Martin, Casey Allen

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0563-19

CASEY ALLEN MARTIN, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

TARRANT COUNTY

SLAUGHTER, J., delivered the opinion for a unanimous Court.

OPINION

When a firefighter, in the line of duty, asks law enforcement for a safety check after seeing

drug paraphernalia, guns, and flammable liquids in an apartment, is the officer’s entry into the

apartment reasonable under the Fourth Amendment, and can that officer’s discovery of drug

paraphernalia in plain view provide probable cause for a search warrant? The short answer to this

question under the specific facts of this case is yes. We therefore uphold the court of appeals’

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judgment which affirmed the trial court’s denial of Appellant’s motion to suppress the drug

evidence found pursuant to a search warrant.

I. Background

One evening shortly before 11 p.m., an automatic sprinkler alarm was triggered at an

apartment complex, and the Bedford Fire Department responded to a suspected fire in one of the

units. Firefighter Darren Cook arrived to find smoke and water flowing from the front door of

Appellant’s apartment. Appellant, who was sitting outside in the grass, informed Cook that no one

else was inside. Firefighters entered Appellant’s home and extinguished a small stovetop fire. They

then began efforts to remove smoke from the apartment one room at a time by opening windows

and running fans to increase airflow. This work was conducted in the dark with the only light

source being the firefighters’ headlamps because power to the apartment had been cut off to avoid

the risk of electrical hazards.

During the firefighters’ ventilation efforts, Cook observed what he believed to be evidence

of drugs or drug paraphernalia in plain view, including: (1) a torch, (2) little plastic baggies, (3) an

unmarked jar of pills, (4) a glass object with some residue inside it, and (5) numerous lighters

and/or butane lighter fluid. 1 He also encountered multiple firearms inside the apartment. In fact,

Cook testified at the hearing on Appellant’s motion to suppress that while attempting to ventilate

the back bedroom in the dark, he knelt on a futon in an effort to open a window and his knee came

into contact with a rifle hidden under some blankets. 2 Cook stated that at this point, the firefighters

decided to “really slow things down” and call the police for assistance. He testified that the

1

Cook, who had been a firefighter for fifteen years, testified that he had attended numerous classes

on how to recognize drug paraphernalia and had ample experience observing paraphernalia when

responding to fires, thereby allowing him to recognize the paraphernalia at issue here.

2

In addition to this rifle, Cook also observed a second rifle and a handgun in the bedroom, as well

as a revolver on the kitchen counter and another firearm in the living room on the loveseat.

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combination of possible narcotics, multiple unsecured firearms throughout the apartment, and

flammable liquids put the firefighters on “high alert” and caused him to be concerned for his safety

and the safety of the other firefighters. 3 He further testified that the presence of these potential

safety hazards, especially in a dark and smoky environment, hindered the firefighters’ ventilation

efforts. He noted that some drugs, specifically Fentanyl, can “catch on fire” and become airborne,

posing serious health risks to firefighters. Having decided that these safety concerns required

assistance from the police because of their expertise in handling drugs and firearms, 4 Cook called

the Bedford Police Department.

Officer Hunter Hart arrived shortly after 11:30 p.m. and testified that he was dispatched

“to assist the fire department on the structure fire” but “wasn’t given any other specific details.”

Hart initially made contact with the fire battalion chief outside the apartment. 5 The battalion chief

told Hart that firefighters had been unable to finish ventilating because of safety concerns and first

needed police to perform a safety check of the apartment. 6

3

At another point in his testimony, Cook indicated that, setting aside the possible risks to

firefighters, he had safety concerns resulting from the presence of drug paraphernalia, firearms,

ammunition, and flammable liquids and the risk those things might pose to surrounding residents

in the apartment building. Cook also noted that the apartment had baby toys and clothing

suggesting that a child lived there. He stated that he “would have contacted [Child Protective

Services] just for loose firearms and drug paraphernalia around a child,” even though no child was

present on the night of the fire.

4

Cook explained that firefighters are not “trained to . . . handle the firearms as much as they [the

police] are, so that’s not our work.” He also testified that it was not the fire department’s job to

seize evidence of criminal activity, but that if he saw evidence of criminal activity such as drug

paraphernalia, it was his job to “notify the police.”

5

Much of the information recited in this opinion regarding Officer Hart’s actions and statements

is derived from Officer Hart’s body-cam video, which was admitted into evidence at the motion

to suppress hearing.

6

Specifically, the battalion chief told Hart, “We can’t ventilate [the] back room. . . . The reason is

he’s got blankets and stuff taped all around the window. . . . The guys [firefighters] came down

and told me he’s got [ ] guns, bullets, all kinds of drug paraphernalia and everything else in there.”

Martin - 4

Before entering the apartment, Hart checked to make sure Appellant was unharmed. He

did not, however, ask Appellant for consent to enter his apartment. 7 But Hart testified that at the

time he entered the apartment, he believed firefighters were still trying to ventilate and needed him

to go “inside and [make] sure everything was safe.”

