Appeal from a judgment of conviction following a jury trial in the United States District Court for the Southern District of New York before Pierre N. Leval, Judge. Affirmed on the ground that the search of appellant's apartment met the requirements set forth in Michigan v. Tyler, 436 U.S. 499, 56 L. Ed. 2d 486, 98 S. Ct. 1942 (1978).
Before Oakes and Van Graafeiland, Circuit Judges, and Carter, District Judge.*fn*
Eugene Callabrass appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York, Pierre N. Leval, Judge. Following a jury trial, appellant was convicted of conspiracy to manufacture phencyclidine (also known as "PCP" or "angel dust") in violation of 21 U.S.C. § 846, manufacture of PCP in violation of 21 U.S.C. §§ 812, 841(a), and 841(b)(1)(B), and 18 U.S.C. § 2, and possession of PCP with intent to distribute it in violation of the same statutory sections. The court sentenced appellant to serve two and one half years' imprisonment on the conspiracy and possession counts, to be followed by three years of special parole, and to a concurrent sentence of five years' probation on the manufacturing count.
Defendant's principal claim on appeal is that the seizure of certain drug-making equipment by a police officer summoned to the scene of a fire violated the Fourth Amendment. Accordingly, he argues that the narcotics paraphernalia should have been excluded at trial. Appellant also contends that, even including the contested articles, the evidence against him was insufficient to support a guilty verdict on the conspiracy count and that, without the contested articles, the evidence on the substantive counts would have been insufficient. For the reasons set forth below, we affirm the judgment.
Taking the evidence in the light most favorable to the government, as we must when we review a guilty verdict or a denial of a motion to suppress, See United States v. Oates, 560 F.2d 45, 49 (2d Cir. 1977), the evidence indicates that appellant, with the assistance of two codefendants, Raymond B. Cromer and Adie White, engaged in the manufacture of PCP at two locations, an apartment at 135 West 183rd Street in the Bronx and a house at 146-93 183rd Street (described as "a middle class residential neighborhood") (Tr. 62) in Queens. In November 1977, appellant, under the false name "Eugene Jones," began purchasing the necessary chemicals and laboratory equipment from SGA Scientific, Inc., a laboratory supply house in New Jersey, having the invoices made out to his codefendant, White. At some point, the supply house alerted law enforcement authorities to the purchases. On February 2, and again on February 10, 1978, agents of the Drug Enforcement Administration (DEA) observed appellant delivering to the Bronx apartment boxes of the materials that he had picked up at the laboratory supply house. Appellant had leased the apartment in the Bronx under the same false name that he had used to purchase the chemicals and equipment. On February 2, appellant was also observed purchasing a quantity of loose spearmint tea leaves, which are commonly sprayed with PCP and then smoked. When DEA agents later searched the Bronx apartment they found among other items SGA cartons, a glass beaker bearing appellant's fingerprints as well as those of Cromer, and a plastic spray top which had been used to apply PCP and contained a residue of that narcotic substance.
In mid-February, 1978, appellant, again using the name Eugene Jones, arranged to rent the Queens house from one Frank Mercurio. Appellant told Mercurio that he, Jones, and his wife would occupy the house as a residence. Evidently Mercurio had prepared a draft lease; and although the parties had not signed a lease, Mercurio had given appellant the right to enter the empty house to paint it.
At about 4:00 p. m. on February 19, a fire erupted in the back bedroom of the house. New York City Fire Department Engine 311 answered the call. While one group of firefighters was putting out the fire, another vented the building by knocking out windows and made a so-called "primary search" for victims. Although the fire was extinguished, the firefighters opened up the ceilings, walls, and window moldings in accordance with their usual custom to make sure that the fire was not smoldering. They also made an extensive "secondary search" of the entire house, again looking for victims or anybody who might have tried to hide from the fire. This search involved opening closets and cabinets and looking under the sink and in a clothes hamper. In the course of this search the firefighters found chemicals, scales, and vials in the kitchen and the bedroom where the fire had started. In addition they found books and papers in the kitchen area. They labeled the fire suspicious and called the police. It was subsequently ascertained that an explosion of some of the volatile chemicals that were used in the manufacture of PCP had caused the fire.
