85 F.3d 800 (1st Cir. 1996), 94-2226, United States v. Mitchell

Docket Nº:94-2226.
Citation:85 F.3d 800
Party Name:UNITED STATES, Appellee, v. James L. MITCHELL, Defendant-Appellant.
Case Date:June 05, 1996
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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85 F.3d 800 (1st Cir. 1996)



James L. MITCHELL, Defendant-Appellant.

No. 94-2226.

United States Court of Appeals, First Circuit

June 5, 1996

Heard Jan. 10, 1996.

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[Copyrighted Material Omitted]

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Walter B. Prince, by Appointment of the Court, with whom Peckham, Lobel, Casey, Prince & Tye was on brief, Boston, MA, for appellant.

Kevin J. Cloherty, Assistant United States Attorney, Donald K. Stern, United States Attorney, and Sheila W. Sawyer, Assistant United States Attorney, were on brief, Boston, MA, for appellee.

Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

TORRUELLA, Chief Judge.

The defendant in this arson case stands convicted by a jury of conspiracy and arson under 18 U.S.C. §§ 371 and 844(i), respectively. For the reasons stated herein, we affirm the decision of the district court on all points.


On the evening of February 6, 1989, the Boston Fire Department responded to a multiple-alarm fire at 295-297 Franklin Street (the "Building"), in Boston, which was owned by Jack Gateman ("Gateman"). At that time, the defendant, James L. Mitchell ("Mitchell"), was a tenant occupying the Building's second, third and fourth floors, where he and his partner, Allen Gallant ("Gallant"), ran a private social club known as "Club 297" (the "Club"). The Club had been ordered closed by the City of Boston for violation of City codes in January 1989. On the day of the fire, several men, including Ronald Wallace ("Wallace"), had been working on repairs at the Club. Wallace testified at trial that during the course of that day Mitchell told him he would pay him $11,000 to set fire to the Building, making an initial payment. Mitchell returned to his home in Vermont, while Wallace returned to the Club. Mitchell called the Club from his car telephone, and spoke to Wallace, who testified that Mitchell asked him whether he would set the fire. After the phone call, Wallace went to the fourth floor of the Building and set some mattresses stacked there on fire. He and the other men in the Club fled the Building.

Over the next months, Mitchell wired Wallace sums of money through Western Union. Evidence was entered that Gallant reported the loss the Club suffered in the fire to the Club's insurance broker, and pursued the claim through an insurance broker. Testimony at trial established that some $59,400

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was paid out on the Club's policies, most of which went to the Internal Revenue Service.

In November 1991, Mitchell was charged under a twenty-two count indictment with conspiracy, arson, use of fire to commit a felony, and wire fraud. He was prosecuted on six of those counts. After a jury trial, he was found guilty on the conspiracy and arson charges, but acquitted of the remaining counts. This appeal ensued.


The district court adopted the report and recommendation of the magistrate judge, who found the following facts. See United States v. Martinez-Molina, 64 F.3d 719, 723 (1st Cir.1995) ("We recite the facts adduced at a suppression hearing in the light most favorable to the district court's ruling to the extent that they derive support from the record and are not clearly erroneous."). On the night of the fire, Lieutenant Paul R. LeBlanc ("Lt. LeBlanc") of the Fire Investigation Unit reported to the scene of the fire. After it was "put down," within an hour or so of being reported to the Fire Department at 9:15 p.m., Lt. LeBlanc entered the premises, along with two associates, in order to determine the cause and origin of the fire. He seized carpet samples and sections of stair rises, later entered in evidence at trial. Irregular burn patterns prompted him to suspect that the fire was not accidental, and that it originated on the fourth floor. Adequate photographs could not be taken, however, since there was no light and the water on the floor precluded reliable flash photography. The following morning, between 8:00 and 9:00 a.m., Lieutenant Roy Burrill ("Lt. Burrill"), also of the Fire Investigation Unit, was sent to the site without a warrant. He seized two sections of flooring from the fourth floor. A third search was conducted by First Security Company, a private investigation company hired by Gateman to determine the cause of the fire. They also seized samples from the fourth floor.

