CCA Expands the “Plain View” Doctrine, Erodes 4th Amendment Protection

Sound the alarms!  Fourth Amendment protections in Texas have been diminished by the Court of Criminal Appeals latest opinion in State v. Dobbs.

The “plain view” doctrine, as explained by the U.S. Supreme Court, provides that

A police officer who is lawfully on private premises pursuant to a warrant (or some legitimate exception to the Fourth Amendment requirement of a warrant) may also seize anything he discovers in plain view on those premises if it is ‘immediately apparent’ to him – this is to say, if he has probable cause to believe – that it constitutes contraband, without the necessity of obtaining a second warrant to justify the seizure.

Minnesota v. Dickerson, 508 U.S. 366 (1993).  Expounding on this principle, the CCA, in White v. State, 729 S.W.2d 737 (Tex. Crim. App. 1987), held that

when police officers lack probable cause to believe items in plain view are contraband at the very instant they first see them, they must have probable cause to conduct any further investigation specifically designed to develop probable cause to authorize their seizure of those items.

However, as the CCA now holds, White is no longer good law.  In State v. Dobbs the CCA announced a new rule expanding the plain view doctrine to give law enforcement officers time to conduct further investigation into suspicious items that may not be ‘immediately apparent’ as contraband.

In Dobbs, officers were conducting a lawful search of appellee’s home when they discovered two sets of new golf clubs and several golf shirts having the name of a local country club stitched in them.  It was undisputed that the officers lacked probable cause to believe these items were contraband at the time they saw them in plain view (i.e. All parties agreed that the officers could not lawfully seize the items at the time they saw them).  Finding the items suspicious, however (perhaps the suspect did not look like an avid golfer?) the officers made a call to find out whether the country club had recently reported a burglary.  Once it was confirmed that the country club had, in fact, reported a burglary of golf clubs and golf shirts, the officer seized the items as evidence of a crime.

Prior to trial, appellee moved to suppress the items as fruits of an unlawful search, arguing that because the officers did not have probable cause to believe that the golf clubs and shirts were contraband at the instant they saw the items, the seizure of the same was unlawful.  The trial court, relying on the CCA holding in White, agreed and granted the motion to suppress.  The State appealed to the 5^th District Court of Appeals (Dallas) which affirmed (again, based on White).  Like a Jack Russell Terrier with a never-say-die attitude, the State appealed again to the CCA, arguing that the Court’s prior holding in White overextended the legitimate scope of the Fourth Amendment. 

The CCA re-examined its holding in White and decided that it had indeed overextended the scope of the Fourth Amendment.  The CCA explained:

We now hold that, so long as probable cause to believe that items found in plain view constitute contraband arises while police are still lawfully on the premises, and any further investigation into the nature of those items does not entail an additional and unjustified search of, or unduly prolonged police presence on, the premises, the seizure of those items is permissible under the Fourth Amendment.

The CCA further explained that its holding only applies to those cases wherein the officers further investigation does not incrementally impinge upon any protected privacy or possessory interest of the defendant.  For instance, if the officers in this case had seized the golf clubs and shirts and then called to investigate, the plain view exception would not apply.  

The further investigation that the officers undertook in this cause did not involve any search of the premises that was not already authorized by the search warrant.  So the appellee’s privacy interest was not compromised. Nor were the golf clubs and shirts actually seized until after the officers, still legitimately on the premises, developed probable cause to believe they were stolen, by conducting further investigation that did not involve an unjustifiedly incremental search of the actual premises. So the appellee’s possessory interest was compromised—but legitimately so, even without an additional warrant. It does not serve the interests of the Fourth Amendment to construe the “immediately apparent” aspect of the plain-view doctrine to prohibit this kind of further investigation because it does not impact either the privacy or the possessory rights of the defendant beyond the encroachment already legitimized by the warrant.

NEW RULE:  Under the plain view doctrine, “immediately apparent” simply means that the viewing officers must have probable cause to believe that an item in plain view is contraband before seizing it.  Gone are the days when the officers must have such a belief at the moment they see the item.

Commentary: I agree with the court’s holding in this case so long as it doesn’t become of small step toward further erosion of the 4th amendment. The court’s reasoning is logical. The potential problem is in drawing the line regarding the length of time an officer may remain on the premises to investigate “suspicious” items that are not immediately apparent as contraband. If courts construe this rule too broadly, we could end up seeing officers just hanging around making calls to establish the plain view exception.

Cell Phone Video Falls Under "Plain View" Exception

Can a cell phone video (e.g. Child Pornography) fall under the "plain view" exception to the 4th Amendment prohibition against unreasonable searches and seizures?  Maybe.  Well, what if the defendant voluntarily hands his phone over to the police officer?  Still maybe.  Just like every other 4th Amendment case, if the officer plainly views the evidence from a lawful vantage point, there is no search.  But what if the officer has to push a few buttons on the cell phone?  Search? Well...

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.