Opinion
No. 05-08-00840-CR
Opinion issued March 18, 2009.
On Appeal from the 401st Judicial District Court Collin County, Texas, Trial Court Cause No. 401-80342-08.
OPINION
This is a State's appeal of the trial court's order granting a pretrial motion to suppress evidence in appellee's criminal case. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2008). For reasons that follow, concluding no reversible error is shown, we affirm the trial court's order. Appellee was indicted for the state jail felony of theft of the value of at least $1500 but less than $20,000. See Tex. Penal Code Ann. § 31.03(e)(4) (Vernon Supp. 2008). Appellee filed a pretrial motion to suppress evidence. After hearing evidence, the trial court granted appellee's motion. The State moved the trial court to reconsider. The trial court held a second hearing, after which it reaffirmed its earlier decision and signed a written order suppressing the evidence. This State's appeal ensued. The State presents its sole issue to this court as: "Did the officers properly seize stolen golf clubs under the plain-view doctrine when they determined the clubs were stolen only after further investigation but not any search of the clubs themselves?"
Background
A Plano police officer was conducting surveillance of a home prior to execution of a search warrant by other officers when he saw appellee, a resident of the home, remove from a car's trunk a new set of golf clubs in a red bag and take them into the home. Appellee then left the home and was stopped by the police on outstanding traffic warrants. Meanwhile, other officers entered the residence, pursuant to a search warrant for cocaine and marijuana, and searched the home. During the search, officers saw two sets of golf clubs in plain view in one of the bedrooms. Both sets of clubs still had price tags on them and appeared to be new and unused. The officers also found several new shirts bearing the Los Rios Country Club logo in the closet of the bedroom in which the clubs were seen in plain view. The officers were immediately suspicious these items were stolen. Plano detective Jonathan Hay called dispatch and inquired whether there had been any recent burglaries of golf locations. The "burglary detective" informed the officers there had been a theft of "some clubs and some items" from the Los Rios Country Club. The burglary detective gave the on-site officers the telephone number of a person to contact about the theft. The officers contacted the number given and learned there had been two sets of golf clubs and some shirts stolen from the Los Rios Country Club. The items found in appellee's home matched the description of the items reported as having been stolen. Upon learning this information, the officers seized the items and later charged appellee with theft of those items. Pretrial, appellee filed a motion to suppress the seized items because the officers had exceeded the scope of the search warrant. Appellee contended in his motion to suppress, and contends on appeal, that it was not "immediately apparent" to the officers the golf clubs were stolen property. After hearing evidence on appellee's motion, the trial judge made oral findings of fact and conclusions of law. In those findings and conclusions he found the police officers were credible, legally on the premises when they found the items in plain view, and had reasonable suspicion of criminal activity before they contacted the country club to further investigate. However, the trial judge concluded, as a matter of law, the officers exceeded the scope of the search warrant because they had to conduct further investigation before developing probable cause that the golf clubs were stolen.Appeal
On appeal, the State contends that under United States Supreme Court case law, the search did not violate the Fourth Amendment, and the trial court reversibly erred in granting the motion to suppress. The State concedes in its brief the court of criminal appeals has previously held that it is only "immediately apparent" that an object is incriminating evidence if it is apparent with "no further investigation." However, the State contends that under United States Supreme Court case law the further investigation must be investigation "of the object" itself, rather than a general investigation, and must be invasive of the defendant's privacy or possessory interests. Thus, the State contends that here, because the further investigation was general, as opposed to a further search of the object itself which invaded appellee's privacy or possessory interests, the seizure of the golf clubs was within the scope of authority to seize under the plain-view doctrine. Appellee, of course, disagrees.Affidavit/Search Warrant/Return and Inventory
In relevant part, the affidavit in support of the search warrant states, "IT IS THE BELIEF OF AFFIANT, AND HE HEREBY CHARGES AND ACCUSES THAT: Subject(s) mentioned in paragraph 3 of this document are believed to be in possession of cocaine and marijuana in violation of the Texas Health and Safety Code (HSC481.115 HSC 481.121)." The search warrant, in relevant part, states: "NOW, THEREFORE, you are commanded to enter the suspected place and premises described in said Affidavit and to there search for the personal property described in said Affidavit and to seize same and bring it before me." The Return and Inventory enumerated the seized property as: "Two sets of Adams Idea brand golf clubs; Two Nike brand golf shirts; Four golf clubs; Two umbrellas; One marijuana smoking pipe; One methamphetamine smoking pipe; Trace amount of suspected marijuana."Indictment
In relevant part, the indictment charges that Matthew Ryan Dobbs on or about the 17th day of December 2007 in Collin County, Texas, did then and there intentionally and knowingly appropriate, by acquiring and otherwise exercising control over, property, other than real property, namely: golf clubs and golf bags, of the value of at least Fifteen Hundred Dollars ($1,500.00) but less than Twenty Thousand Dollars ($20,000.00), without the effective consent of Todd Harp, the owner of the said property, and with intent to deprive the said owner of the said property. . . .The Issue