On appeal, Mitchell challenges the trial court's admission of the evidence seized by Lt. Burrill, on the basis that there were no exigent circumstances justifying his entrance without a warrant. 1

A. Waiver

The United States claims that Mitchell waived the right to appeal the admission of this evidence by failing to object within ten days to the magistrate judge's report and recommendation on the defendant's Motion to Suppress the Physical Evidence. See Rule 3(b), Rules for United States Magistrates in the United States District Court for the District of Massachusetts. As the report and recommendation of the magistrate judge itself pointed out, we have repeatedly indicated that failure to comply with Rule 3(b) precludes review by this court. See, e.g., United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); United States v. Vega, 678 F.2d 376, 379 (1st Cir.1982) ("There can be no appeal from a magistrate's report and recommendation unless objections are filed thereto.").

Mitchell now maintains that his objection to the evidence seized by Lt. Burrill has been saved from waiver despite his failure to object because, subsequent to the report and recommendation, the district court issued an order stating it would reconsider the suppression issue as regards the evidence seized by Lt. Burrill. In that order, the district court requested, among other things, that Mitchell identify the portions of memoranda and evidence the court should consider in

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deciding the motion to suppress the evidence seized. All of the seized evidence offered was admitted at trial. We need not delve into the intricacies of whether the district court order effectively revived Mitchell's motion to suppress the evidence seized by Lt. Burrill, however, as we find that the district court did not err in admitting the disputed evidence.

B. Analysis of Search and Seizure Issues

Traditionally, in the context of a motion to suppress, we have reviewed the district court's findings of fact, as well as any mixed findings of law and fact, for clear error. See United States v. Schiavo, 29 F.3d 6, 8 (1st Cir.1994); United States v. Rodriguez-Morales, 929 F.2d 780, 783 (1st Cir.1991), cert. denied, 502 U.S. 1030 (1992). A recent Supreme Court case, however, determines that "as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." Ornelas v. United States, 116 S.Ct. 1657, 1663 (1996) (noting that findings of historical fact are reviewed only for clear error and that "due weight" should be given "to inferences drawn from those facts by resident judges and local law enforcement officers"). Therefore, to the extent that our analysis turns on making those determinations, our review is de novo, as is our review of the district court findings of law. See Martinez-Molina, 64 F.3d at 726.

Our analysis is framed by two Supreme Court decisions: Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), and Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984). The basic Fourth Amendment framework is clear. "Courts have consistently followed 'one governing principle' in interpreting [the Fourth Amendment]: except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a 'valid search warrant.' " Mann v. Cannon, 731 F.2d 54, 58 (1st Cir.1984) (quoting Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967)). Nonetheless, "a warrantless entry by criminal law enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant." Tyler, 436 U.S. at 509, 98 S.Ct. at 1949. Mitchell's core contention here is that there were no such exigent circumstances in the present case, and so Lt. Burrill's warrantless search was unconstitutional, and the evidence he seized should have been suppressed.

The analysis in Michigan v. Tyler controls our decision. In Tyler, a fire broke out in a furniture store shortly before midnight; the fire had been reduced to "smoldering embers" when the Fire Chief reported to the scene at 2:00 a.m. Id. at 501, 98 S.Ct. at 1946. He concluded that the fire was possibly the result of arson, and called a police detective, who took some photographs, but "abandoned his efforts because of the smoke and steam." Id. at 502, 98 S.Ct. at 1946. After a brief survey through the rest of the building to look for further evidence of the cause of the fire, the Chief and police detective left the site. Four hours later, the Chief returned with the Assistant Chief, whose task it was to determine the origin of all fires in the township. The fire was out, and the building was empty. They quickly left, returning with the police detective around 9:00 a.m. They found suspicious burn marks, not visible earlier, and took samples of carpet and stairs.

Rejecting the premise that "the exigency justifying a warrantless entry to fight a fire ends, and the need to get a warrant begins, with the dousing of the last flame," id. at 510, 98 S.Ct. at 1950, the Court found the two searches conducted on the morning after the fire were constitutionally permitted. After noting that the investigation on the night of the fire was hindered by the darkness as well as the steam and smoke, the Court found that the fire officials

departed at 4 a.m. and returned shortly after daylight to continue their investigation. Little purpose would have...

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