United States v. Green

• Decision Date: 09 April 1973
• Docket Number: No. 72-1908.,72-1908.
• Citation: 474 F.2d 1385
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond Paul GREEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

474 F.2d 1385 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Raymond Paul GREEN, Defendant-Appellant.

No. 72-1908.

United States Court of Appeals, Fifth Circuit.

March 13, 1973.

Rehearing Denied April 9, 1973.

Walter G. Arnold, Jacksonville, Fla., for defendant-appellant.

John L. Briggs, U. S. Atty., John J. Daley, Jr., Asst. U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.

Before GODBOLD, DYER and CLARK, Circuit Judges.

DYER, Circuit Judge:

Green appeals his conviction of unlawful possession of twenty-nine copper plates made in the similitude of a plate from which genuine obligations and securities of the United States are printed, with the intent to use the plates to counterfeit obligations of the United States, or any part thereof, in violation of 18 U.S.C.A. § 474. Prior to trial, Green moved to suppress all twenty-nine plates, on the ground that they were illegally seized during an unlawful search of his apartment. After hearing evidence on this issue, the trial court denied the motion. Green and the government then stipulated to waive a jury trial, and the case was tried before the district court judge. Green was found guilty as charged and received a five year suspended sentence. We affirm.

In the early afternoon of December 9, 1970, while Green was away, a fire broke out in his apartment on the ground floor of an apartment building in Jacksonville, Florida. Two fire trucks and a number of Jacksonville firemen responded to the alarm. Unable to determine the origin of the blaze, the Fire Chief requested the help of Henry Melzer, the Deputy Fire Chief and Deputy State Fire Marshal for the City of Jacksonville,¹ whose principal duty was to investigate suspicious fires or fires of undetermined origin.

By the time Melzer arrived at the scene, the fire had been suppressed. No one occupying the apartment was present, and at this time the occupant's identity was unknown. Melzer began examining the scene, to determine the cause of the fire, which had been confined to the kitchen. Some of the woodwork was smudged, but the principal damage was to a pasteboard box on the floor that had been virtually reduced to ashes. Melzer briefly inspected the box and then made a tour of the apartment, looking for "hot spots" or other areas in the apartment that might be afire.

After determining there were no other danger areas, Melzer returned to the kitchen to examine the box in which the fire seemed to have started in order to determine its cause. His procedure was to have a fireman remove each item in turn from the ashes for Melzer's inspection. While engaged in this duty, fireman Lee discovered several metal plates and called Melzer's attention to them. As one of the plates was removed others similar to it were disclosed underneath. The plate was some six to eight inches long and four inches wide, and Melzer noticed the image of a $20 Federal Reserve Note on it. Although Melzer was not an expert on counterfeiting, he had on previous occasions worked in cooperation with the Secret Service and was immediately able to tell that the plate was probably a counterfeiting plate. Wanting to alert the appropriate investigative agency, he called Secret Service Agent Varenholt. Melzer described the plate to Varenholt over the telephone and furnished him the address of the apartment.

Before going to the apartment to examine the plates, Varenholt discussed the matter with his superior, and they determined not to seek a warrant for seizure of the plates. Whether this decision was based on the belief that they did not possess a sufficient description of the plates to obtain a warrant or on the belief that a warrant was unnecessary because the plates were already properly in the custody of a State officer is unclear.

When Varenholt arrived at the apartment, the firemen and trucks were still on the scene. One of the firemen let him into the apartment. Entering the kitchen, Varenholt observed that several firemen were sifting through a large pile of ashes on the floor and placing them in a tub. Melzer handed Varenholt the plate that had already been removed from the ashes, and Varenholt determined on the basis of a quick inspection that it was capable of printing a counterfeit impression. After Varenholt had examined the first plate, the remaining twenty-eight plates were handed to him one by one, each being initialed first by fireman Lee as he removed it from the ashes and then initialed again by Varenholt as he received it. In addition, a partial impression of the face of a $20 Federal Reserve Note was found amongst the plates.

After Varenholt had completed his examination of the twenty-nine plates, he waited for the tenant to return to the apartment. Green had previously come to the apartment, just after Melzer had called Varenholt, but he was told by a fireman at the door that he could not enter while firemen were inside, and he departed. After Varenholt had taken custody of the plates, and while he was waiting for the occupant of the apartment to arrive, Melzer completed his investigation. He concluded that the fire was a result of spontaneous combustion, caused by a chemical reaction between the metal of the copper printing plates, some rags that had been in the box, and possibly cleaning fluid that may have been placed on the plates to preserve them.

After Varenholt had waited in the kitchen for a short while, Green returned to the apartment. Varenholt advised him of his rights, and Green made a telephone call to his attorney. Varenholt informed Green that he had probable cause to arrest him; however, because Green's attorney assured Varenholt that Green would surrender himself on the following morning, Varenholt did not arrest him at that time.

Green's argument on appeal is two-fold. First, he contends that the twenty-nine plates should have been excluded from evidence because they were the product of a warrantless invasion of his apartment in violation of the Fourth Amendment. Additionally, he claims that the evidence was insufficient to prove that he had the requisite statutory intent to use the plates found in his apartment for counterfeiting. We disagree.

THE SEARCH OF GREEN'S APARTMENT AND THE SEIZURE OF THE COUNTERFEITING PLATES

The essential Fourth Amendment issues before this Court are (1) whether the initial warrantless intrusion by the firemen and Melzer was justified; (2) if so, whether the discovery and seizure of the plates were accomplished by actions within the limited scope of the justification for the initial intrustion; and (3) if so, whether a federal officer, who is expert in identification of the type of suspected contraband discovered, must himself secure a warrant before he may enter the premises to confirm that the plates are contraband and to take custody of them when the plates are already legitimately in the possession of a State officer.

The fundamental facts determinative of the validity of the initial entry may be succinctly stated. Firemen entered an empty apartment in a multiunit apartment building to extinguish a fire and called the Deputy Fire Marshal when they, including the Fire Chief, could not determine its cause. Although Green concedes that an existing fire in an apartment building is an emergency of sufficient proportions to permit the prompt and warrantless entry of firemen to suppress it, he would require that Melzer have obtained a warrant before he entered to investigate the cause of the fire.

The Supreme Court has had occasion to consider a question peripherally related to this in Camara v. Municipal Court, 1967, 387 U.S. 523, 87 S.Ct. 1727, 18 L. Ed.2d 930, and in See v. Seattle, 1967, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943. Both cases involved the recurring issue of routine area inspections conducted in the interest of enforcing compliance with municipal building and fire safety codes without warrants. The Court concluded that such inspections were reasonable and consistent with legitimate governmental interest in the protection of the health and safety of the public, but required that any inspection of a particular premises as a part of such a routine area inspection be supported by a search warrant. However, the Court expressly limited this warrant requirement to the routine and general inspection of an entire area for the purpose of insuring general compliance with the safety codes involved — i. e., in situations where no compelling reason exists necessitating the prompt inspection of a particular premises at a particular time.

Since our holding emphasizes the controlling standard of reasonableness, 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 small pox vaccination); Compagnie Francaise v. Board of

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