4A 4C 2006: A Cry For Help, In The Form Of Planted Pipe Bombs

UNITED STATES v. UZENSKI, 434 F.3d 690 (4th Cir. 2006), No. 04-4136, 2006 U.S.App. LEXIS 827, on appeal from USDC-NCED, before USCJs Niemeyer, Gregory, Shedd, opinion by Gregory, filed 13 Jan 2006.

LONG STORY SHORT: Devices that a detective planted were unregistered NFA firearms, and minor discrepancies in the warrant affidavit and seizure of some unauthorized items were not grounds for a blanket suppression of all evidence. Binding in MD, NC, SC, VA, WV.

FACTS: Defendant, a detective with a municipal police department in North Carolina, was walking along the shoulder of a road when he found what looked like a pipe bomb. Agents with the State Bureau of Investigation bomb squad used a special gun to disable the device, and turned the pieces over to the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Defendant told ATF agents that he had found the device while on routine foot patrol. The next day, Defendant and his Chief of Police and two ATF agents drove out to the site and found a second apparent pipe bomb, three yards away from where the first one had been. SBI agents shot the end cap off of it, scattering a powdery substance to the winds. ATF investigated a nearby hardware store for purchases of materials to make such devices. The store turned over its surveillance videotape showing that Defendant bought pipe and end caps two days before he reported finding the first device. A local officer told ATF that Defendant had described making bombs as a teenager, and Defendant said the same thing to an ATF agent over lunch three days later.

About a month after that, an ATF agent asked Defendant to meet with him at the SBI office to discuss the case, and when Defendant and his Chief arrived, they were not allowed to bring in their weapons. An SBI agent took Chief aside to discuss the case, and another agent directed Defendant to a conference room, where an agent asked him if he wanted any refreshments. The agent then had Defendant watch a video, which turned out to be the store surveillance tape of Defendant buying pipes and end caps. Defendant's neck veins bulged and he began hyperventilating. The agent asked why Defendant had done it, but Defendant said he had bought light bulbs and bug spray, not bomb components. The agent then presented Defendant with a copy of a search warrant that SBI had obtained, authorizing a search of Defendant's apartment and car for bomb-making materials. Defendant could not see that the issuing magistrate had stricken out a request to seize his computers. The agent asked Defendant to sign a consent to search and seizure of his computers, which Defendant signed at about 10:15am.

Defendant was free to leave and his Chief was allowed to join him in the conference room. At about that hour, SBI agents executed the search warrant, finding plaid shirts similar to the one Defendant was wearing in the surveillance video and light bulbs matching the description of those Defendant had bought. An ammunition box had police evidence stickers on it, indicating that it was probably stolen from an evidence locker, and inside were controlled substances with evidence stickers on the packaging. Agents also seized bug spray, and papers indicating that Defendant lived there. Upon hearing from the SBI office that Defendant had consented to seizure of his computers, they took those too. At 12:15pm, SBI agents arrested and cuffed Defendant, still in the SBI office.

ATF experts later identified the powder from the pipe bombs as Red Dot smokeless gunpowder, a product intended for handloading pistol and shotgun cartridges. Red Dot is a very fast-burning powder that could have detonated simply if the pipe's end caps were unscrewed. The first device incorporated 9-volt batteries, a mercury tilt switch, and an igniter intended for model rockets. When wired into a circuit, the device could have detonated when tilted. The second device had no electrical components, but ATF experts determined that it could still have exploded if the end caps were unscrewed, and amateur bombmakers had done just that on prior occasions.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Eastern District of North Carolina on two counts of manufacturing and two counts of possessing unregistered National Firearms Act firearms. [Note: NFA dates from 1933 and defines "firearms" as machine guns, sawed-off rifles and shotguns, silencers, destructive devices, and ordnance bigger than .50-caliber. NFA requires registration and taxation of "firearms" and is actually part of the Internal Revenue Code.] Defendant moved to suppress his pre-arrest statements as involuntary, and all evidence seized from his home as the fruit of an illegal blanket search beyond what the warrant allowed.

