The opinion of the court was delivered by: LEVAL
The defendants move to suppress items seized from a house located at 146-39 183rd Street, Queens, New York. The motion is denied.
The facts brought out at a pre-trial hearing are as follows. On February 19, 1978 the New York City Fire Department responded to a fire alarm at 146-39 183rd Street, Queens. The firemen arrived at the scene of the fire at approximately 4 p.m. The firemen observed smoke coming out of the rear bedroom. The front entrance of the house was blocked by unshoveled snow, but the rear door, which led into the kitchen, was unlocked. The firemen entered the house through this rear door and found a fire burning in the back bedroom and the adjacent hallway. The rest of the house was filled with smoke and visibility was limited. The firefighters, immediately upon entering the home, made a "primary search" for persons trapped in the building and broke the windows to allow the smoke to escape.
After the flames in the back bedroom were extinguished, the firemen undertook a "secondary search" in accordance with usual firefighting procedures. In this procedure the firemen thoroughly search the entire premises for any person who might have hidden from the fire. Every conceivable hiding place into which the tiniest infant could fit including closets, cabinets, drawers, refrigerators, hampers, etc. is opened and searched. In addition, the entire premises are overhauled to extinguish any lingering combustion or hidden flames. This involves removing all the base boards, checking in the walls, and taking other precautions to be certain that the fire is fully extinguished.
The house appeared to be uninhabited. It was sparsely furnished. There were practically no clothes in the closets and there was no food in the refrigerator. However, in the kitchen, living room and bedroom were a variety of laboratory equipment, including many beakers, burners, and chemicals. Numerous papers were strewn about on table tops and on the floor. The firemen believed the fire in the bedroom might have been caused by chemicals. Among the chemicals observed were ether, potassium cyanide and chloroform. There were many beakers containing unidentified chemicals. In addition, many items appeared to be drug paraphernalia.
The fire was initially classified as "suspicious." Because of the suspicious origins of the fire, the presence of dangerous chemicals, and the presence of drug paraphernalia, the police and fire marshals were called.
A further reason for calling the police was to secure the premises, as the windows had been knocked out and doors broken. The firemen did not know who owned the house. No one was present. Neighbors advised that the house had been vacant for about a month. Some neighbors told of having seen two men flee from the building when the fire broke out and try to enter a 1972 tan Ford Pinto which was parked in front of the house. The men had been unable to enter the car and had fled on foot. The firemen had found the keys to the Pinto on a table in the living room.
When the police arrived around 5 p.m., the firemen turned over to them the keys to the Pinto and took them through the house to show them what had been observed.
Among the police officers who reported to the scene was Detective Cassidy who had ten years experience in narcotics work. Because he observed explosive and flammable chemicals such as ether and benzine, as well as unidentified potentially dangerous chemicals, he summoned Emergency Services and the Bomb Squad.
Along with the beakers, bunsen burners, chemicals and laboratory equipment, Cassidy observed articles which appeared to be narcotics paraphernalia, including numerous containers of lactose which is commonly used as a narcotics dilutant, glassine envelopes which are commonly used in narcotics distribution and a triple beam balance scale. Among the books and papers strewn about on table tops and on the floor were chemistry textbooks, a book entitled "Cocaine Consumer's Handbook" and a pamphlet entitled "The Synthesis of Phencyclidine and Other 1-Arylcyclohexylamines". Phencyclidine is a depressant drug commonly known as PCP or Angel Dust which is illegally trafficked. Other papers in plain sight included a U.S. Patent Office publication on the making of PCP and handwritten lists containing references to many chemicals including piperidine cyclohexanone. These chemicals are referred to on the face of the phencyclidine article as chemicals used in making PCP. Cassidy knew that ether (which he had seen in the kitchen) was also used in making PCP. Cassidy also observed strainers, heaters and a container of parsley leaves. Although these items may be used for innocent purposes Cassidy knew that they are used in the manufacture of drugs as well. For example, parsley leaves are saturated with PCP for sale. On the basis of these observations Cassidy had probable cause to conclude that the house was being used as a laboratory for the illegal manufacture of PCP and that the laboratory equipment, paraphernalia, books and papers which he observed were evidence of this criminal activity.
Cassidy personally seized all the books and papers which were in plain sight (1) because of their obvious evidentiary value with respect to the drug activity; (2) because he hoped they might help identify the owner of the house; and (3) because he thought they might help identify which chemicals, if any, were dangerous and would thus require special handling. A further motive for seizing items of possible value or importance was to safeguard them, since the house was no longer secure. The windows and doors had been broken by the firefighters and there was no one to take possession of the house and its contents.
All dangerous chemicals and unidentified (potentially dangerous) chemicals were taken by the bomb squad in the special bomb trucks.
The lab equipment, glassware, utensils, other chemicals, and paraphernalia were seized at Cassidy's instructions by Patrolman Shyne of the New York City Police.
Everything that was seized was in plain sight. Most of the objects in the house were out in plain sight due to the ...