It is no secret that the Fourth Amendment, which enshrines the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures” has been dying a slow death for about the past twenty years. Slowly, but steadily, the Supreme Court and Texas Court of Criminal Appeals have issued opinion after opinion creating superfluous and outrageous exceptions to the requirements of the Fourth Amendment. One of the more recent death blows to the Fourth Amendment comes courtesy of the Texas Court of Criminal Appeals’ opinion in Martin v. State (No. PD-0563-19)(April 2021).
In Martin, the Court took up the question of whether when a firefighter asks a cop for a “safety check” after seeing drug paraphernalia, guns, and flammable liquids in an apartment, the cop’s entry into the apartment violates the Fourth Amendment.
Firefighters had responded to put out a “small, stovetop fire” in an apartment in Bedford. The owner of the apartment, Martin, was sitting outside the apartment in the grass. After the fire was out, the firefighters opened windows to remove the smoke and ventilate the apartment. During entry into a room to open a window, Darren Cook, a firefighter, saw drug paraphernalia—a butane torch, plastic baggies, an unmarked jar of pills, a glass object with residue, and numerous lighters and butane fluid. Reminder: the small stovetop fire was out at this point. Apparently, Cook was okay with this until he found a gun. Then, he “decided to ‘really slow things down’” and called police for assistance. His rationale was that some drugs, specifically fentanyl, can “catch on fire” and become airborne, posing serious risks to firefighters. Not sure how this would happen if the drug paraphernalia is in a separate room away from a small stovetop fire that has been extinguished. (Per the EPA, fentanyl boils at 878.8 degrees Fahrenheit and has a flashpoint—the point at which a compound gives off enough vapor to ignite the air—of 367 degrees Fahrenheit. It seems highly unlikely that a small stovetop fire that has been extinguished would raise the temperature of air inside the entire apartment—including separate rooms—by hundreds of degrees.)
So the police arrive, talk to Martin, confirm he was the only person in the apartment and told Martin the firefighters needed the cop to go inside to “make sure everything was safe.” The cop goes in, sees the paraphernalia, “froze” the scene, went back into the apartment again, stayed about 12 minutes, and then left. At this point, the cop decided he probably needed a warrant to search more.
Nevertheless, the Court held the initial entries into the apartment by the officer were not unreasonable and did not violate the Fourth Amendment: “[h]ere, the record reflects…that [the firefighter’s] primary purpose in calling the [police] was to request assistance with their safety concerns that arose while firefighters worked to ventilate the apartment.” The Court concluded that this exigency (i.e. emergency) justified warrantless entry into the apartment by police.
A fair question, as repeatedly noted above, however, is what “emergency” remains when (1) a small stovetop fire (2) has been extinguished, (3) no one else is in the apartment, and (4) the supposedly flammable materials are observed nowhere near the (now extinguished) fire. The Court’s opinion seems to be overly deferential to first responders at the expense of Mr. Martin’s (and all of our) civil liberties. (One also might wonder why the officer decided to apply for a warrant following his two warrantless entries into the apartment; was it a cautionary measure to attempt to “cure” the warrantless entries?)