Once inside the apartment, Hart conducted what he described as a “protective sweep” to

check for threats. 8 During his initial entry, Hart inspected each room, ending with the back

bedroom. There, he observed the same items that Firefighter Cook had observed in plain view,

including glass pipes or bongs containing residue, a bottle of pills, a plastic baggie containing a

white, crystal-like substance, and smaller plastic baggies commonly associated with drug activity. 9

After finishing his “protective sweep,” Hart walked outside without seizing anything. He testified

that based upon his plain-view discovery of possible drugs and/or paraphernalia, he believed he

had the authority to “freeze” the scene. 10

Outside, Hart spoke with another officer about what he had just observed. He then re-

entered the apartment with the other officer, and they were soon joined by at least two more

The battalion chief continued, “I don’t know what we can do, but that apartment belongs to me

until I release it. And I’m having you [Hart] go check it for the safety of my guys.”

7

According to the probable-cause affidavit, following the discovery of the paraphernalia in plain

view, another officer asked Appellant for his consent to search the apartment and he refused.

8

Hart indicated that he was initially looking for any people inside the apartment who might pose

a threat to firefighters. He stated that before entering, no one told him whether anyone else was in

the apartment who might pose a threat.

9

This crystal-like substance inside a baggie was in plain view on a dresser. It was not the

methamphetamine that was later discovered pursuant to the search warrant which formed the basis

for Appellant’s prosecution.

10

Hart testified that freezing the scene meant that, after observing contraband in plain view, “we

don’t let anybody in or out of that scene who isn’t law enforcement or who isn’t supposed to be

there. And then at that point, someone can make the decision on whether or not we want to apply

for a search warrant, which is usually a supervisor who makes that decision.”

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officers. 11 During the re-entry, Hart opened a box containing ammunition and a sunglasses case.

Neither of these actions led to the discovery of the methamphetamine for which Appellant was

eventually prosecuted, and no evidence was seized during the re-entry. 12 About twelve minutes

after his second entry, Hart left the apartment.

Around midnight, narcotics officers were called to the scene to observe the plain-view

evidence to determine whether to seek a search warrant. Around this same time, Appellant, who

was still outside, was arrested for possession of drug paraphernalia. 13 Officer Versocki, a narcotics

investigator, then prepared a probable-cause affidavit and sought a warrant to search Appellant’s

apartment for methamphetamine. In the affidavit, he included his own observations of the plain-

view evidence, as well as the observations of Firefighter Cook and Officer Hart. 14 At 3:12 a.m.,

officers secured a warrant to search Appellant’s apartment. Upon execution of the search warrant,

officers discovered methamphetamine that had not been in plain view. Appellant was charged with

possession of methamphetamine between 1 and 4 grams. 15

Appellant filed a motion to suppress the drug evidence, arguing that the officers’ entry into

his apartment was a warrantless search that did not fall within any lawful exception to the warrant

requirement. He contended that the fire had been fully extinguished and the apartment ventilated

11

Although multiple officers were on the scene, it is unclear from the record or Hart’s body-cam

video exactly how many officers were present in the apartment. Hart was the only officer to testify

at the motion to suppress hearing.

12

At the hearing, Hart acknowledged that he should have waited until a search warrant was

obtained before opening any containers.

13

The record does not reflect precisely at what time these events occurred, but the probable-cause

affidavit indicates that narcotics investigators were called to the scene at midnight, and the search

warrant was signed shortly after 3 a.m.

14

The contents of the probable-cause affidavit are set out in Section D below.

15

See TEX. HEALTH & SAFETY CODE § 481.115(c).

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before the officers’ arrival, such that any exigency had dissipated. Thus, he asserted, the officers

had no lawful basis for entering his apartment and their observations could not properly establish

probable cause to support issuance of the search warrant.

The State countered that Hart’s entry was justified based on the information he received

from the fire battalion chief asking him to secure the scene for the firefighters’ safety. Once Hart

saw the drug paraphernalia in plain view, the State contended that he then had the authority to

freeze the scene and call other officers to assist in the investigation. Alternatively, the State relied

on the Supreme Court’s decision in Michigan v. Tyler to argue that the firefighters’ lawful authority

to be inside the apartment extended to the police officers. See 436 U.S. 499, 509 (1978). Thus, the

State’s position was that because firefighters were lawfully present in the apartment pursuant to

the exigency of the fire, they were permitted to seize any evidence of criminal activity that was in

plain view. Extending that principle, the State argued that police officers should be permitted to

“step into the shoes” of firefighters and seize or observe that same evidence.

Following the suppression hearing, the trial court denied Appellant’s motion to suppress.

In its findings of fact, the trial court found the testimony of Cook and Hart reliable and credible.

The trial court also made findings that the presence of safety concerns “hindered [the fire

department’s] ability to do their job;” that Cook called the police department as a result of “his

safety concerns and the drug paraphernalia in plain view;” and that Hart “entered the apartment to

secure it for the safety of” the firefighters. The trial court concluded, “Firefighter Cook’s entry was

lawful due to the ongoing exigency of the fire; Officer Hart’s entry was also lawful in that he was

‘stepping into the shoes’ of the firefighter.” Following the trial court’s ruling, Appellant pleaded

guilty to the drug possession charge but retained his right to appeal the denial of his motion to

suppress.

