Last week, the 2nd District Court of Appeals (Fort Worth), held in Deaver v. State, that under the "plain view" doctrine, an officer's viewing of a child pornography video on a defendant's cell phone was not a search.
The State asserts, in part, that the record does not provide sufficient evidence that Offier Shipp searched Deaver's phone. We agree with the State. A "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. If an item is in plain view, neither its observation nor its seizure involves any invasion of privacy. An object is seized in plain view if three requirements are met. First, law enforcement officials must lawfully be where the object can be "plainly viewed." Second, the "incriminating character" of the object in plain view must be "immediately apparent" to the officials. Third, the official must have the right to access the object.How the State satisfied those 3 requirements in this case, I know not. In this case, while the defendant was searching through his phone for a person's contact information to give to the officer, the officer snatched his phone out of his hands. Yes, the defendant was about to voluntarily give the officer his phone, but by snatching the phone, the officer may have jumped the gun. Requirement 1 - Lawful vantage point? Perhaps, but I would argue no.
Next, as the computer experts pointed out in the case, "there is no pornography on the first frame of the video at issue, so the pornographic nature of the video would not be immediately discernable if someone was just scrolling through the various videos on Deaver's phone. In other words, to find that the video contains pornography, it must actively be played." Requirement 2 - Immdeiately apparent? No way! (Unless, of course, you engage in the kind of mental gymnastics performed by the court and say that perhaps the defendant began playing the video (with the cop standing right there!) and when the cop retrieved the phone, the porn was on the screen.)
Lastly, the defendant only gave the officer access (arguable access, that is) to the phone so that he could retrieve a phone number listed therein - not to access any other media. Requirement 3 - Right to access? Nope.
But it really doesn't matter what I say, as I am not an elected appellate justice - here's what the Court held:
If Officer Shipp was initially justified in gaining control over Deaver’s phone forsafety reasons (Deaver has not argued that he was not), and if Officer Shippimmediately saw the pornographic video upon controlling the phone (as may or may not have happened based on the limited, unclear record), then a motion tosuppress would not have succeeded because the video was in plain view, no invasion of Deaver’s privacy could be shown, and no search could have therefore occurred. Because Deaver therefore cannot demonstrate, on this ambiguous record, that his counsel’s motion to suppress would have been successful, we overrule his sole issue of ineffective assistance.Caveat: This was an IAC case, so the standard of review was much more deferential to upholding the search than it would have been had the trial defense counsel moved to suppress the evidence during trial.