State v. Heiner

683 P.2d 629, 1984 Wyo. LEXIS 284

• Court: Wyoming Supreme Court
• Decided: May 15, 1984
• Docket: 83-83
• Status: Published

Opinions

THOMAS, Justice.

In this instance this court is urged to address the question of its authority to review, pursuant to a writ of certiorari, a ruling of a trial court granting a motion to suppress evidence in a criminal case. If the authority is present we then are asked by the State of Wyoming to determine whether an inventory of personal property claimed to have been destroyed in a fire should be suppressed in a case involving charges of arson and arson with intent to injure and defraud an insurance company. We also must address a pretrial ruling by the district court which would impose upon the State the burden of demonstrating the reasonableness under constitutional standards of the seizure of evidence obtained at the scene of the fire by investigators employed by the fire insurance company. The district court granted the motion to suppress the evidence in the form of an un-sworn inventory of personal property furnished to a fire insurance adjuster, and informed the prosecuting attorney of his responsibility to demonstrate the reasonableness of the seizure of evidence. The State of Wyoming sought review of these pretrial rulings pursuant to a petition for writ of certiorari. It is our conclusion that this court does have the authority and.responsibility to review such pretrial rulings by trial judges in the exercise of its discretion. The facts and the law disclose that the rulings of the trial court were erroneous, and we therefore will reverse those rulings.

On December 22, 1982, a criminal complaint was filed in the justice of the peace court in Lincoln County, charging Deon Heiner with arson in violation of § 6-7-101, W.S.1977,¹ and with arson with intent to defraud his insurer in violation of § 6-7-105, W.S.1977.² Deon Heiner then was arrested pursuant to a warrant issued upon the criminal complaint, and on January 11, 13 and 14, 1983, a full-blown preliminary examination was held before the justice of the peace. At the conclusion of that preliminary examination the justice of the peace found that there was probable cause to believe that the crimes alleged in the complaint had been committed and that the defendant had committed those crimes.

On February 15, 1983, the transcript of the justice of the peace proceedings was filed in the district court, and on February 22, 1983, an Information was filed in the district court which was substantially identical to the criminal complaint earlier filed. The case then was set for arraignment on February 28, 1983, and on February 22, 1983, an order was entered pursuant to which the matter was reset for March 21, 1983, at the request of defense counsel. On March 22, 1983, the court set the case for pretrial conference to be held on May 2, 1983, and on that same date the defendant filed a Motion to Suppress Evidence and Limit Comment Thereon, stating:

“Comes now the Defendant herein and moves the court to suppress all evidence gathered by the agents and employees of Farmers Insurance Company, and by officers and employees of the State of Wyoming after the time that the State received a tip on their hot line that the fire at the home of Defendant was caused by arson until Defendant was read his ‘Mer-anda’ [sic] Rights for the reason that from that moment on, the Defendant was a suspect for that crime.

“In the alternative, should the court deny the above motion, then Defendant moves the court to strike all evidence gained as a result of a taped interview with Cheryl Heiner, the wife of the Defendant, taken on December 30, 1982, by Deputy Fire Marshall, Tim Reikofski, and for an order limiting any comment in that inter.view at the trial of this matter; and, “The Defendant moves the court for an order suppressing as evidence a list of personal property given by Defendant to Gerald Hansen, an insurance adjuster employed by Farmers Insurance Co.; and an order limiting any comment on that list at the trial of this case.”

On April 4, 1983, a hearing was held by the court to deal with the Motion to Suppress Evidence and Limit Comment Thereon, and because of the unavailability of witnesses due to the weather that hearing was continued to May 11, 1983. On May 16, 1983, the court entered its Order Suppressing Evidence which provided in pertinent part as follows:

“It is hereby ORDERED and DECREED that:

“1. Defendant’s motion to suppress the list of household items and other items given by Deon Heiner to Gerald Hansen is granted and the list shall not be received and admitted into evidence and no testimony or comment shall be received respecting the same, and the list is hereby suppressed, said list being identified in Plaintiffs Pretrial Memorandum as Exhibits 76 through 87.

“2. Before being admitted into evidence, any other exhibit that makes reference to Plaintiffs Exhibits 76 through 87 shall have the material that makes reference to Plaintiffs Exhibits 76 through 87 blocked out from the Exhibit so as to not be visible to the jury. “3. Defendant’s motion to suppress all other evidence is denied without prejudice.”

