Can a Firefighter Violate a Person’s Fourth Amendment Rights?

Today’s burning question: I know that police can violate a person’s Fourth Amendment rights by conducting a search without a warrant, but can a firefighter? I mean, our job is not to investigate crimes and arrest people. If we come across something illegal – let’s say drugs while treating a patient – it would be by accident, not because we were “searching”, right?

Answer: Not quite. The 4th Amendment does not mention that it is limited to searches conducted by police officers, it refers to searches performed by government. I know we don’t think of ourselves this way, but firefighters are governmental agents. The limitations of the 4th Amendment thusly do apply to us.

That reality was affirmed last week by the Kansas Court of Appeals in a criminal case, State v. Davenport.

The facts as explained by the Court of Appeals are as follows:

  • On September 19, 2014, [Debra Lea] Davenport drove to Maurine McRoberts’ home and asked to use the shower in the walk-out basement; McRoberts consented. McRoberts’ granddaughter called 911 when she determined that Davenport was in need of medical help.
  • Shawnee Heights Firefighters Lieutenant Brian Dodds (the duty officer at the time), Dustin Evans, and Charles Ryder were the first to arrive at the residence to render medical aid. Shawnee County Sherriff’s Deputy Aaron Steinlage and American Medical Response (AMR) personnel arrived at the scene shortly after the firefighters. When AMR personnel arrived, the firefighters turned over the care of Davenport to them.
  • When the emergency personnel arrived, Davenport was still in the shower complaining that bugs were crawling on her skin and scratching at herself. They helped her exit the shower and get dressed. It is unclear from the record how much Davenport was able to communicate to the emergency personnel, who were asking her about her identity and medical history.
  • Sherriff’s Deputy Steinlage testified that Davenport told Fire Department Lieutenant Dodds her name and date of birth. The homeowner, McRoberts, also testified that Davenport gave the emergency personnel her name. Dodds testified that his incident report indicated that Davenport told him that she drank very little and did not use illegal drugs and that someone at the residence informed him that Davenport had an allergy to Percocet and took ADD medication.
  • In contrast, the firefighters generally testified that Davenport was not responsive to their questions and provided them no relevant information. They each explained that standard procedure for a medical response call was to search for a person’s identification and prescription medications if no one was able to provide that information.
  • Fire Department Lieutenant Dodds testified that Davenport told him that her identification was in her purse. Dodds directed firefighter Evans to locate Davenport’s purse to search for her identification and prescription medications. Evans eventually located the purse outside the house on the back patio, where he searched it with firefighter Ryder and Deputy Steinlage present. Steinlage testified that while he was on the patio at the time of the search, he did not direct the search.
  • Steinlage’s report and testimony reflected that the firefighters first located Davenport’s driver’s license from inside the purse and confirmed her name and date of birth. Also inside the purse was a Victoria’s Secret bag, where firefighter Evans found a crack pipe, a syringe, and a baggie of crystal-like substance later identified as methamphetamine. While the search was happening, AMR personnel carried Davenport out of the basement to the ambulance. Steinlage testified that Davenport did not give permission for the emergency personnel to search her purse and that when she saw them searching it as she was leaving the house, she asked them what they were doing.
  • As a result of finding the drugs and paraphernalia in Davenport’s purse, the State charged Davenport with one count of possession of methamphetamine and one count of unlawful use of drug paraphernalia. Davenport filed a motion to suppress the evidence found in her purse, arguing that the search was conducted by firefighter Evans to assist the law enforcement officers and, therefore, violated her constitutional rights.
  • After an evidentiary hearing spanning the course of 2 days, the district court issued a 10-page memorandum decision and order granting Davenport’s motion to suppress.
  • [T]he court found that Evans was a “governmental actor” because he was a government employee performing investigatory-type activities for the benefit of his employer. As a governmental actor, the court concluded Evans was subject to constitutional constraints on unreasonable searches and seizures.
  • Given that no one had obtained a search warrant for Davenport’s purse and none of the exceptions to the warrant requirement applied, the court held the evidence discovered during the search of Davenport’s purse was tainted and required suppression.

The Court of Appeals then affirmed the trial court’s ruling to suppress the drugs and drug paraphernalia without a detailed explanation.

Back to the burning question at hand: Admittedly, when we inadvertently come across drugs, illegal weapons, or stolen property during the course of our emergency activities, the 4th Amendment is not violated provided the items are in plain view and we are in a location that we were entitle to be.

A related theory that may also apply is the inadvertent discovery rule. The inadvertent discovery rule applies whenever evidence is located during an otherwise legitimate governmental activity. The key to both plain view and inadvertent discovery is that the governmental actors be entitled to be where they are when they find the contraband.

The problem in Davenport appears to be that there was a factual question about whether the firefighters actually needed to search Davenport’s purse as part of their duties. Unfortunately for the prosecution (and luckily for Davenport) , the trial court ruled against the firefighters on the facts, and the Court of Appeals concluded the trial court’s ruling was “supported by substantial competent evidence.”

An interesting question arises: The firefighters stated reason for searching Davenport’s purse was to locate her identification and medications. If the firefighters were looking solely for a medical alert card, or perhaps for a medical alert card and medications, might the trial court have ruled differently?

Here is a copy of the ruling: state-v-davenport

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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