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On direct appeal, the court of appeals upheld the trial court’s ruling. It reasoned that if

evidence of criminal activity is discovered by firefighters during the course of a lawful entry under

exigent circumstances, firefighters may seize that evidence under the plain-view doctrine. Martin

v. State, 576 S.W.3d 818, 823-24 (Tex. App.—Fort Worth 2019) (citing Michigan v. Clifford, 464

U.S. 287, 294 (1984)). It then extended this reasoning to further conclude that police 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.’” Id. at 824 (quoting State v. Bower, 21 P.3d 491, 496 (Idaho Ct. App. 2001)). The court

reasoned that here, the 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.” Id. at

825-26. It further determined that Hart did not exceed the scope of the firefighters’ legitimate

entry. Id. at 826. The court of appeals concluded that Officer Hart was permitted to “step into

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

Having held that Officer Hart’s entry into the apartment was reasonable under the Fourth

Amendment, the court of appeals overruled Appellant’s sole issue. Id.

We granted Appellant’s petition for discretionary review on a single ground to consider

whether the court of appeals correctly held that the officers’ warrantless entry into Appellant’s

apartment did not result in a Fourth Amendment violation. 16 Appellant argues that there were

16

Appellant’s ground for review states,

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.

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multiple Fourth Amendment violations. He alleges that Officer Hart’s warrantless entry was

unlawful because there was no actual exigency to justify Hart’s actions. He further argues, as a

separate matter, that the subsequent warrantless entries by other officers were also unlawful

because, even assuming the existence of an exigency that would justify Hart’s entry, any such

exigency had dissipated by the time of those additional entries. He makes this distinction because

the probable-cause affidavit was prepared by and includes the observations of narcotics

investigator Versocki, who entered the apartment after Hart’s initial entry with the sole purpose of

observing the plain-view evidence to determine whether to seek a search warrant. Thus, Appellant

argues that the probable-cause affidavit contains “fruit of the poisonous tree” based on the

unlawfulness of both Hart’s and Versocki’s entries and does not support the issuance of the search

warrant.

II. Analysis

We agree with the court of appeals’ ultimate conclusion upholding the trial court’s ruling

in this case, but we do so by applying different reasoning. In support of its holding, the court of

appeals adopted a rule from other jurisdictions—that when a firefighter observes contraband in

plain view during his lawful entry pursuant to exigent circumstances, he may call upon a police

officer to enter that dwelling and seize such evidence without a warrant, so long as the exigency

is ongoing. The court of appeals applied this rule to these factually-distinct circumstances

involving evidence discovered pursuant to a search warrant (as opposed to a seizure of plain-view

evidence). It concluded that, because Firefighter Cook was lawfully present in Appellant’s

apartment, once he observed drug paraphernalia in plain view, he was permitted to call upon

Officer Hart to “step into his shoes” and observe that same evidence for purposes of obtaining a

warrant to search Appellant’s apartment. In its brief on discretionary review, the State asks us to

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adopt this rule as a reasonable extension of the exigent circumstances exception to the warrant

requirement. We, however, conclude that the instant case should be resolved on narrower grounds.

Here, the record reflects, and the trial court found that Firefighter Cook’s primary purpose

in calling the Bedford Police Department to the fire scene was to request their assistance with his

safety concerns that arose while firefighters worked to ventilate Appellant’s apartment. Under

these facts, it was reasonable for Officer Hart to have entered Appellant’s dwelling pursuant to the

exigency of the fire and its immediate aftermath, without the need to first secure a warrant. Upon

his entry into the apartment, Hart’s discovery of the plain-view evidence shifted his focus from a

safety inspection towards a criminal investigation. But this after-the-fact discovery does not

undermine the independent safety justification for Hart’s initial entry. Therefore, Officer Hart was

lawfully permitted to enter Appellant’s apartment in response to the firefighters’ legitimate safety

concerns. Having a lawful justification for being inside Appellant’s apartment, any evidence

observed by Hart in plain view during that entry could serve as probable cause to seek a search

warrant. Given these circumstances, we need not reach the broader issue addressed by the court of

appeals of whether an officer may always “step into the shoes” of a firefighter during the course

of an exigency to seize or observe contraband that is in plain view.

With respect to Appellant’s challenge to the additional entries by other officers, we

conclude that we also need not address that matter. Even assuming that the additional entries were

unlawful, the search warrant is nevertheless supported by probable cause based on the observations

of Cook and Hart as recited in Versocki’s affidavit. On this basis, therefore, we uphold the trial

court’s ruling denying Appellant’s motion to suppress the drug evidence that was discovered

pursuant to the search warrant.

A. Standard of Review

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

standard. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013). “We give almost total

deference to the trial court’s findings of fact and review de novo the application of the law to the

facts.” State v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019). “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). We will uphold the trial court’s ruling if it is

correct under any applicable theory of law and the record reasonably supports it. State v. Ruiz, 581

S.W.3d 782, 785 (Tex. Crim. App. 2019).

B. Applicable Fourth Amendment Principles

The Fourth Amendment to the United States Constitution provides:

The 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, supported by Oath or affirmation,

and particularly describing the place to be searched, and the persons or things to be

seized.

U.S CONST. amend. IV. “The text of the Amendment thus expressly imposes two requirements.

