United States v. Klump, No. 06-0339 (2d Cir. 2008)

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06-0339-cr United States v. Klump 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 -------- 4 August Term, 2007 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 (Argued: June 2, 2008 Decided: August 4, 2008) Docket No. 06-0339-cr -----------------------------------------------------------X UNITED STATES OF AMERICA, Appellee, - v. HAROLD KLUMP, Defendant-Appellant. -----------------------------------------------------------X Before: McLAUGHLIN, SACK, and LIVINGSTON, Circuit Judges. 20 Appeal from a judgment of the United States District Court 21 for the Western District of New York (Arcara, C.J.), convicting 22 defendant, after a jury trial, of manufacturing marijuana, 23 possessing with the intent to sell marijuana, and possessing a 24 firearm in furtherance of a drug-trafficking crime. 25 26 27 28 29 30 31 32 33 34 AFFIRMED. MONICA J. RICHARDS, Assistant United States Attorney (Terrance P. Flynn, United States Attorney for the Western District of New York), Buffalo, New York, for Appellee. BRUCE R. BRYAN, ESQ., Syracuse, New York, for Defendant-Appellant. 1 2 McLAUGHLIN, Circuit Judge: Harold Klump appeals from a judgment of conviction entered 3 on January 11, 2006, following a jury trial in the United States 4 District Court for the Western District of New York (Arcara, 5 C.J.). 6 or more marijuana plants, one count of possessing with intent to 7 distribute 1,000 or more marijuana plants, and one count of 8 possessing a semiautomatic assault weapon in furtherance of a 9 drug-trafficking crime. Klump was convicted on one count of manufacturing 1,000 He was sentenced to two concurrent terms 10 of 240 months imprisonment on the drug counts and a consecutive 11 term of 120 months imprisonment on the gun count. 12 On appeal, Klump contests the denial of his pretrial motion 13 to suppress evidence seized pursuant to a search warrant. He 14 argues that the warrant was invalid because it was based on (1) 15 evidence of criminal activity observed during an illegal 16 warrantless search of his warehouse, and (2) an affidavit that 17 contained several material misstatements and omitted critical 18 information. 19 because it was imposed pursuant to a statute that had expired by 20 the time he was sentenced. Klump also challenges his sentence on the gun count 21 We agree with the district court that exigent circumstances 22 justified the warrantless entry into the warehouse, and that the 23 search warrant affidavit contained no material misstatements or 2 1 omitted material information. We also find that the district 2 court properly sentenced Klump on the gun count. 3 affirm. Accordingly, we 4 BACKGROUND 5 In October 2002, Drug Enforcement Administration ( DEA ) 6 Task Force Agent Cory Higgins executed an affidavit in support of 7 a warrant to search a warehouse located at 900 Genesee Street in 8 Buffalo, New York. 9 information. 10 The affidavit set forth the following While surveilling the home of Jeremy Page in connection with 11 an on-going narcotics investigation, DEA agents saw a white van, 12 driven by someone agents believed to be Harold Klump, arrive and 13 pick up Page. 14 white van and ran a large marijuana-growing operation somewhere 15 on the east side of Buffalo, the agents followed the van to Home 16 Depot. 17 commonly used to grow marijuana. 18 located at 900 Genesee Street, which, according to City of 19 Buffalo tax records, was owned by Klump. 20 the PVC pipe into the warehouse. 21 Acting on information that Page s employer drove a There, the suspects bought PVC plumbing pipe, which is They then drove to a warehouse The suspects carried The agents surveilled the warehouse for the next several 22 hours. During this time, the agents stopped a van shortly after 23 it left the warehouse when the driver failed to signal at a 3 1 nearby intersection. They saw several marijuana leaves on the 2 driver s side floor. The agents later stopped another vehicle as 3 it left the warehouse and detected a strong smell of marijuana. 4 They searched the driver and found a quarter pound of marijuana. 5 Klump and Page left the warehouse at around 2:35 pm and were 6 stopped by DEA agents. 7 the warehouse and called the fire department. 8 were two guard dogs inside, the agents accompanied the firemen 9 into the building. 10 The agents then smelled smoke coming from Aware that there While inside, the agents saw approximately 300 marijuana plants and a handgun. 