U.S. v. Gargotto

• Decision Date: 19 November 1974
• Docket Number: No. 74--1041,74--1041
• Citation: 510 F.2d 409
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Joseph GARGOTTO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 409

510 F.2d 409

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

No. 74--1041.

United States Court of Appeals Sixth Circuit.

Nov. 19, 1974.

Certiorari Denied May 27, 1975.

See 95 S.Ct. 1990.

Frank E. Haddad, Jr., Louisville, Ky., for defendant-appellant.

George J. Long, U.S. Atty., James H. Barr, Louisville, Ky., for plaintiff-appellee.

Before PECK, McCREE and ENGEL, Circuit Judges.

PER CURIAM.

This is an appeal from an order of the district court, entered following an evidentiary hearing held pursuant to a remand of the case by this court. United States v. Gargotto, 476 F.2d 1009 (1973).

Gargotto was convicted in district court of fifteen counts of filing false monthly wagering returns. He appealed that conviction to this court, claiming, inter alia, that the warrantless search of his building and the seizure of papers and documents therefrom following a fire, violated his Fourth Amendment rights. In that appeal, all issues raised by Gargotto were resolved against him, except the validity of the search as it was extended to the drawers of certain cabinets and desks, and the subsequent seizure of their contents. United States v. Gargotto, supra. This court was of the opinion that there was insufficient evidence on the record to determine whether the warrantless search was justified by the exigent circumstances exception to the Fourth Amendment warrant requirement, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The case was therefore remanded to the district court for an evidentiary hearing to determine:

'(1) whether the exigencies of the situation were such at the time the search was extended to the drawers of the desks and cabinets to justify such search, and seizure of the contents, without a warrant, and, if no such justification is found,

(2) whether the papers found in plain view can be identified and segregated from those that were removed from drawers.' United States v. Gargotto, supra, 476 F.2d at 1014--1015.

In remanding the case, this court stated that '(t)he results of the hearing will determine whether or not a new trial is required.'

Upon remand, a hearing was held, following which an order was entered, accompanied by findings of fact, in which it was determined that the requisite exigent circumstances were present to justify the warrantless search. Gargotto appeals from that order. We affirm.

Because the facts were fully set forth in the earlier appeal, we recite them only briefly here. A fire occurred in a building owned by Gargotto, and arson was suspected. Two officers, one a captain of the Arson Squad and one a detective on the police force, came upon the scene and entered the building. The fire was under control, but firefighters were still present in substantial numbers and were working to prevent further outbreak of the fire. The officers viewed certain papers and documents on the floor in plain view and seized them, suspecting that they might provide evidence of motive in the arson. The papers appeared to be gambling documents. The officers thereupon continued their search to areas not in plain view, drawers of cabinets and desks, in which they found and removed more papers. The papers were taken to police headquarters. That afternoon a suspect was apprehended and charged with the arson, and the papers were no longer needed in that investigation. They were, however turned over to federal agents who examined them, conducted an investigation, and eventually charged appellant with the offenses of which he was convicted in this case.

In this appeal, we are not concerned with the seizure of documents in plain view, nor the release of documents to federal agents. Nor are we faced with the question of whether there existed probable cause to search for the seized evidence at the premises. These questions were resolved by the earlier appeal. We are here concerned only with whether the officers were faced with such circumstances, amounting to an emergency, which made the seeking and obtaining of a warrant unfeasible, and hence unnecessary.

The district judge, as directed by this court, made findings in this regard. His findings must be accepted by this court unless they are clearly erroneous. See Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946). ¹ Appellant claims that certain of the trial judge's findings were clearly erroneous and that his conclusion was therefore improper and should be reversed. We disagree. The material facts as found by the trial judge are supported by the evidence and are not clearly erroneous. We conclude on those findings, that exigent circumstances were present and the search and seizure were justified. Coolidge, supra.

The court found that at the time of the search, firemen were in the process of chopping walls, hosing the area with water and discarding flammable materials. The court determined that there would be a real danger of water damage and possible loss or destruction of the desired evidence were the officers to take the time to obtain a warrant. These findings are not clearly erroneous. In our view, they are sufficient to justify the warrantless search and seizure. We reject appellant's claim that the captain could have ordered firemen to maintain the status...