690 F.2d 60 (3rd Cir. 1982), 81-2838, United States v. Johnson

Docket Nº:UNITED STATES of America, Appellant in 81-2838,
Citation:690 F.2d 60
Case Date:September 30, 1982
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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690 F.2d 60 (3rd Cir. 1982)

UNITED STATES of America, Appellant in 81-2838,


Howard U. JOHNSON, Appellant in 81-2839.

Nos. 81-2838, 81-2839.

United States Court of Appeals, Third Circuit

September 30, 1982

Argued June 8, 1982.

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Anthony G. Flynn (Argued), Young, Conaway, Stargatt & Taylor, Wilmington, Del., for Howard U. Johnson.

Peggy L. Ableman (Argued), Theopalis K. Gregory, Asst. U. S. Attys., Joseph J. Farnan, Jr., U. S. Atty., D. Delaware, Wilmington, Del., for United States of America.

Before ADAMS and WEIS, Circuit Judges and BLOCH, [*] District Judge.


WEIS, Circuit Judge.

The government appeals from the suppression of evidence obtained by police acting under a search warrant. The district judge found that the warrant was too general, reasoning that the words "a crime" and "a criminal offense" in the printed form failed to limit the search to evidence of a particular violation. After reviewing the warrant as a whole, including the incorporated affidavit, we reverse because we find that the crime under investigation was adequately described. We also dismiss as premature an appeal by the defendant from the district court's refusal to suppress evidence found by fireman while extinguishing a blaze at his home.

The defendant was indicted for conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 841(a)(1) and § 846, and for possession with intent to distribute methamphetamine in violation of § 841(a)(1). He then moved to suppress evidence obtained during two searches of his house. The first was warrantless, and occurred while firemen were combating a fire at the premises. The second took place

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nearly three weeks later, pursuant to a search warrant. The district court found that the evidence seized on the night of the fire was admissible. The court suppressed the evidence obtained during the second search, however, on the ground that the warrant's generality violated the Fourth Amendment. 1 The government appeals the suppression order under 18 U.S.C. § 3731, and the defendant cross-appeals the court's refusal to suppress the results of the warrantless search.

At 10:25 p.m. on December 26, 1979, the Wilmington Fire Department responded to an alarm at a house in that city. Firemen entered the building to extinguish a blaze in the second-floor front bedroom. They then began "overhauling" the premises, which includes ventilating the house, searching for victims, checking to see if other fires are present, and determining the cause of the blaze. While doing this, the firemen discovered large amounts of what appeared to be drugs in the rear bedroom on the second floor, as well as valuable photographic and electronic equipment in both bedrooms. In the basement, the fire department investigator found what he thought were equipment and chemicals for use in a photographic laboratory.

Police officers began arriving on the scene a few minutes after the alarm. The fire department investigator asked them to take charge of the valuable personal property in the house, since the owner or occupants could not be located. He also showed them the drugs, and accompanied the officers to the basement for an examination of the equipment there. They were unsure about its purpose, and at 11:20 p.m. called in the city's Drug, Vice and Organized Crime Unit.

At approximately 1:00 a.m., members of the drug squad and an agent from the federal Drug Enforcement Agency arrived at the house. They identified the equipment and chemicals in the basement as being a disassembled methamphetamine laboratory. Two weeks earlier, an informant had told these officers that the defendant was living in the house, and was manufacturing and selling methamphetamine there.

The police tagged and photographed the evidence, and then removed it from the house. All of the investigating officers, and the last of the fire department apparatus, left the scene by approximately 4:15 a.m. Among the items seized were methamphetamine, the laboratory equipment, chemicals, photographs of the defendant, and various papers containing his name.

Officers from the city drug squad conducted a second search of the house on January 14, 1980, pursuant to a warrant issued by a municipal court judge. Additional drugs, papers, laboratory equipment, and photographs were seized at that time.

After an evidentiary hearing, the district judge concluded that a warrant was not needed before firemen entered the house to put out the blaze, and that the drugs were properly seized as being within plain view. The arrival of the narcotics investigators did not cause any greater invasion of privacy than the initial lawful entry by the firemen, and therefore the evidence in the basement was also validly seized. The court suppressed the evidence obtained during the second search, however, because the language in the printed form warrant did not describe the items to be seized with sufficient particularity.


We first meet the jurisdictional issue posed by the defendant's cross-appeal. An order denying a motion to suppress evidence is interlocutory and not appealable. It is a preliminary step to trial, and if error has been committed, it may be rectified on appeal from the final judgment. Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962); 3 C. Wright, Federal Practice And Procedure § 678 (1969). 18

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U.S.C. § 3731 gives the right to appeal suppression orders to the government alone, United States v. Cahalane, 560 F.2d 601, 608 (3d Cir. 1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978), so the defendant's cross-appeal must be dismissed.

Even though this court lacks jurisdiction over the cross-appeal, the defendant argues that we must still pass on the constitutionality of the first search as part of our review of the second. He asserts that the warrant is invalid not only because it is general, but also because the affidavit to show probable cause is tainted by evidence obtained unlawfully on the night of the fire. In particular, the defendant contends that the exigent circumstances which justified the warrantless entry by the first firemen and policemen on the scene do not extend to the later arrival of the drug squad officers and DEA agent.

Although in general an appellee may rely on any ground in support of the judgment, United States v. Cahalane, 560 F.2d at 608, we conclude that we need not reach his argument on this appeal. It is settled law in this court that, even assuming that some factual averments in the affidavit are tainted, they do not vitiate a warrant which is otherwise validly issued upon probable cause reflected in the affidavit. United States v. Sterling, 369 F.2d 799, 802 (3d Cir. 1966). See also, Franks v. Delaware, 438 U.S. 154, 172, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978); United States v. Cantor, 470 F.2d 890, 893 (3d Cir. 1972); United States v. Eastman, 465 F.2d 1057, 1059 n.4 (3d Cir. 1972). In United States v. Howard Christine, 687 F.2d 749 (3d Cir. 1982), we held that a redaction of improper material from a search warrant is permissible.

When the allegedly unlawful evidence in this affidavit is set aside, it still contains ample information to justify the municipal judge in finding probable cause. The affidavit recites that a large quantity of drugs was found in plain view when police initially entered the house while the fire was in progress, and the defendant concedes that this evidence was lawfully seized. Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978); Steigler v. Anderson, 496 F.2d 793 (3d Cir.), cert. denied, 419 U.S. 1002, 95 S.Ct. 320, 42 L.Ed.2d 277 (1974).

The discovery of the drugs corroborated other information in the affidavit. The Wilmington...

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