United States v. George Michael Urban , 710 F.2d 276 ( 1983 )

CONTIE, Circuit Judge.

The United States appeals from a district court order granting George Michael Urban’s motion to suppress evidence. The question presented on appeal is whether the government’s warrantless seizure of evidence from the defendant’s fire-damaged premises on the morning after the fire was proper under Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). For the reasons stated below, we find no fourth amendment violation and reverse the district court’s suppression order.

I.

At approximately 9:00 p.m. on January 20,1981, Detroit firefighters responded to a fire at a residence owned by the defendant. As several firemen prepared to enter the burning structure, they suddenly heard “hundreds” of explosions coming from inside the house, and saw tracers “flying all over.” The firemen dove onto the porch and remained there for several minutes until the explosions stopped. When the fire was extinguished, the firemen entered the house and saw thousands of packaged firecrackers, along with large quantities of explosive chemicals and other materials for making firecrackers and fireworks. Since the firemen had not been trained in removing explosive materials, they notified their central dispatching office, who in turn notified the Detroit bomb squad and the Bureau of Alcohol, Tobacco, and Firearms (ATF).

At about 10:00 p.m., ATF agent Roy Smith arrived at the residence and searched the house with officers from the bomb squad and the fire department’s arson investigation unit. Using flashlights, they identified large quantities of explosive paraphernalia, including several 55-gallon chemical drums in the basement, a punch press, fusing, cardboard tubes and caps, and other Class C explosives.¹ The chemical drums, which contained oxidizing agents such as potassium perchlorate, aluminum and potassium perchlorate, and sulfur and potassium perchlorate, each weighed between 150 and 300 pounds. Sgt. Dale Johnston, a member of the bomb squad, described these chemicals as “explosive materials” and “hazardous.” The record also indicates that the houses in this residential area are extremely close together, and an adjacent house was evacuated.

After the search was completed, the decision was made not to remove the chemical drums until the following morning. Agent Smith and Sgt. Johnston both testified that the materials were not removed that evening because of the excessive smoke and water inside the house, the lack of lighting, and the lack of proper removal equipment. Sgt. Johnston also testified that there was no immediate danger of explosion that evening and that, if there had been, the removal equipment could have been obtained.

The officers departed from the residence at approximately 12:30 a.m. The police secured the house by having a patrol car remain all night. At approximately 8:00 a.m. the next morning, AFT agent James Anderson arrived at the house and helped members of the bomb squad remove the chemical drums. No warrant was obtained for the entry and seizure.

In July 1981, the defendant was indicted for manufacturing explosive materials without a license, 18 U.S.C. §§ 842(a)(1) and 844(a), and unlawful storage of explosive materials, 18 U.S.C. §§ 842(j) and 844(b). The district court initially denied defendant’s motion to suppress, but reversed its ruling sua sponte four days later. The lower court concluded that a warrant should have been obtained once the officers had determined that no immediate danger of explosion existéd, and had left the premises on that basis. The government appeals pursuant to 18 U.S.C. § 3731.

II.

We note at the outset that the fourth amendment proscribes all unreasonable searches and seizures, and that, subject only to a few well delineated exceptions, warrantless searches are per se unreasonable. Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). It. is also well settled, however, that the fourth amendment “does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.” Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 1645, 18 L.Ed.2d 782 (1967); United States v. Scott, 578 F.2d 1186, 1189-90 (6th Cir.), cert. denied, 439 U.S. 870, 99 S.Ct. 201, 58 L.Ed.2d 182 (1978). “The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” Mincey v. Arizona, 437 U.S. at 392, 98 S.Ct. at 2413. When considering this issue, the burden is on the government to show the existence of such an exceptional situation. Arkansas v. Sanders, 442 U.S. 753, 760, 99 S.Ct. 2586, 2591, 61 L.Ed.2d 235 (1979); United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951).

In Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), the Supreme Court discussed the “exigent circumstances” exception to the warrant requirement as it relates to official entries onto fire-damaged premises. In doing so, the Court also discussed the appropriateness of warrantless entries by police when summoned by firemen to assist them in their investigation.

In Tyler, firemen arrived at the defendant’s burning store shortly after midnight. While dousing the flames, a fire lieutenant reported that two plastic containers of flammable liquid had been found in the building. After determining that the fire could have been caused by arson, the fire chief called a police detective. The detective and the fire chief entered the building at approximately 3:30 a.m. to investigate the cause of the blaze. Their efforts, however, were hampered by darkness, steam and smoke. Before leaving at approximately 4:00 a.m., the officials seized the two containers. At 9:00 a.m. the next morning, the assistant fire chief and the same detective returned to complete their investigation. More evidence of arson was discovered and seized. Four weeks later, another policeman entered the building, took photographs, and seized physical evidence. All of the entries and seizures were made without search warrants or the defendant’s consent.

The Supreme Court initially found that a burning building was a sufficient exigent circumstance to justify the warrantless entry by firemen. The taking of the plastic containers was upheld as a plain view seizure. Michigan v. Tyler, 436 U.S. at 509, 98 S.Ct. at 1949. After the fire was extinguished, the Court determined that officials needed no warrant to remain on the premises for a reasonable time to investigate the cause of the blaze and to seize evidence of arson.² The subsequent morning entry by the assistant fire chief and the detective was permitted as merely a continuation of the initial investigation. The third entry, however, was clearly detached from the initial exigency and thus was invalid. Id. at 511, 98 S.Ct. at 1951.

III.