The trial court found that Defendant had given a general consent to search of his apartment, and that made all items in his apartment within plain view, regardless of whether the warrant specifically mentioned them. The incriminating nature of the plaid shirts and light bulbs was immediately apparent. Also, Defendant specifically consented to seizure of his computers. Furthermore, his pre-arrest statements were voluntary and he was free to leave until his arrest. MOTION TO SUPPRESS DENIED to that extent; but since the bug spray and papers were neither on the search warrant nor apparently incriminating, MOTION TO SUPPRESS GRANTED as to them.

At trial, Defendant moved for judgment of acquittal, arguing that ATF expert testimony did not establish that the devices could have exploded, and therefore the government failed to prove that they were NFA firearms. The trial court denied such relief. The jury convicted Defendant as charged, and the trial court sentenced Defendant to 60 months. Defendant appealed his convictions and sentences to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Defendant voluntarily went to the SBI office and accepted the condition that he could not go inside armed. Defendant was free to leave when he was at the SBI office, and SBI agents told him so. Agents offered him refreshments, let him use the restroom, and allowed his Chief to visit Defendant. Anything he said up until his arrest was of his own free will. His consent to seizure of his computers was valid for the same reasons.

In the Fourth Circuit, the plain view exception to the warrant requirement applies if the police have a legal right to be there, and a legal right of access to the object in question, and if the incriminating nature of the object is immediately apparent. Here, the first two elements were present because the warrant and Defendant's permission gave the SBI agents the right to be there and right of access. Agents also knew that the plaid shirts and particularly described light bulbs incriminated Defendant by placing him in the hardware store where he could also have bought bomb components. The ammunition box appeared to be stolen, as did the controlled substances inside. On the other hand, the bug spray and evidence of residence were not on the warrant and did not look incriminating. The trial court ruled correctly on everything Defendant presented to it.

On appeal, Defendant argued that the warrant affidavit listed wrong dimensions for the pipe segments to be seized, which was such a grave misrepresentation that all evidence should be suppressed. The Fourth Circuit ruled that this, even combined with the evidence wrongly seized and suppressed, was nowhere near the level of unconstitutionality that would support a blanket suppression of all evidence. SUPPRESSION RULINGS AFFIRMED in all respects.

As to the devices, ATF experts testified that the mere act of unscrewing the end caps could detonate the Red Dot powder within, and if the pipes were from one-quarter to two-thirds full, the explosion would fragment the pipes and wound or kill anyone nearby. Even though the devices were partly destroyed when SBI shot and disarmed them, this was unavoidable, and the statute defines "destructive device" as either a working device or a combination of parts sufficient to assemble a working device. The devices had no use other than as weapons, and the jury could reasonably have found Defendant guilty of violating the statute. CONVICTIONS AFFIRMED. However, while the case was on appeal, the Fourth Circuit had decided a sentencing issue in Defendant's favor, and under that law, his sentence was excessive. SENTENCE VACATED and remanded for resentencing.

EDITORIAL: I think I'll get carpal tunnel just from writing up this opinion. Man, that was long! And all to arrive at a pretty obvious conclusion. My condolences to this guy's former department, which I don't see any point in identifying. If this opinion is any guide, this guy was a scandal waiting to happen, and it did. Lucky nobody got hurt. I think this guy wanted to get caught, based on all the obvious mistakes that a detective should have known about.

The only thing he could have done to make it more obvious was to use Bullseye powder instead of Red Dot, since it burns even faster. I use Bullseye in my .45 target loads because it's accurate, even though it's dirty and requires thorough cleaning after every match. They don't give prizes for the cleanest gun; only for the most accurate shots. If you ever read the book The Mormon Murders, the bomber there used Bullseye in his bombs to murder a couple people, and almost blew himself up when he ADed his own bomb on the way to kill yet another victim. Unfortunately, he survived and more or less got away with it. So don't play with these things, kids, even though it may seem fun at first. It's dangerous and unlawful, and ATF will find you out.