476 F.2d 1009 (6th Cir. 1973), 72-1862, United States v. Gargotto

Docket Nº:72-1862.
Citation:476 F.2d 1009
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Anthony Joseph GARGOTTO, Defendant-Appellant.
Case Date:April 24, 1973
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1009

476 F.2d 1009 (6th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,


Anthony Joseph GARGOTTO, Defendant-Appellant.

No. 72-1862.

United States Court of Appeals, Sixth Circuit.

April 24, 1973

Argued Feb. 16, 1973.

Page 1010

Frank E. Haddad, Jr., Louisville, Ky., for defendant-appellant.

James H. Barr, Asst. U. S. Atty., Louisville, Ky., for plaintiff-appellee; George J. Long, U. S. Atty., Louisville, Ky., on brief.

Before CELEBREZZE, KENT and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

Appellant was convicted on 13 counts of filing false wagering excise tax returns and two counts of failing to file such returns and was sentenced to five years imprisonment on each count, the sentences to run concurrently. On appeal, he contends that his conviction flowed directly from a search of the building owned by him and seizure of documents there and that such search and seizure violated rights guaranteed to him by the Fourth Amendment.

Appellant owned a three-story building in the central area of Louisville which contained a movie theatre on the first floor. According to prosecution witnesses the second and third floors were used for a handbook operation where bets were taken on horse races and other sporting events. At about 8:00 o'clock on the morning of March 22, 1969 a fire was discovered in the building of appellant, and a number of units of the Louisville Fire Department responded to an alarm. At about 8:20 a. m. the commanding officer at the fire called Lieutenant William Foushee, an arson investigator, and requested him to come to the scene because of his suspicions about the origin of the fire. Lieutenant Foushee testified that when he arrived 25 to 30 minutes after receiving the call, the fire had been extinguished but the equipment and fire fighters were still at the scene. Shortly after his arrival and after discussing the fire with the commanding officer, Lieutenant Foushee noticed that Detective John Aubrey of the Intelligence Division of the Louisville Police Department was at the scene and requested his assistance in making an investigation. Detective Aubrey testified that he had noticed the fire while on his way to work, and after checking in at his office had returned to the scene of the fire to see if his services were needed. Having been advised that the fire originated above the first floor of the building, the two men entered by a front stairway and climbed to the second floor. It was immediately obvious to them that there were numerous separate and unrelated fires, and at the top of the stairway they found very sharp burn patterns which indicated that some sort of flammable liquid had been used to set the fire. In addition to a hallway, the second floor of the building contained two rooms, and trash appeared to have been set on fire in at least one of the rooms. The third floor

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apparently consisted of one large room where one or more trash fires had been set.

The two investigators noticed a number of papers scattered on the floor of both the second and third floor rooms. Some of the papers appeared to have been scattered out on the floor by the stream of water from hoses of the firemen and these were placed in a fire fighter's coat which was spread on the floor. In addition to the papers on the floor, Lieutenant Foushee directed Detective Aubrey to remove papers from cabinets which were located in the various rooms on the second and third floors. The papers from the different rooms were commingled, and those taken from the cabinets were commingled with the papers picked up from the floor. Although some of the papers were wet and a few were scorched, there was no evidence that flammable liquids or other fire accelerants had been applied to any of the papers which were collected by the investigators. Lieutenant Foushee said that he realized the papers were records of some sort but that he did not take the time to study them that day. Detective Aubrey said that he thought he recognized the papers as containing betting records, but that he did not advise Lieutenant Foushee of this. Lieutenant Foushee testified concerning the purpose of picking up the papers as follows:

"Since we were unaware at this point as to who may have set the fire or what might be behind this setting of the fire I felt it necessary to remove any evidence that we could find, which included records."

All of the records taken from the two rooms on the second floor and the one large room on the third floor were bundled up in a single fire fighter's coat and were taken to Detective Aubrey's office at police headquarters. There...

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