U.S. v. Finnigin, 96-3198

Citation113 F.3d 1182
Decision Date21 May 1997
Docket NumberNo. 96-3198,96-3198
Parties97 CJ C.A.R. 753 UNITED STATES of America, Plaintiff-Appellee, v. Mark Anthony FINNIGIN, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Thomas C. McDowell, McDowell & Edingfield, Wichita, Kansas, for Defendant-Appellant.

Debra Barnett, Assistant United States Attorney (Jackie N. Williams, United States Attorney, and David M. Lind, Assistant United States Attorney, with her on the brief), Wichita, Kansas, for Plaintiff---Appellee.

Before SEYMOUR, Chief Judge, LOGAN and KELLY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Pursuant to Fed.R.Crim.P. 11(a)(2), Defendant Mark A. Finnigin entered a conditional plea of guilty to one count of possession of four unregistered destructive devices, in violation of 26 U.S.C. §§ 5841 and 5861(d), and reserved the right to appeal the district court's denial of his pre-trial motion to suppress evidence. Mr. Finnigin also filed a motion to quash his arrest, which the district court denied. Because he did not expressly reserve that issue in his plea agreement, as required by Rule 11(a)(2), Mr. Finnigin has therefore waived that issue on appeal. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

Background

At 8:00 a.m. on May 18, 1995, Officer John Woydziak of the Rose Hill, Kansas, Police Department received a report of smoke coming from a small trailer located in a residential neighborhood near the Rose Hill police station. He and members of the Rose Hill volunteer fire department arrived minutes later and observed smoke coming from the trailer's windows. Shortly after their arrival, Mr. Finnigin, the occupant of the trailer, broke some windows and threw out a small television and a lamp.

During the next hour and a half, law enforcement and fire officials communicated with Mr. Finnigin through the broken trailer windows and passed fire extinguishers in to him. At some point during this time, Mr. Finnigin threw a smoldering mattress and some bedding out the trailer door. Mr. Finnigin yelled obscenities at the officials, claimed to have put out the fire, and refused to allow anyone into the trailer.

Around 9:40 a.m., Mr. Finnigin emerged from the trailer, naked except for a pair of black tennis shoes. He began walking toward the officers, who walked toward him, but when he got close to them he suddenly turned and ran away. The officers caught up with him, and, after a struggle, were able to subdue him. They covered him with a blanket and arrested him for disorderly conduct. He was placed in Officer Woydziak's patrol car for transportation to the Butler County jail.

Shortly after Officer Woydziak and Mr. Finnigin left for the jail, volunteer firefighters entered the trailer, according to their routine procedure, to make sure the fire was completely extinguished, to remove items that were still smoldering, and to determine the cause and origin of the fire. Deputy Fire Chief Phil Wright observed evidence of a burn on the floor in the bedroom which appeared to be from a secondary fire, possibly the result of arson. He moved several smoldering articles near the burn and found a tape-covered device with wires running out of it. Law enforcement officials on the scene had told him that the trailer had been booby-trapped before, and he feared that the device he found might be some sort of trap or explosive. ATF agents arrived shortly thereafter and entered the trailer to verify that the device found was indeed an explosive device. Similar devices were discovered, but not removed. The Kansas Fire Marshall arrived and walked through the trailer, observing the irregular burn patterns as well as the devices found by Deputy Chief Wright and the ATF agents. At around 12:30 p.m., the Wichita Police Department bomb squad arrived.

ATF Agent Dennis Laughrey and Fire Marshall David Higday then went to the Butler County jail to interview Mr. Finnigin to determine whether there were any additional explosive devices or traps on the property. Mr. Finnigin gave a detailed statement concerning the devices and drew a diagram of the trailer. Because Mr. Finnigin was intoxicated at the time, however, the district court suppressed all the statements he made during this interview as involuntary.

Based upon the observations of the firefighters and ATF agents, his own observations, and the statements made by Mr. Finnigin during the jail interview, Fire Marshall Higday obtained a search warrant. The explosive devices which form the basis of the indictment were seized during the execution of this warrant. The warrant, with attached affidavit, was received in evidence at the suppression hearing.

Discussion

Mr. Finnigin challenges the admission of the explosive devices found in his trailer on two grounds. First, he argues that they were initially discovered during an illegal search of his trailer. Second, he argues that they were seized pursuant to an illegal search warrant. When reviewing the district court's ruling on a motion to suppress, we accept the court's factual findings unless clearly erroneous, and view the evidence in the light most favorable to the district court's findings. United States v. Elliott, 107 F.3d 810, 813 (10th Cir.1997). "[A]t a hearing on a motion to suppress, the credibility of the witnesses and the weight given to the evidence, as well as the inferences and conclusions drawn therefrom, are matters for the trial judge." United States v. Fernandez, 18 F.3d 874, 876 (10th Cir.1994). Nevertheless, the ultimate determination of the reasonableness of a search under the Fourth Amendment is a question of law which we review de novo. Elliott, 107 F.3d at 813.

I. Reasonableness of the Search

Mr. Finnigin argues that the district court erred in admitting the explosive devices as evidence because they were the fruit of an unlawful search, and as such, should have been excluded. According to Mr. Finnigin, because he never consented to a search of his home, and because he himself had extinguished the fire, any exigency which may have existed had abated by the time the firefighters and law enforcement officials entered his trailer. Citing Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), he argues that the entries were "detached from the initial exigency," id. at 511, 98 S.Ct. at 1951, and required a search warrant based on probable cause. Mr. Finnigin overstates his own firefighting capabilities, and understates the rule in Tyler.

Contrary to Mr. Finnigin's assertions, the district court found that the fire was not out when the firefighters entered--a finding which our review of the record indicates was not clearly erroneous. At least some of the firefighters observed smoke still coming from the trailer, which was located in a residential area only sixty feet from its closest neighbor. The evidence is undisputed that several smoldering pieces of furniture were removed from the premises and burst into flames on the front lawn. The firefighters had an obligation to make sure the fire no longer presented a danger to the trailer and to the surrounding residences, and were not required to rely on Mr. Finnigin's obscenity-laced assertions that the fire was out.

More importantly, the Supreme Court in Tyler rejected the notion that the exigency justifying a warrantless entry to fight a fire ends with the dousing of the last flame. "We think this view of the firefighting function is unrealistically narrow.... 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...." Id. at 510, 98 S.Ct. at 1950. For this reason, fire officials need no warrant to enter and remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished. Id.

Thus, whether for the purpose of making sure the fire was out or investigating its cause, the entry by fire officials into Mr. Finnigin's trailer was reasonable, was carried out under exigent circumstances, and did not require a warrant. Once the explosive devices were discovered, it became necessary to further investigate in order to ensure the safety of the firefighters and of the neighboring residents. The exigency, therefore, had not abated at the time of the subsequent entries by ATF agents and the state fire marshall. Nor had it abated when the bomb squad was called in from Wichita. Contrary to Mr. Finnigin's argument that there were two distinct searches, the entry by the fire marshall and ATF agents was an actual continuation of the initial search by fire officials, and did not require a warrant. Id. at 511, 98 S.Ct. at 1950-51.

II. Validity of the Search Warrant

The explosive devices which served as the basis for the charges against Mr. Finnigin were ultimately seized pursuant to a warrant obtained by Fire Marshall Higday. Mr. Finnigin challenges this warrant on several grounds. First, he argues that the warrant was invalid because the probable cause to support it was based on illegally obtained evidence. Second, he contends that the warrant was overbroad and lacking in particularity in its description of the places to be searched and the things to be seized. Neither argument has merit.

A. ...

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