The opinion of the court was delivered by: BRODERICK
The indictment in this case charged the defendant, Gregory Clifford Clark, with manufacturing methamphetamine (Count I) and phenyl-2-propanone (P2P) (Count II) on or about July 11, 1985, in violation of 21 U.S.C. § 841(a)(1). After a trial lasting four days, the jury returned a verdict of guilty on both counts. At oral argument on the defendant's post-trial motions for judgment of acquittal and/or a new trial, the Court denied the motions with respect to all but one of defendant's allegations of error, which the Court reserved for written disposition. The Court now considers defendant's motion for a new trial on the ground that the Court erred in failing to suppress evidence seized from defendant's property. At the outset, the Court notes that a motion for a new trial pursuant to Fed. R.Cr.P. 33 must be granted if there is a substantial probability that trial error could have had a substantial influence on the jury's decision. See Government of Virgin Islands v. Bedford, 671 F.2d 758, 762 (3d Cir. 1982); United States v. Mastro, 570 F. Supp. 1388, 1390 (E. D. Pa. 1983). For the reasons discussed below, the defendant's motion for a new trial will be denied.
Just after midnight in the early morning of July 11, 1985, Chester County firemen responded to a report of smoke observed by the resident of 1427 James Place, Ruth Dixon. The firemen were accompanied by one police officer, in accordance with a routine practice designed for the firemen's protection. After finding no fire or source of smoke at 1427 James Place, the firemen observed smoke coming from the rear of 1429 James Place, an adjacent rowhome, through an open kitchen window. After having knocked and received no response, the firemen and one policeman entered the premises through the kitchen door.
Upon entering the premises, the firemen and policeman observed incense and punks burning in the kitchen, and noted a sweet odor and a light smoky haze in the air. They also saw mail addressed to the defendant inside two open briefcases on the kitchen counter. The firemen checked the second floor for victims, smoke, and any burning items. They found a light odor and no smoke. Following the smoke, they proceeded back to the first floor to the basement stairway, where they observed a casserole dish containing a bubbling liquid on or near the top step. The men went down into the basement, where the smoke and odor intensified, and where they discovered materials indicating the presence of a clandestine methamphetamine laboratory: a pressure cooker and tubing, hot plates which had been turned on, dry ice, large quantities of various chemicals used in the manufacture of methamphetamine and P2P, several containers filled with chemical solutions, laboratory glassware, and protective gloves. The solutions were later determined to be in various stages of P2P and methamphetamine synthesis, including P2P and pure methamphetamine. The amount of precursor chemicals was later determined to be enough to produce about twelve pounds of methamphetamine.
The policeman and fire captain told the firemen on the scene that this was an apparent drug laboratory. The fire captain extinguished some burning punks and told the men not to touch anything. Neither the firemen nor the police officer accompanying them was trained for dismantling laboratories. It was well known to them that the properties of the chemicals in clandestine methamphetamine and P2P labs, such as acetone and ether create a risk of explosion or fire, and that some of the chemicals are toxic. Therefore, the fire crew's practice was to call for trained assistance in disassembling such labs. The policeman on the scene at 1429 James Place called a second police officer to the scene. They did not touch the laboratory, but contacted the police dispatcher to request the assistance of narcotics officers. The first narcotics officer arrived at about 1:00 a.m., viewed the lab and noted the chemical odor, and directed the firemen to take the bubbling casserole dish which was found on the stairway landing out of the house. The firemen ventilated the house, and then stayed outside until the lab was disassembled, in case there was an explosion or fire. The narcotics investigator felt that the recently "cooking" lab and large quantities of chemicals presented a highly dangerous situation. Therefore he called William Glanz of the Drug Enforcement Agency (DEA) and Richard Conway, the head of the Chester County Police Department Narcotics Squad, whose expertise was greater than his, to the scene. Narcotics Officer Conway arrived in 15 minutes, and Agent Glanz arrived in 30 minutes. After the two experts arrived, they supervised the disassembly of the lab, which took approximately 4 1/2 hours. The lab equipment and chemicals were seized and secured in 2 police vans until the arrival of additional DEA agents. During this time, Officer Conway went to the second floor of the house to see if anyone was in the house and to look for any additional chemicals and incense. Officer Conway saw various items of identification belonging to the defendant as well as certain bills addressed to the defendant at 1429 James Place, on top of the bureau in a bedroom. In addition, Officer Conway observed men's toiletries, men's clothing, and no women's clothing or accessories.