First, all searches and seizures must be reasonable. Second, a warrant may not be issued unless

probable cause is properly established and the scope of the authorized search is set out with

particularity.” Kentucky v. King, 563 U.S. 452, 459 (2011).

With respect to warrantless searches of a residence, the Supreme Court has observed that

special protections attach to the home, stating, “[W]hen it comes to the Fourth Amendment, the

home is first among equals. At the Amendment’s ‘very core’ stands ‘the right of a man to retreat

into his own home and there be free from unreasonable governmental intrusion.’” Florida v.

Jardines, 569 U.S. 1, 6 (2013) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).

Thus, a warrantless search of a home is presumptively unreasonable. King, 563 U.S. at 459. This

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presumption, however, “may be overcome in some circumstances because ‘the ultimate touchstone

of the Fourth Amendment is reasonableness.’” Id. (quoting Brigham City v. Stuart, 547 U.S. 398,

403 (2006)). Accordingly, even with respect to warrantless searches of the home, “the warrant

requirement is subject to certain reasonable exceptions.” Id.

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.’” Id. at 460 (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978)). “A

variety of circumstances may give rise to an exigency sufficient to justify a warrantless search,

including law enforcement’s need to . . . enter a burning building to put out a fire and investigate

its cause.” Missouri v. McNeely, 569 U.S. 141, 149 (2013) (citing Michigan v. Tyler, 436 U.S. 499,

509-10 (1978)). However, a warrantless search “must be ‘strictly circumscribed by the exigencies

which justify its initiation[.]’” Mincey, 437 U.S at 393 (quoting Terry v. Ohio, 392 U.S. 1, 25-26

(1968)); see also Michigan v. Clifford, 464 U.S. 287, 294-95 (1984) (plurality op.) (noting that the

scope of a search conducted pursuant to exigent circumstances “may be no broader than reasonably

necessary to achieve its end”). Given “the fact-specific nature of the reasonableness inquiry . . .

we evaluate each case of alleged exigency based on its own facts and circumstances.” McNeely,

569 U.S. at 150. We apply an objective standard based on the facts known to the officers at the

time of the search. Laney v. State, 117 S.W.3d 854, 862 (Tex. Crim. App. 2003); see also State v.

Garcia, 569 S.W.3d 142, 150 (Tex. Crim. App. 2018) (“[B]oth the Supreme Court and this Court

have said, time and again, that a Fourth-Amendment reasonableness inquiry should be informed

by the facts that were ‘available’ to the officer when he conducted the contested search.”).

Specifically, with respect to the exigency created by a fire, the Supreme Court has stated,

“A burning building clearly presents an exigency of sufficient proportions to render a warrantless

entry ‘reasonable.’ Indeed, it would defy reason to suppose that firemen must secure a warrant or

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consent before entering a burning structure to put out the blaze.” Tyler, 436 U.S. at 509. Further,

the exigency justifying a warrantless entry to fight a fire does not end “with the dousing of the last

flame;” such a view of the firefighting function is “unrealistically narrow.” Id. at 510; see also

Clifford, 464 U.S. at 293 (“The aftermath of a fire often presents exigencies that will not tolerate

the delay necessary to obtain a warrant or to secure the owner’s consent to inspect fire-damaged

premises.”). As such, fire officials need not secure a warrant to remain on the premises of a fire-

damaged property for a reasonable period of time to complete their duties. See Tyler, 436 U.S. at

510 (holding in suspected arson case involving multiple entries by fire and police officials that

“officials need no warrant to remain in a building for a reasonable time to investigate the cause of

a blaze after it has been extinguished”). But, where additional entries by officials onto fire-

damaged premises are “clearly detached from the initial exigency and warrantless entry,” such

entries require a warrant or some other exception. Id. at 511; see also Clifford, 464 U.S. at 293

(“Where [ ] reasonable expectations of privacy remain in the fire-damaged property, additional

investigations begun after the fire has been extinguished and fire and police officials have left the

scene, generally must be made pursuant to a warrant or the identification of some new exigency.”).

C. Officer Hart’s initial entry was justified by the exigency of the fire and

its immediate aftermath.

In the instant case, Appellant acknowledges that firefighters were lawfully permitted to

enter his apartment without a warrant pursuant to the exigency of the fire. See Tyler, 436 U.S. at

509. He further concedes that firefighters were permitted to remain on the scene after the blaze

was extinguished and enter his bedroom in an attempt to ventilate the apartment. Id. at 510. 17

17

See also Jones v. Comm., 512 S.E.2d 165, 168 (Va. Ct. App. 1999) (Firefighter “not only had

the right to enter appellant’s apartment without a warrant, he also had the duty to ventilate the

apartment by opening its windows and to search for people or pets that might be inside.”); State v.

Bell, 737 P.2d 254, 257 (Wash. 1987) (“Firefighters need no warrant to remain in the building a

reasonable time to make sure that the fire does not rekindle, to search for additional fires, and

to ventilate the building.”).

