U.S. v. Boettger, 94-2884

• Decision Date: 13 December 1995
• Docket Number: No. 94-2884,94-2884
• Citation: 71 F.3d 1410
• Parties: UNITED STATES of America, Appellant, v. Edward BOETTGER, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1410

71 F.3d 1410

UNITED STATES of America, Appellant, v. Edward BOETTGER, Appellee.

No. 94-2884.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 10, 1995.

Decided Dec. 13, 1995.

Linda Lipe, Assistant U.S. Attorney, argued, for appellant.

Larry Dean Kissee, Ash Flat, Arkansas, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, BRIGHT and MURPHY, Circuit Judges.

DIANA E. MURPHY, Circuit Judge.

The government appeals from the district court's order suppressing evidence seized during a warrantless search of appellee Edward Boettger's apartment. The government argues that the danger of explosive materials present in Boettger's apartment was an exigent circumstance justifying the search. We agree and reverse.

I.

Shortly after 9:00 p.m. on the evening of February 8, 1993, the Lake Village Fire Department was called to investigate an explosion at Bush Apartments. The first officials to arrive at the scene were Fire Chief Larry Donaldson and Police Detective Bob Graham. After they arrived sometime before 9:30 p.m., Boettger told Donaldson he had been making a firecracker in his apartment; he told Graham that there had been a chemical explosion. Soon thereafter, Boettger--who had lost one hand and a couple of fingers--was taken to a hospital. A neighbor had kicked in the door of his apartment to help him escape, and Boettger twice asked him to shut the door behind him.

Donaldson and Graham entered the apartment and looked around but were unable to find the cause of the explosion. There was no evidence of a fire in the apartment, only smoke. As the smoke cleared and Donaldson could see more of the apartment, he determined that the explosion came from the kitchen, which was littered with parts of Boettger's missing hand and fingers. Also in the kitchen was a crockpot with small containers filled with a clear liquid. The oven was not the source of the explosion; the oven door, however, had been blown apart by the impact of the explosion. They saw a trail of blood leading from the kitchen to the bathroom and a still-type device with coiled wires in the back room. After they found what appeared to be a bomb in the form of a small glass bottle with a fuse on top, they quickly evacuated the apartment.

They then contacted an Arkansas State Police officer who arrived shortly before 11:00 p.m. He also realized within several minutes that he could not identify the nature of the glass bottle or ascertain the possible danger of other chemicals which might be present. He left the apartment to consult with the local officials, and at his suggestion they decided to call the Bureau of Alcohol, Tobacco and Firearms (ATF) in Little Rock for assistance. Lake Village is in the southeastern corner of Arkansas, about two to three hours drive from Little Rock.

That same night, February 8, officials evacuated all three buildings of the apartment complex. Detective Graham testified that he believed no one from the three buildings was allowed back until about 2:30 p.m. on February 10.

Two ATF agents arrived from Little Rock around noon on February 9. They were told by Detective Graham about a conversation he had had that morning around 3:30 a.m. with a medical technician who reported that Boettger had stated he had been drying a mixture of aluminum substance, red sulphate, and bromide. The ATF agents walked through the apartment for about five to ten minutes. Although one was explosives-certified, neither knew how to handle the potential bomb by the door nor how to deal with the liquids, condensing coils, or other chemicals they believed to be present.

The agents called the ATF explosive technology branch in Atlanta, Georgia, and spoke with Terry Byer, an explosives expert with over 20 years experience as a master explosive disposal technician in the U.S. Navy. The Little Rock agents told Byer that red phosphorus, perchlorate, chlorate derivatives, and aluminum powder were believed to be present in Boettger's apartment. ¹ After hearing a description of the situation, Byer advised the agents that it was potentially very hazardous, that they should keep the area secure, and not allow anyone to go into the structure. The agents also called Bill Buford, the resident agent in charge in Little Rock, who instructed them to leave the residence immediately and to make sure that all of the buildings around the residence remained evacuated until someone familiar with chemical compounds could insure that it was safe to go back into the area. The agents followed these instructions and waited outside the apartment for the explosive experts to arrive.