The defendant contends that the Court erred in failing to suppress the evidence seized at 1429 James Street in Chester, Pennsylvania on July 11, 1984. The Court found and the defendant acknowledges that the initial entry by the firemen and one policeman was for the purpose of extinguishing a fire, and that this initial warrantless entry was justified by the exigency of the circumstances. See Michigan v. Clifford, 464 U.S. 287, 104 S. Ct. 641, 78 L. Ed. 2d 477 (1984); Michigan v. Tyler, 436 U.S. 499, 501, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978).
Because the firemen and policeman were lawfully on the premises of 1429 James Street, and because they inadvertently discovered the methamphetamine lab while seeking the source of the smoke, they were justified in seizing the laboratory items which were in plain view. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971) and its progeny including Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983) and Illinois v. Andreas, 463 U.S. 765, 103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983) hold that "the plain view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with some criminal activity. " Andreas, 103 S. Ct. at 3324. This probable cause standard requires only a practical, common sense probability that incriminating evidence has been found. Brown, 103 S. Ct. at 1542-43. Furthermore, the incriminating nature of the evidence need not be apparent at first glance if it becomes "apparent without other information than that which the officers possessed before the search was over." United States v. McDonald, 723 F.2d 1288 (7th Cir. 1983) (further citations omitted). See also United States v. Callabrass, 607 F.2d 559, 564 n.3 (2d Cir. 1979) (it is sufficient if one officer's discovery of the articles was inadvertent and their evidentiary nature was apparent; it was not significant that a second officer helped the first to identify and seize the articles).
At oral argument, defense counsel had to concede that the discovery of the laboratory by the firemen and accompanying policeman was inadvertent and that they were entitled to seize the laboratory under the plain view doctrine. However, defense counsel argued that once the fire crew determined not to touch anything and that this was a matter for the police, the arson and narcotics agents who were called in were obligated to obtain a criminal search warrant based on probable cause. Defense counsel also contends that Narcotics Officer Conway was not authorized to be in the kitchen or to go to the second floor of the house, and that therefore the identification evidence which was in plain view in the kitchen and in the upstairs bedroom should have been suppressed.
Defendant relies on the following language from the Supreme Court's plurality opinion in Michigan v. Clifford, supra:
If the primary object of the search is to gather evidence of criminal activity, a criminal search warrant may be obtained only on a showing of probable cause to believe that relevant evidence will be found in the place to be searched. If evidence of criminal activity is discovered during the course of a valid administrative search, it may be seized under the "plain view" doctrine. Coolidge. . . . This evidence then may be used to establish probable cause to obtain a criminal search warrant. Fire officials may not, however, rely on this evidence to expand the scope of their administrative search without first making a successful showing of probable cause to an independent judicial officer.
The object of the search is important even if exigent circumstances exist. Circumstances that justify a warrantless search for the cause of a fire may not justify a search to gather evidence of criminal activity once that cause has been determined. . . . A search to gather evidence of criminal activity not in plain view must be made pursuant to a criminal activity upon a traditional showing of probable cause.
104 S. Ct. at 647. (emphasis added).
To the extent that Clifford is a fire-arson investigation case, it is not apposite to the facts of the present smoke - drug lab dismantling case. Furthermore, this Court is of the opinion that defendant's argument misses the "exigency" rationale behind the fire exception to the warrant ...