United States v. Putt

990 F. Supp. 2d 571, 2013 WL 5503084, 2013 U.S. Dist. LEXIS 144200
CourtDistrict Court, E.D. Virginia
DecidedOctober 1, 2013
DocketCriminal Action No. 4:13cr65
StatusPublished

This text of 990 F. Supp. 2d 571 (United States v. Putt) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Putt, 990 F. Supp. 2d 571, 2013 WL 5503084, 2013 U.S. Dist. LEXIS 144200 (E.D. Va. 2013).

Opinion

MEMORANDUM OPINION AND ORDER

RAYMOND A. JACKSON, District Judge.

Before this Court is the Defendant Kenneth Putt’s Motion to Suppress. Plaintiff has filed a Memorandum in Support of that motion, and the Government has filed a Response. Defendant has also filed a Rebuttal Brief. The Court held a hearing on the Motion to Suppress on September 30, 2013. For the reasons discussed below, Defendant’s Motion to Suppress is DENIED.

I. PROCEDURAL AND FACTUAL HISTORY

On June 12, 2013, a Grand Jury returned a single count indictment charging Defendant with knowingly, intentionally, and unlawfully manufacturing over 100 marijuana plants in Mathews County, Virginia, on April 23, 2013, in violation of 21 U.S.C. § 841(a)(1). The indictment also included an allegation of criminal forfeiture, 21 U.S.C. § 853.

The Indictment and the instant Motion to Suppress both stem from a single incident at Defendant’s home. Firefighters responded to a fire there between 1 and 1:15pm. Mem. Supp. Mot. to Suppress, Ex. 1. Assistant Fire Chief Charles Shaw of the Mathews County Volunteer Fire Department entered the home to respond to reports of smoke coming from the attic. Defendant had told him when he arrived that the fire was on the outside of the home. Id. at Ex. 2. He noticed PVC piping and green plants in one of two rooms at the top of the interior stairs; smoke [573]*573blocked visibility into the other room. Id. Shaw used an ax in the ceiling of that room to gain access to the attic, observed a fire there, and then exited the structure to change his air bottle. Id. He re-entered through an attic window, extinguished several hot spots in the attic, and then exited through the same window. Id. After a short break, Shaw entered the house for a third time with a thermal imager, which he used in the room previously blocked by smoke to look for hot spots. Id. He found one, but saw that more PVC piping and plants were blocking access to the spot. Id.

Shaw then exited the house, approached Lieutenant William Riley of the Mathews County Sheriffs Office, and asked him to enter the home. Id. Police had initially arrived at the scene at approximately the same time as the fire units, and more law enforcement units continued to report to the scene. Id. at Ex. 1. Deputy Riley did not arrive until approximately 2pm, which Defendant notes is about 15 minutes after the fire was reported to be under control. Id. at 1. Shaw reports that he told Riley that “[he] had something to show him,” id. at Ex. 2; Riley reported in the warrant affidavit that Shaw asked him to come inside “to see where the fire had started.” Mot. to Suppress, Ex. 2. Riley entered the home and saw approximately 100 marijuana plants in a hydroponic system in each of the upstairs rooms. Id. Shaw told him that he might have to damage them to fight the hot spots; Riley told him to do what he needed to fight the fire, but to try to minimize damage to the growing system. Mem. Supp. Mot. to Suppress, Ex. 2. Riley then left Defendant’s home and used what he had seen in the home to obtain a search warrant. Mot. to Suppress, Ex. 2. He executed the warrant and seized hundreds of plants and several pounds of marijuana. Id.

II. DISCUSSION

Defendant seeks to suppress all of the material seized at his home, as he contends it was obtained as a result of Riley’s unconstitutional warrantless search of his home. The Government relies on two exceptions to the warrant requirement: exigent circumstances and inevitable discovery. The Court relies on the second exception to deny the Motion to Suppress, but also notes that the first exception may provide alternate grounds to deny it as well.

A. Exigent circumstances

First, the Government contends that a warrant was not required because the search was justified by a well-established exception to the warrant requirement: exigent circumstances, in this case to respond to the fire emergency and to prevent the imminent destruction of evidence. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The actions of Shaw himself would undoubtedly be covered by this exception had he, for example, seized the marijuana himself, as it appears that he reasonably believed that his own firefighting efforts to combat existing hot spots were necessary and that doing so might damage the evidence. See also Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (firefighters do not need a warrant to fight a fire and investigate its cause, and “[¡Immediate investigation may also be necessary to preserve evidence from intentional or accidental destruction”).

But under either account of what Shaw told Riley, Riley appears to himself have been unaware of the relevant exigency when he entered the home. He did not know that he was being called into the house to potentially preserve evidence of illegal activity. And the Fourth Circuit [574]*574has held that “the person making entry must have had an objectively reasonable belief that an emergency existed that required immediate entry,” and has looked to the following factors:

(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) the officers’ reasonable belief that the contraband is about to be removed or destroyed; (3) the possibility of danger to police guarding the site; (4) information indicating the possessors of the contraband are aware that the police are on their trail; and (5) the ready destructibility of the contraband.

United States v. Yengel, 711 F.3d 392, 397 (4th Cir.2013) (quotations omitted). This language implies that the officer must have had an actual belief that was objectively reasonable, although the Supreme Court has repeatedly held that an “officer’s subjective motivation is irrelevant.” Brigham City v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). Id. (“An action is reasonable under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify the action.” (quotations omitted)).

Although Riley’s actions would have been justified by exigent circumstances had he been aware of all of the facts (as defense counsel conceded at the hearing on the Motion to Suppress), any subjective belief about an exigency on Riley’s part would have been objectively unreasonable to the facts known to him at the time. See United States v. Leveringston, 397 F.3d 1112, 1116 (8th Cir.2005) (“[W]e consider the circumstances that confronted the police at the time of the entry.”). He did not know that he was being asked to look at evidence that was likely to be destroyed, and it is unlikely that he thought his help was needed to combat the fire.

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Related

Ker v. California
374 U.S. 23 (Supreme Court, 1963)
Michigan v. Tyler
436 U.S. 499 (Supreme Court, 1978)
Nix v. Williams
467 U.S. 431 (Supreme Court, 1984)
Brigham City v. Stuart
547 U.S. 398 (Supreme Court, 2006)
Morelli v. Webster
552 F.3d 12 (First Circuit, 2009)
United States v. Massenburg
654 F.3d 480 (Fourth Circuit, 2011)
United States v. Craig Lawrence Thomas
955 F.2d 207 (Fourth Circuit, 1992)
United States v. Bobby R. Leveringston
397 F.3d 1112 (Eighth Circuit, 2005)
United States v. Joseph Yengel, Jr.
711 F.3d 392 (Fourth Circuit, 2013)

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Bluebook (online)
990 F. Supp. 2d 571, 2013 WL 5503084, 2013 U.S. Dist. LEXIS 144200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-putt-vaed-2013.