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United States v. Pichany

decided: August 23, 1982.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
v.
JOHN CLIFTON PICHANY, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 81-CR-38 -- William C. Lee, Judge.

Bauer, Wood, and Cudahy, Circuit Judges.

Author: Per Curiam

The United States appeals, pursuant to 18 U.S.C. § 3731,*fn1 from the district court's decision to suppress evidence obtained during the warrantless search of the defendant's warehouse. The exclusive issue raised in this appeal is whether the "community caretaking" exception to the Fourth Amendment warrant requirement first established in Cady v. Dombrowski, 413 U.S. 433, 441, 37 L. Ed. 2d 706, 93 S. Ct. 2523 (1973), and previously applied only to automobiles extends to the search of an unlocked warehouse during a burglary investigation.

At approximately 7:00 a.m. on August 6, 1981, Lonnie Hunter, the owner of Hunter Trailer Manufacturing Co., called the Sheriff's Department in La Porte County, Indiana to report a burglary at his business. Officer Steve Pearce answered the call and agreed to meet Hunter at the premises within an hour. Pearce testified at the suppression hearing that it was clear from the call that the burglary was not in progress. Hunter, who told Pearce the break-in had occurred overnight, apparently had already inspected the premises and assembled a partial inventory of stolen items.

After waiting twenty minutes to allow Hunter time to travel to the warehouse, Pearce left for the warehouse with Sergeant Robert Peters, an officer in the same department familiar with the Kingsbury Industrial Park and the location of Hunter's business in that setting. The officers intended to interview Hunter, inspect the scene, and complete a standard department burglary report. Pearce had told Hunter to finish listing the items stolen to facilitate the investigation. There being no emergency the officers drove to the industrial park at average speed and arrived ten minutes later.

The Kingsbury Industrial Park is a former Army munitions depot. It contains approximately sixty large aluminum buildings of nearly equal size and appearance, some of which are leased by the present owner to private businesses. The buildings are set in nine rows and labelled with military numbers. No business signs or postal addresses designate the occupants of the separate buildings. The industrial park has a deserted, desolate atmosphere and had been the site of previous break-ins. Hunter leased two buildings in the park, numbered S-8-4 and S-9-4. The defendant leased one, S-8-3, located in the same row as Hunter's buildings. The defendant acknowledges that, except for their military numbering and different style doorways, the three buildings appeared virtually identical.

Arriving at the park, the officers went directly to Hunter's S-9-4 building. The policemen were thirty minutes early for the scheduled meeting with Hunter, who was not present and did not respond when they called his name. No car was parked in the vicinity. The officers looked through a large ventilator on the side of the S-9-4 building and saw welding equipment, finished and partially finished lightweight trailers, and other materials Hunter used for manufacturing trailers. The officers went to the adjacent S-8-4 building where, peering through a small hole in the side of the building, they saw similar materials indicating that Hunter also leased this building. Since Hunter still did not respond to their calls, the officers continued looking around and proceeded to the S-8-3 building, which the defendant, John Pichany, leased.

Though the defendant had rented the warehouse under the business name Newman Enterprises, no sign on the warehouse indicated his occupancy. Like the other buildings in the industrial park, only the old military numbering identified it. Unlike the Hunter buildings, neither the service door nor the sliding doors on the side of the building were locked. The officers knocked loudly and once again called for Hunter. There was no answer. They entered the building. Inside they saw a semi-tractor and trailer. Because the truck was amateurishly painted, the officers became suspicious and investigated closer. They recorded the license number of the truck. Officer Pearce also became curious about a large canvas tarpaulin, which hanging from the warehouse ceiling to the floor, secluded the northeast corner of the building from view. Pearce walked toward the curtain, believing, he testified at the suppression hearing, that it might be Hunter's office. As he approached, a tractor wheel was visible in the crevice between the tarpaulin and the wall. Pearce pulled the curtain aside and found two new John Deere farm tractors.

After recording the serial numbers from the tractors, the officers left the building. They did not search further for Hunter. They returned to the sheriff's department where, consulting police records they found that the semi-tractor and the farm tractors were stolen, but were unrelated to the Hunter burglary which the officers were investigating. Obtaining a search warrant, the officers returned and seized the vehicles. The officers did not locate Hunter that day; he appeared the following day at the department headquarters and completed the burglary report.

A grand jury indicted the defendant under 18 U.S.C. § 659*fn2 for the theft of four John Deere tractors from an interstate shipment. The defendant moved to suppress the evidence found in the warehouse, arguing the officers' initial entry into his leased building violated the Fourth Amendment. Ten days later the district court granted the motion. The United States then filed a notice of appeal.

The government raises a single argument to justify the warrantless entry into the warehouse. The government argues that the rationale which the Supreme Court accepted in Cady v. Dombrowski, 413 U.S. 433, 37 L. Ed. 2d 706, 93 S. Ct. 2523 (1973), to allow the warrantless search of an impounded automobile extends to the warrantless entry into an unlocked warehouse.

In Cady, the police in Kewaskum, Wisconsin towed an automobile, disabled in an accident and hazardous to other vehicles on the road, to a local garage. The owner, an off-duty Chicago policeman, was too intoxicated to make those arrangements himself. Believing that Chicago Police Department regulations required officers to carry revolvers at all times, the police searched the car at the gas station to find the gun. Because they were not investigating any crime, the police did not obtain a search warrant. During the search the police discovered several bloody garments, which belonged to a recent homicide victim and were integral in the defendant's eventual conviction for first degree murder. The defendant appealed the conviction, arguing the automobile search violated the Fourth Amendment. The Supreme Court rejected the argument, holding that the search, undertaken under the police "community caretaking function," was reasonable.

The government here argues that because the officers were not investigating the defendant's involvement in any crime and entered the S-8-3 warehouse only to search for Hunter and investigate a burglary at his business, they too were acting in a "community caretaking" role and, consequently, evidence obtained from that entry should not be suppressed.

It is a novel argument, but we have no basis to extend Cady to the present case. Several obvious differences exist between the situation presented here and the situation in Cady. Several terms after deciding Cady, the Supreme Court explained ...


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