             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00333-CR
     ___________________________

   CASEY ALLEN MARTIN, Appellant

                     V.

          THE STATE OF TEXAS


On Appeal from Criminal District Court No. 1
           Tarrant County, Texas
        Trial Court No. 1515753D


    Before Kerr, Birdwell, and Bassel, JJ.
        Opinion by Justice Birdwell
                                       OPINION

      A fire broke out in appellant Casey Allen Martin’s apartment, and firefighters

entered to battle the blaze. Firefighters saw drug paraphernalia inside, and they called

police in to observe the scene. Officers then obtained a search warrant, which led to

the discovery of the methamphetamine that was the basis for Martin’s conviction.

      In one issue, Martin appeals the denial of his motion to suppress. Martin does

not dispute that the fire permitted firefighters to enter the apartment.        But he

contends that the same exigent circumstances did not also authorize officers to enter

and observe, in plain view, the same contraband that firefighters had already seen.

Because we disagree, we affirm.

                                  I.     Background

      On August 30, 2017, at approximately 10:47 p.m., the Bedford Fire

Department (“BFD”) was called to a fire at an apartment complex. 1 Firefighter

Darren Cook located the source of the fire as an apartment on the second floor, with

smoke and water flowing from the door. Cook contacted the tenant, Martin, who

indicated that he fell asleep while cooking on the stove.

      BFD made entry and extinguished a small fire on the cooktop. Cook then

began efforts to ventilate the apartment. Cook attempted to open a window in the


      1
       We draw our recitation of the facts from the trial court’s findings, which are
reasonably supported by the record. See State v. Kerwick, 393 S.W.3d 270, 274 (Tex.
Crim. App. 2013).


                                           2
back bedroom, kneeling on a futon to reach the window, and his knee touched a

firearm.   Cook became concerned about his safety and the safety of the other

firefighters. The firefighters began to look around the apartment and observed other

firearms and ammunition scattered throughout the apartment, giving Cook additional

safety concerns. Cook also saw multiple items of drug paraphernalia sitting on

dressers, tables, and a shelf in an open closet—all in plain view. Cook decided to call

the police due to his safety concerns and the drug paraphernalia.

      Officer Hunter Hart of the Bedford Police Department was dispatched to the

scene. When Officer Hart arrived, he made contact with the BFD battalion chief.

The chief told Officer Hart that BFD could not ventilate the back bedroom of the

apartment because there were blankets over the windows and that BFD had located

guns and drug paraphernalia inside the apartment. The chief told Officer Hart that he

was concerned about the safety of BFD due to what they had observed, and he

wanted Officer Hart to secure the apartment.

      Officer Hart went into the apartment and inspected each room, ending with

the back bedroom. In the bedroom, he observed drug paraphernalia in plain view.

Officer Hart described the paraphernalia as a pipe or bong containing drug residue, a

plastic baggie containing drug residue, and additional plastic baggies commonly used

to contain narcotics. Based on the items of drug paraphernalia, Officer Hart believed

that an offense had been committed, and he “froze” the apartment as a crime scene.

Officer Hart exited the apartment approximately two minutes after his initial entry

                                           3
and determined that there was no one inside who could pose a safety risk. BFD

remained at the scene while Officer Hart entered and exited the apartment.

       Additional officers went into the apartment to observe the contraband and to

determine if they should obtain a search warrant for the apartment. The police did

not seize any evidence at that time. The officers talked to Martin, who stated that he

was the only one residing in the apartment. Martin was arrested for possession of

drug paraphernalia.

       Officer Hart then left the scene, and Bedford police obtained a search warrant

at 3:12 a.m. on August 31, 2017. In the warrant affidavit, an officer alleged that Cook

and BFD had located what they believed to be drug paraphernalia inside the

residence. Police executed the search warrant and found the methamphetamine that

is the subject of this case.

       After hearing the evidence, the trial court denied suppression and entered

findings of fact and conclusions of law. In its conclusions, the trial court stated that

the firefighters’ entry into the apartment was lawfully related to exigent circumstances:

combatting an ongoing fire. The trial court observed that under Supreme Court

precedent, the firefighters would have been within their rights to seize the drug

paraphernalia that they saw in plain view.

       The trial court also concluded that Officer Hart’s entry was justified, though it

noted that the Texas Court of Criminal Appeals had yet to address this issue. The

trial court reasoned that firefighters should be permitted to call on officers to secure

                                             4
the scene of a fire and to observe, in plain view, the same evidence that firefighters

were entitled to seize. As support, the trial court cited cases from several other

jurisdictions, and it noted that “the overwhelming majority of courts that have

addressed this issue have concluded that the police may step into the shoes of the

firefighter to seize the contraband without first obtaining a warrant.” The trial court

concluded that because both Cook’s and Officer Hart’s entries into the apartment

were lawful under the Fourth Amendment, suppression should be denied.