In the meantime the State had filed a Motion in Limine which sought an order

“directing the defense counsel not to examine the following State’s witnesses as to whether or not said witnesses -gave the defendant Miranda warnings prior to their interviews of the defendant:

“Jerald Hansen

Greg Cline

Brent Halladay

Lynn Borg

“Plaintiff states that inquiry in the matters sought to be excluded would be both immaterial and irrelevant to the case in that the witnesses were not police officials and were acting on behalf of Farmers Insurance Group, and such inquiry by defense counsel would tend to confuse the jury. Moreover, the interviews were non-custodial.”

This motion was denied by the court.

On May 17, 1983, the case was reset for trial on June 13,1983, and on May 20,1983, a Petition for Writ of Review, or Writ of Prohibition, or Writ of Certiorari, or Writ of Mandamus was filed in this court by the State of Wyoming. On May 25, 1983, an Order Granting Writ of Certiorari was entered in this court and the Writ of Certiora-ri issued to the trial court. Pursuant to the Order Granting Writ of Certiorari further proceedings in the district court were stayed until the disposition of the case on certiorari.

In its brief to this court the State of Wyoming presents its statement of the issues as follows:

“I. DID THE TRIAL COURT ERR IN SUPPRESSING THE INVENTORY SHEETS VOLUNTARILY GIVEN BY THE DEFENDANT TO THE INSURANCE ADJUSTOR THREE DAYS AFTER THE FIRE, ON THE BASIS OF ENTRAPMENT OR FAILURE TO PROVIDE MIRANDA WARNINGS?

“II. DID THE TRIAL COURT ERR IN IMPLICITLY HOLDING THAT THE FOURTH AMENDMENT WAS APPLICABLE TO THE SEARCH AND SEIZURES ACCOMPLISHED BY PRIVATE INSURANCE INVESTIGATORS, AND THEREBY REQUIRING THE STATE TO SHOW THE REASONABLENESS OF THE SEIZURES AS A FOUNDATIONAL PREREQUISITE TO ADMISSIBILITY?”

The defendant articulates the issues to be dealt with in this way in his brief:

“1. Does the Supreme Court have jurisdiction to hear this appeal?

“2. If it does, should it decline to hear such cases on general policy grounds? “3. Should the Supreme Court overturn the Trial Court’s Order on suppression of evidence?

“4. Should the investigative employees of Farmers Insurance Exchange be treated like police officers and should their conduct in gathering information be held to the same standards as that required of police officers of the State of Wyoming?”

The threshold question of the authority of this court to review these evidentiary rulings by the trial court pursuant to a writ of certiorari is settled in principle by the decision of this court in City of Laramie v. Mengel, Wyo., 671 P.2d 340 (1983). In the instant case the rulings of the district court suppressed a list of personal property claimed to have been destroyed or damaged in the fire which was furnished by the defendant to an adjuster employed by the fire insurance company and required the State to justify under constitutional standards the reasonableness of the seizure of evidence such as photographs, burned wire, and a sample of a chemical substance from the scene of the fire by investigators employed by the fire insurance company. In this regard we note that the essence of the ruling by the municipal judges in City of Laramie v. Mengel, supra, was that evidence of a refusal by an accused person to submit to a chemical test to determine blood alcohol content was not admissible at the trial of the case. We did note in City of Laramie v. Mengel, supra, that review pursuant to the statutes providing for a bill of exceptions was not available to the city. In that ..opinion we quoted language from Call v. Town of Afton, 73 Wyo. 271, 278 P.2d 270 (1954), in which the court observed in substance that the writ of certio-rari subserves a good purpose in instances in which an appeal (or a bill of exceptions) is not plain, speedy and adequate. With respect to rulings which suppress important evidence to be offered by the State in a criminal prosecution the inadequacy of the bill of exceptions after an acquittal is patent. We then would simply add to the authorities cited in City of Laramie v. Mengel, supra, references to State v. Johnson, Tenn., 569 S.W.2d 808 (1978); State v. McCormick, Tenn.Cr.App., 584 S.W.2d 821 (1979); State v. Bradfield, 29 Wash.App. 679, 630 P.2d 494 (1981); and State v. Chatmon, 9 Wash.App. 741, 515 P.2d 530 (1973). In these several cases the respective courts recognized the propriety of a writ of certiorari to review pretrial rulings relating to the suppression of evidence.

