Kentucky Fire Lieutenant’s Conviction on Child Porn Charges Upheld

The conviction of a Kentucky fire lieutenant on charges that he had child pornography on his fire department laptop, has been upheld by the US Sixth Circuit Court of Appeals. Robert Chris England, a lieutenant with the Middlesboro Fire Department, was convicted of three counts of receiving a visual depiction of a minor engaged in sexually explicit conduct, and one count of possessing a laptop containing visual depictions of a minor engaged in sexually explicit conduct.

Lt. England was issued the laptop in when he was promoted in 2017. At the time his father, Robert England, was the fire chief. In 2018, local law enforcement began an investigation into lewd conduct by Lt. England. Quoting from the decision:

  • In June 2018, local law-enforcement officials began an investigation into allegations that England exposed himself to a minor at a Walmart store in Middlesboro.
  • On the morning of June 23, 2018, at the police station located across the street from the fire station, Floyd Patterson, an officer with the Middlesboro Police Department, interviewed England about the allegations.
  • The interview lasted approximately ten minutes and ended around 9:48 a.m. When the interview ended, England returned to the fire department, where Jonathan Farmer, a colleague of England’s, observed him walk directly to the lieutenant’s office, where he “went to the computer . . . acting frantic, like, on the computer. Like moving his fingers.”
  • Farmer observed England for approximately 30 to 45 seconds, after which England loaded the laptop into a black bag and went home, where he lived with Chief England.
  • Believing that England was deleting incriminating materials from his laptop, Farmer sent a text message to his friend, State Trooper George Howard, informing him of what he had seen.
  • After receiving the text message from Farmer, and approximately twenty minutes after England left the interview with Patterson, Howard called Patterson and advised him that England was visibly nervous after leaving the police department and appeared to be deleting materials from his laptop.
  • In response to Howard’s phone call, Patterson called Officer Jeremiah Johnson and asked him to call Chief England.
  • When Patterson learned that the laptop belonged to the city, he directed Johnson to ask Chief England to bring the laptop to the police station.
  • Johnson called Chief England at approximately 10:30 a.m. Chief England agreed to bring the laptop and arrived at the police station at approximately 12:30 p.m. Patterson informed Chief England about the allegations against England and asked for Chief England’s consent to search the laptop, noting that the laptop belonged to the city. Chief England agreed and signed a consent form. The mayor of Middlesboro subsequently signed a form consenting to the search of the laptop as well, but the date on which he did so is unclear. Patterson and Johnson never asked England for his consent. The laptop was sent to the Kentucky State Police for a forensic examination.
  • The forensic examination revealed that England’s laptop contained 630 images of child pornography, including depictions of sadistic or masochistic conduct, such as the anal penetration of a toddler.

At trial, Lt. England sought to suppress evidence from his laptop claiming that Chief England did not have authority to consent to the search of his laptop. The trial court denied Lt. England’s request and he was convicted. Lt. England appealed his conviction to the Sixth Circuit citing several grounds, including the lack of authority of Chief England to consent to the search.

The Sixth Circuit upheld the convictions, concluding Chief England had apparent authority to allow the search, and the police officers acted with good faith in conducting it. Quoting from the decision (internal citations and quotation marks removed to facilitate reading):

  • The Fourth Amendment protects against unreasonable searches and seizures.
  • A search conducted without a warrant is per se unreasonable unless it falls within a specific exception to the warrant requirement.
  • One exception to the warrant requirement applies to situations in which voluntary consent has been obtained, either from the individual whose property is searched, or from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.
  • Even if a third party lacks actual authority to consent to a search, the Fourth Amendment is not violated if the police relied in good faith on a third party’s apparent authority to consent to the search.
  • Apparent authority exists when the facts available to the officer at the moment would lead a reasonable officer to believe that a party had actual authority.
  • We need not determine whether Chief England had actual authority to consent to the laptop search because we are satisfied that he had apparent authority to do so.
  • The laptop belonged to the fire department, not Lt. England; Chief England was the highest ranking officer at the fire department, and this status suggested that he had control of the laptop; this control was demonstrated when Chief England requested his subordinate, Lt. England, return the laptop to him and Lt. England complied; and the Chief executed a consent form for the express purpose of conducting a search, never giving officers any indication that he lacked authority to do so.
  • Accordingly, we conclude that Chief England had apparent authority to consent to the search of the laptop.

Here is a copy of the decision, which goes on to address several other issues raised in the appeal.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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