Lawyers look to keep video in fatal fire from jury

Prosecutors say no search warrant needed

8/15/2014

Attorneys for an Oregon man charged with setting a fire that led to the deaths of two Toledo firefighters contended in court Thursday that the surveillance video that made him the prime suspect was obtained without a search warrant and should not be shown to a jury.

During a lengthy hearing before Lucas County Common Pleas Judge Frederick McDonald, attorneys for Ray Abou-Arab, 61, of 1311 Sierra Dr. argued that he owned the Magnolia Street building and the cameras mounted outside it.

Mr. Abou-Arab, who is being held in the Lucas County jail on a $5.85 million bond, is charged with two counts of aggravated murder, each with death penalty specifications; two counts of murder, eight counts of aggravated arson, and one count of tampering with evidence for the Jan. 26 blaze that led to the deaths of Toledo fire Pvts. Stephen Machcinski, 42, and James Dickman, 31.

Prosecutors maintained that police did not need a search warrant to seize the digital video recorder because they obtained permission from Ali Abdou, owner of the Huron Market, which is on the first floor of the same Magnolia Street apartment building where the fire occurred.

Mr. Abdou, who owns the business but leases the property from Mr. Abou-Arab, testified that he purchased a new DVR when the old one stopped working a year or more before the fire. Mr. Abou-Arab did not pay for the equipment, he said, adding that he freely signed a waiver of consent to allow investigators to retrieve the DVR in the aftermath of the fire.

Officer Mark Johnson, who retrieved the equipment, said the same.

“I asked him if the DVR at the carryout was his and he stated yes,” Officer Johnson recalled. “I explained to him that I was going to have to take the DVR due to the circumstances, and he said he had no problem with that. As a matter of fact, he said, ‘Do whatever you have to do.’ ”

Getting the DVR was important, the officer said, “to obtain video of people in the area during the fire.”

Police Detective Deborah Hahn testified that because Mr. Abdou said he owned the store and owned the DVR, she had no reason to ask Mr. Abou-Arab, who was not a suspect at the time, for permission to take the video equipment. And, she said, time was of the essence.

“It was imperative to get it as soon as possible just in case anything could happen whether it be a back-up system or some type of weather-related issue or fire-related issue, whether the fire would continue to spark up and take the whole building down,” she said. “I wanted to get the DVR system so that we’d have it secure in our possession.”

Contact Jennifer Feehan at: jfeehan@theblade.com or 419-213-2134.