In this case, like City of Laramie v. Mengel, the rulings of the district court were premised upon constitutional grounds, which results in the presentation to this court of issues of constitutional magnitude. Whether constitutional protections with respect to inculpatory statements of an accused and evidence obtained from the person or property of the accused are to be extended to private individuals is a significant question of first impression in the State of Wyoming. Consequently, we conclude that because of the importance of the evidence suppressed or the use of which is potentially denied to the State of Wyoming; the constitutional magnitude of the issues raised; and the importance of determining the rule with respect to such matters in the State of Wyoming, the court appropriately exercised its discretion in granting the writ of certiorari in this case.

We turn then to a consideration of the ruling of the district court suppressing as evidence the list of personal property purportedly damaged or destroyed in the fire which was furnished by Deon Heiner to the adjuster employed by the fire insurance company. A brief background resume with respect to this document is helpful. The record discloses that on December 8, 1982, the day after the fire, the adjuster met with Deon Heiner, who was concerned about how soon he might be reimbursed for the loss he sustained in the fire. The adjuster informed him that one item that would be necessary for his claim would be an inventory of personal property which had been damaged or destroyed in the fire, The insurance adjuster informed the defendant that he had commitments for the following Monday and Tuesday and could not return to Star Valley, Wyoming, on those days. Heiner inquired if he could return on December 10, 1982, if the inventory could be prepared by that time, and the insurance adjuster agreed to do so. The articles included in the list of personal property furnished by Heiner on December 10, 1982, were numerous and the inventory indicated an aggregate value of some $65,-000. At that time it was the conclusion of the adjuster that some of the items shown on the list had not been in the home at the time of the fire. After the criminal charges had been filed against Deon Heiner a verified proof of loss was filed with the fire insurance company in which a claim was made for only $9,983 for personal property lost or destroyed in the fire. The theory of the State of Wyoming is that the furnishing of the initial inventory is relevant with respect to the second count charging the commission of arson with intent to injure or defraud an insurance company, and that this is an extremely important item of evidence with respect to the question of specific intent. The State also urges that this evidence is relevant because it discloses motive which would be helpful in reaching a conclusion as to the identity of the person who set the fire.

The basis for the ruling of the district court suppressing the inventory of personal property as evidence is elusive. In his Motion to Suppress Evidence and Limit Comment Thereon the defendant simply requested the suppression of the inventory. In his Brief in Support of Motion to Suppress, the defendant urged that a demand for a formal proof of loss signed and sworn to by the defendant and his furnishing of the same pursuant to the fire insurance policy rendered the prior list (the inventory in question) inadmissible because it would not have been relied upon by the insurance company in adjusting the loss. During the course of dialogue between counsel and the court the court paraphrased the position of the defendant to the effect that constitutional guarantees would be a foundational matter for the admissibility of any testimony if the insurance company investigators were in fact peace officers.

Later in the dialogue the court indicated an understanding of § 6-7-105, W.S.1977, to the effect that the inventory would not be relevant to the fraud count if it were not to be relied upon by the insurance company. The district judge emphasized this at another point in the dialogue when he indicated that he was inclined to grant the suppression of the inventory “on the basis that in order to have a foundation of relevance, on an issue of fraud, then you must use that document which was the basis of the alleged fraudulent claim, not something that wasn’t used for the alleged fraudulent claim, but the actual thing that was used for the alleged fraudulent claim.” Subsequently in considering the statute the court indicated that admissibility was not a question of relevancy but that the question of admissibility was based upon the Fourth and Fifth Amendment guarantees and Sixth Amendment guarantees. Essentially he stated that the question of admissibility must be based upon whether or not there were unreasonable searches and seizures.

