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UNITED STATES v. MOSKOW

October 25, 1977

UNITED STATES OF AMERICA
v.
SIGMOND MOSKOW



The opinion of the court was delivered by: MCGLYNN

 MCGLYNN, J.

 On October 25, 1977, Sigmond Moskow, the defendant, pled guilty to a seven count mail fraud indictment. The plea was entered conditioned on an affirmance by the court of appeals of my order denying the defendant's motion to suppress. This procedure has been endorsed by the Third Circuit as a "'commendable [effort] to relieve the problem of congested criminal trial calendars in a manner that does not diminish the opportunity for the assertion of rights guaranteed by the Constitution'". United States v. Zudick, 523 F.2d 848, 852 (3rd Cir. 1975) quoting Lefkowitz v. Newsome, 420 U.S. 283, 293, 43 L. Ed. 2d 196, 95 S. Ct. 886 (1974). Accordingly, I allowed the defendant to enter his plea of guilty while expressly reserving his right to assert his challenges to the government's evidence on appeal.

 The defendant is a real estate proprietor and developer. The indictment charges that he devised and carried out a scheme to defraud the Insurance Placement Facility, a Pennsylvania insurance company, of approximately $25,000 by causing certain properties to be destroyed by fire and then making fraudulent claims on the insurance policies.

 The defendant filed a timely motion to suppress evidence, and I heard testimony on this motion on September 6 & 7, 1977. The defendant sought to suppress the testimony of Edward Wadley claiming that Wadley's arrest was the result of an unlawful search of a building located at 2546 S. Second Street and owned by the defendant's corporation. His motion also sought to suppress certain items of physical evidence taken from the building. Additionally, Moskow sought to have suppressed tape recordings of conversations between himself and Wadley. It was contended that the monitoring of these conversations was without the necessary authorization from the Attorney General or his delegate. It was also contended that Wadley's consent to the monitoring was not given voluntarily. Finally, Moskow sought suppression of evidence seized from his office pursuant to a search warrant. The defendant claimed that the probable cause in the warrant was based on evidence obtained by the allegedly unlawful monitoring of his conversations. It was argued that the warrant was, therefore, invalid. I denied the defendant's motion in all respects.

 At the hearing on the motion to suppress, the following facts were developed: Edward Wadley was arrested inside a vacant building at 2546 South Second Street on March 26, 1977. That building was owned by the South Philadelphia Development Corporation, a corporation controlled by the defendant. *fn1" At approximately 3:00 A.M. on that date, the Philadelphia Police were notified by a resident of the adjoining building, Robert Offord, that there were noises coming from the vacant building. Mr. Offord informed the responding officer, Joseph Parker, that he had noticed a strong odor of gasoline coming from the building and also that a padlock which he had previously seen on its front door was missing. Officer Parker accompanied Mr. Offord to the door of the premises and Mr. Offord pointed out where the padlock had been. Officer Parker pushed the door open a crack and was repulsed by the strong odor of gasoline fumes. He closed the door and called for a supervisor and a fire engine.

 When the supervisor, Lt. Renzi of the Philadelphia Police Department, arrived, he and two other officers entered and inspected the premises. They found Edward Wadley crouched beneath the basement steps. They also observed three empty gasoline cans and puddles of gasoline throughout the building.

 At approximately 3:25 A.M., an assistant fire marshal, Lt. Quinn of the Philadelphia Fire Department, arrived at the scene. He inspected the premises, and seized the three empty gasoline cans and a "bic" lighter found in the basement. He then ordered the building ventilated and washed down with "fog steam" to prevent ignition of the gasoline.

 Subsequent to his arrest, Wadley was introduced to agents of the Alcohol, Tobacco and Firearms Division of the U.S. Department of Treasury by Philadelphia detectives. Wadley told the agents that he would consent to have conversations between himself and Moskow electronically monitored and recorded. On the basis of the taped conversations and Wadley's statements, a search warrant was issued by a United States Magistrate authorizing the search of Moskow's office. On June 10, 1977, Moskow was arrested and his office was searched pursuant to that warrant.

 The defendant conceded that the police had probable cause to enter 2546 South Second Street on the night of Wadley's arrest, but argued that they should have obtained a warrant prior to entering. The Government contends that the warrantless entry was justified by exigent circumstances. I agree with the Government.

 Initially, I note that it may be that entry of a building to prevent a fire should not even be characterized as a "search" triggering the proscriptions of the fourth amendment. Steigler v. Anderson, 496 F.2d 793, 795 (3rd Cir. 1974) citing Wyman v. James, 400 U.S. 309, 27 L. Ed. 2d 408, 91 S. Ct. 381 (1971). In any event, however, the circumstances were such as to justify a warrantless search.

 The law governing warrantless searches was succinctly articulated by the Third Circuit in Steigler v. Anderson, supra, as follows:

 
While searches and seizures must generally be undertaken by state officials only after obtaining a search warrant, the Supreme Court has recognized a number of situations in which a warrantless search may be lawful. In each of these situations the Supreme Court found exigent ...

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