United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-2006
___________
United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Robert K. Francis, Jr., *
*
Defendant-Appellant. *
___________
Submitted: November 5, 2002
Filed: April 28, 2003
___________
Before McMILLIAN and SMITH, Circuit Judges, and LONGSTAFF,1 District Judge.
___________
SMITH, Circuit Judge.
Robert K. Francis, Jr. challenges the sufficiency of all and the admissibility of
some of the evidence used to convict him. At trial, a jury convicted Francis, Jr. of
attempting to manufacture ten grams or more of methamphetamine, possession of
marijuana with intent to distribute, and possession of equipment used for drug
1
The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa, sitting by designation.
manufacturing.2 The District Court3 sentenced Francis, Jr. to sixty-three months'
imprisonment, followed by a four-year term of supervised release. We affirm.
I.
Background
On March 22, 1997, the Independence, Missouri, police and fire departments
responded to a residential fire. While extinguishing the fire, firefighters discovered
items they recognized as potential implements of a once operational
methamphetamine laboratory. The firefighters saw these items in plain view during
their examination of the basement.4 Due to the suspicious nature of the fire and the
items found in the basement, Independence Fire Department (IFD) Investigator Kelly
Scott inspected the site. Upon entering the house, Scott immediately went to the
basement. While there, Scott saw a cardboard box containing glass beakers and other
items commonly found in drug laboratories. Several glass containers had fallen out
of the box. Based upon his investigation, Scott surmised that the fire probably
originated in the basement when the water heater’s open flames ignited fumes
emanating from a broken glass container. Because of the nature of the items found in
the basement and the continuing danger of poisonous vapors, Scott ordered all IFD
personnel from the structure and called for the Special Operations Unit to respond to
the scene.
2
Francis was charged under 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 843, and 846.
3
The Honorable Howard F. Sachs, United States District Court for the Western
District of Missouri.
4
These items included various laboratory glass containers filled with
separating liquids, a red Coleman cooler with multiple bags of packaged marijuana,
a triple-neck round-bottom flask, an acid bottle, various containers of solvents
commonly used in the manufacture of methamphetamine, and other miscellaneous
items.
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Independence Police Department (IPD) Sergeant Cox and Officer Anderson
entered the residence after speaking with Scott and learning of the apparent drug-
related items in the basement. After confirming that no one was in the house, the
officers went directly to the basement with the firemen. Cox and Anderson observed
the glassware and the burned box. They also saw an open Coleman cooler that
contained marijuana. Prior to entering the residence, neither Cox nor Anderson spoke
with Francis, Jr. or his father. Cox testified that after viewing the house, he
considered it a crime scene and posted Anderson at the front door. Cox then discussed
his observations with IPD Detectives Sweeney and Slaybaugh. The IPD did not
evacuate or close off the surrounding neighborhoods and did not evacuate any
neighboring homes.
Following Cox’s and Anderson’s viewing of the house, IPD Detectives
Sweeney and Slaybaugh and Jackson County Drug Task Force Detective Cook
entered the house and went to the basement.5 The detectives saw in plain view
components of a possible methamphetamine lab in a burned area in the southwest part
of the basement. It appeared to be the same area where the fire began. Based on their
training and experience, Slaybaugh and Sweeney agreed that an operational
methamphetamine lab was located in the basement.
Sweeney and Slaybaugh then spoke with both Robert K. Francis, Sr.–the owner
of the home–and Francis, Jr. about the discovery. The detectives described the items
they had discovered and asked for consent to search the rest of the home. The officers
advised the Francises that if they refused to give consent, the police would seek a
search warrant. Francis, Jr. directed the investigators to ask his father, and when they
did, Francis, Sr., signed the consent-to-search form. With the signed consent,
5
Detectives Sweeney and Slaybaugh worked with IPD's Special
Operations/Drug Enforcement Unit. Detective Cook was detailed to the Drug
Enforcement Agency.
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Slaybaugh and Sweeney reentered the house to assess the situation.6 At that time, the
multiple flammable liquids and other chemicals associated with the methamphetamine
lab had not been removed.
During the clean-up, the DEA and IPD recovered numerous drug-related items
from the home including a book entitled “Third Edition of Uncle Fester’s
Methamphetamine Manufacturing.”7 Laboratory analysis indicated that the materials
recovered from the home could potentially produce ten grams or more of
methamphetamine. Additionally, the team recovered over two pounds of marijuana.
Based on the discovery of these materials, the police arrested and charged Francis,
Jr.
At trial, Francis Jr. and his father testified that the methamphetamine laboratory
equipment, chemicals, and supplies did not belong to Francis, Jr. They contended that
he unknowingly acquired them when he purchased a vehicle from a coworker.