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Appellant even admits that, because Firefighter Cook was lawfully present in the apartment, he

was authorized to observe the paraphernalia found in plain view. 18

The real question is whether the exigency of the fire also justifies Officer Hart’s warrantless

entry. We conclude that under these circumstances, it does. In reaching this conclusion, we are

guided by the Supreme Court’s opinion in Tyler. Tyler is distinguishable in some respects, 19 but

the salient point of that case applies here: where fire or police officials enter a structure during or

in the immediate aftermath of a fire to conduct legitimate duties connected to the original exigency

of the fire, no search warrant is required. See id. at 510-11. Applying that principle here, Officer

Hart’s warrantless entry into Appellant’s apartment was lawfully permitted. According to the trial

court’s findings of fact, which are supported by the record: (1) Officer Hart was dispatched to

assist the fire department with a structure fire; (2) the fire battalion chief informed Hart of the

various safety concerns that had arisen while firefighters were still working on the scene and asked

18

Appellant does not concede, as the State urges, that Firefighter Cook was permitted to seize the

paraphernalia found in plain view. In any event, because this case does not involve a challenge to

the plain-view seizure of the paraphernalia but instead involves a seizure of drugs discovered

pursuant to a search warrant, we need not further consider whether Firefighter Cook would have

been authorized to seize the drug paraphernalia.

19

In Tyler, the Supreme Court considered the lawfulness of multiple warrantless entries by fire

and police officials into a burned-out furniture store during the aftermath of the fire to investigate

its cause. Tyler, 436 U.S. at 501-03. During those entries, officials seized various items of evidence

that had been found in plain view. Id. In upholding the lawfulness of the entries and related seizures

that occurred in the immediate aftermath of the fire, the Court reasoned that the “firefighting

function” is broad enough to encompass more than just the dousing of flames and may include

additional tasks, conducted within a “reasonable time” after the blaze is extinguished, such as

preventing the fire’s recurrence and the prevention of intentional or accidental destruction of

evidence. Id. at 509-10. The Court further upheld a warrantless re-entry by investigators several

hours after firemen had left the scene, reasoning that such entries were “no more than an actual

continuation of the first[.]” Id. at 511. But the Court rejected the lawfulness of warrantless entries

by a detective several weeks after the fire that were solely for investigatory purposes, noting that

such entries were “clearly detached from the initial exigency and warrantless entry.” Id. Thus,

while Tyler is distinguishable in some respects, the Supreme Court made clear that no warrant is

needed when fire or police officials enter a structure during or in the immediate aftermath of a fire

to conduct legitimate duties related to the original exigency of the fire. See id. at 510-11.

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Hart to conduct a safety check; and (3) based on the facts known to him at the time, Hart reasonably

believed that the safety check was necessary to allow the firefighters to complete their ventilation

efforts. Given these facts, it was objectively reasonable for Hart to enter the apartment to conduct

the requested safety check without first securing a search warrant.

In conducting the safety inspection, Hart functioned initially in his role of providing

support to the fire-response team. See id. at 509-10; see also Laney, 117 S.W.3d at 861 (stating, in

the related context of the emergency doctrine, that a warrantless entry into a residence may be

reasonable where “the police are acting, not in their ‘crime-fighting’ role, but in their limited

community caretaking role to ‘protect or preserve life or avoid serious injury’”) (quoting Mincey,

437 U.S. at 392). Once inside, while conducting a safety sweep, Hart observed the plain-view drug

paraphernalia. Hart’s primary role then shifted from ensuring firefighter safety to an investigatory

role. This change in roles, however, does not negate the safety-related justification for the initial

entry. 20 Further, with the exception of the opening of the sunglasses case and ammunition container

20

Appellant claims that Officer Hart’s entry was based on pretext and was actually for

investigative purposes rather than for firefighter safety. In making this assertion, Appellant

effectively contends that there was no actual exigency that would justify Hart’s warrantless entry.

With respect to this contention, we make two observations. First, the trial court found Cook and

Hart credible in stating that the purpose for Hart’s entry was to assist the firefighters by conducting

a safety check so that they could resume ventilation efforts. We defer to the trial court’s credibility

findings that are supported by the record, as they are here. Ruiz, 577 S.W.3d at 545. Second, even

assuming for the sake of argument that Hart’s actual purpose in entering Appellant’s dwelling was

to investigate possible criminal activity, his subjective motivations are not dispositive. So long as

the record contains objective facts to establish that an exigency existed such that the warrantless

entry was justified, the Fourth Amendment is not violated, regardless of an officer’s subjective

motivations. State v. Garcia, 569 S.W.3d 142, 151 (Tex. Crim. App. 2018) (stating that officer’s

subjective motivations are “irrelevant” for Fourth Amendment purposes; proper inquiry is whether

“the known facts objectively support the existence of an exigency;” the question is “one of

objective reasonableness, not subjective processes of thought”). Here, given that firefighters were

still actively working the scene at the time of Hart’s arrival and had encountered unsecured

firearms and drug paraphernalia that hindered their efforts, the objective facts support the existence

of exigent circumstances to justify Hart’s entry. Along these same lines, contrary to Appellant’s

implicit suggestion, it does not matter that the firefighters’ safety concerns ultimately proved, in

hindsight, to be less significant than Hart may have originally believed because we must judge his

conduct based on the objective facts known to him at the time. Id.; see also id. at 158 (“Assessing

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which produced no probable-cause evidence, Hart did not exceed the scope of the firefighters’

license to be present in Appellant’s bedroom and observe the objects found in plain view. Thus,

his presence was “circumscribed by the exigencies” justifying the entry. Mincey, 437 U.S. at 393. 21

In sum, we agree with the court of appeals’ ultimate conclusion that Officer Hart had a

lawful basis for entering Appellant’s dwelling. Officer Hart entered the apartment in response to

the firefighters’ legitimate safety concerns that arose in the immediate aftermath of the fire. The

objective facts known to him at the time supported his reasonable belief that such safety check was

necessary for firefighters to complete the unfinished ventilation efforts. We, therefore, uphold that

aspect of the court of appeals’ analysis.