Having said all this, the court then ruled with respect to the list of personal property which Deon Heiner gave to the insurance adjuster that the problem with that exhibit was on the foundation, and he granted the motion to suppress the exhibit. Finally, after this court had granted the petition for a writ of certiorari, the district court inserted in the record a Memorandum of the Court, a copy of which is attached hereto as Appendix A. The thrust of that memorandum is to inject, for the first time, into the proceedings the proposition that the basis of the court’s ruling was a conclusion that pursuant to Rule 403, W.R.E.,³ the court had exercised its discretion in concluding that the probative value was substantially outweighed by the danger of unfair prejudice.

This last proclamation by the district court disposes of the question of relevance of the inventory in this case. A conclusion that the evidence is relevant is correct, because the gravamen of the offense found in § 6-7-105, W.S.1977, is not the fraud, but instead it is the setting fire or burning or attempting to do so of any building, structure, etc., “with intent to injure or defraud the insurer.” Johns v. State, 144 Fla. 256, 197 So. 791 (1940); Commonwealth v. Cooper, 264 Mass. 368, 162 N.E. 729 (1928); State v. Greer, 243 Mo. 599, 147 S.W. 968, 28 Ann.Cas. 1913C 1163 (1912). See also Parb v. State, 143 Wis. 561, 128 N.W. 65 (1910). In an instance in which the State is charged with proof of a specific intent beyond a reasonable doubt, the relevance of a potential false claim of loss to the issue of the specific intent is obvious to all. The advice by the district court that it had premised its ruling upon an' exercise of its discretionary authority under Rule 403, W.R.E., renounces any earlier comments it may have made with respect to relevance. If this was the court’s intention it is eminently correct.

With respect to the exercise of the court’s discretion under Rule 403, W.R.E., we read the Memorandum of the Court to the end that it concluded that unfairness in obtaining evidence became a factor to be weighed against the probative value of the proffered evidence in the exercise of its discretion. We must say to the district court that however reasonable that construction appeared to the court it is erroneous. The manner in which relevant evidence is obtained may lead to a conclusion that it is not admissible in evidence. See Rule 402, W.R.E. If the evidence is not admissible there is no occasion for the court to exercise its discretion under Rule 403, W.R.E. 22 Wright and Graham, Federal Practice and Procedure, § 5213, pp. 258-259 (1978). The district judge must have concluded that the exhibit was admissible as not having been unlawfully obtained when he invoked Rule 403, W.R.E. The only question then to be resolved, under Rule 403, W.R.E., is whether the prejudicial impact of the evidence at trial is “unfair” and if so whether it substantially outweighs the probative value. See 2 Loui-sell and Mueller, Federal Evidence, § Í26 (1978); and 22 Wright and Graham, Federal Practice and Procedure, § 5215 (1978). The district court then is ruling, in effect, that it is unfair for the State of Wyoming to attempt to prove that Mr. Heiner set fire to his home with the intention of defrauding his insurance company by injecting into evidence an inflated inventory of personal property allegedly damaged or destroyed in the fire. This is tantamount to ruling that even though the State has the burden of proof beyond a reasonable doubt it is unfair for it to introduce any evidence that might incriminate the defendant. We are unable to discern from the record or any authorities which have been called to our attention the manner in which unfair prejudice attaching to this exhibit in the context of the trial of the case substantially outweighs the probative value of the exhibit.

Finally we consider whether in fact the district judge ruled that the inventory should not be admitted into evidence because the insurance investigator was an agent of law enforcement charged with the duty of warning Mr. Heiner that any statements he made would be admissible in evidence and could be used against him, and informing him of his right to counsel prior to taking any such statements. We are reminded that this essentially was Mr. Heiner’s position in connection with his motion to suppress.

This theory in part depends upon the facts. In this regard the following colloquy appears in the closing part of the record of the suppression hearing:

“THE COURT: If it makes any help to you, Mr. Frome, the Court concludes that these private insurance investigators were gathering evidence for purposes of prosecution.

“MR. FROME: I’ll then move on to the next statement.

“Since the court has determined they were agents of the State, or an alter-ego of law enforcement—

“THE COURT: I didn’t say that. I concluded that these agents were gathering evidence for purposes of prosecution.

⅝ * * ⅜ ⅜ ⅜

“THE COURT: The Court didn’t find that they were agents of the State. The Court finds that these insurance people were gathering evidence for purposes of prosecution.

“MR. ADCOCK: As well as perhaps for their insurance company.

“THE COURT: There were two things,—

“MR. ADCOCK: Yes.

