1987, was losing money and was unable to meet its mortgage payments on the vessel to Gloucester Bank & Trust Company. In fact, F&D had operated at a loss since its inception. As the company fell further behind in its payments, the bank threatened to foreclose not only on the boat mortgage, but on the collateral that was pledged on the loan for the F/V TWO FRIENDS, such as the personal homes of the individual shareholders.

The standard for admissibility under Federal Rule of Evidence 401 is a liberal one. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without that evidence." The existence of a motive and an opportunity to burn an undisputedly locked boat from the inside-out tends to make the disputed issue -- whether the fire aboard the F/V TWO FRIENDS was an act of arson -- more probable, especially in light of the conflicting expert testimony as to incendiarism.

To the extent, if at all, that F&D is complaining that the plaintiff's expert lacked qualifications sufficient for the court to permit him to testify as a cause-and-origin expert, that complaint is unavailing. After considering his training and experience, the district court, acting pursuant to Federal Rule of Evidence 702, ruled that he was qualified. That ruling fell within the broad purview of the trial court's discretion. See Diefenbach v. Sheridan Transp., 229 F.3d 27, 30 (1st Cir. 2000) ("It is well-settled that 'trial judges have broad discretionary powers in determining the qualification, and thus, admissibility, of expert witnesses.'") His qualifications as a fire analyst included being a master and journeyman electrical licenses from Massachusetts and New Hampshire; he has been consulting as a fire investigator since 1963; and, in 1991, he was qualified as a Certified Fire Investigator by the International Association of Arson Investigators. He had been qualified twice before as an expert in this case to render an opinion regarding the electrical system's contribution to the fire aboard the vessel. The court overruled the plaintiff's objections and upheld judgment for the insurer.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), (e-mail), Follow us on Twitter at @firesandrain.

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