Texas Stamp

New Service Rule Applicable to the State Prosecuting Attorney Per Misc. Docket No. 19-012

Texas Rules of Appellate Procedure Rules 80-80.1, effective December 1, 2019
The State Prosecuting Attorney must be served on every petition for discretionary review or brief filed by any party or amicus curiae in the Court of Criminal Appeals, including replies, responses, amendments, and supplements.

MARTIN, CASEY ALLEN

PD-0563-19 10/09/2019

“In Talent v. City of Abilene, 508 S.W.2d 592 (Tex. 1974), peace officers were distinguished from firefighters, who ‘(have) no roving commission to detect crime or to enforce the criminal law.’ Unlike fire marshals, who are peace officers, firefighters do not have general law-enforcement powers. Thus, absent an exigency that allows an officer to enter without a warrant, if a firefighter enters a home to extinguish fires or save lives and notices contraband even in plain view, that firefighter’s knowledge does not ‘impute’ to a peace officer, and the officer should Be prohibited from entering the home without a warrant.”

Firefighters saw drug paraphernalia, firearms, and ammunition inside Martin’s apartment while extinguishing a blaze. A firefighter concerned about his safety called police. When police arrived, a firefighter requested that the apartment be secured. An officer “froze” the apartment as a crime scene and entered to survey each room. He observed the paraphernalia and exited after he determined no one inside posed a safety risk. The officers then decided to get a search warrant. The search led to the discovery of methamphetamine.

Martin filed a motion to suppress, arguing that the exigent circumstances that authorized the firefighters’ entry did not apply to the police because the fire was out. The trial court denied the motion. It determined that the officers’ entry was lawful because the firefighters could have seized the paraphernalia. It reasoned that firefighters should be permitted to call police to secure the scene and to observe, in plain view, the same evidence that the firefighters were entitled to seize.

On appeal, Martin reiterated his trial court argument and added that, even though there was evidence about firearms, ammunition, and safety concerns, it was not realistic to conclude that a secondary exigency was afoot. The court affirmed the trial court’s ruling. It held that because the firefighters lawfully entered and observed contraband in plain view, the invasion of privacy was not increased by the police officer’s entry. Exigent circumstances continues for a reasonable time after a 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. Further, when a firefighter’s role overlaps with that of a 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.”

Martin argues that exigency did not justify the entry to conduct a protective sweep. Martin had not been arrested, and no person inside posed a danger. He points to Talent v. City of Abilene, which determined that a fire chief is not a law enforcement officer; therefore, a firefighter’s knowledge of contraband could not be imputed to a police officer. Martin explains that fire marshals are peace officers but regular firefighters cannot perform their duties. Martin also argues that Michigan v. Clifford supports his position. 464 U.S. 287 (1984). “Clifford in fact shows that if arson investigators (who would be law enforcement or fire marshals in Texas) are unable to enter a home without a warrant if there are no exigent circumstances, then a regular firefighter cannot spot what appears to be contraband, tell a peace officer about it, and enable the peace officer to enter the home without a warrant.” Finally, he claims that the three circumstances that would justify the entry are not present. The officers did not provide aid, protect others from danger, or prevent the destruction of evidence.

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