United States v. Dean , 243 F. App'x 780 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5028
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JONATHAN LEONARD DEAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:06-cr-00011-nkm)
Submitted: June 13, 2007 Decided: July 17, 2007
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David L. Heilberg, DYGERT, WRIGHT, HOBBS & HEILBERG, P.L.C.,
Charlottesville, Virginia, for Appellant. John L. Brownlee, United
States Attorney, William F. Gould, Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
At approximately 11:30 p.m. on November 5, 2006, the
Albemarle County Fire Department received a call that gasoline
fumes were detected in an apartment building at 211 Whitewood Road
in Charlottesville, Virginia. This apartment building is a three
story, wood-framed building containing twelve individual units.
Jonathan Dean was the tenant in apartment four, in the basement of
211 Whitewood Road.
Deputy Fire Marshall James Barber responded to the
address around midnight on the morning of November 6, 2006. Barber
was an investigator for the Albemarle County Fire Marshall’s
Office. Barber’s training included instruction in the cause of
fires and in incendiary devices and explosives. Upon arriving,
Barber could smell gasoline fumes in the parking lot outside the
building and in the common areas inside the building. In
investigating the source of the fumes, Barber observed a window
that was opened several inches and covered by a screen. Barber was
able to look through the window and into Jonathan Dean’s bedroom.
As Barber stood outside and looked in the room, he observed a red
plastic gasoline can with the lid off. Barber also observed a drop
cord, a box of CO2 cartridges, a box that appeared to have been
scorched, and a lamp that was plugged in and turned on.
Barber then knocked on Dean’s door. After receiving no
response, Barber went to his truck and retrieved his camera.
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Barber returned to Dean’s door and knocked again. When he still
received no answer, Barber unlocked Dean’s door using a key
provided by the apartment manager and entered Dean’s apartment.
The front door of Dean’s apartment led into a small
hallway. Dean’s kitchen was immediately to the right of the front
door. As Barber looked into Dean’s kitchen he observed three two-
liter bottles modified with initiator wires, bottle caps modified
with Shrader or tire pressure valves, propane tanks, batteries, and
wires. Based on his training and experience, Barber knew that
these objects could be used to create explosive devices. Barber
photographed what he observed in the kitchen. He then proceeded to
Dean’s bedroom, photographed the gas can, and then removed it by
taking it out the front door. Barber then left to secure a search
warrant. Meanwhile, county police located Dean, handcuffed him,
and detained him pending the search of his apartment. After being
informed of his rights, Dean made statements that “they were just
messing around” and that “he was not a terrorist.”
After Barber secured a search warrant, Dean’s apartment
was searched for bomb making materials and a number of items were
seized. The police later secured a second warrant to search
computers found in Dean’s apartment for information on
manufacturing explosives. During this search for bomb making
information, the police discovered evidence of child pornography on
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Dean’s computers. The police then secured a third warrant to
search Dean’s computers for child pornography.
Dean was ultimately charged in a four count indictment.
Counts One and Two charged Dean with possession of a destructive
device, in violation of 26 U.S.C. §§ 5845(a) and (f) (2000) and
5861(d) (2000); Count Three charged Dean with possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (2000) and
18 U.S.C.A. § 2252A(b)(2) (West 2000 and Supp. 2007); and Count
Four was a forfeiture provision. After the district court denied
Dean’s motion to suppress the evidence seized from his apartment,
Dean pled guilty to Counts One, Two, and Three pursuant to a plea
agreement. Dean’s agreement specifically preserved his right to
appeal the district court’s denial of his suppression motion. Dean
timely noted his appeal. We now affirm.
“Searches and seizures inside a home without a warrant
are presumptively unreasonable” unless an exception to the warrant
requirement applies. See Payton v. New York, 445 U.S. 573, 583,
587 (1980). A warrantless search of a home may be justified when
exigent circumstances, such as an emergency, necessitate the
search. Mincey v. Arizona, 437 U.S. 385, 394 (1978). For a
warrantless search to qualify under the emergency exception to the
warrant requirement, the police must possess an objectively
reasonable belief that an emergency existed that required immediate
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entry to render assistance or prevent harm to persons or property
within. United States v. Moss, 963 F.2d 673, 678 (4th Cir. 1992).
Here, the initial warrantless entry into Dean’s apartment
falls within the emergency exception to the warrant requirement.
The Albemarle County Fire Department received a call sometime after
11:30 p.m. regarding gasoline fumes in a wood-framed, three story
apartment building. Gas fumes were noticeable in the parking lot
outside of the apartment building and in the common areas inside
the building. Looking through a ground level window into Dean’s
apartment, Barber observed a red gas can with its top off. Based
on his training and experience, Barber considered the gas can an
imminent threat and knew that an explosion and flash fire were
possible if the mixture of air and gas was right and a source of
ignition was introduced.
After making his observations, Barber twice knocked on
Dean’s door, and after receiving no response, Barber entered Dean’s
apartment. Once inside, Barber observed in Dean’s kitchen devices
that could be used to make explosives. Barber photographed these
materials but did not spend long looking at Dean’s bomb making
equipment. Barber was in Dean’s apartment no more than two
minutes. During these two minutes, Barber took less than twenty-
four photographs and then removed the gas can.
Prior to entering Dean’s apartment, Barber had an
objectively reasonable belief that the gas fumes filling the
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apartment building created an emergency and that immediate entry
was necessary to prevent harm to other people in the apartment
building. Moss, 963 F.2d at 678. Moreover, once inside, Barber
did not engage “in a general voyage of discovery” but took no more
than twenty-four photographs and then removed the imminent threat.
Id. Accordingly, Barber’s initial warrantless entry into Dean’s
apartment was justified by the emergency exception to the warrant
requirement.
Once lawfully in Dean’s apartment, Barber was not
required to close his eyes to the materials he observed openly in
Dean’s kitchen and that his training and experience told him were
potential bomb making materials. Barber then properly used his
brief observations to secure a warrant authorizing a search of
Dean’s apartment for bomb making materials.
Similarly, while searching Dean’s computer pursuant to
the second warrant, the police discovered evidence of child
pornography. This evidence was then used to secure the third
warrant to search Dean’s computer for child pornography. Because
the initial search of Dean’s apartment occurred pursuant to a
valid, recognized exception to the warrant requirement, Dean’s
statements made after being detained and his child pornography were
not fruit of the poisonous tree. See United States v. Banks, 482
F.3d 733, 738 (4th Cir. 2007). Therefore, the district court did
not err in denying Dean’s motion to suppress. Accordingly, we
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affirm the judgment of the district court. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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