6
The detectives contacted the Drug Enforcement Administration (DEA) to
assist in processing and decontaminating the scene. IPD called the DEA because, at
that time, IPD had neither the experience nor the safety equipment to properly assess
and clean up a methamphetamine lab.
7
Other items recovered in the clean-up included coffee filters stained with red
phosphorous, juice jars with coffee filters, a 1,000 ml Pyrex flask, a bottle of
hydrochloric acid, another 1,000 ml flask half full with a liquid, a bottle of Vitablend,
a triple-neck Pyrex beaker containing actively-reacting liquids, a large plastic baggie
that contained coffee filters with red stains, miscellaneous tubing and hoses, a bottle
of PH paper, empty Mason jars, muriatic acid, laboratory funnels, multiple 500 ml
Pyrex flasks, miscellaneous funnels, Pyrex measuring material, acetone, and other
chemical containers. In plain view in the upstairs living area, the officers found sixty-
seven tablets containing pseudoephedrine and the manual of how to make
methamphetamine. Officers also discovered marijuana, marijuana seeds, and
marijuana paraphernalia in the living room. In addition, officers found a Norinco .45
caliber handgun, a Winchester shotgun, a .22 rifle, and a 30.30 rifle in bedrooms
upstairs.
-4-
According to the Francises’s account, Dennis Lucas, Francis, Jr.’s work supervisor,
owed Francis, Jr. approximately $600. As payment, Lucas gave Francis, Jr. a pickup
truck. Trash bags and boxes filled the truck bed when the Francises took the truck
from Lucas's driveway. Rather than unload the bags and boxes at that time, Francis,
Jr. drove home and unloaded the items into the garage, where they remained for four
to five months. Francis, Jr. later took them to the basement to clear the garage. He
testified that the cardboard box ended up on the clothes dryer after he had emptied
chemicals out of it (and other boxes) into a water bottle in the basement. He testified
that although he saw the various glass containers, he did not know what they were.
He found the methamphetamine book in one of the boxes he was emptying and took
it upstairs to read. He testified, however, that he did not see anything in the book that
looked like any of the items he found in the truck, although he did suspect at that time
that it may have had something to do with those items. Francis, Jr. testified that after
he was charged in this case, he learned that Lucas had been charged with
manufacturing and distributing methamphetamine. During his testimony, Francis, Jr.
was shown a judgment and docket sheet that indicated that Lucas actually had first
appeared in court on March 14, 1997, seven days prior to the fire at the Francises'
house.
Francis, Jr. admitted ownership of the marijuana found in the house and
pleaded guilty of possession. He testified that he found the Coleman cooler near the
railroad tracks next to a field of marijuana, and he picked the marijuana and threw it
in the cooler. He testified that he later separately bagged some of the usable portions
and had been using portions from one of the bags. He testified, however, that he never
intended to sell the marijuana. Francis, Jr., a disabled veteran, identified a list of
medications, including pseudoephedrine hydrochloride 60 mg tablets, prescribed by
the Veterans Administration Hospital. He testified that he purchased the pills found
in his house at the hospital in Independence and was taking them by prescription.
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Following his indictment, Francis, Jr. filed a motion to suppress. He argued that
exigent circumstances did not exist to justify the warrantless search of the premises,
and the items found in the search should be suppressed. The magistrate recommended
denying the motion, and the District Court accepted the denial in relevant part.
II.
Sufficiency of the Evidence
In his first argument, Francis, Jr. challenges the sufficiency of the evidence on
the charge of attempted manufacture of methamphetamine. For his challenge to
succeed, Francis must pass a strict standard. He must show that based upon the
evidence adduced at trial, no rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. United States v. Gillings, 156 F.3d
857, 860 (8th Cir. 1998) (internal citations omitted). In determining whether an
appellant meets this standard, we review the evidence in the light most favorable to
the government, resolving evidentiary conflicts in the government’s favor. Id.
Circumstantial evidence as well as direct evidence may support a conviction. Id. We
will not lightly overturn the verdict of a jury. Id.
Francis, Jr., in large measure, bases his sufficiency argument on alleged
inconsistencies in the testimony. He points out that only one of the government’s
witnesses, Detective Cook, opined that an active methamphetamine “cook” was in
progress. Francis, Jr. notes that IFD Inspector Scott testified that the items stacked in
the cardboard box did not appear to be part of an operating methamphetamine lab.