      Following denial of suppression, Martin pleaded guilty to possession of

methamphetamine.      The trial court deferred adjudication and placed Martin on

community supervision for a period of seven years. Martin appeals the trial court’s

ruling, which we now consider. See Tex. R. App. P. 25.2(a)(2)(A).

                                  II.    Discussion

      Martin contends that the trial court erred by denying his motion to suppress. 2

Martin does not dispute that exigent circumstances permitted the firefighters’ entry

into the apartment and their efforts to control the fire. But he asserts that the same

circumstances did not validate Officer Hart’s entry, especially because the fire was

doused before he arrived.     Martin submits that despite the testimony regarding

firearms, contraband, and the firefighters’ safety concerns, there was no realistic

      2
        To begin with, Martin offers three propositions that the State does not
contest: (1) that even after the fire, he maintained a reasonable expectation of privacy
in the apartment; (2) that the protective sweep doctrine does not apply; and (3) that he
never provided consent to search his apartment. Because these arguments are not
dispositive or contested, we do not address them further.

                                           5
indication that some other form of exigency was afoot, such as an armed

confrontation.      Martin contends that because any remaining exigency was

extinguished with the last flames, the officer’s entry was unlawful. And because the

entry was unlawful, Martin reasons, the methamphetamine must be suppressed as the

fruit of an illegal search.

       In response, the State asks us to adopt the rule applied by courts in many other

jurisdictions: where a lawful intrusion by a firefighter has already occurred, and the

firefighter has already observed contraband in plain view, the invasion of privacy is

not increased by allowing an officer to enter the residence and observe or seize the

contraband. We will oblige the State’s request.

       We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim.

App. 2018). At a motion to suppress hearing, the trial judge is the sole trier of fact

and judge of credibility of witnesses and the weight to be given to their testimony. Id.

at 190.    Therefore, we afford almost complete deference to the trial court in

determining historical facts. Id. When a trial judge makes express findings of fact, an

appellate court must examine the record in the light most favorable to the ruling and

uphold those fact findings so long as they are supported by the record. State v.

Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim. App. 2017). The appellate court then proceeds

to a de novo determination of the legal significance of the facts as found by the trial



                                           6
court—including the determination of whether a specific search or seizure was

reasonable. Id.

      The Fourth Amendment provides that “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon probable cause.” U.S.

Const. amend. IV. In Michigan v. Tyler, the United States Supreme Court concluded

that the protection against unreasonable search and seizure applies to fire officials.

436 U.S. 499, 509–10, 98 S. Ct. 1942, 1950 (1978).

      The ultimate touchstone of the Fourth Amendment is “reasonableness.”

Fernandez v. California, 571 U.S. 292, 298, 134 S. Ct. 1126, 1132 (2014). A warrantless

police entry into a person’s home is presumptively unreasonable unless it falls within

the scope of one of a few well-delineated exceptions to the warrant requirement.

Turrubiate v. State, 399 S.W.3d 147, 151 (Tex. Crim. App. 2013); Johnson v. State, 226

S.W.3d 439, 443 (Tex. Crim. App. 2007). This general rule applies equally to fire-

damaged property “unless the fire is so devastating that no reasonable privacy

interests remain in the ash and ruins.” Garrison v. State, Nos. 2-04-450-CR, 2-04-451-

CR, 2005 WL 1594258, at *2 (Tex. App.—Fort Worth July 7, 2005, pets. ref’d) (not

designated for publication).

      One well-recognized exception applies when the exigencies of the situation

make the needs of law enforcement so compelling that a warrantless search is

objectively reasonable under the Fourth Amendment. Missouri v. McNeely, 569 U.S.

                                          7
141, 148–49, 133 S. Ct. 1552, 1558 (2013); see Payton v. New York, 445 U.S. 573, 590,

100 S. Ct. 1371, 1382 (1980) (“[T]he Fourth Amendment has drawn a firm line at the

entrance to the house.       Absent exigent circumstances, that threshold may not

reasonably be crossed without a warrant.”). “A variety of circumstances may give rise

to an exigency sufficient to justify a warrantless search, including law enforcement’s

need to provide emergency assistance to an occupant of a home . . . or enter a burning

building to put out a fire and investigate its cause.” McNeely, 569 U.S. at 149, 133

S. Ct. at 1558–59. Moreover, the exigent circumstances created by a fire are not

extinguished the moment the fire is put out. See Tyler, 436 U.S. at 510, 98 S. Ct. at

1950; Johnson, 226 S.W.3d at 446 n.29. Rather, “the exigent circumstances warranting

intrusion by government officials continue for a reasonable time after the fire has

been extinguished to allow fire officials to fulfill their duties, including making sure

the fire will not rekindle, and investigating the cause of the fire.”             Jones v.

