Tuesday, June 12, 2007

Good Thing The Waterbed Caught Fire Before The Fireworks Did

Blog 2007-05-25

UNITED STATES v. BUCKMASTER, USCA-6 No. 06-3954, 2007 U.S.App. LEXIS 10776, on appeal from USDC-OHND, before USCJs Merritt, Martin, USDJ-KYED Forester by designation, opinion by Martin, filed 07 May 2007.

LONG STORY SHORT: Burning waterbed in a home required firefighter intervention, and the public safety exception made the firefighters’ discovery of unlicensed explosives reasonable under the Fourth Amendment. Binding in KY, OH, TN, WI.

FACTS: Firefighters of Madison Township, Ohio responded to a fire at Defendant’s three-story home and evacuated everyone there, then went inside and put out the fire. Firefighters could see that the fire originated in the wooden headboard of Defendant’s waterbed on the top floor, and by the time the fire was extinguished, fragments from a broken mirror on the headboard had punctured the mattress. Meanwhile, fire investigator Sergeant Byers of the Madison PD who knew of a history of complaints regarding Defendant setting off fireworks, arrived and asked Defendant if there were any fireworks in the house. When Defendant admitted so, Sergeant Byers and Investigator Perko of the fire department went inside to investigate the nature and origin of the fire. By this time, large vent fans were in place and running to clear the air, and the firefighters on the top and middle floors had already removed their breathing apparatus, indicating that they did not think there was any immediate carbon monoxide danger.

Water from the waterbed was still not contained, so the investigators began checking the rest of the house for carbon monoxide and for spilled water that could cause structural damage and electrical short circuits. When they got to the basement, the investigators saw water raining from the ceiling and pouring out of outlets, requiring tarps to control flooding and the utilities to be turned off. Investigators also noticed in plain view boxes marked 1.3G and 1.4G containing 1,250 pounds of commercial-grade fireworks sitting ten feet from the furnace.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Northern District of Ohio for unlicensed 1.3G fireworks and improperly storing 1.4G fireworks. Defendant moved to suppress the fireworks, arguing that their discovery was a pretextual search for suspected fireworks, and unreasonable under the Fourth Amendment, given that the fire originated on the top floor and was already out when the investigators entered his basement without a search warrant. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty, reserving the right to appeal the denial of suppression to the U.S. Court of Appeals for the Sixth Circuit.

DECISION: For obvious reasons, firefighters may constitutionally enter burning buildings by force, without warrants, consent, or announcement. Firefighters may also stay until the fire is out and they are satisfied that it will not restart, and to investigate the cause. Once they have learned the fire’s cause and origin and determined that people may safely reenter, further investigation of the rest of the premises requires probable cause and a search warrant.

Here, firefighters had two concerns—water damage including electrical short circuits that could start another fire, and carbon monoxide pockets. The firefighters and investigators acted very reasonably in controlling these dangers before letting Defendant back inside. Whether or not the firefighters and investigators might also have been keeping an eye out for illegal fireworks was irrelevant. The Sixth Circuit cautioned that this opinion was not a future license to search all through a house just because of a carbon monoxide hazard, especially where, as here, large vent fans were blowing and the firefighters above the basement were no longer wearing air packs. However, since there was also a water danger and the investigators had made no more than a brief sweep of the basement when they happened to see fireworks in plain view, no Fourth Amendment problems occurred here. DENIAL OF SUPPRESSION AFFIRMED.

EDITORIAL: This sounds like something that should have happened in South Carolina! 1.3G explosives, according to the American Pyrotechnic Association, used to be called Class B special fireworks, which need licenses to possess and are for commercial displays, not for amateurs to be keeping in basements. 1.4G explosives ARE the normal amateur-type fireworks, but you still have to store them safely. This guy had 1,250 pounds of them. That's a lot of fireworks to be keeping unsecured in the basement. He got a whole year in Club Fed for that--might be fair.

The rule we usually hear about warrantless fire investigations is that you better get them done before the firetruck leaves. This was a good use of that rule. I'll leave the carbon monoxide explorations to the professionals, thank you.

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