U.S. v. Klump
| Decision Date | 04 August 2008 |
| Docket Number | Docket No. 06-0339-cr. |
| Citation | 536 F.3d 113 |
| Parties | UNITED STATES of America, Appellee, v. Harold KLUMP, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Monica J. Richards, Assistant United States Attorney (Terrance P. Flynn, United States Attorney for the Western District of New York), Buffalo, NY, for Appellee.
Bruce R. Bryan, Esq., Syracuse, NY, for Defendant-Appellant.
Before: McLAUGHLIN, SACK, and LIVINGSTON, Circuit Judges.
Harold Klump appeals from a judgment of conviction entered on January 11, 2006, following a jury trial in the United States District Court for the Western District of New York (Arcara, C.J.). Klump was convicted on one count of manufacturing 1,000 or more marijuana plants, one count of possessing with intent to distribute 1,000 or more marijuana plants, and one count of possessing a semiautomatic assault weapon in furtherance of a drug-trafficking crime. He was sentenced to two concurrent terms of 240 months' imprisonment on the drug counts and a consecutive term of 120 months' imprisonment on the gun count.
On appeal, Klump contests the denial of his pretrial motion to suppress evidence seized pursuant to a search warrant. He argues that the warrant was invalid because it was based on (1) evidence of criminal activity observed during an illegal warrantless search of his warehouse, and (2) an affidavit that contained several material misstatements and omitted critical information. Klump also challenges his sentence on the gun count because it was imposed pursuant to a statute that had expired by the time he was sentenced.
We agree with the district court that exigent circumstances justified the warrantless entry into the warehouse, and that the search warrant affidavit contained no material misstatements or omitted material information. We also find that the district court properly sentenced Klump on the gun count. Accordingly, we affirm.
In October 2002, Drug Enforcement Administration ("DEA") Task Force Agent Cory Higgins executed an affidavit in support of a warrant to search a warehouse located at 900 Genesee Street in Buffalo, New York. The affidavit set forth the following information.
While surveilling the home of Jeremy Page in connection with an on-going narcotics investigation, DEA agents saw a white van, driven by someone agents believed to be Harold Klump, arrive and pick up Page. Acting on information that Page's employer drove a white van and ran a large marijuana-growing operation somewhere on the east side of Buffalo, the agents followed the van to Home Depot. There, the suspects bought PVC plumbing pipe, which is commonly used to grow marijuana. They then drove to a warehouse located at 900 Genesee Street, which, according to City of Buffalo tax records, was owned by Klump. The suspects carried the PVC pipe into the warehouse.
The agents surveilled the warehouse for the next several hours. During this time, the agents stopped a van shortly after it left the warehouse when the driver failed to signal at a nearby intersection. They saw several marijuana leaves on the driver's side floor. The agents later stopped another vehicle as it left the warehouse and detected a strong smell of marijuana. They searched the driver and found a quarter pound of marijuana.
Klump and Page left the warehouse at around 2:35 pm and were stopped by DEA agents. The agents then smelled smoke coming from the warehouse and called the fire department. Aware that there were two guard dogs inside, the agents accompanied the firemen into the building. While inside, the agents saw approximately 300 marijuana plants and a handgun.
Later that day, on the basis of DEA Agent Higgins's affidavit described above, a Magistrate Judge signed a warrant authorizing agents to search the warehouse. Pursuant to the search, agents seized 1,044 marijuana plants and a semiautomatic Mack 11 carbine rifle.
In February 2003, Klump was charged with: (1) manufacturing over 1,000 marijuana plants in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A); (2) possessing with intent to distribute over 1,000 marijuana plants in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A); and (3) possessing a semiautomatic assault weapon in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) and (c)(1)(B)(i).
Klump moved to suppress the evidence obtained pursuant to the search warrant. He argued that the warrant was invalid because it was based on observations made by DEA agents during an illegal warrantless search of the warehouse. Klump also alleged that the search warrant affidavit omitted critical information relevant to the issue of probable cause, including that (1) no fire was ultimately discovered at the warehouse, and (2) one of the men whom the agents stopped as he left the warehouse told the agents there was construction going on inside, which provided a perfectly innocent reason for the purchase of the PVC pipe.