The other government witnesses testified that while one had occurred at some time,
it was not in progress at the time of the fire. Furthermore, Francis, Jr. argues that the
evidence failed to account for the amount of ephedrine binder residue indicated by
test results. He contends that the number of pills missing from his supply would not
produce the quantity discovered. Francis, Jr. also argues that the government should
have checked unidentified fingerprints found on some bottles for a match with Lucas,
the individual from whom he had purchased the truck containing the incriminating
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evidence. The government responds that the evidence shows that Francis, Jr. took a
substantial step in commission of the charged offense. The lab in his home contained
extracted pseudoephedrine and binding material indicating that the first step of the
process–extraction of the ephedrine–had been completed. Uncontradicted expert
testimony indicated that the fire started at the site of the lab equipment when fumes
from a combustible liquid made contact with flame.
The evidence supports the finding that a methamphetamine lab existed in the
basement of the Francises' home and that Francis, Jr. knew of the presence of the lab
equipment. Francis, Jr. admitted possessing and reading a book about how to make
methamphetamine at the time that the lab, at least by one expert's account, was
engaged in an active methamphetamine "cook." Although, the government produced
no eyewitness testimony of Francis, Jr. in the basement holding a bubbling beaker,
it was not required to do so. Rather, a conviction may be based on circumstantial
evidence, such as that in this case, and we will accept all reasonable inferences drawn
from the evidence that support the jury's verdict. The evidence need not exclude every
reasonable hypothesis except guilt. "If the evidence rationally supports two
conflicting hypotheses, the reviewing court will not disturb the conviction." Gillings,
156 F.3d at 860. Consequently, while Francis, Jr. offered an alternative explanation
for the presence of the lab items in his basement, the jury need not have accepted it.
As we have often noted, the jury is always the ultimate arbiter of a witness's
credibility, and this Court will not disturb the jury's findings in this regard. United
States v. Cunningham, 83 F.3d 218, 222 (8th Cir.1996); United States v. Witschner,
624 F.2d 840, 843 (8th Cir. 1980). A rational trier fact could have found the elements
of manufacture of methamphetamine based upon the evidence adduced in this case.
We, therefore, reject Francis, Jr.’s sufficiency argument.
III.
Suppression Motion
Francis, Jr. next argues that the District Court erred in denying his motion to
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suppress. Francis, Jr. contends that the police and firefighters violated the Fourth
Amendment by conducting searches without the justification of a warrant, consent,
or exigent circumstances. In reply, the government maintains that exigent
circumstances existed because the search occurred on dangerous, fire-damaged
property in which volatile chemicals used to manufacture methamphetamine started
a fire. The government argues that the exigency did not end with the "dousing of the
last flame." Additionally, the government argues that the police officers reasonably
relied on the Francises' valid consent that cured any search impropriety.
In reviewing a denial of a motion to suppress, we review the district court's
factual findings for clear error and review de novo the question of law regarding the
warrantless search. Ornelas v. United States, 517 U.S. 690, 699 (1996); United States
v. Sanders, 196 F.3d 910, 912 (8th Cir.1999).
The government’s obligation to obtain a warrant prior to a search is an
important means for enforcing the Fourth Amendment’s proscription against
unreasonable searches and seizures. "... [O]ne governing principle, justified by history
and by current experience, has consistently been followed: except in certain carefully
defined classes of cases, a search of private property without proper consent is
'unreasonable' unless it has been authorized by a valid search warrant." United States
v. Boettger, 71 F.3d 1410, 1414 (8th Cir. 1995) (quoting Camara v. Municipal Court,
387 U.S. 523, 528-29 (1967)). However, not every search without a warrant is
unreasonable if an exception, such as the presence of exigent circumstances, exists.
Although the exigent-circumstances exception is narrowly drawn, United
States v. Ball, 90 F.3d 260, 263 (8th Cir. 1996), it does justify immediate police
action without a warrant under limited circumstances, such as where lives are
threatened, a suspect's escape is imminent, or evidence is about to be destroyed.
Michigan v. Tyler, 436 U.S. 499, 509 (1978); Warden, Maryland Penitentiary v.
Hayden, 387 U.S. 294, 298-99 (1967); Ker v. California, 374 U.S. 23, 42 (1963).
