Burned by the Wait

Legal experts say Eureka police could have preserved evidence without delaying firefighters



Five minutes from the judge's house, Eureka police detective Todd Wilcox got a phone call. Hurry it up, the caller told him -- the fire had restarted. The firefighters needed to get back inside while there was still a building to save. 

Hours earlier, firefighters had all but extinguished the fire in Apartment Three of the building on the northwest corner of Church and Pine streets in Eureka. They were nearly finished with their room-to-room check for hidden fires and hotspots when one of them discovered what looked like a pipe bomb in a closet. They retreated to wait for the bomb squad.

At around 8 p.m., a little less than an hour after firefighters had arrived at the fire, Wilcox was at home relaxing. His shift commander called him and told him about the fire and the possible bomb. He was on the on-call officer on that night of Jan. 31; the investigation into the bomb would be his.

Firefighters had also seen ammunition inside the apartment, the shift commander told him. Wilcox drove from his house to Eureka police headquarters, then over to the scene of the fire, arriving between 8:30 and 9 p.m. He worried that if he let the sheriff's bomb squad go into the apartment without a search warrant, whatever other evidence they found would be useless in court. The fire looked to him like it was out, he said, although he didn't check with the firefighters to be sure. "There were no visible flames," he said. "I wasn't looking at a building that was burning, in the ordinary sense." He decided to seek a warrant.

Wilcox took some time crafting the three-page typed warrant application, or affidavit. According to the affidavit, one of the occupants of Apartment Three admitted to another Eureka police officer that she and her roommate had been using butane to make hash oil. Wilcox predicted in his affidavit, based on his experience from 19 years on the force, that authorities would find drug paraphernalia and firearms, along with evidence that Apartment Three's inhabitants had been making hash.

His affidavit referred to the fire in the past tense, as if it were completely out, although Wilcox expressed concern that the ammunition might cook off in the heat.

While Wilcox worked on the document, the fire rekindled and spread to the other apartments. The delay doubled or tripled the amount of damage to the building and left 11 people temporarily homeless.

Worse still, it might have been for nothing. Wilcox's fears that he would lose evidence were unwarranted, say legal experts. "I would have told them, ‘Go in and get the goddamn bomb out,'" said UC Berkeley law professor Jesse Choper. In cases when police don't have time to get a warrant, Choper explained, there are circumstances that make it legally excusable to enter someone's property warrantless. Those are called "exigent circumstances." He also said that on the bomb squad's way to the bomb, whatever evidence of other criminal activity that was in plain view would be usable in court. Only after the squad had collected the bomb and gathered up any plain view evidence would it be necessary to withdraw and get a warrant to search the rest of the apartment.

Local defense attorney Neal Sanders said that it would be hard to find a better example of a time when police should have forgone a search warrant. "If there's a bomb and it has the potential of going off, I can't imagine a more appropriate situation for the police to go in without a warrant," he said. Once the police dealt with the bomb and made sure the firefighters were able to do their job, then they could pull back and get a warrant to search the rest of the apartment for any evidence that wasn't in plain view, said Sanders. 


Cindy Thompson was at home in Apartment Two, sitting at her computer, when she heard the fire begin. The pictures on her wall swung from the force of a blast, and next door she could hear screams and loud pops, like firecrackers. Her cat Pooter bolted under bed and hid.

Thompson and her roommate stumbled downstairs, out into the pouring rain. Firefighters were dragging up hoses and giving first aid to one of the people from Apartment Three, who was badly burned.

All of a sudden, the firefighters told everyone to get away from the building. Humboldt Bay Fire Chief Ken Woods said that one of his firefighters had discovered a suspicious object in the closet. Woods went to take a look at it and immediately ordered everyone out of the building. "It was a 6- or 8-inch galvanized pipe with end caps," Woods said. "It looked like every picture of a pipe bomb you see."

Thompson's roommate tried to go back upstairs for the cat, but firefighters told her that that it was unsafe.

Woods pulled his fire crews back to a 70-foot perimeter. The building was still steaming, he said, but there was no fire suspected and little or no smoke. At the time of the discovery of the device, firefighters had just begun their "overhaul" stage, when they go room to room and check for hot spots and fires in hidden spaces, visually and with a thermal imaging camera. If not for the suspected bomb, they wouldn't have left the building until they were positive that the fire was completely out. Even though those precautions were delayed, Woods said, the situation seemed stable enough that he let some of the firefighters go back to the station.

The bomb squad showed up around 9:30 p.m. At that point, Woods said, the squad could have gone into the apartment, no problem. The squad prepared its bomb removal robot and then sat tight, waiting for the warrant.

Volunteers from the Red Cross arrived and started handing out blankets to the apartment building's soaked inhabitants. Thompson said that firefighters suggested she accept the Red Cross's offer to pay for a hotel room; there was no sense standing out in the rain any longer. When Thompson and her roommate left for the hotel, they were shaken up, but they expected to go home the next morning.

Shortly before 10 o'clock, however, a breeze brought the fire raging back. "The wind picked up significantly out of the southwest," said Assistant Fire Chief Bill Gillespie. If the firefighters had been able to complete their overhaul stage, the wind would have posed little danger. They hadn't, however, gotten a chance to send a crew into the attic to make sure it wasn't burning. The wind blew straight through the busted-out windows and through the hole that firefighters had cut in the roof to vent noxious gases. It woke the dormant embers in the attic.

From behind their perimeter, the firefighters doused the building with their high-pressure hoses, Gillespie said, but they could do little to stop the swiftly spreading flames.   

