¶1concurring specially.
¶2I concur that a new trial is necessary but for a more fundamental reason than the admittance of a document, as ruled by the majority.
¶3With respect to Division 1 of the opinion, I cannot agree that all the warrantless searches and seizures met the minimum standards required by Michigan v. Clifford, 464 U. S. 287 (104 SC 641, 78 LE2d 477) (1984). True, the insurance company investigators’ activities *764were not governed by the Fourth and Fourteenth Amendments, absent any collusion with government agents to sidestep the warrant requirement; here there is no such suggestion.
¶4But the circumstances were such that, in my opinion, the searches and seizures by the police, the assistant fire chief, and the state fire marshal required a warrant. I would apply the same analysis which appears in the lone dissent in Waters v. State, 174 Ga. App. 916, 920 (331 SE2d 893) (1985). The premises were a fire-damaged private home in which there were legitimate privacy interests, exigent circumstances did not exist which would excuse the obtaining of a warrant (the investigators did not even claim that there were), and the object of the searches and seizures was admittedly to gather evidence of criminal activity. These are the factors which, according to Michigan v. Clifford, supra, 78 LE2d at 483, govern.
¶5Nothing occurred to eliminate the privacy interests which the occupant had in his home. He was out of town at the time, and no consent was obtained. His statement to police two nights after the fire, to the effect that he wanted them to find the culprit, could not be considered an after-the-fact consent because there is no evidence that he was aware of the searches and seizures that had been made during his absence.
¶6The fire was “completely out” and the trucks had been sent back to service by 2:00 a.m., testified the assistant fire chief who was in charge of that Department’s investigation. After the fire was out, he smelled gasoline on the premises, noticed liquid on the furniture and thought it was gasoline, and then, suspecting crime, took samples, but these were not tested or introduced into evidence. He had detected the odor of gasoline and suspected arson as early as 11:30 p.m.
¶7The next morning after 10:00 a.m. and about eight hours after the fire was out, he accompanied the state fire marshal to the scene. He told the two firemen who were still there that they could leave, and he and the fire marshal undertook to search for criminal evidence. The latter took “some more samples of the same — approximately the same area where [the assistant fire chief] had received samples [the evening] before,” and sent them to the state crime lab. The police investigator who had been present the night before, solely for criminal investigation purposes, joined them and took photos which were admitted into evidence. All three left around noon.
¶8No reason was given, nor does any appear, for not obtaining a search warrant from a detached magistrate who always serves the purpose of scrutinizing whether there is probable cause for the government’s intrusion into private premises. The function which was being performed by the three was totally that of carrying out a criminal investigation; the function of firefighting and ensuring against the rekindling of fire had ceased.
¶9“The critical inquiry is whether reasonable expectations of privacy exist in the fire-damaged premises at a particular time, and if so, whether exigencies justify the re-entries.” Michigan v. Clifford, supra, 78 LE2d at 484, n. 3.
¶10The fact that two firemen were left at the scene to watch until morning should not alter the requirement for a warrant. Otherwise the constitutional safeguard could always be skirted by simply maintaining a fireman on the premises until ready for the criminal investigation. Besides, the firemen were there for one purpose and the three investigators were there for quite another.
¶11Even if the primary object of the search had been to determine the cause and origin of the recent fire, Michigan v. Clifford would require at least an administrative warrant. There was none here.
¶12As discussed in Payton v. New York, 445 U. S. 573, 589-590 (100 SC 1371, 63 LE2d 639) (1980), “ ‘[A]n invasion of the sanctity of the home ... is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is clearly present.’ [Cit.] . . .
¶13“The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — a zone that finds its roots in clear and specific constitutional terms: ‘The right of the people to be secure in their . . . houses . . . shall not be violated.’ That language unequivocally establishes the proposition that ‘[a]t the very core (of the Fourth Amendment) stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ [Cit]. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.”
¶14I concur in Divisions 2, 3 and 4.