“THE COURT: —Mr. Adcock, and there is absolutely no question about that.

⅜ * ⅜ * * ⅝

“THE COURT: All right. The Court has already indicated that it concludes that from the evidence which the Court believes is uncontradicted, that the agents, servants and employees of the insurance company were gathering evidence for two specific purposes: For the purpose of determining insurance company claims, payment and civil activities; and they were gathering evidence for purposes of criminal proceedings.”

The district court concluded that the insurance investigators were not agents of the State, but also concluded that because they were gathering evidence for the purpose of criminal prosecution their activities would be subject to the same rules that apply to law enforcement officers with respect to criminal investigations. It well may be that it was on this basis that the court concluded that there was no foundation for the admissibility of the list of personal property because it is conceded that the insurance adjuster did not present to Deon Heiner any advice with respect to his constitutional rights prior to obtaining the inventory from him. It is our conclusion, however, that if that is the basis for the district court’s ruling it was erroneous.

It is appropriate to deal with this last possible basis for the ruling by the district court in the broader context of the second issue argued by the State of Wyoming. This involves the propriety of the district court’s requirement that the State must show the reasonableness of seizures of evidence by the fire insurance company’s investigators which implicitly extends the protections of the Fourth Amendment of the Constitution of the United States of America to the obtaining of evidence by private individuals. Conceptually there is no good reason to distinguish between the Fourth Amendment and the Fifth Amendment to the Constitution of the United States of America in discussing this principle. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933, reh. denied 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72 (1961); and Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).

The overwhelming weight of authority in this country is to the effect that Fourth Amendment protections are not invoked when evidence is obtained by a private individual. This view still is justified by Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). The cases which specifically involve evidence by investigators for fire insurance companies are People v. Mangiefico, 25 Cal.App.3d 1041, 102 Cal.Rptr. 449 (1972); Lester v. State, 145 Ga.App. 847, 244 S.E.2d 880 (1978); People v. Vlcek, 114 Ill.App.2d 74, 252 N.E.2d 377 (1969), cert. denied 400 U.S. 822, 91 S.Ct. 42, 27 L.Ed.2d 50 (1970); Stone v. Commonwealth, Ky., 418 S.W.2d 646 (1967), cert. denied 390 U.S. 1010, 88 S.Ct. 1259, 20 L.Ed.2d 161 (1968). Cf., Romano v. Home Insurance Company, 490 F.Supp. 191 (N.D.Ga.1980). A much more lengthy list of cases involving many other factual situations is encompassed in Annotation 36 A.L.R.3d 553 (1971). It does appear that in some jurisdictions an exception is recognized relating to private security personnel, e.g., People v. Zelinski, 24 Cal.3d 357, 155 Cal.Rptr. 575, 594 P.2d 1000 (1979); Commonwealth v. Leone, 386 Mass. 329, 435 N.E.2d 1036 (1982). Of course if the private individual is in fact an agent of law enforcement officers then the exclusionary rule may pertain. Since the district court in this instance specifically found that the fire insurance company investigators were not agents of the law enforcement officers we have no need to consider the application of that exception in this instance.

The sole jurisdiction which we have been able to identify in which a different rule prevails is in our sister state of Montana. The rule in Montana appears to be that the same constitutional protections pertain whether a search and seizure involves private individuals or law enforcement officers. State v. Hyem, Mont., 630 P.2d 202 (1981). The most charitable rationalization of that ruling is that it depends upon a peculiar provision of the Constitution of the State of Montana which is not found in the constitution of this state. Even so, the dissenter to the court’s opinion in State v. Hyem, supra, points out that other states having the same style of constitutional provision have adhered to the usual rule distinguishing private individuals from law enforcement officers. On the other hand one well could conclude, having perused the somewhat tortured history of that rule in the State of Montana, that the rule is chimerical. Unfortunately in this instance Deon Heiner persuaded the district judge to follow that rule in essence.

We have considered the cases cited to us by Deon Heiner to attempt to discover any basis for espousing in this state a rule other than the majority rule. We can find none. In Stapleton v. Superior Court of Los Angeles County, 70 Cal.2d 97, 73 Cal.Rptr. 575, 447 P.2d 967 (1969), the court invoked the exclusionary rule because of a joint operation by the private investigators and police officers. In dealing with the issue that court stated in passing:

“ * * * The Fourth Amendment does not apply, however, to searches by private individuals. * * * ” 73 Cal.Rptr. at 576-577, 447 P.2d at 968-969.

