United States v. Klump, No. 06-0339-cr (2d Cir. August 4, 2008) (McLaughlin, Sack, Livingston, CJJ)
Federal drug agents followed a fan believed to be associated with drug activity to a home depot, and then to a warehouse in Buffalo that Klump owned. The agents watched the warehouse for a while, and when Klump and another person left the building, detained them. Shortly thereafter, the agents smelled smoke from the warehouse, although they did not see any smoke or flames. They called the fire department and accompanied the firemen into the building, which, it turned out, was not on fire. Once inside, they found 300 marijuana plants and a handgun. Based on this, they obtained a search warrant and, armed with that, returned to the warehouse and found more of same.
In the district court, Klump moved to suppress the evidence on the ground that the agents’ original, warrantless entrance into the warehouse was illegal. After a hearing, the district court denied the motion, finding that exigent circumstances supported the entry.
The circuit agreed. The test for exigent circumstances is whether “the facts, as they appeared at the moment of entry, would lead a reasonable, experienced officer” to believe that there was an “urgent need to render aid or take action.” And a burning building “clearly presents an exigency of sufficient proportions.” Here, the was no error in the district court’s conclusion that the firefighters and agents reasonably believed that it was necessary to enter the warehouse. The odor suggesting that the building was on fire was enough – they were not required to wait until they saw actual smoke or flames. Nor was it relevant that the building was not in fact on fire. The test focuses on the circumstances at the moment of entry, and not on hindsight.