Fire scene search: During initial investigation, fireman and fire investigators may come and go

Smoldering fire was exigent circumstance for entry into a building occupied by several people. Firemen and investigators may come and go during the course of the initial investigation. State v. Smith, 144 Idaho 482, 163 P.3d 1194 (2007):

The exigency in this case was a threat of fire rather than an actual fire, but the principle is the same. See O’Keefe, 143 Idaho at 285, 141 P.3d at 1154 (finding that there may be a need for immediate investigation to detect continuing dangers). Both Blubaum and Watson testified that the couch fire could have extended into the structure without necessarily being visible. The burn marks in the stairway carpet corroborated their testimony. According to Blubaum, smoldering can occur in walls or floors or under carpets for hours or days after something else has been on fire in an apartment. Although Blubaum saw no flames or smoke, the facts known to him indicated there was an appreciable, immediate risk of fire within the building. The presence of multiple tenants in the building compounded the urgency. See Michigan v. Clifford, 464 U.S. 287, 297 n.8, 104 S. Ct. 641, 649 n.8, 78 L. Ed. 2d 477 (1984); Tyler, 436 U.S. at 510 n.6, 98 S. Ct. at 1950 n.6.

Smith argues that the holding of Tyler that a firefighter may remain in a building to investigate the cause of a fire after entering to extinguish it does not apply because Blubaum entered after the fire had been extinguished. The distinction does not aid Smith. The fact that the fire was extinguished by someone other than the firefighter indicates a need to investigate to ensure that it will not rekindle. This is especially so when the tenant who attempted to extinguish the fire was absent and the fire appeared to have persisted in his absence.

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It is clear that Watson was continuing Blubaum’s initial investigation. Once Blubaum was lawfully inside the apartment, he was permitted to remain there for a reasonable time, not only to ensure that the fire was out, but to investigate its cause. The fact that Watson replaced Blubaum during the process is of no constitutional significance. A superior officer’s decision to take over the investigation does not “clearly detach” the remainder of the investigation from the subordinate’s initial inspection. Likewise, the fact that Blubaum met Watson outside rather than waiting for Watson to join him in the apartment is immaterial. Blubaum left the apartment because he saw through the window that Watson had arrived, not because he had concluded a full investigation. The entries were only minutes apart. The only purpose served by requiring Blubaum to remain inside the apartment would be to remove any doubt about the legality of Watson’s later entry. Watson’s presence in the apartment was a continuation of Blubaum’s initial entry. Watson was lawfully present in the apartment.

Informant who was named and gave specific, first hand information gave a substantial basis for finding probable cause. United States v. Evans, 2007 U.S. Dist. LEXIS 52838 (E.D. Mich. July 23, 2007):

Presented with the rationale of Pellham, the Court must conclude that when an affidavit sets forth recently obtained, first-hand knowledge from a named individual, attesting to the existence of contraband at a particular location, the magistrate judge has a substantial basis for determining probable cause exists. Id. …

In the present case, Armando Tapia was specifically named in the affidavit. Affidavit, PP 3-7. The facts in the affidavit indicate that Tapia had recently been to the Hunters Circle residence, within the last twenty-four hours. Id. at P 6. Tapia had first-hand knowledge that illegal drugs would be present at the residence because he personally delivered one hundred and twenty-five pounds of marijuana to 4068 Hunters Circle East earlier that day. Id. Therefore, pursuant to Pellham and Miller, based upon the information provided by Tapia, there was a “substantial basis” for the magistrate to conclude that probable cause existed to believe that there was a “fair probability” that illegal drugs would be found at the Hunters Circle residence. See Pellham, 801 F.2d at 876; Miller, 314 F.3d at 270; Gates, 462 U.S. at 238.

Conclusory allegation of ineffective assistance for not pursuing a suppression motion and subpoenaing the state judge as a witness failed as a matter of law. Bailey v. United States, 2007 U.S. Dist. LEXIS 53063 (E.D. Mo. July 23, 2007).*

Suppression issues litigated on direct appeal could not be brought in a 2255. Cannon v. United States, 2007 U.S. Dist. LEXIS 53069 (W.D. Mo. July 20, 2007).*