The firefighters found no sign of individuals living in the house although when they entered they heard music playing from either a radio or television. They found no food in the refrigerator, only one item of clothing, no bedding, and only a couch and a bed for furniture. Neighbors had seen two men flee from the house at the time of the fire and attempt to enter a Ford Pinto parked nearby. The keys to the Pinto were found in the house and later were turned over to the police officer who had arrived in response to the fire lieutenant's notification of the suspicious fire. The fire had been extinguished and the primary and secondary searches completed within an hour and fifteen minutes, but the house was not secure. The owner or occupants could not be located; nearly all the windows and both doors were broken; there was neither heat nor electricity in the house although this was the dead of winter; large quantities of possibly dangerous chemicals, later found to include piperidine, cyclohexanone, benzene, and ether were in plain view; and broken glass from the windows was scattered throughout the house.
Patrolman Shyne, the first police officer to reach the house, arrived at 4:30 p. m., approximately one-half hour after the original notification to the fire department. Shyne surveyed the condition of the house, helped the firefighters in their secondary search for victims, and received the keys to the Pinto. Before the firefighters left, a veteran fire department lieutenant told Shyne that a dangerous condition existed in the house because of the chemicals. Patrolman Shyne saw the chemicals and various "articles that pertained to a possible drug factory." He then notified the local police station of the condition of the premises and attempted to secure the door to the home and to learn from neighbors the identity of the owner. Unable to locate the owner or to secure the apartment, Shyne and his partner then stationed themselves outside the premises and waited for assistance.
Shortly thereafter, a number of detectives from the local precinct arrived. Shyne escorted them through the house as they surveyed the scene. Unfamiliar with what they saw, the detectives left everything undisturbed and awaited further help. At 6:45 p. m., someone from the local police station summoned to the house Detective David Cassidy of the Queens Narcotics Squad, who was at home on his day off, a Sunday. He arrived at approximately 8:00 p. m. and joined the other police officers already waiting there. Cassidy soon noted pieces of narcotics paraphernalia, including glassine bags, strainers, scales, large plastic bottles labeled "Lactose," assorted vials, beakers, and burners, and a large bottle of parsley leaves and a large bag of loose tea leaves, each of which evidently serves the same purpose as do the spearmint leaves subsequently found at the Bronx apartment. On the floor of the living room Detective Cassidy found a number of loose papers, books, and notebooks with writing in them, including a notebook with the name "A. White" written across the front. Among the books and papers were chemistry textbooks, a book entitled "Cocaine Consumers Handbook," See United States v. Pugh, 566 F.2d 626 (8th Cir. 1977), Cert. denied, 435 U.S. 1010, 98 S. Ct. 1885, 56 L. Ed. 2d 393 (1978), and a pamphlet entitled "The Synthesis of Phencyclidine and Other 1-Arylcyclophexylamines."
Detective Cassidy identified the ether and benzene as potentially explosive and ordered that the chemicals without visible markings be treated as hazardous. He was also fearful that because of the weather and the open windows, bottles might freeze and break open or leak. He permitted no smoking and summoned the Bomb Squad. The Bomb Squad arrived at some time after 8:00 p. m. and removed the chemicals from the premises. The ether was transported by bomb carrier and the other chemicals, which included potassium cyanide and chloroform, were placed in another vehicle for the trip to the police range. Among the chemicals found were two bottles from SGA Scientific that DEA agents had secretly marked before appellant had picked them up.
Detective Cassidy vouchered the notebooks and papers seized on the premises, including the notebook labelled "A. White" which set out in detail the procedures for manufacturing PCP, customers' copies of the invoices for the materials purchased from SGA Scientific, and a utility bill for the Bronx apartment addressed to "Eugene Jones." At Cassidy's direction, the other police officers at the scene packed for removal the items apparently used in the narcotics laboratory including glassware, strainers, heating units, scales and disposable rubber gloves. By virtue of the thorough secondary search that the firefighters had already conducted, all of the cabinet doors were open, and the seized items were primarily outside the cabinets on the sink, counters, floor, or furniture.
The following day Detective Cassidy confirmed at the police laboratory that the chemicals and other material indicated that a PCP laboratory had been in operation. On the second day following the fire, Cassidy finally located the owner of the house, Mercurio, and received his consent to reenter the premises. Upon doing so, he found in one of the closets a white shirt with appellant's initials "E.F.C." Also, in the snow where the Pinto had been parked, Cassidy found a blue lab coat containing a note written by appellant.
The central issue argued on appeal is whether Cassidy's warrantless entry into the apartment and subsequent seizure of the evidence was lawful under Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978), the case in which the Supreme Court considered "the applicability of the Fourth and Fourteenth Amendments to official entries onto fire-damaged premises." Id. at 501, 98 S. Ct. at 1946. There, the Court held that although the warrant procedures of the Fourth Amendment applied to official entries to investigate a suspicious fire, entry into a "burning building clearly presents an exigency of sufficient proportions to render a warrantless entry "reasonable.' " ...