11 Later that day, on the basis of DEA Agent Higgins s 12 affidavit described above, a Magistrate Judge signed a warrant 13 authorizing agents to search the warehouse. 14 search, agents seized 1,044 marijuana plants and a semiautomatic 15 Mack 11 carbine rifle. 16 Pursuant to the In February 2003, Klump was charged with: (1) manufacturing 17 over 1,000 marijuana plants in violation of 21 U.S.C. § 841(a)(1) 18 and (b)(1)(A); (2) possessing with intent to distribute over 19 1,000 marijuana plants in violation of 21 U.S.C. § 841(a)(1) and 20 (b)(1)(A); and (3) possessing a semiautomatic assault weapon in 21 furtherance of a drug-trafficking crime in violation of 18 U.S.C. 22 § 924(c)(1)(A) and (c)(1)(B)(i). 4 1 Klump moved to suppress the evidence obtained pursuant to 2 the search warrant. 3 because it was based on observations made by DEA agents during an 4 illegal warrantless search of the warehouse. 5 that the search warrant affidavit omitted critical information 6 relevant to the issue of probable cause, including that (1) no 7 fire was ultimately discovered at the warehouse, and (2) one of 8 the men whom the agents stopped as he left the warehouse told the 9 agents there was construction going on inside, which provided a 10 11 He argued that the warrant was invalid Klump also alleged perfectly innocent reason for the purchase of the PVC pipe. In October 2003, a Magistrate Judge held a hearing on 12 Klump s motion to suppress. The Buffalo Fire Department 13 Battalion Chief, William Cunningham, who responded to the call 14 about the smell at the warehouse, testified that, shortly after 15 arriving, the agents told him they were conducting a narcotics 16 investigation and thought that their suspects might be destroying 17 evidence. 18 described as a half electrical, half oily . . . kind of sweet . 19 . . smell . . . that was coming out of the top of the building. 20 According to Cunningham, it was hard to tell exactly what it 21 was, but it definitely had an odor of something burning. 22 also stated that, over the course of his twenty-eight year 23 career, he had encountered really major fire[s] that were Cunningham saw no smoke or fire, but smelled what he 5 He 1 contained entirely inside of a building, and where there was 2 just an odor and very little or no smoke outside. 3 Cunningham testified that he entered the warehouse to 4 investigate the odor. The DEA agents accompanied the 5 firefighters inside and subdued the two pit bulls that were 6 guarding the entrance. 7 inspected all three floors of the warehouse but found no smoke or 8 fire. The firefighters and the agents then 9 DEA Special Agent Dale Kasprzyk, the law enforcement 10 supervisor on the scene, testified that the agents accompanied 11 the firefighters into the building because of concerns for the 12 firefighters safety. 13 operations were often booby-trapped or otherwise protected in 14 ways that could have posed a danger to the firefighters. 15 In his experience, marijuana-growing William Donovan, a City of Buffalo police officer assigned 16 to the DEA, entered the warehouse with the firefighters. Donovan 17 testified that he saw numerous marijuana plants and a handgun 18 while inspecting a room on the first floor, but did not touch or 19 otherwise remove anything. 20 complete, all fire and law enforcement personnel left the 21 warehouse, and the agents secured the building to await a search 22 warrant. 23 odor could be from a furnace he had lit. After the fire inspection was While the agents waited, Page informed them that the 6 1 In February 2004, the Magistrate Judge recommended denial of 2 the motion to suppress. 3 agents were justified in entering the warehouse to investigate 4 the source of the smell, that the scope of the search was 5 commensurate with the exigency, and that the evidence observed by 6 the agents in plain view while inside was properly included in 7 the search warrant affidavit. 8 was not misleading. 9 10 He concluded that the firefighters and He also found that the affidavit In May 2004, the district court adopted the Magistrate Judge s recommendation, over Klump s objections. 11 During Klump s jury trial, there was testimony that, 12 contrary to what the affidavit stated, Klump was not the person 13 who picked Page up at his home on the day in question, and the 14 DEA agents saw only one marijuana leaf in the van that was 15 stopped soon after leaving the warehouse. 16 testimony that workers were repairing a water pump and a water- 17 damaged floor in the warehouse at the time of the search. 