     06-0339-cr
     United States v. Klump

1                        UNITED STATES COURT OF APPEALS

2                               FOR THE SECOND CIRCUIT

3                                      --------

4                                  August Term, 2007

 5   (Argued: June 2, 2008                         Decided: August 4, 2008)
 6
 7                         Docket No. 06-0339-cr
 8   -----------------------------------------------------------X
 9   UNITED STATES OF AMERICA,
10
11                     Appellee,
12
13                     - v. -
14
15   HAROLD KLUMP,
16
17                  Defendant-Appellant.
18   -----------------------------------------------------------X
19   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         AFFIRMED.

26                                       MONICA J. RICHARDS, Assistant
27                                       United States Attorney (Terrance P.
28                                       Flynn, United States Attorney for
29                                       the Western District of New York),
30                                       Buffalo, New York, for Appellee.
31
32                                       BRUCE R. BRYAN, ESQ., Syracuse, New
33                                       York, for Defendant-Appellant.
34
1    McLAUGHLIN, Circuit Judge:

2         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.).   Klump was convicted on one count of manufacturing 1,000

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.   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.   Klump also challenges his sentence on the gun count

19   because it was imposed pursuant to a statute that had expired by

20   the time he was sentenced.

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.      Accordingly, we

3    affirm.

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.    The affidavit set forth the following

9    information.

10        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.    Acting on information that Page’s employer drove a

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.    There, the suspects bought PVC plumbing pipe, which is

17   commonly used to grow marijuana.       They then drove to a warehouse

18   located at 900 Genesee Street, which, according to City of

19   Buffalo tax records, was owned by Klump.       The suspects carried

20   the PVC pipe into the warehouse.

21        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.    The agents then smelled smoke coming from

7    the warehouse and called the fire department.     Aware that there

8    were two guard dogs inside, the agents accompanied the firemen

9    into the building.   While inside, the agents saw approximately

10   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.    Pursuant to the

14   search, agents seized 1,044 marijuana plants and a semiautomatic

15   Mack 11 carbine rifle.

16        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.   He argued that the warrant was invalid

3    because it was based on observations made by DEA agents during an

4    illegal warrantless search of the warehouse.   Klump also alleged

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   perfectly innocent reason for the purchase of the PVC pipe.

11        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.   Cunningham saw no smoke or fire, but smelled what he

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.”    He

22   also stated that, over the course of his twenty-eight year

23   career, he had encountered “really major fire[s]” that were

                                      5
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.   The firefighters and the agents then

7    inspected all three floors of the warehouse but found no smoke or

8    fire.

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.    In his experience, marijuana-growing

13   operations were often booby-trapped or otherwise protected in

14   ways that could have posed a danger to the firefighters.

15        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.   After the fire inspection was

20   complete, all fire and law enforcement personnel left the

21   warehouse, and the agents secured the building to await a search

22   warrant.   While the agents waited, Page informed them that the

23   odor could be from a furnace he had lit.

                                       6
1         In February 2004, the Magistrate Judge recommended denial of

2    the motion to suppress.   He concluded that the firefighters and

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.   He also found that the affidavit

8    was not misleading.

9         In May 2004, the district court adopted the Magistrate

10   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.   There was also

16   testimony that workers were repairing a water pump and a water-

17   damaged floor in the warehouse at the time of the search.    The

18   jury convicted Klump of all charges.

19        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.      The

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.

7                                  DISCUSSION

8         Klump makes two arguments: (1) the district court erred in

9    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.      We reject both

12   arguments.

13   I.   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.   Exigent Circumstances

19        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).   “A district court’s determination as to

22   whether exigent circumstances existed is fact-specific, and will

23   not be reversed on appeal unless clearly erroneous.”      United

                                        8
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.”   United States v. Iodice, 525 F.3d

5    179, 185 (2d Cir. 2008) (internal citation and quotation marks

6    omitted).

