FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

KATHARINE C. LIELL    JEFFREY A. MODISETT
Wabash, Indiana    Attorney General of Indiana

             ANDREW L. HEDGES
            Deputy Attorney General
            Indianapolis, Indiana

GARY SLOANE,                   )
                                    )
    Appellant-Defendant,            )
                                    )
        vs.                         )    No. 85A04-9606-CR-231
                                    )
STATE OF INDIANA,                   )
                                    )
    Appellee-Plaintiff.             )

automobile; a motor oil receptacle containing some type of liquid on the roof of the Cadillac automobile; a gasoline container near one of the origins; and plastic gloves near the second of the two origins.
    While Master Firefighter Stroup extinguished the fires, other firefighters entered the Sloane residence. Although there were no areas inside the residence where fires had attempted to be set, fire officials found furniture out of place and blocking entrances to the residence; aerosol cans on window sills throughout the residence; bullets and shotgun shells in windows of the residence and facing to the outside; a plastic cup in the kitchen containing still-formed ice cubes; an air tank in one of the fireplaces and the natural gas turned in the "on" position in all the fireplaces; a mixture that appeared to be either gasoline or fuel oil in the sinks and toilets in the residence; broken glass and papers in disarray throughout the living areas of the house; and a Christmas tree knocked over with a liquid thought to be gasoline poured on it.
    Upon viewing the condition of the residence, the firefighters present decided to proceed with an investigation, and they then contacted Shift Captain/Fire Investigator Copeland and requested his presence at the scene. The firefighters also discussed with Officer Blocher the situation inside the residence and their belief that this was an incendiary fire, and based upon this information, Officer Blocher then called for detectives from the Wabash Police Department to be present at the scene.
    Shift Captain Copeland arrived on the scene at approximately 7:45 a.m. at which time the officer in charge and some of the firemen approached him and informed him of the

condition of the interior of the residence. After walking through the residence and examining the situation, Copeland and Master Firefighter Hall obtained samples from the two places of origin in the garage. At approximately 8:20 a.m. Copeland began taking pictures of the residence and its contents. Hall took part in the investigation not only by obtaining samples, but also by making a video tape of the residence. Master Firefighters Siders and Stroup prepared a drawing and diagram of the Sloane residence and the items located therein.
    Officer Blocher, from the time the fires were extinguished until approximately 10:00 a.m., examined the interior of the residence and documented items found there, as well as taking photographs of the items. After being summoned to the scene by Officer Blocher, Detective Sergeant Whitmer of the Wabash Police Department arrived just prior to 8:00 a.m. He was told of the situation by the firemen and following a walk-through of the Sloane residence, he then proceeded to set up a crime scene, which included dusting for fingerprints and seizing certain items of evidence.
    Fred Sumpter, a cause and origin specialist with Herb Norris Associates in Indianapolis, Indiana, was hired by State Farm, the Appellant's insurance company, and the State Farm Special Investigator, Doug Meyer, to investigate the fires at the Sloane residence. On November 30, 1995, Mr. Sumpter and Mr. Meyer entered and examined the Sloane residence, and began taking photographs of the interior of the residence when they were stopped by the Appellant's father. Verbal permission was then given for Mr. Sumpter and Mr. Meyer to be present in the residence, and they again entered the residence and continued

their investigation.See footnote 3 As part of his investigation, Mr. Sumpter obtained samples from furniture and carpeting in the Sloane residence due to their odor that resembled an odor commonly associated with gasoline, as well as other items of evidence. Later, Mr. Sumpter also received the two origin samples obtained by the Wabash Fire Department on the day of the fire. Mr. Sumpter prepared a Cause and Origin Summary for the insurance company which was based upon this investigation and which was ultimately introduced as evidence at trial together with the photographs taken by him.
    Based upon evidence found at the scene of the fires and in Sloane's residence, Sloane was arrested and charged with Attempted Arson as a Class B Felony. Following his jury trial in February, 1996, Sloane was convicted of Attempted Arson and was sentenced to the Indiana Department of Correction for ten years. He then timely filed this direct appeal.

privacy and possessory interests by prohibiting unreasonable searches and seizures. Culpepper v. State, 662 N.E.2d 670, 675 (Ind. Ct. App. 1996), reh'g denied, trans. denied (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971), reh'g denied; Taylor v. State, 659 N.E.2d 535, 537 (Ind. 1995)). Under this Amendment, warrantless searches by the government are per se unreasonable. Clark v. State, 562 N.E.2d 11, 13-14 (Ind. 1990), cert. denied, 112 S.Ct. 425 (1991) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Generally, a judicially issued search warrant is a condition precedent to a lawful search, Fair v. State, 627 N.E.2d 427, 430 (Ind. 1993), and "[t]he remedy for an illegal warrantless search is the suppression of the evidence obtained from the search." Clark, 562 N.E.2d at 14 (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), reh'g denied, 82 S.Ct. 23).
    In dealing with fire-damaged premises, a warrant is required in the absence of consent or exigent circumstances, and the type of warrant required is determined by the object of the search. Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 647, 78 L.Ed.2d 477 (1984), reh'g denied, 104 S.Ct.1457. An administrative warrant is sufficient if the object of the search is to determine the cause and origin of the fire; however, a criminal warrant is required if the primary object of the search is to gather evidence in a criminal investigation. Id.

