United States v. Perez

• Decision Date: 21 April 1977
• Docket Number: No. CR76-346.,CR76-346.
• Citation: 440 F. Supp. 272
• Parties: UNITED STATES of America, Plaintiff, v. Christian Ben Patrick PEREZ, Defendant.
• Court: U.S. District Court — Northern District of Ohio

440 F. Supp. 272

UNITED STATES of America, Plaintiff, v. Christian Ben Patrick PEREZ, Defendant.

No. CR76-346.

United States District Court, N. D. Ohio, E. D.

April 21, 1977.

John P. Berena, Cleveland, Ohio, for U. S.

Timothy J. Potts, Cleveland, Ohio, for Christian Ben Patrick Perez.

MEMORANDUM OF OPINION

MANOS, District Judge.

On October 27, 1976 the defendant, Christian Perez, was indicted on three counts of knowingly possessing a shotgun in violation of 26 U.S.C. §§ 5861(d), 5861(h), 5871, and on November 12, 1976 he moved the Court "to suppress all evidence the government intends to introduce at trial . . . which was seized by safety forces of the City of Lakewood and/or agents of the United States Government on or about October 1, 1976 from 2126 Mars Avenue, Lakewood, Ohio." See, Fed.R.Crim.P. 41.

On December 1, 1976 the Court conducted a hearing on the defendant's motion to suppress and subsequently analyzed the transcript of that hearing. On January 24, 1977 the Court denied the motion to suppress and defendant Perez was tried by the Court. In order to expedite the trial, portions of the transcript from the suppression hearing were entered into the record by stipulation with the agreement that Perez retained a continuing objection, based on the Fourth Amendment, to the admission of all evidence derived from the search of his premises conducted on October 27, 1976. At the conclusion of the trial the Court found the defendant guilty as charged in the indictment.

In accordance with Fed.R.Crim.P. 12(e), the Court issues "its essential findings" on the suppression question in this Memorandum of Opinion.

The issue before this Court is whether a comprehensive warrantless police search of the buildings on a defendant's residential premises violates the Fourth Amendment, when the search is conducted after firemen and policemen have extinguished a fire on the premises, placed the defendant in custody, determined that no persons other than government officials are present, and located a large quantity of high explosives on the defendant's property. The Court rules such an emergency search valid under the Fourth and Fourteenth Amendments and denies Perez's motion to suppress.

I FINDINGS OF FACT

On the evening of October 1, 1976, at approximately 9:00 p. m. Lakewood Narcotics Detective John Hoyt had the defendant's residence at 2126 Mars Avenue in Lakewood, Ohio under surveillance for narcotics dealings when he heard a fire alarm broadcast that summoned firemen and policemen to that residence. Hoyt broadcasted a warning to the responding police officers advising them to be careful when they entered the dwelling because a shooting occurred there on August 29, 1976, and requested them "to keep their eyes open for drugs."¹

Assistant Fire Chief Rogers, who was the first fireman to arrive at the defendant's residence, testified that he encountered a woman² outside the house who told him that the fire was in the kitchen. Rogers entered the kitchen, observed the house full of smoke, and determined that the smoke originated from a burning ice cooler located on top of the stove. Simultaneously with the discovery of the cooler, Rogers was joined inside the house by several police officers and eight to ten firemen. Fire Captain McKee and fireman Welker extinguished the burning cooler and placed it in the backyard in "less than a minute." (Tr. 36-37). Based on his training and observations, Rogers determined that the entire dwelling should be searched,³ despite the termination of the fire in the cooler. He testified:

"Q. From what you concluded as to the way the things appeared to be on the surface, did you have any reason to believe that there was a fire in any location other than in the kitchen?

"A. No. Well, the only possibility was an extension into the wall, but that would be difficult to determine until we had enough of the smoke out of the way to really check it out." Tr. 24.