18 jury convicted Klump of all charges. 19 There was also The At sentencing, Klump argued that the ten-year mandatory 20 minimum sentence on the gun count mandated by 18 U.S.C. 21 § 924(c)(1)(B)(i) for possessing a semiautomatic assault weapon 22 in furtherance of a drug-trafficking crime did not apply to him. 23 He contended that this provision, though operative when he 7 1 committed the offense and when he was convicted, was inapplicable 2 because it had expired fifteen months before sentencing. 3 district court rejected Klump s argument, and sentenced him to 4 two concurrent terms of 240 months imprisonment on the drug 5 counts, and a consecutive term of 120 months imprisonment on the 6 gun count. DISCUSSION 7 8 9 The Klump makes two arguments: (1) the district court erred in denying his pretrial motion to suppress, and (2) the district 10 court improperly sentenced him pursuant to 18 U.S.C. § 11 924(c)(1)(B)(i) on the gun possession charge. 12 arguments. 13 I. We reject both The Motion to Suppress 14 Klump challenges the district court s determination that 15 exigent circumstances supported the initial warrantless entry 16 into the warehouse, and that the search warrant affidavit did not 17 contain material misstatements or omit material information. 18 A. 19 Exigent Circumstances Exigent circumstances provide an exception to the Fourth 20 Amendment s warrant requirement. Coolidge v. New Hampshire, 403 21 U.S. 443, 474-75 (1971). 22 whether exigent circumstances existed is fact-specific, and will 23 not be reversed on appeal unless clearly erroneous. A district court s determination as to 8 United 1 States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc). 2 This standard requires us to uphold the ruling of the court below 3 unless we are left with the definite and firm conviction that a 4 mistake has been committed. 5 179, 185 (2d Cir. 2008) (internal citation and quotation marks 6 omitted). 7 United States v. Iodice, 525 F.3d The test to determine whether exigent circumstances exist 8 is an objective one that turns on . . . the totality of the 9 circumstances confronting law enforcement agents in the 10 particular case. 11 is whether the facts, as they appeared at the moment of entry, 12 would lead a reasonable, experienced officer, see United States 13 v. Zabare, 871 F.2d 282, 291, 292 (2d Cir. 1989), to believe that 14 there was an urgent need to render aid or take action, 15 MacDonald, 916 F.2d at 769 (internal quotation marks omitted). 16 A burning building clearly presents an exigency of sufficient 17 proportions to render a warrantless entry reasonable. 18 Michigan v. Tyler, 436 U.S. 499, 509 (1978). 19 MacDonald, 916 F.2d at 769. The core question The presence of exigent circumstances, of course, does not 20 give government officials unfettered license to conduct a 21 generalized search for evidence of criminal activity. 22 the warrantless search must be strictly circumscribed by the 23 exigencies which justify its initiation. 9 Rather, Mincey v. Arizona, 437 1 U.S. 385, 393 (1978) (internal citation and quotation marks 2 omitted). 3 fire, therefore, the scope of the warrantless search is limited 4 to that reasonably necessary to extinguish the blaze, determine 5 the cause and origin of a fire, and ensure against rekindling. 6 See Michigan v. Clifford, 464 U.S. 287, 293 (1984). 7 contraband or other evidence of a crime seen in plain view during 8 such a circumscribed search may be used to establish probable 9 cause to obtain a warrant to conduct a broader search. 10 11 Where officials enter private property to fight a However, any See id. at 294. Applying these standards, we find no clear error in the 12 district court s determination that the firefighters and agents 13 reasonably believed it was necessary to enter the warehouse. 14 Upon arrival, the fire chief smelled what he described as a half 15 electrical, half oily . . . kind of sweet smell that definitely 16 had an odor of something burning. 17 buildings where there was very little or no smoke outside, just 18 an odor, the fire chief decided, in his professional judgment, 19 that it was necessary to enter the warehouse and investigate the 20 cause of the odor. 21 Having been to major fires in Under these circumstances, the firefighters had an 22 objectively reasonable basis for believing that there was a fire 23 inside the warehouse. Nothing in the Fourth Amendment required 10 1 them to wait until they saw actual smoke or flames to enter a 2 building that they reasonably believed might be on fire. 3 Brigham City v. Stuart, 547 U.S. 398, 406 (2006) (holding that 4 the Fourth Amendment does not require police to wait until 5 another blow render[s] someone unconscious or semi-conscious 6 or worse before entering ). 