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The Supreme Court considered the exigent-circumstances exception to the
warrant requirement in relation to entries onto fire-damaged property in Tyler and
Michigan v. Clifford, 464 U.S. 287 (1984). Although the cases do not provide a
bright-line rule to distinguish between finding the fire's source and looking for
evidence of arson, Clifford at 298 n. 9, these cases provide important guidance in
determining when a dangerous situation may justify a reasonable warrantless entry
or search. In Tyler, for example, the Court held that no warrant is needed where
officials are investigating "for a reasonable time" the cause of a fire after it has been
extinguished. 436 U.S. at 510. The Court recognized that circumstances of the
individual situation "will vary widely," and that "in determining what constitutes a
'reasonable time to investigate,' appropriate recognition must be given to the
exigencies that confront officials serving under these conditions, as well as to
individuals' reasonable expectations of privacy." Id. at n. 6. Furthermore, in Clifford,
the Court indicated that the reasonableness of a search will depend on "the
circumstances of the particular [hazard] and generally will involve more than the
lapse of time or the number of entries and reentries." Id. Other important
considerations include the existence of legitimate privacy interests, whether exigent
circumstances justify the intrusion, and whether the object of the search is to
determine the cause of the fire or to gather evidence of criminal activity. Clifford, 464
U.S. at 292.
We have also considered safety factors in determining whether exigent
circumstances exist. See Boettger, 71 F.3d at 1415; United States v. Antwine, 873
F.2d 1144, 1147 (8th Cir.1989); United States v. Vance, 53 F.3d 220, 222 (8th
Cir.1995). In Boettger, the authorities faced an exceptional fire scene when the
defendant's attempts at bomb-making went awry, causing an explosion in his
apartment. The presence of potentially explosive chemicals created safety concerns
for the investigators and apartment neighbors, thus justifying the warrantless search
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of the apartment.8 As noted in Antwine, we affirmed "our long-held view that
legitimate concern for the safety of individuals may constitute 'exigent circumstances'
justifying warrantless entries and searches." 873 F.2d at 1147.
We also note this court’s application of Boettger's safety exception in the
context of the discovery of a suspected methamphetamine lab. In United States v.
Walsh, 299 F.3d 729 (8th Cir. 2002), the officers smelled the presence of ether, a
substance used in the manufacture of methamphetamine, and saw various pieces of
equipment associated with methamphetamine production outside of a shed. The
officers conducted a brief warrantless search of the shed to look for an operating
methamphetamine lab and anyone who might be hiding. We agreed that the officers'
stated concern about safety justified their limited search. Specifically, Walsh includes
the following observation:
The potential hazards of methamphetamine manufacture are well
documented, and numerous cases have upheld limited warrantless
searches by police officers who had probable cause to believe they had
uncovered an on- going methamphetamine manufacturing operation. See
United States v. Wilson, 865 F.2d 215, 217 (9th Cir.1989); United States
8
In Boettger, we noted that the Second, Third, and Sixth Circuits agree that the
presence of potentially explosive chemicals can present a continuing danger justifying
a warrantless search of a residence. 71 F.3d at 1415-16 (citing United States v. Urban,
710 F.2d 276, 278 (6th Cir.1983) ("the presence of potentially explosive chemicals
in the defendant's house are exactly the kind of 'continuing dangers' " the Supreme
Court had in mind when it ruled in Tyler that officials could remain on the scene for
a reasonable time to determine the cause of the hazard); United States v. Callabrass,
607 F.2d 559, 564 (2d Cir.1979), cert. den., 446 U.S. 940 (1980) (exigency due to
need to dispose of dangerous chemicals in order to render the premises safe); and
United States v. Clark, 617 F.Supp. 693, 697 (E.D.Pa.1985), aff'd, 791 F.2d 922 (3rd
Cir.1986) (exigency of large quantities of potentially explosive chemicals was not
"extinguished" by the fire department and justified summoning experienced narcotics
agents to handle the disassembly).
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v. Echegoyen, 799 F.2d 1271, 1278-79 (9th Cir.1986); United States v.
Brock, 667 F.2d 1311, 1318 (9th Cir.1982), cert. denied, 460 U.S. 1022,
103 S.Ct. 1271, 75 L.Ed.2d 493 (1983); United States v. Williams, 630
F.2d 1322, 1326-27 (9th Cir.), cert. denied sub nom. Murchison v.
United States, 449 U.S. 865, 101 S.Ct. 197, 66 L.Ed.2d 83 (1980) (PCP
lab); United States v. Erb, 596 F.2d 412, 418 (10th Cir.), cert. denied,
444 U.S. 848, 100 S.Ct. 97, 62 L.Ed.2d 63 (1979). See also United
States v. Dick, 173 F.Supp.2d 765, 771 (E.D.Tenn.2001)
(methamphetamine lab in apartment complex warranted sentence
enhancement under U.S.S.G. § 2D1.1(b)(6) because it "created a
substantial risk of harm to human life"). Here, the strong smell of ether
and the equipment and residue found in the carport area suggested on-
going manufacture in the shed. Officer Cantrell could not be certain no
one was hiding (or worse yet, lying unconscious) in the shed, and
Officer McPhail was justified in verifying that no untended heat source
was creating an imminent risk of fire or the explosion of volatile
chemicals.