Assistant Fire Chief Rogers, aided by Police Officers Boomer and O'Grady, searched each room in the house to determine whether the fire spread elsewhere, and whether any people were located anywhere in the dwelling.⁴ During this first search Rogers and Police Officer O'Grady observed plants, which O'Grady recognized as marijuana, located on a second floor porch.⁵

While the three men were searching the second floor, Fire Captain McKee and Fireman Welker, both of whom were located on the first floor in the kitchen, saw defendant Perez repeatedly run in and out of the rear door of the house, which led from the kitchen to the backyard, and hurdle a large ventilation fan during each trip through the door.⁶ On one occasion Perez carried a suitcase in one hand and a duffle bag in the other, causing Fireman Welker to yell, "This fellow is taking off somewhere," and advised Police Officer Boomer, who had come downstairs, of Perez's conduct.⁷ Boomer went outside searching the backyard with his flashlight and discovered a military type duffle bag with the top open resting against a fence.⁸ Through the open top of the bag Boomer saw the exposed end of a cardboard box with the word "Gelitin" printed on it in large black letters. From his military experience Boomer understood that the word "Gelitin" pertains to explosives. After taking the box out of the duffle bag he observed the words "High Explosives" printed on a previously unrevealed exterior side of the box, and upon opening the box he discovered several large cardboard cylinders labeled "Explosive Dangerous."⁹

While Officer Boomer examined the backyard, Officer O'Grady and Assistant Fire Chief Rogers completed their first search of the second floor of the house, found no occupants or additional sources of fire on that floor, and returned to the first floor where O'Grady saw defendant Perez talking with Fireman Foran in the kitchen.¹⁰ O'Grady approached Perez, identified himself as a police officer, ascertained that Perez was the resident of the dwelling, and immediately arrested Perez for "cultivation of marijuana." As O'Grady was "patting down" Perez, Officer Hill "came running from outside of the house . . . yelling `he Perez has dynamite, he has dynamite.'"¹¹ O'Grady advised Perez that he was also under arrest on the additional charge of "possession of a dangerous ordnance," and Perez was taken from the premises by a police officer."¹²

At this time smoke "hovered" in the house and firemen "were all around the house."¹³ O'Grady radioed Police Sergeant Kremperger who arrived on the scene in "two to three minutes," and took charge of the investigation.¹⁴ Kremperger was "accosted" by Boomer outside the rear door of the house and informed of the location of the dynamite.¹⁵ Kremperger examined the contents of the box which Boomer found in the rear yard, concluded that it was dynamite, returned to the house, and made three telephone calls seeking advice regarding how he should proceed with the investigation. First, he phoned his superior, Police Captain Keller, who advised him to search the entire premises immediately; second, he phoned the prosecutor, but was unable to get an answer; and third, he phoned Municipal Court Judge Harold Craig.¹⁶ After Kremperger described the situation, Judge Craig, who correctly understood that dynamite had been found in the backyard and inaccurately believed that exposed flames were burning inside the house, told Kremperger that a public emergency existed which authorized an immediate warrantless search of the house.¹⁷

At this time all of the police officers on the scene conducted a comprehensive second search of the whole house, opening drawers, closets, and exposing areas not openly visible. The purpose of the second search was to search for "explosives or dangerous devices."¹⁸ During the second search Officer O'Grady found and photographed a shotgun which was exposed to "plain view" in a closed closet on the first floor, and took the weapon into his custody.¹⁹ After the police concluded their examination of the house, they searched the unattached garage where they found a suitcase which corresponded to the description of the suitcase which McKee and Welker had observed Perez carry out of the house when he took the duffle bag into the backyard. They immediately opened the suitcase and found a second shotgun, which they seized.²⁰ No testimony establishes that flames or smoke were ever present in the garage.

The second search of the house and garage took one and a half hours to complete,²¹ during which time none of the officers obtained a search warrant. Defendant Perez moves this Court to suppress both shotguns seized during the search of his premises on the theory that the warrantless search of his residential property violated his Fourth and Fourteenth Amendment rights under the United States Constitution.

II

THE REASONABLE EXPECTATION OF PRIVACY TEST ENUNCIATED IN KATZ V. UNITED STATES REQUIRES THIS COURT TO BALANCE A DEFENDANT'S DIMINISHED PRIVACY INTEREST AGAINST THE GOVERNMENT'S LEGITIMATE INTEREST IN CONDUCTING A WARRANTLESS EMERGENCY SEARCH FOR HIGH EXPLOSIVES FOUND ON THE DEFENDANT'S PROPERTY AFTER FIGHTING A FIRE IN HIS DWELLING.

Defendant Christian Perez charges that the weapons found in his home and unattached garage during a warrantless search of his premises violated his Fourth Amendment rights. The Government contends that the search of Perez's premises was lawfully conducted pursuant to an emergency search exception to the Fourth Amendment warrant requirement.²²

Prior to Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Fourth Amendment protected citizens against governmental intrusion into constitutionally protected areas.²³ In Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928) the Court held that the Fourth Amendment protected only against physical trespassory intrusions involving the seizure of physical objects. The Olmstead court's technical trespass test was expanded in ...