7         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.”   MacDonald, 916 F.2d at 769.   The core question

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        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.   Rather,

22   the warrantless search “must be strictly circumscribed by the

23   exigencies which justify its initiation.”   Mincey v. Arizona, 437

                                      9
1    U.S. 385, 393 (1978) (internal citation and quotation marks

2    omitted).   Where officials enter private property to fight a

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).   However, any

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.    See id.

10   at 294.

11        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.”   Having been to major fires in

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        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.   Cf.

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.   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.    See Zabare, 871 F.2d

11   at 292.   It does not permit a court to evaluate the officer’s

12   belief on the basis of hindsight.    See id.

13        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.   See, e.g., Brigham, 547 U.S. at 404-05 (citing

20   cases).   Rather, “[a]n action is ‘reasonable’ under the Fourth

21   Amendment, regardless of the individual officer’s state of mind,

22   ‘as long as the circumstances, viewed objectively, justify [the]

23   action.’”   Id. at 404 (alteration in original) (quoting Scott v.

                                     11
1    United States, 436 U.S. 128, 138 (1978)).    Thus, even if the

2    agents’ subjective motives in entering the warehouse could “be so

3    neatly unraveled,” id. at 405, they simply do not matter.      Klump

4    argues that this rule should not apply where the threat is to

5    property or evidence, rather than life or limb.    He offers no

6    principled reason to adopt this distinction, however, and we can

7    conceive of none.

8         We also reject Klump’s assertion that the scope of the

9    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.    He contends that the firefighters

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.   We disagree.   Under the totality of the

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.    Indeed, “the

19   exigencies of the situation made that course imperative.”      Warden

20   v. Hayden, 387 U.S. 294, 298 (1967) (internal citation and

21   quotation marks omitted).

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.   Material Misstatements and Omissions

4         We review de novo whether alleged misstatements or omissions

5    in a search warrant affidavit render the warrant invalid.    See

6    United States v. Canfield, 212 F.3d 713, 717 (2d Cir. 2000).

7         A search warrant affidavit is presumed reliable.    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).      To

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.      Id.

17        A misstatement or omission is material if it is “necessary

18   to the [issuing] judge’s probable cause finding.”   Canfield, 212

19   F.3d at 718 (internal citation and quotation marks omitted).     To

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).    If the

                                    13
1    emended affidavit supports probable cause, the inaccuracies were

2    not material and suppression is not warranted.    Id.

3         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.”    Illinois v. Gates, 462 U.S.

8    213, 238 (1983).

9         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.    It is well-settled that “the

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.”    United States

23   v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976).    This oversight

                                    14
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.   Moreover, even if Klump had not waived

5    these arguments, we would reach the same result.   None of the

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.   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.   See

13   Canfield, 212 F.3d at 719.

14        The failure to state in the affidavit that there was ongoing

15   construction at the warehouse was likewise immaterial.   “The fact

16   that an innocent explanation may be consistent with the facts

17   alleged . . . does not negate probable cause.”    United States v.

18   Fama, 758 F.2d 834, 838 (2d Cir. 1985).   Given the agent’s sworn

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.    Thus,

22   this omission was not material.

23        Accordingly, the search warrant was valid.

                                       15
1    II.   The Sentence

2          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.   Instead, according to

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.   We review such legal

9    challenges de novo, United States v. Smith, 354 F.3d 171, 172 (2d

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.”    Before September

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         The older version of § 924(c)(1)(B)(i) applies to Klump even

22   though it had expired before he was sentenced.    Pursuant to 1

23   U.S.C. § 109, “[t]he expiration of a . . . statute shall not have

                                      16
1    the effect to release or extinguish any penalty . . . incurred

2    under such statute, unless the . . . statute shall so expressly

3    provide.”   Section 924(c)(1)(B)(i) contains no provision

4    expressly prohibiting its application to defendants, like Klump,

5    who were convicted of possessing a semiautomatic assault weapon

6    before the statute expired.    Thus, the district court properly

7    sentenced him to the ten-year mandatory minimum sentence called

8    for by the statute.

9                                  CONCLUSION

10        For the foregoing reasons, we AFFIRM the judgment of the

11   district court.

12

13




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