existed in Sloane's garage, Master Firefighter Siders noticed a gasoline container near one origin of the fire and at least one pair of rubber gloves at the second origin, both of which were later taken into evidence. (R. 1516, 1535).
    After the fires had been extinguished and the two points of origin had been determined, Shift Captain Copeland and Master Firefighter Hall proceeded to obtain samples of the charred material from each of the two points of origin in the Appellant's garage in order to determine the cause of the fires. (R.1522). Firefighters Copeland and Hall collected these samples soon after the fires were contained and prior to leaving the Sloane residence on November 28, 1995.
     Pursuant to the United States Supreme Court's decision in Clifford and long-standing case law, an administrative warrant is required when the object of the search is the cause or origin of the fire. 104 S.Ct. 641. However, prior to its decision in Clifford, the Supreme Court addressed firefighters' duties in Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). In order to refrain from framing a firefighter's duties in an unrealistically narrow fashion, the Court stated:
    Fire officials are charged not only with extinguishing fires, but with finding their causes. Prompt determination of the fire's origin may be necessary to prevent its recurrence, as through the detection of continuing dangers such as faulty wiring or a defective furnace. Immediate investigation may also be necessary to preserve evidence from intentional or accidental destruction. And, of course, the sooner the officials complete their duties, the less will be their subsequent interference with the privacy and the recovery efforts of the victims. For these reasons, 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. And if 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.

Tyler, 98 S.Ct. at 1950. Moreover, in the same decision, the Court asserted that clearly firemen are not required to secure a warrant before entering a burning structure to extinguish the blaze, and that once inside, the firemen may seize any evidence of arson that is in plain view. Id. (Emphasis added).
    The plain view doctrine is a long-recognized exception to the warrant requirements of the Fourth Amendment. The doctrine stands for the premise that objects which are in plain view of an officer who rightfully occupies a particular location can be seized without a warrant and are admissible as evidence. See Lance v. State, 425 N.E.2d 77, 78 (Ind. 1981); Coolidge, 403 U.S. 443; and Candler v. State, 266 Ind. 440, 363 N.E.2d 1233 (1977).
    In the instant case, the firemen entered Sloane's garage to extinguish the fires in their performance of their duties as firefighters and subsequently seized items of evidence found in the garage in plain view. The firemen also took samples from the two points of origin in the garage in order to have them tested later to determine the cause of the fires. Thus, based upon the Supreme Court's decision in Tyler, Sloane's Fourth Amendment rightsSee footnote 4 were not violated by the seizure of the items found in the garage, nor the taking of the samples from the points of origin.

245, 248 (Ind. Ct. App. 1991) (citing United States v. Salgado, 807 F.2d 603, 609 (7th Cir. 1986), cert. denied, 487 U.S. 1233, 108 S.Ct. 2897, 101 L.Ed.2d 931 (1988), reh'g denied, 487 U.S. 1263, 109 S.Ct. 25, 101 L.Ed.2d 975 (1988)). Not only was this property a private home, but also it contained undamaged personal effects of the owners following the fire.

    Based upon the small amount of fire damage to the interior of the residence; the existence of personal items in the residence at the time of the fires; and the use of the home as a private residence prior to the fires, we conclude that the Appellant did in fact maintain a reasonable privacy interest in the fire-damaged premises. Thus, the warrant requirement applies, and any official entry must be made pursuant to a warrant in the absence of consent or exigent circumstances.

officials' warrantless, non-consensual entry into the Sloane residence, regardless of the Appellant's reasonable privacy interests therein.

warrantless, non-consensual search of the residence. Moreover, in keeping with the Supreme Court's statements in Tyler and the Plain View Doctrine, as set out previously herein, we hold that the items which were within plain view of the officials upon their entry and walk- through of the house in search of other fires or victims, were properly seized. Further, the seizure of these items did not violate the Appellant's Fourth Amendment rights under the United States Constitution.
    