Commonwealth, 512 S.E.2d 165, 168 (Va. Ct. App. 1999) (citing Tyler, 436 U.S. at 510,

98 S. Ct. at 1950). The determination of what constitutes a reasonable time to

investigate varies according to the circumstances of a particular fire. Tata v. State, 446

S.W.3d 456, 467 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (citing Tyler, 436

U.S. at 510 n.6, 98 S. Ct. at 1950 n.6).

       If evidence of criminal activity is discovered by firefighters during the course of

a lawful search under exigent circumstances, firefighters may seize it under the plain

view doctrine. Michigan v. Clifford, 464 U.S. 287, 294, 104 S. Ct. 641, 647 (1984).

                                            8
Three requirements must be met to justify the seizure of an object in plain view:

(1) law enforcement officials must lawfully be where the object can be “plainly

viewed”; (2) the “incriminating character” of the object in plain view must be

“immediately apparent” to the officials; and (3) the officials must have the right to

access the object. State v. Betts, 397 S.W.3d 198, 206 (Tex. Crim. App. 2013).

       Here, it is undoubted that the firefighters’ entry into and conduct within the

apartment was permissible under the Fourth Amendment. The exigency of the fire

gave the firefighters passage into Martin’s apartment. That exigency continued for a

reasonable time after the fire had been extinguished to allow Cook and other

firefighters to fulfill their duty to ventilate the apartment and to ensure the fire was

out for good. See Tyler, 436 U.S. at 510, 98 S. Ct. at 1950. While ventilating the

apartment, Cook encountered contraband in plain view. Therefore, Cook certainly

could have seized the paraphernalia and taken it to the police station, or simply

handed it to officers outside the apartment. See Clifford, 464 U.S. at 294, 104 S. Ct. at

647.

       The question remains whether the officers’ entry also passes constitutional

muster. “Of those jurisdictions that have considered the question, a majority has held

that law enforcement officers may enter premises to seize contraband that was found

in plain view by firefighters or other emergency personnel, at least if the exigency is

continuing and the emergency personnel are still lawfully present.” State v. Bower, 21

P.3d 491, 496 (Idaho Ct. App. 2001), abrogated in part on other grounds by State v. Islas,

                                            9
No. 45174, 2019 WL 1053379, at *6 (Idaho Ct. App. Mar. 6, 2019); see Steigler v.

Anderson, 496 F.2d 793, 797–98 (3d Cir. 1974); United States v. Green, 474 F.2d 1385,

1390 (5th Cir. 1973); Mazen v. Seidel, 940 P.2d 923, 927–28 (Ariz. 1997); People v.

Harper, 902 P.2d 842, 846 (Colo. 1995); State v. Eady, 733 A.2d 112, 123 (Conn. 1999)

(op. on reh’g); Hazelwood v. Commonwealth, 8 S.W.3d 886, 887 (Ky. Ct. App. 1999);

Commonwealth v. Person, 560 A.2d 761, 765 (Pa. Super. Ct. 1989); Jones, 512 S.E.2d at

168–69; State v. Bell, 737 P.2d 254, 259 (Wash. 1987), abrogated in part on other grounds by

Horton v. California, 496 U.S. 128, 110 S. Ct. 2301 (1990).

       In our view, such a rule is well founded. “Police officers often fill many roles,

including paramedic, social worker, and fire investigator.” Mazen, 940 P.2d at 928.

When those roles overlap the role of criminal investigator, it is not unreasonable to

allow officers “to step into the shoes of” the firefighter to observe and to seize the

contraband without first obtaining a warrant. Id. Allowing this limited entry by an

officer constitutes no greater intrusion upon the defendant’s privacy interest than

does a firefighter’s entry. Green, 474 F.2d at 1390; Eady, 733 A.2d at 120; Bower, 21

P.3d at 496; Jones, 512 S.E.2d at 168. Under such circumstances, it would impose

needless inconvenience and danger—to the firefighter, the officer, and the evidence—

to require suspension of activity while a warrant is obtained. Eady, 733 A.2d at 120.

Firefighters’ efforts are best devoted to fighting fire and sorting the aftermath, which

are within their mission and core expertise. When, as here, the presence of firearms



                                            10
and contraband distracts from that mission, firefighters should be permitted to call

upon police, whose expertise includes handling firearms and securing contraband. 3

       We note that a contrary rule is stated by two courts: United States v. Hoffman,

607 F.2d 280, 283–85 (9th Cir. 1979), and State v. Bassett, 982 P.2d 410, 419 (Mont.

1999). These courts held that firefighters may not call police into the scene of a fire

to witness or seize contraband without first observing the warrant requirement.