D. The observations of Hart and Cook were adequate to establish probable

cause, such that we need not consider lawfulness of additional entries.

In addition to challenging Officer Hart’s initial warrantless entry, Appellant also challenges

the entry of officers after Hart. Specifically, Appellant challenges the warrantless entry of narcotics

Investigator Versocki, who prepared the probable-cause affidavit and included his own

observations. In his petition for discretionary review, Appellant contends that even assuming

Hart’s initial entry was lawful, these additional entries constitute warrantless searches for which

no lawful justification exists, given that the exigency of the fire had dissipated by the time of the

subsequent entries. Therefore, he suggests, any observations made during those subsequent entries

must be excised from the probable-cause affidavit, without which the affidavit fails to establish

probable cause. As we explain further below, we conclude that we need not address whether the

police conduct with the advantage of hindsight is inconsistent with the Fourth Amendment’s idea

of ‘reasonableness.’”). Therefore, we reject Appellant’s contention that the facts fail to establish

the existence of actual exigent circumstances that would justify Hart’s warrantless entry.

21

As noted above, Hart acknowledged in his testimony at the motion to suppress hearing that it

was improper to open the containers prior to obtaining a search warrant. No evidence was

discovered during this conduct, and therefore this fact does not undermine the validity of Hart’s

plain-view observations.

Martin - 16

additional entries were unlawful because, even excising Investigator Versocki’s observations from

the affidavit, the search warrant was nevertheless adequately supported by probable cause based

on the remaining information in the affidavit. 22

1. Applicable Law For Evaluating Residual Probable Cause

Probable cause to support the issuance of a search warrant exists “where the facts

submitted to the magistrate are sufficient to justify a conclusion that the object of the search is

probably on the premises to be searched at the time the warrant is issued.” Davis v. State, 202

S.W.3d 149, 154 (Tex. Crim. App. 2006). The test is not whether the warrant affidavit

demonstrates by a preponderance of the evidence that a search of the listed location would yield a

particular item of evidence; “a ‘fair probability’ will suffice.” Foreman v. State, 613 S.W.3d 160,

163 (Tex. Crim. App. 2020) (quoting Illinois v. Gates, 462 U.S. 213, 235 (1983)). A search-warrant

affidavit must be read in a common sense and realistic manner, without demanding hyper-technical

exactitude. Davis, 202 S.W.3d at 154; Foreman, 613 S.W.3d at 163-64; see also State v. Cuong

Phu Le, 463 S.W.3d 872, 878 (Tex. Crim. App. 2015) (stating that probable cause must be assessed

under the totality of the circumstances and is a “flexible, non-demanding standard”). While a

magistrate may not baselessly presume facts that the affidavit does not support, reasonable

inferences may be drawn from the facts and circumstances contained within the four corners of the

affidavit. Foreman, 613 S.W.3d at 164; Davis, 202 S.W.3d at 154.

22

We note that this issue was not addressed by the court of appeals. Rather, the court of appeals

limited its analysis to addressing only the lawfulness of Hart’s initial entry. See Martin, 576

S.W.3d at 826 (concluding that “Officer Hart’s entry into the apartment was lawful under the

Fourth Amendment”). Although there is no analysis from the court of appeals for us to review on

this question, we nevertheless conclude that resolution of this issue is sufficiently straightforward

such that we may address it for the first time on discretionary review in the name of judicial

economy. See McClintock v. State, 444 S.W.3d 15, 20 (Tex. Crim. App. 2014) (observing that

“‘when the proper disposition of an outstanding issue is clear, we will sometimes dispose of it on

discretionary review in the name of judicial economy’” rather than remanding to the court of

appeals) (quoting Gilley v. State, 418 S.W.3d 114, 119 (Tex. Crim. App. 2014)).

Martin - 17

Where a probable-cause affidavit is determined to contain illegally-obtained information,

the proper course is to excise the tainted information and examine whether the remaining

information still establishes probable cause. See McClintock v. State, 444 S.W.3d 15, 19 (Tex.

Crim. App. 2014) (“When part of a warrant affidavit must be excluded from the calculus . . . then

it is up to the reviewing courts to determine whether ‘the independently acquired and lawful

information stated in the affidavit nevertheless clearly established probable cause.’”) (quoting

Castillo v. State, 818 S.W.2d 803, 805 (Tex. Crim. App. 1991)); Le, 463 S.W.3d at 877 (“A search

warrant based in part on tainted information is nonetheless valid if it clearly could have been issued

on the basis of the untainted information in the affidavit.”). In our recent decision in Hyland v.