Byer took the first flight from Atlanta and arrived in Lake Village with Bill Buford and an Arkansas State Police bomb technician around 8:40 p.m. on February 9. It was dark by this time, and further search was postponed until morning because, Byer testified, any light could have generated a spark and ignited the chemicals, which were "never, never safe." Buford testified that the chemicals were so extremely sensitive that "merely walking across the floor" could have caused an explosion, and it was thus "extremely dangerous" for anyone without proper knowledge to be around them. Byer also feared booby traps amidst the trash and debris littering the apartment.

At 8:00 a.m. on February 10 Byer reentered the apartment and began the search for any devices and chemicals that might form explosive compounds. Officials took the precaution of wearing gloves and nonsparking soles on their shoes. Buford testified that their main concern was that "someone, anyone, going into that residence or around that residence could be injured by the chemical materials that were on the inside." In addition to the glass jar with the fuse, agents seized two cardboard containers containing perchlorate explosives, seventeen firecracker type explosive powders sealed inside paper tubes, two metal pipes and two polyvinyl chloride pipes used to construct destructive devices, and a firearm silencer. Due to the trash in the apartment, officials uncovered many of these items by sifting through several layers of books, papers, and debris. Once the explosives were removed from the apartment, all searching stopped.

Boettger was indicted in three counts, for making 25 destructive devices, possessing 25 destructive devices, and possessing an unregistered firearm silencer. The district court found that each warrantless entry and search was valid, except for the morning search on February 10, which it concluded was conducted primarily to gather evidence for prosecution. It therefore suppressed 24 of the 25 destructive devices, the firearm silencer, and photographs taken during the February 10 search.

II.

It is not contested that no attempt was ever made in this case to get a warrant. The Fourth Amendment does not require that a warrant be obtained in every case. "Nevertheless, one governing principle, justified by history and by current experience, has consistently been followed: 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." Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 1730-31, 18 L.Ed.2d 930 (1967). One such exception is that for exigent circumstances.

The Supreme Court has considered the exigent circumstances exception to the warrant requirement in relation to entries on fire-damaged property in 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). These cases show that a dangerous situation may justify reasonable warrantless entries and searches.

In Tyler, the Court held that no warrant is needed where officials are investigating "for a reasonable time" the cause of a fire after it has been extinguished, and evidence discovered during such investigation is admissible. 436 U.S. at 510, 98 S.Ct. at 1950. What is "a reasonable time to investigate" must be determined by recognizing "the exigencies that confront officials serving under these conditions, as well as to individuals' reasonable expectations of privacy." Id. at 510 n. 6, 98 S.Ct. at 1950 n. 6. The Court recognized that circumstances of the individual situation "will vary widely," and when a fire spreads through a large apartment complex, it may be necessary for officials to "remain on the scene for an extended period of time repeatedly entering or re-entering the building or buildings, or portions thereof." Id.

The exigent circumstance identified in Tyler--the need to protect public safety by detecting a continuing danger--was clearly present here. See id. at 510, 98 S.Ct. at 1950 (no warrant needed where officials are detecting "continuing dangers" such as faulty wiring or a defective furnace which may rekindle a blaze). The officials in Lake Village were faced, however, with a more complicated situation than the normal fire scene. A continuing danger was created by the apparent presence of explosive chemicals and destructive devices. Examination of the chemicals present and their potential for further explosion was beyond the expertise of the first local and federal officials who arrived. The danger of another explosion thus remained until the removal of the chemicals under Atlanta ATF agent Byer's direction on February 10.

The plurality in Michigan v. Clifford also recognized that under Tyler there is no bright line test. 464 U.S. at 298 n. 9, 104 S.Ct. at 649 n. 9. The reasonableness of a search will depend on "the circumstances of the particular [hazard] and generally will involve more than the lapse of time or the number of entries and reentries." Id. Important considerations are the existence of legitimate privacy interests, exigent circumstances, and whether the object of the search is to determine the cause of the fire or to gather evidence of criminal activity. Id. at 292, 104 S.Ct....