In October 2003, a Magistrate Judge held a hearing on Klump's motion to suppress. The Buffalo Fire Department Battalion Chief, William Cunningham, who responded to the call about the smell at the warehouse, testified that, shortly after arriving, the agents told him they were conducting a narcotics investigation and thought that their suspects might be destroying evidence. Cunningham saw no smoke or fire, but smelled what he described as a "half electrical, half oily ... kind of sweet ... smell ... that was coming out of the top of the building." According to Cunningham, "it was hard to tell exactly what it was, but it definitely had an odor of something burning." He also stated that, over the course of his twenty-eight year career, he had encountered "really major fire[s]" that were contained entirely inside of a building, and where there was "just an odor" and very little or no smoke outside.
Cunningham testified that he entered the warehouse to investigate the odor. The DEA agents accompanied the firefighters inside and subdued the two pit bulls that were guarding the entrance. The firefighters and the agents then inspected all three floors of the warehouse but found no smoke or fire.
DEA Special Agent Dale Kasprzyk, the law enforcement supervisor on the scene, testified that the agents accompanied the firefighters into the building because of concerns for the firefighters' safety. In his experience, marijuana-growing operations were often booby-trapped or otherwise protected in ways that could have posed a danger to the firefighters.
William Donovan, a City of Buffalo police officer assigned to the DEA, entered the warehouse with the firefighters. Donovan testified that he saw numerous marijuana plants and a handgun while inspecting a room on the first floor, but did not touch or otherwise remove anything. After the fire inspection was complete, all fire and law enforcement personnel left the warehouse, and the agents secured the building to await a search warrant. While the agents waited, Page informed them that the odor could be from a furnace he had lit.
In February 2004, the Magistrate Judge recommended denial of the motion to suppress. He concluded that the firefighters and agents were justified in entering the warehouse to investigate the source of the smell, that the scope of the search was commensurate with the exigency, and that the evidence observed by the agents in plain view while inside was properly included in the search warrant affidavit. He also found that the affidavit was not misleading.
In May 2004, the district court adopted the Magistrate Judge's recommendation, over Klump's objections.
During Klump's jury trial, there was testimony that, contrary to what the affidavit stated, Klump was not the person who picked Page up at his home on the day in question, and the DEA agents saw only one marijuana leaf in the van that was stopped soon after leaving the warehouse. There was also testimony that workers were repairing a water pump and a water-damaged floor in the warehouse at the time of the search. The jury convicted Klump of all charges.
At sentencing, Klump argued that the ten-year mandatory minimum sentence on the gun count mandated by 18 U.S.C. § 924(c)(1)(B)(i) for possessing a semiautomatic assault weapon in furtherance of a drug-trafficking crime did not apply to him. He contended that this provision, though operative when he committed the offense and when he was convicted, was inapplicable because it had expired fifteen months before sentencing. The district court rejected Klump's argument, and sentenced him to two concurrent terms of 240 months' imprisonment on the drug counts, and a consecutive term of 120 months' imprisonment on the gun count.
Klump makes two arguments: (1) the district court erred in denying his pretrial motion to suppress, and (2) the district court improperly sentenced him pursuant to 18 U.S.C. § 924(c)(1)(B)(i) on the gun possession charge. We reject both arguments.
Klump challenges the district court's determination that exigent circumstances supported the initial warrantless entry into the warehouse, and that the search warrant affidavit did not contain material misstatements or omit material information.
Exigent circumstances provide an exception to the Fourth Amendment's warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). "A district court's determination as to whether exigent circumstances existed is fact-specific, and will not be reversed unless clearly erroneous." United States v. MacDonald, 916 F.2d 766, 769 (2d Cir.1990) (en banc). This standard requires us to uphold the ruling of the court below unless we are "left with the definite and firm conviction that a mistake has been committed." United States v. Iodice, 525 F.3d 179, 185 (2d Cir.2008) (internal citation and quotation marks omitted).
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