State, we explained that our use of the word “clearly” in this context did not establish a heightened

probable-cause standard; rather, the ordinary standard still applies. 574 S.W.3d 904, 913 (Tex.

Crim. App. 2019). But, in Hyland, we also acknowledged that the deference reviewing courts

ordinarily owe to a magistrate’s conclusion regarding the adequacy of a warrant affidavit “‘is not

called for when the question becomes whether an affidavit, stricken of its tainted information,

meets the standard of probable cause.’” Id. (quoting Le, 463 S.W.3d at 877). Thus, under these

circumstances, we conduct a non-deferential review to evaluate whether, after excising the

allegedly tainted observations from the affidavit, the remaining facts nevertheless give rise to a

fair probability that evidence of criminal activity would be found at a specified location. Le, 463

S.W.3d at 878.

2. The Affidavit

We now examine the probable-cause affidavit prepared by narcotics investigator Versocki.

After specifying the type of evidence sought (methamphetamine and items related to

Martin - 18

methamphetamine trafficking) 23 and identifying and describing the location to be searched

(Appellant’s apartment), the affidavit put forth the following facts to establish probable cause:

A. That your Affiant, Investigator A. Versocki #997, is a peace officer in the State

of Texas and is currently employed as a police officer with the City of Bedford,

Tarrant County, Texas. Your Affiant has been employed as a police officer for over

ten years. Your Affiant is currently assigned to the Criminal Investigation Division

(CID) as a narcotics investigator. Your Affiant has attended several classes on

narcotic identification and investigations, and has been involved in numerous

narcotic investigations involving the possession and trafficking of narcotics.

B. That on August 30, 2017 at 2359 hours approximately hours [sic] your Affiant

and Inv. Bridger were contacted by Bedford Police Department Cpl. W. Mack #

873 who advised that patrol officers had been dispatched to 1009 Amherst Dr.

#2014, Bedford, Tarrant County, Texas, 76021 in reference to a structure fire. Cpl.

Mack stated that they had responded to assist Bedford Fire Department on a

structure fire after firefighters made entry and located what they believed to be drug

paraphernalia along with multiple firearms and ammunition. Officer Hart #1122

arrived on scene first and made entry and observed plastic deal baggies containing

a white crystallized residue along with a glass jar containing a variety of different

prescription pills.

C. That your Affiant arrived on scene and made contact with Cpl. Mack. Cpl. Mack

advised that the apartment belonged to Casey Martin and that he was currently

sitting outside near the parking lot. I observed a white male wearing no shirt with

visible tattoos on his chest sitting on the step in front of the apartment building. I

made entry into the apartment and observed fire damage that appeared to be

concentrated in the kitchen area. I also observed that the fire suppression system

had been activated in the apartment and a large amount of water had flooded the

kitchen and living room area. Cpl. Mack advised that Casey said he had been

cooking chicken nuggets.

23

Specifically, the affidavit stated, “Warrant to search a particular place for a particular controlled

substance, namely METHAMPHETAMINE, and seize evidence, books, records, ledgers, bank

records, money orders, and computer files relating to the transportation, ordering, sale and

distribution of METHAMPHETAMINE and/or records relating to the receipt and/or disposition

of proceeds from the distribution of METHAMPHETAMINE, currency, financial instruments,

jewelry, and/or other items of value and/or proceeds of drug transactions as evidence of financial

transactions relating to obtaining, transferring, laundering, secreting, or spending large sums of

money made from engaging in METHAMPHETAMINE distribution activities; cell phones,

pagers, and other similar electronic equipment; telephone and address books, computer files or

papers reflecting names, addresses, and/or telephone numbers of individuals associated in dealing

METHAMPHETAMINE; photographs of individuals, property, currency, and

METHAMPHETAMINE, including video recordings, materials used in the packaging, cutting,

weighing, and distributing METHAMPHETAMINE and firearms and electronic surveillance

equipment believed concealed in a particular place.

Martin - 19

D. That your Affiant was led into the southeast bedroom by Cpl. Mack and I

observed a clear plastic baggy with a white crystal like substance that is consistent

in texture to what I know to be crystal methamphetamine sitting on a dresser in

plain view. Also on the dresser in plain view, I observed a clear glass jar containing

what appeared to be several prescription medications. I observed a large glass

smoking pipe containing burnt Tetrahydrocannabinol/marijuana residue located on

a shelf in the closet that had the door standing open. In plain view on a night stand

in a plastic bin I observed a broken bulbous pipe with brown residue inside. The

pipe is consistent with the type of pipe used to smoke methamphetamine and the

brown residue is consistent with burnt methamphetamine residue.

E. That Cpl. Mack and Officer T. Noble #968 asked Casey Martin for consent to

search his apartment which he denied.