In State v. Furuyama, 64 Haw. 109, 637 P.2d 1095 (1981), and State v. Sheppard, Iowa App., 325 N.W.2d 911 (1982), the existence of an agency relationship between the private individual and the law enforcement officers specifically was found. In People v. Zelinski, supra, and Commonwealth v. Leone, supra, the exclusionary rule was applied or suggested with respect to'private security officers. This exception to the majority rule is alluded to above. Even so, the Massachusetts court in Commonwealth v. Leone, supra, remanded the case for the purpose of determining the propriety of the guard’s action in light of identified reasons for special treatment of a privately employed special police officer acting upon his employer’s behalf, with the tenor of the opinion being that if the requirements articulated were met the evidence would be admissible. People v. Grevious, 119 Mich.App. 403, 327 N.W.2d 72 (1982), involved an interrogation of a prisoner in a penal institution by custodial personnel without furnishing any warning as to his constitutional rights identified in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), reh. denied California v. Stewart, 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966). The court concluded that state action under the circumstances was obvious.

As indicated, the same considerations apply with respect to any Fifth Amendment implications involved in questioning or in obtaining the inventory from Deon Heiner. People v. Vlcek, supra, specifically involved failure to provide the warnings articulated in Miranda v. State of Arizona, supra. Other cases make clear the proposition that the requirement to give those warnings depends upon the existence of custodial interrogation by law enforcement officers and is not invoked by questioning by a private citizen. Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); United States v. Warinner, 607 F.2d 210 (8th Cir.1979), cert. denied 445 U.S. 927, 100 S.Ct. 1313, 63 L.Ed.2d 760 (1980); United States v. Parr-Pla, 549 F.2d 660 (9th Cir.1977), cert. denied 431 U.S. 927, 97 S.Ct. 2935, 53 L.Ed.2d 1069 (1977); United States v. Maddox, 492 F.2d 104 (5th Cir.1974), cert. denied 419 U.S. 851, 95 S.Ct. 92, 42 L.Ed.2d 82 (1974); United States v. Casteel, 476 F.2d 152 (10th Cir.1973); United States v. Antonelli, 434 F.2d 335 (2nd Cir.1970); Yates v. United States, 384 F.2d 586 (5th Cir.1967); Scoggins v. State, 258 Ark. 749, 528 S.W.2d 641 (1975); People v. Vlcek, supra; People v. Raitano, 81 Ill.App.3d 373, 36 Ill.Dec. 597, 401 N.E.2d 278 (1980); Luckett v. State, 158 Ind.App. 571, 303 N.E.2d 670 (1973); Trinkle v. State, 259 Ind. 114, 284 N.E.2d 816 (1972); Commonwealth v. Mahnke, 368 Mass. 662, 335 N.E.2d 660 (1975), cert. denied 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976); State v. Brydon, Mo.App., 626 S.W.2d 443 (1981); State v. Colton, Mo.App., 529 S.W.2d 919 (1975); State v. Kelly, Mo., 439 S.W.2d 487 (1969); and State v. Bolan, 27 Ohio St.2d 15, 56 Ohio Op.2d 8, 271 N.E.2d 839 (1971).

In discussing the matters before it at the suppression hearing the district court also suggested an implication of Sixth Amendment rights with respect to deprivation of the right to counsel. It is clear that in this jurisdiction a Sixth Amendment right to counsel attaches only when adversarial criminal proceedings have been commenced against an accused. Brown v. State, Wyo., 661 P.2d 1024 (1983). It follows that in this instance the materials, whether inculpatory statements or evidence obtained at the scene of the fire, which were obtained prior to the filing of the criminal complaint, were not obtained in violation of Deon Heiner’s Sixth Amendment right to counsel.