299 F.3d at 734. See also United States v. Clayton, 210 F.3d 841 (8th Cir. 2000).
In this case, although the District Court stated its reservations regarding the
searches conducted by police officers prior to gaining consent, the court determined
that several factors weighed in favor of validating the warrantless searches due to
exigent circumstances.9 The District Court, however, specifically excluded evidence
9
The District Court listed five factors justifying the warrantless searches,
including: 1) the arson investigator properly came upon the evidence that was in plain
sight; 2) the arson investigator contacted police officers for safety reasons; 3)
Detective Sweeney testified that he entered the residence out of concerns for public
safety; 4) Detective Sweeney testified that he was convinced the matters he saw in the
basement of the residence constituted a methamphetamine laboratory; 5) the police
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regarding jars of frozen liquid found in the upstairs refrigerator because the court
determined that the search of the refrigerator was unwarranted. The District Court
stated, "There is no showing or claim that a methamphetamine-caused fire or an
explosion could result spontaneously from items in a refrigerator.” In light of the
applicable case law, we affirm the District Court’s determination that exigent
circumstances existed and justified the initial warrantless searches of the Francis
residence. Furthermore, because we agree with the District Court that the authorities
conducted the warrantless searches based on exigent circumstances, we need not
address whether the Francises' subsequently-obtained consent operated to validate the
searches.
IV.
Admission of Evidence
Finally, Francis, Jr. argues that the improper admission of gun evidence entitles
him to a new trial. The prosecution introduced this evidence to show that firearms are
often present when methamphetamine manufacturing is involved. The District Court
admitted the evidence, but instructed the jury that "the firearms are not to be used as
proof of the drug charges that are before the jury." Francis, Jr. now contends that this
curative instruction was inadequate. However, Francis, Jr. did not object to the
curative instruction, seek a mistrial, or file a motion for new trial. This failure renders
our review as one for plain error.
We review for plain error issues about which trial counsel failed to object or
otherwise raise before the district court. United States v. Yellow Hawk, 276 F.3d 953,
955 (8th Cir. 2002). Under Federal Rule of Criminal Procedure 52(b), we may notice
an error not raised below if (1) there is an error, (2) that is "plain," and (3) that
"affect[s] substantial rights." United States v. Olano, 507 U.S. 725, 732 (1993). In
officers knew that chemicals associated with methamphetamine laboratory are subject
to burning and explosions.
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addition, even if the forfeited error meets the above criteria, we will exercise our
discretion to order correction only if the error "seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings." United States v. Green, 151
F.3d 1111, 1114 (8th Cir. 1998); Olano, 507 U.S. at 732. The District Court gave
appropriate instructions to the jury about the firearms, and we assume the jury
followed this instruction. United States v. Karam, 37 F.3d 1280, 1288 (8th Cir.1994)
Under the present facts and applicable precedents, the trial court’s admission
of the testimony was not error, plain or otherwise. The jury convicted Francis, Jr. of
three narcotics offenses, including attempted manufacture of methamphetamine,
possession with intent to distribute marijuana, and possession of drug paraphernalia.
Francis, Jr. attempts to distinguish the cases in which courts have upheld admission
of firearms as evidence of use in the drug trade. He argues that the government
charged him with attempted manufacture of methamphetamine only rather than with
a distribution charge. However, he ignores that the jury convicted him of possession
with intent to deliver marijuana, and that this clearly involves elements of the drug
trade. In United States v. Regans, 125 F.3d 685, 686 (8th Cir.1997), we observed that
a firearm is a "tool of the trade" for drug dealers, and that a connection can be
inferred where there is a firearm and distribution quantity. See also United States v.
Schubel, 912 F.2d 952, 956 (8th Cir.1990).
Even if we considered only the attempted manufacture charge, Francis, Jr.’s
argument still fails. This court rejected this same argument in United States v. Maza,
93 F.3d 1390 (8th Cir. 1996). In Maza, one of the defendants argued that he was
denied a fair trial because the guns seized by the police when he was arrested were
admitted as evidence even though there was no proof of any connection to the
charged crime of conspiracy to distribute methamphetamine. In a plain-error review,
we acknowledged that firearms are generally considered tools of the drug trade, and
as such, the presence of firearms in that defendant's vehicle was relevant to his
participation in the conspiracy to distribute methamphetamine and did not prejudice
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his right to a fair trial. Such is the instant case. We affirm the District Court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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