F. That Inv. Bridger #1032 spoke to Bedford Firefighter D. Cook #117 by phone.

Firefighter Cook advised that as he pulled into the complex on the firetruck he

observed a white male thin build short hair with tattoos on his chest area that was

exposed. The male subject was wearing shorts with a towel draped over him. He

advised that he asked the male subject if he lived in apartment #2014 and the male

subject stated that he did. Cook advised that when they were inside the apartment

using fans to ventilate the apartment in several areas he observed multiple firearms

and ammunition along with what he believed to be drug paraphernalia. Firefighter

Cook asked the male subject what happened and Mr. Martin advised that he was

cooking and fell asleep. He further stated that he lives there with his wife and

daughter but that they are currently in Arkansas.

G. That 1009 Amherst Dr. #2014 Bedford, Tarrant County, Texas 76021 at this

time [is] secured by officers of the Bedford Police Department until a search

warrant can be obtained.

H. That your Affiant believes that Casey Martin white/male 01/17/1991 is in

possession of methamphetamine from within the residence located at 1009 Amherst

Dr. #2014, Bedford, Tarrant County, Texas, 76021 and that more

methamphetamine is being kept and stored from there.

3. After excising the challenged portions, the affidavit still

establishes probable cause.

Even after excising all of Investigator Versocki’s direct observations from inside the

apartment, the remaining information in the affidavit establishes the following:

• That Investigator Versocki is a peace officer with more than ten years’ experience

and specialized training in the investigation of narcotics offenses;

• That, upon entry into Appellant’s apartment, firefighters located “what they

believed to be drug paraphernalia along with multiple firearms and ammunition;”

Martin - 20

• That Officer Hart made entry and “observed plastic deal baggies containing a white

crystallized residue along with a glass jar containing a variety of different

prescription pills;”

• That based on these facts, Investigator Versocki believed Appellant was in

possession of methamphetamine.

These facts, standing on their own, are sufficient to establish probable cause that drugs

would be found in Appellant’s apartment. A magistrate here would be justified in inferring that

both Firefighter Cook and Officer Hart are credible and have some experience in recognizing drug

paraphernalia and signs of drug activity. 24 Given their respective roles as fire and police officials,

rather than laypersons, it is reasonable to presume that they have seen such items before and know

how to distinguish between innocent behavior and criminal drug activity. Thus, a magistrate would

be justified in concluding that Appellant did in fact possess paraphernalia, deal baggies with

residue, and a jar of prescription pills inside his bedroom.

A magistrate would also be justified in inferring that Investigator Versocki, upon learning

of the observations of Cook and Hart, applied his own expertise as a narcotics investigator to draw

the additional conclusion that drug activity was likely afoot. Although any of the items in

isolation—unidentified paraphernalia, deal baggies with residue, pills, firearms, or ammunition—

may not indicate drug activity, it would be reasonable for Investigator Versocki to view these items

collectively and conclude that probable cause existed to believe that drugs were being concealed

24

As noted above, Cook testified at the suppression hearing that he had attended numerous classes

on how to recognize drug paraphernalia and had observed paraphernalia on many previous

occasions while responding to fire scenes. The magistrate, however, was not privy to that

information because it was not contained in the probable-cause affidavit. Just as the magistrate can

look only to the four corners of the probable-cause affidavit in making his initial assessment of

probable cause, we are also limited to the four corners of the affidavit in determining whether the

remaining facts establish probable cause here. See Hyland, 574 S.W.3d at 907 n.4 (probable cause

analysis is “confined only to the information contained within the four corners of the search

warrant affidavit”). Therefore, we do not consider Cook’s testimony from the suppression hearing

regarding his expertise in our analysis. See Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App.

1996) (“[W]e look at the four corners of the affidavit in determining the existence

of probable cause to search the identified locations. Statements made during the pretrial hearing

do not factor into that determination.”) (citations omitted).

Martin - 21

in the apartment. A magistrate would further be justified in crediting Versocki’s expertise in this

assessment. In sum, we conclude that: (1) the direct observations by Firefighter Cook and Officer

Hart; (2) their respective opinions based on those observations that Appellant was in possession

of drug paraphernalia, deal baggies, pills and firearms; and (3) the expert opinion of Versocki

opining that those items were suggestive of drug activity, were sufficient to justify the conclusion

that drugs would probably be found in Appellant’s apartment. Therefore, in view of the totality of

the circumstances, and applying the flexible and non-demanding standard that governs our inquiry

here, the information in the affidavit, purged of any allegedly tainted information, is adequate to

support probable cause. Accordingly, we need not consider Appellant’s contention that

Investigator Versocki unlawfully entered Appellant’s apartment and that Versocki’s observations

cannot properly support issuance of the search warrant.

III. Conclusion

We agree with the court of appeals’ conclusion that Officer Hart had a lawful basis for

entering Appellant’s apartment without a search warrant. But because we hold that Officer Hart’s

conduct was justified in response to the firefighters’ legitimate safety concerns pursuant to the

exigency of the fire and its immediate aftermath, we need not address the court of appeals’ broader

bright-line rule that would always permit an officer to “step into the shoes” of a firefighter and

seize plain-view contraband. We also conclude that the information in the search-warrant affidavit,

after excising the observations of Investigator Versocki, was adequate to establish probable cause,

such that we need not consider the lawfulness of the additional entries by other officers after

Officer Hart. Accordingly, we affirm the judgment of the court of appeals upholding the trial

court’s ruling denying Appellant’s motion to suppress.

Delivered: April 14, 2021

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