From there, the fire raged through the upstairs apartments and into the Victorian section that fronts Pine Street. "We were as close as we dared, working on it from all four sides," Gillespie said. "It was burning pretty hard."

Meanwhile, Wilcox had finished writing out the request for a search warrant. A little after 11 p.m. he called the judge, who was asleep, and told him to get his pen ready. On his way to the judge's house, one of the firefighters called with the bad news. "Well, I'm almost there," he remembers saying. Just before midnight, signed warrant in hand, Wilcox phoned the bomb squad to give it the go-ahead.

Although parts of the building were still on fire, a member of the bomb squad suited up. Chief Woods decided that the bomb tech, in his heavy gear, would have trouble safely navigating his way to the bomb. "I was concerned that we had holes in the floor," Woods said. "I didn't want the bomb tech in his clumsy bomb suit falling through into the first floor." Wearing only his fire suit, Woods led the way.

"When we got through into the closet, it was still burning," he said. "The ceiling had fallen in, the closet doors had fallen in, and the fire was still in there." He cleared away the debris and pointed out the pipe. The bomb tech took one look and grabbed it. It wasn't a bomb, he said, but an instrument for making hash oil.

At 12:30 a.m. Woods and the bomb tech emerged from the smoke and told the crowd of more than 20 firefighters that they could go back to work.


In her room at the Best Western, Thompson got a good night's sleep. She hasn't slept that well since, she said. Nobody called her to tell her that her apartment had burned. When she showed up there the next morning and saw the broken windows and the blackened eaves, she couldn't understand. She never would have left without her cat, she said, if she had known there was any danger. Thompson had had Pooter -- a white cat with gray-striped sides, who'd been born with just one eye --for almost three years, since he was a kitten.

Thompson, 56, is at her son's trailer in King Salmon, where she's been since the Red Cross stopped paying for her hotel room. She's sitting out front, smoking a cigarette, using her car as a windbreak. Her dirty-blonde hair is gray in parts, and she wears sunglasses over her prescription glasses. A handicapped sign hangs from her car's rearview mirror, and a cane rests against the passenger seat. Why didn't the fire department or the police let her know when her apartment was burning, she wonders. And why haven't they contacted her since?

"I lost everything, just everything," she said. Thompson managed to make it out with her purse, and luckily her car wasn't in the garage where it's normally parked, but her only clothes are the ones she's wearing.

Recently the landlord called her to tell her that the cleanup crew was going through her apartment -- did she want to come help? Thompson thought of Pooter, somewhere amid her blackened, soaked possessions, and declined. "I can't get thoughts of my cat out of my head," she said. "Man, I miss him."

Barbara Caldwell, the executive director of the Red Cross's Humboldt Chapter, said that her organization helped Thompson, her roommate, and a family that lived downstairs from Apartment Three. It provided them with hotel rooms, blankets and food, and it connected them with local social services. The Red Cross can't, however, do anything long-term, said Caldwell, and after a week or two the victims had to find other arrangements. "We're basically a shoulder [to lean on]," she said.

Thompson said that after the fire, Todd Petty, her landlord, offered to give her back her deposit, to help her get her life on track. She turned him down. When Thompson and her roommate moved in nearly four years ago, she remembers telling Petty that she planned on being there forever. She wants to move back in once the apartment is repaired, which could be months away.

Petty said he and his wife were devastated by the fire, but he's most concerned with the fate of his tenants. "These poor people that lost absolutely everything they had," he said. "My God, it's their lives in this place."

He's not happy about the delay for the warrant. "Whoever made the decision to preserve evidence made an ill-advised choice," said Petty. "It was not a well thought-out position, and the results were not good." He said that the damage to his four-unit apartment building is estimated to be at least $400,000, not including the value of his tenants' possessions. Petty's insurance will cover the cost of rebuilding but won't help the tenants. "Under the circumstances, the preservation of property should have taken precedence over the court case," he said.

Detective Wilcox said that as the detective in charge of the scene, he wanted to be sure that whatever he found inside the apartment would be admissible in court. He thought the fire was out, although he admitted that he based that on his own judgment rather than that of the firefighters. "I don't think anybody said [the fire] was out," Wilcox said. "I know nobody said we need to immediately resume firefighting efforts." He didn't think the bomb was a sufficient exigent circumstance to allow him to enter Apartment Three without a warrant. 

"Could it have been interpreted differently?" Wilcox asked. "Almost certainly." However, he said, "Based on what I had at the time, that was the best decision I could make."


In the end, the fire damaged much of the evidence that officers collected -- "remnants of plastic bags and vegetation," "can with remnants of plastic bottles with vegetation material and liquid material in them," "remnants of pressure cylinders," according to the search warrant return paperwork. Along with the metal pipe for making hash, the document said, the cops also found four guns and marijuana.

Two weeks after the blaze, the windows on the blue, two-story building are boarded up, and piles of charred, soaked trash sit in the driveway.

A disaster cleanup company's sign is planted in the front yard of 1628 Pine. Petty said that the cleanup crew has hauled away multiple truckloads of waterlogged drywall, soaked ceiling panels, and ruined belongings. All the interior walls and ceilings will have to be replaced -- it will probably be at least six months before the apartments are habitable, he said.

The door of Apartment One is ajar. It's directly below Apartment Three, where the fire started. It smells like burnt plastic, and water drips from the holes in the ceiling. A kid's stuffed horse sits in the window, forgotten in the rush of the fire.

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