We hold that the district court erred in suppressing the list of items purportedly damaged or destroyed in the fire which was furnished to the insurance company adjuster on December 10, 1982, and that the district court espoused an erroneous rule of law in suggesting that it would be the burden of the State to demonstrate the reasonableness of the seizure of evidence from the scene of the fire by the insurance company investigators. These holdings makes it unnecessary in this instance for the court to consider other bases for admissibility which have been argued, such as non-custodial interrogation; consent to search and seizure; or any other justifications that might be significant if the evidence had been obtained by law officers rather than private individuals. We reverse the rulings of the district court, dissolve the stay of proceedings in the district court, and remand the ease for further proceedings in accordance with the rulings articulated in this opinion.

STATE OP WYOMING COUNTY OF LINCOLN

THE STATE OF WYOMING Plaintiff VS DEON HEINER Defendant

IN THE DISTRICT COURT THIRD JUDICIAL DISTRICT

CRIMINAL NO. 1677

MEMORANDUM OF THE COURT

In consideration of the action taken by the Supreme Court in response to Plaintiffs Petition for Review, it is appropriate that the Supreme Court should be advised of the basis of the Trial Court’s ruling.

Pursuant to Rule 403, Wyoming Rules of Evidence, the Court in its discretion ruled on the admissibility of the inventory prepared by Defendant. Rule 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.

The Court declared the inventory inad-missable. Some of the facts considered by the Court were:

1. The fire department put out the fire in the Heiner home and left. The scene of the alleged crime was not seized and no law enforcement agencies started an investigation.

2. Shortly after the fire an independent insurance adjustor, hired by the Defendant’s insurance company, arrived, inspected the home and talked with the Defendant. The adjustor quickly suspected that the fire was arson and the Defendant was the perpetrator.

3. However, while the adjustor interviewed a member of the fire department, who was also a police officer in a nearby municipality, the adjustor did not report his suspicions to the Lincoln County Sheriff or to the State Fire Marshall. He did not demand an investigation.

4. Instead, four private investigators were hired by the insurance company, two of whom secured re-entry to the alleged crime scene without the burden of a warrant.

5. The Adjustor asserted that this private investigation was being done for insurance purposes. However, the adjustor also admitted that evidence was being gathered in contemplation of the same being used in criminal proceedings.

6. The Adjustor interviewed the Defendant. He advised the Defendant

a. That the Defendant should prepare a detailed inventory.

b. That after the inventory was prepared, the two of them would go over it in an effort to reach an agreement.

c. When they had reached an agreement, he would help the Defendant prepare and submit a claim to the insurance company; and that the quicker the inventory was prepared, the quicker Defendant would be paid.

d. That Defendant had an inventory prepared by December 10, 1982, approximately three days after the fire.

e. That upon seeing the inventory the Adjustor knew there were items listed which were not in the home.

f. However, the adjustor said nothing to the Defendant. He did not adjust the inventory. He did not question the inventory. He did not reject the inventory. He did not help the Defendant reduce the inventory to a proper form of claim under the policy.

g. After the private investigators concluded their examination of the scene, and more than a week after the fire, the private investigators for the first time contacted the State Fire Marshall. There was no evidence the insurance company ever contacted the Sheriff.

h. After the Defendant had been charged with arson, the insurance company demanded that he submit a sworn proof of loss as required by the policy as a condition for payment of a claim.

i. Defendant complied, resulting in two inventories of widely differing value, the first of which should not be admitted at trial.

DATED AND SIGNED THIS 27th DAY OF MAY, 1983.

/s/ John D. Trough ton JOHN D. TROUGHTON

DISTRICT JUDGE

1 . Section 6-7-101, W.S.1977, provides as follows:

“Any person who willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, whether occupied, unoccupied or vacant, or any kitchen, shop, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto or any standing timber on public or privately owned land, whether the property of himself or of another, shall be guilty of arson in the first degree, and upon conviction thereof, be sentenced to the penitentiary for not less than two (2) nor more than twenty (20) years."

2 . Section 6-7-105, W.S.1977, provides as follows:

"Any person who willfully and with intent to injure or defraud the insurer sets fire to or burns or attempts to do so or who causes to be burned or who aids, counsels or procures the burning of any building, structure or personal property, of whatsoever class or character, whether the property of himself or of another, which shall at the time be insured by any person, company or corporation against loss or damage by fire, shall be guilty of a felony and upon conviction thereof, be sentenced to the penitentiary for not less than one (1) nor more than five (5) years.”

3 . Rule 403, W.R.E., reads as follows:

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”