7 Nor is it relevant that no fire or smoke was found. Cf. The 8 objective standard for assessing reasonableness focuses on what 9 the facts, as they appeared at the moment of entry, would lead a 10 reasonable, experienced officer to believe. 11 at 292. 12 belief on the basis of hindsight. 13 See Zabare, 871 F.2d It does not permit a court to evaluate the officer s See id. Klump maintains that the warrantless entry was unreasonable 14 because the firefighters and agents entered the warehouse to look 15 for evidence of a crime, not to respond to a legitimate exigency. 16 As Klump concedes, however, the Supreme Court has made clear that 17 the subjective intent of government agents is irrelevant to 18 determining whether a particular search was reasonable under the 19 Fourth Amendment. 20 cases). 21 Amendment, regardless of the individual officer s state of mind, 22 as long as the circumstances, viewed objectively, justify [the] 23 action. See, e.g., Brigham, 547 U.S. at 404-05 (citing Rather, [a]n action is reasonable under the Fourth Id. at 404 (alteration in original) (quoting Scott v. 11 1 United States, 436 U.S. 128, 138 (1978)). 2 agents subjective motives in entering the warehouse could be so 3 neatly unraveled, id. at 405, they simply do not matter. 4 argues that this rule should not apply where the threat is to 5 property or evidence, rather than life or limb. 6 principled reason to adopt this distinction, however, and we can 7 conceive of none. 8 9 Thus, even if the Klump He offers no We also reject Klump s assertion that the scope of the search exceeded the exigency. He asserts that the firefighters 10 and agents had no reason to search the first and second floors of 11 the warehouse because the burning smell appeared to originate 12 from the top of the building. 13 and agents should have proceeded directly to the third floor and, 14 having found no fire or smoke there, immediately left the 15 warehouse. 16 circumstances, the firefighters acted reasonably in searching all 17 three floors to locate the source of the burning smell and 18 determine whether the warehouse was on fire. 19 exigencies of the situation made that course imperative. 20 v. Hayden, 387 U.S. 294, 298 (1967) (internal citation and 21 quotation marks omitted). We disagree. He contends that the firefighters Under the totality of the Indeed, the Warden 22 Accordingly, because the firefighters and DEA agents were 23 legally within the warehouse, observation of the marijuana and 12 1 handgun in plain view properly served as the basis for the 2 subsequent search warrant. 3 B. 4 Material Misstatements and Omissions We review de novo whether alleged misstatements or omissions 5 in a search warrant affidavit render the warrant invalid. 6 United States v. Canfield, 212 F.3d 713, 717 (2d Cir. 2000). 7 A search warrant affidavit is presumed reliable. See Franks v. 8 Delaware, 438 U.S. 154, 171 (1978). In certain circumstances, 9 however, a defendant may challenge the truthfulness of factual 10 statements made in the affidavit, and thereby undermine the 11 validity of the warrant and the resulting search or seizure. 12 United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003). 13 void the warrant and suppress the evidence based on a defective 14 affidavit, the defendant must demonstrate, by a preponderance of 15 the evidence, that there were intentional and material 16 misstatements or omissions in the search warrant affidavit. 17 To Id. A misstatement or omission is material if it is necessary 18 to the [issuing] judge s probable cause finding. 19 F.3d at 718 (internal citation and quotation marks omitted). 20 determine materiality, we disregard the allegedly false 21 statements and determine whether the remaining portions of the 22 affidavit would support probable cause to issue the warrant. 23 Id. (internal citation and quotation marks omitted). 13 Canfield, 212 If the To 1 emended affidavit supports probable cause, the inaccuracies were 2 not material and suppression is not warranted. 3 Id. In determining whether there is probable cause, our task is 4 simply to make a practical, common-sense decision whether, given 5 all the circumstances set forth in the affidavit[,] . . . there 6 is a fair probability that contraband or evidence of a crime will 7 be found in a particular place. 