Chaconas v. United States

• Decision Date: 16 October 1974
• Docket Number: No. 6365.,6365.
• Citation: 326 A.2d 792
• Parties: Peter K. CHACONAS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

326 A.2d 792

Peter K. CHACONAS, Appellant, v. UNITED STATES, Appellee.

No. 6365.

District of Columbia Court of Appeals.

Argued June 20, 1973.

Decided October 16, 1974.

Warren E. Magee, Washington, D. C., for appellant.

John C. Lenahan, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry, John O'B. Clarke, Jr., and John E. Drury, Asst. U. S. Attys., were on the brief, for appellee.

Before REILLY, Chief Judge, and PAIR and YEAGLEY, Associate Judges.

YEAGLEY, Associate Judge:

This appeal is from convictions on counts of (1) arson¹ and (2) malicious burning of one's own property with intent to defraud,² in a trial without a jury. Appellant asserts that the trial court erred: in overruling his motion to suppress certain evidence taken from the scene of the fire, in denying his motion for a judgment of acquittal at the conclusion of the prosecution's case in chief, and in holding that the evidence on each count was sufficient to establish his guilt beyond a reasonable doubt. Upon consideration of the briefs and argument of counsel and after a careful review of the record we affirm.

The charges arose out of a fire that occurred about 2:45 a. m., February 24, 1971, at 2147 Pennsylvania Avenue, N. W., in premises rented by a corporation owned and operated by appellant and transacting business as the Tom Jones Restaurant. The only witness called by appellant to testify in support of the motion to suppress was Inspector George I. Meyer, an investigator of the Fire Investigation Section of the Metropolitan Fire Department. He testified that he began his investigation of the fire about 8:45 a. m. the day of the fire after receiving orders to continue a preliminary investigation initiated by Inspector Spedden shortly after the fire was extinguished, earlier that same morning. He was assisted by another inspector who is a registered master electrician. When Inspector Meyer arrived on the scene, he advised appellant of his purpose and asked him to unlock the door to the restaurant. The appellant did so without voicing any objection to their entry and was present throughout their inspection.

Upon looking about the burned area to determine the pattern and course of the fire they noticed that "there was a distinct coning against the west wall". After discussing the possibility of faulty electrical wiring they directed their attention to an electrical receptacle in the floor in the center of the room. The assistant removed the cover and pulled some of the wiring out of the metal box together with some debris which the witness said had the odor of gasoline. Further inspection of the box revealed the presence of a "definite oily base substance" which also had the odor of gasoline. They removed the box for a laboratory analysis and, upon inquiry, were told by appellant that he had no objection to their taking it. They also removed part of the scorched rug and the pad underneath, a piece of fibrous material from a chair and a piece of wall framing from the west wall. Earlier, Inspector Spedden had removed a charred match book and cover from the scene of the fire, which together with an intact match book and cover, were lost after a photograph was taken of them. The motion to suppress was directed at all of the foregoing items except the lost match books.

The motion was denied, except as to the photograph, the court finding that the investigators "were admitted to the premises by the owner, Mr. Chaconas", and that he "affirmatively assented to their taking of this property." The court suppressed the background of the photograph and the part showing the intact match book. The remainder of the picture, in which only the burnt match book and cover were visible, was not suppressed.

The defendant had testified before the grand jury, and the court ruled that any portion of his testimony that was material would be admissible in the government's case in chief, finding that no threats had been made against him nor were any promises made to him, that his rights were properly explained to him and that his testimony was given voluntarily. Appellant's objection thereto is not pursued on this appeal.

In considering appellant's motion to suppress, we first note that 7 D.C.R.R. 1.10 (known as the Fire Prevention Code) provides that: "The Fire Chief shall investigate the cause, origin and circumstances of every fire . . . which in his judgment is of a suspicious nature, . . . or by which property has been destroyed or substantially damaged. . . .

7 D.C.R.R. 1.4 provides that "The Fire Chief may, at all reasonable hours enter any building or premises for the purpose of making any inspection or investigation which, under the provisions of this Code, he may deem necessary to be made."

Appellant complains that the inspectors investigating the fire did not have a warrant to search, citing See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). That case held that despite a Seattle city ordinance³ granting firemen authority to inspect buildings, a suitable warrant procedure was required by the Fourth Amendment to permit a representative of the city's fire department to make a routine inspection of a locked warehouse where there was no showing of probable cause to believe that a violation of some ordinance existed therein.

Whatever the application of that decision may be to routine inspections by public service employees, we note that in a companion case decided the same day the Supreme Court said

nothing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations. See North American Cold Storage Co. v. City of Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (seizure of unwholesome food); Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (compulsory smallpox vaccination); Compagnie Francaise v. Board of Health, 186 U.S. 380, 22 S.Ct. 811, 46 L. Ed. 1209 (health quarantine); Kroplin v. Truax, 119 Ohio St. 610, 165 N.E. 498 (summary destruction of tubercular cattle). . . . [Camara v. Municipal Court, 387 U.S. 523, 539, 87 S.Ct. 1727, 1736, 18 L.Ed.2d 930 (1967).]⁴

Of more importance here, the Court also observed that "it seems likely that warrants should normally be sought only after entry is refused. . . ."

In the case before us, of course, entry was not refused. The testimony was that the two inspectors were let into the premises voluntarily by the appellant at their request. Appellant was present during the investigation consenting to the removal of certain evidence and the trial court made corresponding findings of fact on this testimony.

In Schneckloth v. Bustamonte, 412 U.S. 218, 248-249, 93 S.Ct. 2041, 2059, 36 L.Ed. 2d 854 (1973), the Supreme Court said:

We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge. . . .

The facts here, as found by the trial court, bring this case within the purview of that rule and since there is ample evidence in the record to support the findings on the motion to suppress, the court's ruling on that motion is affirmed.

In considering appellant's motion for judgment of acquittal at the end of the government's case in chief, the trial court had before it all of the prosecution's evidence except for one stipulation and one rebuttal witness, whose testimony dealt largely with appellant's father being unable to produce a passenger manifest that might have elucidated his testimony reflecting his taxicab business on the night of the fire.

The court made oral findings, which were supported by the evidence, and denied the motion. We agree with that ruling basically for the same reasons that bring us to the conclusion that the evidence in the case was sufficient to support the verdict. On the latter motion the court made detailed written findings with well reasoned conclusions which we examine in light of the evidence adduced.

The thrust of the argument of appellant's counsel on the insufficiency of the evidence was that there was no direct evidence to connect appellant with the gasoline or with the igniting of the fire.⁵

The findings of the trial court, insofar as they relate to that contention, may be summarized as follows. The two investigators of the cause of the fire found traces of gasoline in an electrical junction box which was located in a burned area of the upstairs floor. The burned pattern on the upstairs interior showed that the fire was aided by an accelerant like gasoline. The first investigator, who had arrived at the scene of the fire shortly after it was extinguished, found evidence of a cigarette match bomb in a previously existing hole in the upstairs floor under a bench seat against the west wall of the room. This was immediately below the "coning effect" burn. The court found that the cigarette match bomb ignited fumes from gasoline which had been spread on and above the bench, across the rug and the floor, on benches along the east wall and over the tops of tables. The fire spread from the west wall across the rug burning around the electrical box in the floor where some gasoline had collected to the east wall.

The court also found that the defendant had participated in the remodeling of the upstairs of the restaurant and was familiar with its physical layout and characteristics. On the occasion of the fire the first floor rear door was boarded shut. Entry was impossible through any rear window. The upstairs rear...