U.S. v. Loos

• Decision Date: 16 December 1998
• Docket Number: 98-2170,Nos. 98-2150,s. 98-2150
• Citation: 165 F.3d 504
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven D. LOOS and Lorna Jo Taylor, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 504

165 F.3d 504

UNITED STATES of America, Plaintiff-Appellee, v. Steven D. LOOS and Lorna Jo Taylor, Defendants-Appellants.

Nos. 98-2150, 98-2170.

United States Court of Appeals Seventh Circuit.

Argued Nov. 3, 1998.

Decided Dec. 16, 1998.

Timothy A. Bass (argued), Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.

Jon G. Noll, Richard Kim (argued), Springfield, IL, for Loos Defendant-Appellant.

Eric M. Schwig (argued), Schwing & Salus, Springfield, IL, for Taylor Defendant-Appellant.

Before COFFEY, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

EASTERBROOK, Circuit Judge.

Two manufacturers of methamphetamine were captured when the process went awry and a fire broke out. Firefighters found the apartment's kitchen and the living room ablaze, and the bedroom appeared to be used as a laboratory. Explosions (several small and one large) occurred. After the conflagration was brought under control, firefighters summoned both fire investigators and police. Officer Power found cans of ether and paraphernalia that could be used to make methamphetamine. Concerned that volatile chemicals could detonate, Officer Power contacted the Drug Enforcement Administration. Agent Grootens of the DEA arrived at approximately 3:00 A.M., some 3 1/2 hours after the fire started, and during the next hour conducted an investigation while the firefighters (who had never left the apartment) stood by to prevent the smoldering ashes from rekindling. By 7:00 A.M. the fire was out, the criminal investigation had been completed, all hazardous chemicals had been removed, and everyone had left the apartment. Evidence gathered from the apartment formed the basis of this criminal prosecution. Steven Loos and Lorna Jo Taylor, the tenants, pleaded guilty to attempting to manufacture methamphetamine, see 21 U.S.C. § 841(a)(1), while reserving the right to appeal from the order denying their motion to suppress. Fed.R.Crim.P. 11(a)(2).

Loos and Taylor contend that a warrant was essential to authorize the criminal investigation, because the firefighters could have called a hazardous-chemical disposal squad and cleaned up the apartment themselves in less time than it took the police and DEA to investigate. Like the district court, we grant the factual premise of this contention; the legal conclusion does not follow. Loos and Taylor rely on Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), for the proposition that the fourth amendment's requirement of a warrant in advance of a residential entry does not vanish just because the residence has experienced a fire. See also Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984). But Tyler adds that entries that occur during the initial firefighting efforts do not require warrants, even if officials conduct a criminal investigation. In Tyler, as in this case, the fire broke out shortly before midnight. Firefighters soon arrived and extinguished the blaze; the police arrived at 3:30 A.M. and took pictures; the firefighters left at 4:00 A.M. but the police remained for a while and came back for a second visit at 9:00 A.M. to conduct an arson investigation. The police made a third entry 25 days later. Tyler held that only the third entry required a warrant. The first two were justified, the Court concluded, by exigent circumstances; and even though the police remained (and then reentered) after the firefighters had left, "[l]ittle purpose would have been served by [the police] remaining in the building [continuously], except to remove any doubt about the legality of the warrantless search and seizure later that same morning.... [T]he morning entries were no more than an actual continuation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence." 436 U.S. at 511, 98 S.Ct. 1942. Just so here. Criminal investigators came and went between about 2:00 A.M. and 7:00 A.M. on the morning of the fire, a briefer period than in Tyler, and the need for prompt investigation was more urgent because volatile liquids posed a risk of explosion. Firefighters remained throughout the investigation, as they had not done in Tyler (or Clifford, where the fact that firefighting efforts ended before the criminal investigation began led the Court to hold that a warrant was required). By all measures, this is an easier case than Tyler. Loos and Taylor would have preferred the fire department to deal with the risk of explosion by having the chemicals removed before the police and DEA were ready to preserve evidence, but that is not the function of the fourth amendment. Privacy interests in the apartment were compromised when the firefighters entered and saw drug-making chemicals and apparatus in plain view; defendants had no legitimate interest in having these seen or handled by one group of public employees (firefighters and hazardous-substances disposal personnel) rather than another (police and federal drug agents). See, e.g., United States v. Boettger, 71 F.3d 1410 (8th Cir.1995).

Although Loos and Taylor were convicted of attempting to manufacture methamphetamine, they were sentenced under U.S.S.G. § 2D1.10, the guideline applicable to endangering human life while manufacturing a controlled substance. During the Rule 11 colloquy, defendants admitted that the fire in their apartment endangered the lives of persons in the building's other three apartments, and their own lives too. (Loos sustained burns; both Loos and Taylor were taken to a hospital after being evacuated from the building.) Guideline 2D1.10 adds three offense levels to the number computed using the drug-quantity table in § 2D1.1; functionally § 2D1.10 works the same way as a three-level enhancement via a specific offense characteristic added to § 2D1.1. Guideline 2D1.10 sets a minimum offense level of 20, so the effective enhancement for offenders who endanger human life while dealing in small quantities of drugs--less than 5 grams of methamphetamine, for example--exceeds 3 levels. But these defendants were caught trying to manufacture substantially more than that, so the 3-level enhancement was the only consequence of turning to § 2D1.10.

Loos and Taylor observe that the Sentencing Guidelines establish a charge-offense system and insist that the judge accordingly should have stuck with § 2D1.1, the guideline applicable to the manufacture of methamphetamine. But although the crime of conviction normally determines the appropriate guideline, there is an exception:

Determine the offense guideline section in Chapter Two (Offense Conduct) most applicable to the offense of conviction (i.e., the offense conduct charged in the count of the indictment or information of which the defendant was convicted). Provided, however, in the case of a plea agreement (written or...