behalf of the Appellant's insurance company, and that it was his investigation and not that of the fire department. Mr. Sumpter was never hired by the State to do any investigation in this case, and at trial he testified pursuant to subpoena. With no connection to the government officials in this criminal investigation and subsequent criminal case, we find that Mr. Sumpter was in no way a government actor so as to come under the restrictions of the Fourth Amendment for searches and seizures. Therefore, the seizure of the evidence by Mr. Sumpter and its admission at trial, particularly the samples of carpet, carpet padding and box springs, do not violate the Appellant's Fourth Amendment Rights because Mr. Sumpter is not a governmental actor who is controlled by the warrant requirements of the Fourth Amendment.
    The Appellant contends that he was denied effective assistance of counsel when his trial counsel failed to make a motion to suppress and object to the admission of the evidence seized in Sloane's residence in a non-consensual, warrantless search which Sloane contends was in violation of his Fourth Amendment rights. Having determined that the Appellant's Fourth Amendment rights were not violated by the seizure of any of the evidence from the Sloane residence, we must now turn to the Appellant's claim of ineffective assistance of counsel. The standard by which we review counsel's performance is well-settled. To demonstrate his counsel's ineffectiveness, Sloane must satisfy a two-part test. First, he must show that his counsel's performance fell below an objective standard of reasonableness, and that it is reasonably probable that, but for his counsel's deficient performance, the result of the proceedings would have been different. Second, because counsel is presumed to be

competent, he must demonstrate these elements by strong and convincing evidence. Stroud v. State, 587 N.E.2d 1335, 1338 (Ind. Ct. App. 1992), trans. denied (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh'g denied, 104 S.Ct. 3562).
    Further, to prevail on a claim that counsel was ineffective for failing to object to the admission of particular evidence, it must be shown that had the objection been made, it would have been sustained by the trial court. Peete v. State, 678 N.E.2d 415, 418 (Ind. Ct. App. 1997), trans. denied (citing Vega v. State, 656 N.E.2d 497, 504 (Ind. Ct. App. 1995), reh'g denied, trans. denied (1996)). Absent such a showing, an appellant cannot prevail on an ineffective assistance of counsel claim. See Lowery v. State, 640 N.E.2d 1031 (Ind. 1994), reh'g denied (1995), cert. denied, ___ U.S. ___, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995). "It shall be strongly presumed that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Judicial scrutiny of counsel's performance is highly deferential and should not be exercised through the distortions of hindsight." Emerson v. State, 648 N.E.2d 705, 707 (Ind. Ct. App. 1995), trans. denied (citing Bellmore v. State, 602 N.E.2d 111, 123 (Ind. 1992), reh'g denied (1993) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh'g denied, 104 S.Ct. 3562).
    Sloane's counsel discussed in both his opening and closing statements, as well as in cross examination of many of the investigators, the fact that the residence was in shambles and looked as though someone had vandalized it and set it up to be completely ruined by fire.

He not only used this evidence to blame someone else (i.e., vandals) for the condition of the home and the fires at the Sloane residence, but also to provide his client with an alibi. In fact, counsel called a local car dealer as a defense witness to testify to Sloane's extreme care and attention he gives to his automobiles. This car dealer also stated that they found sand in the oil fills of the vehicles, which act counsel suggested was performed by these same vandals.
    Moreover, the Appellant testified at trial that upon entering his home in the early morning hours of November 28, 1995, he heard someone call out "Sloane" and ran in fear to a wooded area near his home. He further testified that he remained there, watching his house, until he apparently fell asleep and awoke to yellow police tape encircling his home. (R. 2108-2114). Thus, it appears that counsel's decision to attempt to use the evidence of the condition of the interior of the residence was a tactical one. We have often noted that a decision by trial counsel to explain, rather than exclude, evidence is a matter of strategy which is within counsel's professional judgment. Generally, we will not second-guess this decision even if it appears that the decision may have been ill-founded. See Clark v. State, 597 N.E.2d 4, 10 (Ind. Ct. App. 1992), reh'g denied, trans. denied; Mullins v. State, 504 N.E.2d 570, 573 (Ind. 1987).
    Therefore, based upon his counsel's strategy as set out above and the deference afforded trial counsel by our courts, we hold that the Appellant has not met his burden to show that his counsel's performance fell below an objective standard of reasonableness. Further, the Appellant has failed to show that the proceedings would have been different but

for his counsel's performance, or that counsel's objection would have been sustained by the trial judge. Appellant argues in his brief that there would have been no trial in this case had his counsel filed a motion to suppress the evidence seized at his home. However, we have found that all of the incriminating evidence, including the aerosol cans, the bullets and shotgun shells, and the cup of still-formed ice cubes which contained the Appellant's fingerprints, were seized as evidence pursuant to the Plain View Doctrine. Even evidence of gasoline in the carpet and box springs of Sloane's residence was properly seized and admitted through a non-governmental actor. Moreover, the second prong of the Strickland test must fail because, as set out above, the first factor of the test was not proved by strong and convincing evidence.

Converted from WP6.1 by the Access Indiana Information Network