United States v. Gargotto

• Decision Date: 24 April 1973
• Docket Number: No. 72-1862.,72-1862.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Joseph GARGOTTO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

476 F.2d 1009 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Joseph GARGOTTO, Defendant-Appellant.

No. 72-1862.

United States Court of Appeals, Sixth Circuit.

Argued February 16, 1973.

Decided April 24, 1973.

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 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 apparently was never any attempt to separate the records taken from the various rooms or to keep those picked up off the floor separate from those removed from cabinets. At the time the investigation was begun the premises were secured by the fire and the police departments and no one other than officials were permitted inside the building.

Detective Aubrey described his part in the investigation as follows:

". . . we spoke and he asked me if I would mind going in with him and that he suspected arson in this particular case, and help him pick up some things that he wanted to seize as evidence."

He said that Lieutenant Foushee picked up various items and put them in the fire coat and pointed to other things which he wanted removed and that he, Aubrey, put those items in the coat and it was all wrapped up and brought out together. He specifically recalled that there was a desk and metal cabinet in one room and that he and Lieutenant Foushee opened drawers and took papers from the desk and cabinet. It was testified that although the appellant, Gargotto, was at the scene of the fire he was not advised that papers had been removed from the rooms on the second and third floors.

Although the two investigators agreed that the fire had been extinguished and the building secured, nevertheless Detective Aubrey said that there were a number of firemen in the building still using hoses and axes and working on hot spots in the walls. He said that he and Lieutenant Foushee worked right in the middle of the firemen. After the papers were taken to police headquarters, the two men just looked at them briefly and locked them in a room. Lieutenant Foushee testified that he was needed back at the scene of the fire and did not have time to examine the papers carefully. Detective Aubrey said that he merely confirmed that the papers contained some sort of betting records but did not examine them closely. Lieutenant Foushee testified that he never examined the papers to determine whether they might furnish evidence of a motive for the fire because someone other than Mr. Gargotto was arrested the same day and charged with arson, and no charges were ever made against Mr. Gargotto in connection with the fire.

About a week after the fire all of the records were delivered to the office of the Commonwealth Attorney where Mr. Gargotto appeared and demanded their return. Detective Aubrey testified that although he couldn't tell by looking at the papers that any federal crime had been committed, the day after the fire he called an agent in the Intelligence Section of the Internal Revenue Service and advised him that he might be interested in looking at the records. Two agents of the Internal Revenue Service contacted Lieutenant Foushee and he gave them permission to examine the records which they proceeded to do in Detective Aubrey's office. Aubrey testified that the IRS agents brought their own copying equipment and microfilmed all of the records. This took place two days after the fire.

A timely motion was made by the appellant to suppress all evidence seized from the premises of the fire and any evidence derived therefrom. Following a hearing, the trial judge overruled the motion and also overruled objections to introduction of the evidence at the trial and the renewal of the motion to suppress made at the conclusion of the trial.

It is not questioned that Lieutenant Foushee had the duty under relevant statutes of the Commonwealth of Kentucky and ordinances of the City of Louisville to investigate the cause and circumstances of the fire for the purpose of detecting arson and related offenses. Kentucky Revised Statutes § 227.220(2)(a); 227.240. Specific authority to enter the property of appellant is conferred by KRS § 227.270(2) which provides:

(2) The commissioner may at all reasonable hours of the day or night enter in or upon any property to make an inspection or investigation for the purpose of preventing fire loss or determining the origin of any fire, but this subsection shall apply to the interior of private, occupied dwellings only when a fire has occurred therein or when the officer has reason to believe that unsafe fire conditions exist in the building.

At the time material to this case there was no Kentucky statute describing the authority of arson investigators. However, by a law enacted in 1972 such officers were given ". . . the general powers of peace officers for the enforcement of other offenses against the Commonwealth." Regardless of state authority, when challenged on Fourth Amendment grounds the acts of the state officers must be judged by federal standards. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Elkins...