       As support, these courts offered two rationales. First, these courts rejected the

notion that a police officer may legitimately “step into the shoes” of a firefighter

because the firefighter and the police officer entered burned houses for two entirely

separate reasons. See, e.g., Bassett, 982 P.2d at 418. The firefighters entered the home

to extinguish the fire, to clean up, and to ensure that the fire did not reignite. Id. But

the police officer entered solely to seize criminal evidence unrelated to the fire. Id.

The Bassett court held that because there were “two separate reasons for entering the

house, . . . there thus must be two entirely separate justifications for each entry.” Id.;

see Hoffman, 607 F.2d at 284–85 (concluding that an officer’s entry was not a “mere

extension” of the firefighter’s entry in part because the officer’s “only purpose in

entering appellant’s trailer . . . was to seize evidence of an unrelated federal crime”).

       We disagree with this line of reasoning. It is well established that an officer’s

subjective reasons for acting are irrelevant in determining whether that officer’s

       3
        This cause presents an even stronger case for the application of the majority
rule, for in addition to contraband, firefighters faced safety concerns from the
presence of several firearms.

                                            11
actions violate the Fourth Amendment. Brigham City, Utah v. Stuart, 547 U.S. 398, 404,

126 S. Ct. 1943, 1948 (2006). “[T]he issue is not his state of mind, but the objective

effect of his actions . . . .” Id. at 398, 126 S. Ct. at 1948 (quoting Bond v. United States,

529 U.S. 334, 338 n.2, 120 S. Ct. 1462, 1465 n.2 (2000)). Because this rationale would

instead make an officer’s subjective motivation a paramount concern, we must

respectfully part ways with our brethren in Montana and the Ninth Circuit.

       As a second rationale, these courts have emphasized that simply because a fire

official has lawfully entered, this should not create a permanent license for “any sort

of public officer [to] thereafter invade his home.” Hoffman, 607 F.2d at 285; see Bassett,

982 P.2d at 417. We agree with this logic, which under the majority rule has been

fashioned into a limitation forbidding subsequent searches after police and fire

officials have left the scene. See Clifford, 464 U.S. at 293, 104 S. Ct. at 647; Mazen, 940

P.2d at 928; Bower, 21 P.3d at 497; cf. Bray v. State, 597 S.W.2d 763, 768 (Tex. Crim.

App. [Panel Op.] 1980) (holding that warrantless search of apartment’s bathroom

conducted by police officer, who entered premises after fire department personnel

informed officer that there was no immediate danger and left the scene, was not

justified by emergency doctrine).

       However, this limitation was not exceeded here. Firefighters were on the scene

working when Officer Hart arrived, and they asked him to secure the apartment.

When Officer Hart’s initial investigation concluded two minutes later, firefighters

remained on the scene waiting for his report. Though the fire had subsided, the

                                             12
aftermath of a fire often presents exigencies that will not tolerate the delay necessary

to obtain a warrant. Clifford, 464 U.S. at 293, 104 S. Ct. at 647. The same exigency

continued for a reasonable time to allow firefighters to complete their duties, and it

was within this window that Officer Hart conducted his investigation. See Tyler, 436

U.S. at 510, 98 S. Ct. at 1950.

       Nor did Officer Hart violate another limitation: multiple courts have held that

when an officer steps into a firefighter’s shoes, the officer must not exceed the

boundaries of the original entry or undertake a general search of the premises. See

Mazen, 940 P.2d at 929; Eady, 733 A.2d at 120; Bower, 21 P.3d at 497; Jones, 512 S.E.2d

at 169; Bell, 737 P.2d at 259. During Officer Hart’s initial entry, he surveyed the main

areas of the apartment and opened a hallway door. He then proceeded to the back

bedroom to observe the paraphernalia in plain view, just as the firefighters had done,

and he exited the apartment just as quickly as he entered. Thus, he remained within

the bounds of the firefighters’ original entry.

       Because the officer’s intrusion did not exceed that of the emergency personnel

who were still on the scene, Martin suffered no additional injury to his privacy interest

due to the officer’s entry. See Bower, 21 P.3d at 497. Therefore, Officer Hart “cannot

be constitutionally tripped up at the threshold”; he must be allowed to step into

Cook’s shoes and make the same plain-view observation that Cook was entitled to

make. See Eady, 733 A.2d at 122 n.16 (quoting Green, 474 F.2d at 1390). We conclude



                                            13
that Officer Hart’s entry into the apartment was lawful under the Fourth Amendment.

We therefore overrule Martin’s first and only issue.

                                  III.   Conclusion

      We affirm the judgment of the trial court.

                                                       /s/ Wade Birdwell

                                                       Wade Birdwell
                                                       Justice

Publish

Delivered: May 16, 2019




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