A prompt investigation of the fire’s origin was permitted in Tyler “to prevent [the fire’s] recurrence, as through the detection of continuing dangers such as faulty wiring or a defective furnace,” and “to preserve evidence from intentional or accidental destruction.” Michigan v. Tyler, 436 U.S. at 510, 98 S.Ct. at 1950. In this context, we believe that the presence of potentially explosive chemicals in the defendant’s house are exactly the kind of “continuing dangers” the Tyler Court had in mind when it ruled that investigating officials could remain on the premises for a reasonable time after the blaze to determine its cause.

During the course of their investigation, fire officials discovered a large quantity of chemicals used in the manufacture of fireworks. Since the firemen were not trained in the handling of explosive materials, they summoned police officers with the necessary expertise to aid in the investigation. While the mere occurrence of a fire at a residence does not give police officers carte blanche to enter the premises, United States v. Hoffman, 607 F.2d 280, 283 (9th Cir.1979), we hold that the firemen’s delegation of these “render safe” operations to the bomb squad officers and the ATF agent was eminently reasonable, and thus the warrantless entry by these officers was justified as a continued response to the exigency created by the fire itself. Michigan v. Tyler, 436 U.S. at 510, 98 S.Ct. at 1950. Once inside, the officers had the right to seize objects of apparent evidentiary value which were in plain view. Michigan v. Tyler, 436 U.S. at 509-10, 98 S.Ct. at 1949-50; Mincey v. Arizona, 437 U.S. at 393, 98 S.Ct. at 2413; Coolidge v. New Hampshire, 403 U.S. 443, 465-66, 91 S.Ct. 2022, 2037-38, 29 L.Ed.2d 564 (1971); United States v. Callabrass, 607 F.2d 559, 564 (2d Cir.1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 794 (1980). Indeed, the factual setting of this case is quite similar to that presented in United States v. Callabrass, 607 F.2d 559 (2d Cir.1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 794 (1980), in which the second circuit also relied on Tyler to uphold a warrantless seizure of potentially explosive chemicals from a fire-damaged house by bomb squad members and a narcotics officer. Id. at 562-64.

We further hold that the actual seizure of the chemical drums the following morning was lawful. Our conclusion is fully supported by that portion of Tyler which addresses the subsequent morning entry onto the defendant’s premises by the assistant fire chief and the police detective:

On the facts of this case, we do not believe that a warrant was necessary for the early morning re-entries on January 22. As the fire was being extinguished, Chief See and his assistants began their investigation, but visibility was severely hindered by darkness, steam, and smoke. Thus they departed at 4 a.m. and returned shortly after daylight to continue their investigation. Little purpose would have been served by their remaining in the building, excépt to remove any doubt about the legality of the warrantless search and seizure later that same morning. Under these circumstances, we find that the morning entries were no more than an actual continuation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence.

Michigan v. Tyler, 436 U.S. at 511, 98 S.Ct. at 1950.

The defendant argues that agent Anderson seized the chemical drums to further a criminal investigation, and thus should have obtained a warrant. We note, however, that the question of agent Anderson’s subjective intention does not control the issue of whether there were exigent circumstances in this case. See United States v. Callabrass, 607 F.2d at 563. Indeed, the police detective in Tyler was also pursuing a criminal investigation when he seized evidence of arson during his morning entry onto the defendant’s fire-damaged premises. This evidence was not suppressed by the Tyler Court. In the present case, the record indicates that Anderson was a trained expert in explosives who helped the bomb squad remove the chemical drums from the basement. Therefore, regardless of what he hoped to accomplish by seizing the evidence, the fact remains that Anderson helped remove dangerous chemicals which were a potential hazard to the neighborhood, and his actions were no more intrusive than those of the police detective in Tyler.

The defendant also contends that a warrant should have been obtained once the officers had determined that there was no immediate danger of explosion, and had left the premises on that basis. We disagree. The fact that the chemicals were relatively stable while in a stationary position does not negate Sgt. Johnston’s testimony that the chemicals were explosive materials and hazardous. We also question whether a showing of immediate danger was necessary when the officers, who already had the right to seize the chemical drums under the plain view doctrine, chose to wait for several hours due to adverse and possibly unsafe conditions. When the fire and police officials in Tyler were unable to complete their arson investigation due to adverse conditions, the Supreme Court upheld their subsequent morning entry and seizure of evidence even though there was no threat of danger. As noted earlier, the Court justified the morning entry as “no more than an actual continuation of the first,... . ” Michigan v. Tyler, 436 U.S. at 511, 98 S.Ct. at 1950.

In the present case, the officers had the right to seize the chemical drums on the night of the fire, but decided against it due to similar adverse conditions. The officers left at approximately 12:30 a.m. and returned seven and one-half hours later. Under the circumstances, we also find that the morning entry by the bomb squad and agent Anderson was no more than a continuation of the first entry, and thus the officers did not need to obtain a warrant before removing the hazardous chemicals.

Accordingly, the district court’s suppression order is REVERSED.

1 . Class C explosives are identified in 27 C.F.R. § 55.182(c) as “blasting agents.” A blasting agent is defined in 27 C.F.R. § 55.11 as follows:

Any material or mixture, consisting of fuel and oxidizer, that is intended for blasting and not otherwise defined as an explosive; if the finished product, as mixed for use or shipment, cannot be detonated by means of a number 8 test blasting cap when unconfined. A number 8 test blasting cap is one containing 2 grams of a mixture of 80 percent mercury fulminate and 20 percent potassium chlorate, or a blasting cap of equivalent strength....

2 . The Court also cautioned that “[t]he circumstances of particular fires and the role of firemen and investigating officials will vary widely.” Michigan v. Tyler, 436 U.S. at 510 n. 6, 98 S.Ct. at 1950 n. 6. Accordingly, “appropriate recognition must be given to the exigencies that confront officials serving under these conditions, as well as to individuals’ reasonable expectations of privacy.” Id.