8 213, 238 (1983). 9 Illinois v. Gates, 462 U.S. Here, Klump isolates five misstatements or omissions in the 10 affidavit that he believes render it misleading: (1) the agents 11 smelled smoke rather than just an odor ; (2) Klump picked Page 12 up from his house and bought the PVC pipe, when it was actually 13 not Klump; (3) the agents saw marijuana leaves in the van they 14 stopped, instead of just one leaf; (4) the men stopped after 15 leaving the warehouse did not mention there was a fire inside; 16 and (5) there was construction going on at the warehouse, which 17 provided an innocent reason for the purchase of the PVC pipe. 18 We first note that Klump failed to mention his first four 19 challenges in the district court. 20 failure to assert a particular ground in a pre-trial suppression 21 motion operates as a waiver of the right to challenge the 22 subsequent admission of evidence on that ground. 23 v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976). 14 It is well-settled that the United States This oversight 1 will be excused only for good cause. Fed. R. Crim. P. 12(e). 2 Klump had ample opportunity to raise these challenges in the 3 district court, and has not established a reasonable excuse for 4 his failure to do so. 5 these arguments, we would reach the same result. 6 alleged misstatements or omissions in the affidavit draw the 7 reasonableness of the initial warrantless entry into question. 8 That entry lead to the plain-sight discovery of a handgun and 9 large amounts of marijuana. Moreover, even if Klump had not waived None of the This discovery was described in the 10 affidavit and was sufficient by itself, regardless of the 11 misstatements and omissions alleged by Klump, to support a 12 finding of probable cause to search the warehouse further. 13 Canfield, 212 F.3d at 719. 14 See The failure to state in the affidavit that there was ongoing 15 construction at the warehouse was likewise immaterial. 16 that an innocent explanation may be consistent with the facts 17 alleged . . . does not negate probable cause. 18 Fama, 758 F.2d 834, 838 (2d Cir. 1985). 19 statement that PVC pipe is often used to grow marijuana, which 20 Klump does not dispute, the warrant likely would have issued even 21 if the magistrate had been apprised of the construction. 22 this omission was not material. 23 United States v. Given the agent s sworn Accordingly, the search warrant was valid. 15 The fact Thus, 1 2 II. The Sentence Klump challenges the district court s imposition of a ten- 3 year mandatory minimum sentence on the gun possession count under 4 § 924(c)(1)(B)(i) because that statute had expired, pursuant to a 5 sunset provision, before he was sentenced. 6 Klump, the district court should have imposed the five-year 7 mandatory minimum sentence mandated by the version of § 924(c) in 8 effect at the time he was sentenced. 9 challenges de novo, United States v. Smith, 354 F.3d 171, 172 (2d Instead, according to We review such legal 10 Cir. 2003), and conclude that the district court properly 11 sentenced Klump. 12 Under the current version of 18 U.S.C. § 924(c), any person 13 who, during and in relation to any . . . drug trafficking crime 14 . . . uses or carries a firearm, or who, in furtherance of any 15 such crime, possesses a firearm, shall . . . be sentenced to a 16 term of imprisonment of not less than 5 years. 17 2004, 18 U.S.C. § 924(c)(1)(B)(i) (2004) mandated a ten-year 18 mandatory minimum sentence if the firearm possessed by a person 19 convicted of a violation of this subsection . . . is a . . . 20 semiautomatic assault weapon. 21 Before September The older version of § 924(c)(1)(B)(i) applies to Klump even 22 though it had expired before he was sentenced. 23 U.S.C. § 109, [t]he expiration of a . . . statute shall not have 16 Pursuant to 1 1 the effect to release or extinguish any penalty . . . incurred 2 under such statute, unless the . . . statute shall so expressly 3 provide. 4 expressly prohibiting its application to defendants, like Klump, 5 who were convicted of possessing a semiautomatic assault weapon 6 before the statute expired. 7 sentenced him to the ten-year mandatory minimum sentence called 8 for by the statute. Section 924(c)(1)(B)(i) contains no provision Thus, the district court properly 9 CONCLUSION 10 For the foregoing reasons, we AFFIRM the judgment of the 11 district court. 12 13 17

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