CA2: Initial fire scene entry with police into a grow operation was reasonable

Fire and police entry to investigate the smell of a fire in a warehouse with a suspected grow operation was valid, despite the fact no fire was found and the police came along for protection, including having to subdue two dogs guarding the entrance. The court will not second guess the decision of the firefighters to go floor by floor rather than to the top floor first. [Come on: how can a court ever second guess a fireman’s decision how to search for a fire?] United States v. Klump, 536 F.3d 113 (2d Cir. 2008):

Applying these standards, we find no clear error in the district court’s determination that the firefighters and agents reasonably believed it was necessary to enter the warehouse. Upon arrival, the fire chief smelled what he described as a “half electrical, half oily … kind of sweet” smell that “definitely had an odor of something burning.” Having been to major fires in buildings where there was very little or no smoke outside, just an odor, the fire chief decided, in his professional judgment, that it was necessary to enter the warehouse and investigate the cause of the odor.

Under these circumstances, the firefighters had an objectively reasonable basis for believing that there was a fire inside the warehouse. Nothing in the Fourth Amendment required them to wait until they saw actual smoke or flames to enter a building that they reasonably believed might be on fire. Cf. Brigham City v. Stuart, 547 U.S. 398, 406 (2006) (holding that the Fourth Amendment does not require police “to wait until another blow render[s] someone ‘unconscious’ or ‘semi-conscious’ or worse before entering”).

Nor is it relevant that no fire or smoke was found. The objective standard for assessing reasonableness focuses on what the facts, as they appeared at the moment of entry, would lead a reasonable, experienced officer to believe. See Zabare, 871 F.2d at 292. It does not permit a court to evaluate the officer’s belief on the basis of hindsight. See id.

Klump maintains that the warrantless entry was unreasonable because the firefighters and agents entered the warehouse to look for evidence of a crime, not to respond to a legitimate exigency. As Klump concedes, however, the Supreme Court has made clear that the subjective intent of government agents is irrelevant to determining whether a particular search was reasonable under the Fourth Amendment. See, e.g., Brigham, 547 U.S. at 404-05 (citing cases). Rather, “[a]n action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.'” Id. at 404 (alteration in original) (quoting Scott v. United States, 436 U.S. 128, 138 (1978)). Thus, even if the agents’ subjective motives in entering the warehouse could “be so neatly unraveled,” id. at 405, they simply do not matter. Klump argues that this rule should not apply where the threat is to property or evidence, rather than life or limb. He offers no principled reason to adopt this distinction, however, and we can conceive of none.

We also reject Klump’s assertion that the scope of the search exceeded the exigency. He asserts that the firefighters and agents had no reason to search the first and second floors of the warehouse because the burning smell appeared to originate from the top of the building. He contends that the firefighters and agents should have proceeded directly to the third floor and, having found no fire or smoke there, immediately left the warehouse. We disagree. Under the totality of the circumstances, the firefighters acted reasonably in searching all three floors to locate the source of the burning smell and determine whether the warehouse was on fire. Indeed, “the exigencies of the situation made that course imperative.” Warden v. Hayden, 387 U.S. 294, 298 (1967) (internal citation and quotation marks omitted).