                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-5028



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JONATHAN LEONARD DEAN,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:06-cr-00011-nkm)


Submitted:   June 13, 2007                 Decided:   July 17, 2007


Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


David L. Heilberg, DYGERT, WRIGHT, HOBBS & HEILBERG, P.L.C.,
Charlottesville, Virginia, for Appellant. John L. Brownlee, United
States Attorney, William F. Gould, Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           At approximately 11:30 p.m. on November 5, 2006, the

Albemarle County Fire Department received a call that gasoline

fumes were detected in an apartment building at 211 Whitewood Road

in Charlottesville, Virginia.         This apartment building is a three

story, wood-framed building containing twelve individual units.

Jonathan Dean was the tenant in apartment four, in the basement of

211 Whitewood Road.

           Deputy     Fire   Marshall    James    Barber   responded   to   the

address around midnight on the morning of November 6, 2006. Barber

was an investigator for the Albemarle County Fire Marshall’s

Office.    Barber’s training included instruction in the cause of

fires and in incendiary devices and explosives.               Upon arriving,

Barber could smell gasoline fumes in the parking lot outside the

building   and   in   the    common   areas   inside    the   building.     In

investigating the source of the fumes, Barber observed a window

that was opened several inches and covered by a screen.            Barber was

able to look through the window and into Jonathan Dean’s bedroom.

As Barber stood outside and looked in the room, he observed a red

plastic gasoline can with the lid off.           Barber also observed a drop

cord, a box of CO2 cartridges, a box that appeared to have been

scorched, and a lamp that was plugged in and turned on.

           Barber then knocked on Dean’s door.             After receiving no

response, Barber went to his truck and retrieved his camera.


                                      - 2 -
Barber returned to Dean’s door and knocked again.                When he still

received    no   answer,   Barber    unlocked   Dean’s    door   using   a   key

provided by the apartment manager and entered Dean’s apartment.

            The front door of Dean’s apartment led into a small

hallway.    Dean’s kitchen was immediately to the right of the front

door.    As Barber looked into Dean’s kitchen he observed three two-

liter bottles modified with initiator wires, bottle caps modified

with Shrader or tire pressure valves, propane tanks, batteries, and

wires.     Based on his training and experience, Barber knew that

these objects could be used to create explosive devices.                 Barber

photographed what he observed in the kitchen. He then proceeded to

Dean’s bedroom, photographed the gas can, and then removed it by

taking it out the front door.        Barber then left to secure a search

warrant.    Meanwhile, county police located Dean, handcuffed him,

and detained him pending the search of his apartment.              After being

informed of his rights, Dean made statements that “they were just

messing around” and that “he was not a terrorist.”

            After Barber secured a search warrant, Dean’s apartment

was searched for bomb making materials and a number of items were

seized.     The police later secured a second warrant to search

computers    found    in    Dean’s     apartment    for     information       on

manufacturing explosives.           During this search for bomb making

information, the police discovered evidence of child pornography on




                                     - 3 -
Dean’s computers.      The police then secured a third warrant to

search Dean’s computers for child pornography.

           Dean was ultimately charged in a four count indictment.

Counts One and Two charged Dean with possession of a destructive

device, in violation of 26 U.S.C. §§ 5845(a) and (f) (2000) and

5861(d)   (2000); Count Three charged Dean with possession of child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (2000) and

18 U.S.C.A. § 2252A(b)(2) (West 2000 and Supp. 2007); and Count

Four was a forfeiture provision.         After the district court denied

Dean’s motion to suppress the evidence seized from his apartment,

Dean pled guilty to Counts One, Two, and Three pursuant to a plea

agreement.    Dean’s agreement specifically preserved his right to

appeal the district court’s denial of his suppression motion. Dean

timely noted his appeal.       We now affirm.

           “Searches and seizures inside a home without a warrant

are presumptively unreasonable” unless an exception to the warrant

requirement applies.     See Payton v. New York, 445 U.S. 573, 583,

587 (1980).   A warrantless search of a home may be justified when

exigent   circumstances,   such    as    an   emergency,    necessitate   the

search.    Mincey v. Arizona, 437 U.S. 385, 394 (1978).               For a

warrantless search to qualify under the emergency exception to the

warrant   requirement,   the    police     must   possess   an   objectively

reasonable belief that an emergency existed that required immediate




                                   - 4 -
entry to render assistance or prevent harm to persons or property

within.    United States v. Moss, 963 F.2d 673, 678 (4th Cir. 1992).

            Here, the initial warrantless entry into Dean’s apartment

falls within the emergency exception to the warrant requirement.

The Albemarle County Fire Department received a call sometime after

11:30 p.m. regarding gasoline fumes in a wood-framed, three story

apartment building.      Gas fumes were noticeable in the parking lot

outside of the apartment building and in the common areas inside

the building. Looking through a ground level window into Dean’s

apartment, Barber observed a red gas can with its top off.          Based

on his training and experience, Barber considered the gas can an

imminent threat and knew that an explosion and flash fire were

possible if the mixture of air and gas was right and a source of

ignition was introduced.

            After making his observations, Barber twice knocked on

Dean’s door, and after receiving no response, Barber entered Dean’s

apartment.   Once inside, Barber observed in Dean’s kitchen devices

that could be used to make explosives.        Barber photographed these

materials but did not spend long looking at Dean’s bomb making

equipment.     Barber was in Dean’s apartment no more than two

minutes.    During these two minutes, Barber took less than twenty-

four photographs and then removed the gas can.

            Prior   to   entering   Dean’s   apartment,   Barber   had   an

objectively reasonable belief that the gas fumes filling the


                                    - 5 -
apartment building created an emergency and that immediate entry

was necessary to prevent harm to other people in the apartment

building.      Moss, 963 F.2d at 678.          Moreover, once inside, Barber

did not engage “in a general voyage of discovery” but took no more

than twenty-four photographs and then removed the imminent threat.

Id.   Accordingly, Barber’s initial warrantless entry into Dean’s

apartment was justified by the emergency exception to the warrant

requirement.

            Once   lawfully      in   Dean’s    apartment,   Barber   was   not

required to close his eyes to the materials he observed openly in

Dean’s kitchen and that his training and experience told him were

potential bomb making materials.              Barber then properly used his

brief observations to secure a warrant authorizing a search of

Dean’s apartment for bomb making materials.

            Similarly, while searching Dean’s computer pursuant to

the   second    warrant,   the    police   discovered    evidence     of   child

pornography.       This evidence was then used to secure the third

warrant to search Dean’s computer for child pornography.               Because

the initial search of Dean’s apartment occurred pursuant to a

valid, recognized exception to the warrant requirement, Dean’s

statements made after being detained and his child pornography were

not fruit of the poisonous tree.           See United States v. Banks, 482

F.3d 733, 738 (4th Cir. 2007).          Therefore, the district court did

not err in denying Dean’s motion to suppress.                Accordingly, we


                                      - 6 -
affirm the judgment of the district court.   We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.



                                                          AFFIRMED




                              - 7 -