The State concedes it was not "immediately apparent" to the officers that the golf clubs, found in plain view, were evidence of a crime without further investigation. However, the State's view is that "[t]o be immediately apparent, the object's evidentiary nature must be apparent without conducting any further search of the object." [Emphasis supplied]. Thus, the issue we must resolve is whether "the officers properly seized stolen golf clubs under the plain-view doctrine when they determined the clubs were stolen only after further investigation but not any search of the clubs themselves?"Standard of Review
The parties agree the proper standard of review is that set out in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997) and Johnson v. State, 68 S.W.3d 644 (Tex.Crim.App. 2002). Under those authorities a motion to suppress is reviewed under a bifurcated standard. Johnson, 68 S.W.3d at 652-53. "Almost total deference" is given to a trial court's determination of historical facts but a trial court's application of search and seizure law is reviewed de novo. Guzman, 955 S.W.2d at 89; Johnson, 68 S.W.3d at 652-53. Here, the facts are essentially undisputed and the trial court made findings of fact and conclusions of law. In its findings, the trial court credited the police officers. The record supports the trial court's findings.Law
A search warrant does not authorize a general exploratory search. Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971). The warrant limits the search and seizure to the items specifically named in the warrant. See id. at 471-72. However, if officers find other contraband not named in the warrant in plain view during execution of the warrant, they may properly seize those items under the "plain view" exception. Id. at 465. The Supreme Court originally set out three circumstances which must be satisfied before the plain view doctrine applies. Id. at 466. Those circumstances were: officers must lawfully be on the premises, the discovery of the incriminating evidence must be "inadvertent," and it must be "immediately apparent" the evidence is incriminating and evidence of a crime. Id. In White v. State, 729 S.W.2d 737 (Tex.Crim.App. 1987), the Texas Court of Criminal Appeals followed the three-part test of Coolidge. However, in Horton v. California, 496 U.S. 128, 129-31 (1990), the Supreme Court modified the Coolidge criteria by deleting the element of "inadvertence." The court of criminal appeals followed suit in State v. Haley, 811 S.W.2d 597, 599 (Tex.Crim.App. 1991). Thus, under current law, only two circumstances must exist to invoke the plain-view doctrine: the officers must be lawfully on the premises and it must be "immediately apparent" to the officers the evidence is incriminating and evidence of a crime. Horton, 496 U.S. at 136-37; Haley, 811 S.W.2d at 599.Application
The only issue in this appeal is whether it was immediately apparent to officers the golf clubs seized were evidence of a crime. Applying the standard earlier set out of deferring to the trial court's determination of historical facts and of crediting the officers' testimony, and reviewing the application of search and seizure law to the facts of this case de novo, we conclude that seizure of the golf clubs in this case was not authorized under the plain view doctrine. Notwithstanding the State's argument that it is not controlling, we base our conclusion on the case of White. In White, the court of criminal appeals discussed at length the United States Supreme Court case of Arizona v. Hicks, wherein the Supreme Court expressly held that probable cause is required to invoke the plain view doctrine. White, 729 S.W.2d at 740 (citing Arizona v. Hicks, 480 U.S. 321, 326-27 (1987)). The White court quoted at length from Justice Scalia's explanation of the Supreme Court's rationale for its holding in Hicks:To say [that probable cause is not required] would be to cut the `plain view' doctrine loose from its theoretical and practical moorings. The theory of that doctrine consists of extending to nonpublic places such as the home, where searches and seizures without a warrant are presumptively unreasonable, the police's longstanding authority to make warrantless seizures in public places of such objects as weapons and contraband. . . . And the practical justification for that extension is the desirability of sparing police, whose viewing of the object in the course of a lawful search is as legitimate as it would have been in a public place, the inconvenience and the risk-to themselves or to preservation of the evidence-of going to obtain a warrant. See Coolidge v. New Hampshire, supra, at 468 [ 91 S. Ct. at 2039] (plurality). Dispensing with the need for a warrant is worlds apart from permitting a lesser standard of cause for the seizure than a warrant would require, i.e., the standard of probable cause. No reason is apparent why an object should routinely be seizable on lesser grounds, during an unrelated search and seizure, than would have been needed to obtain a warrant for that same object if it had been known to be on the premises. (Footnote omitted).White, 729 S.W.2d at 740 (quoting Hicks, 480 U.S. at 326-27) (footnote omitted). The White court's decision did not turn on whether the "further investigation" was of the object itself or was a general investigation. Rather, it turned on whether, initially, there was probable cause for further investigation. That seems clear from the following language in the White opinion:
We are told that the stereo equipment was situated in such a manner that the identifying number could be read and recorded without moving the equipment. The backpack was also turned over so that the complainant's name could be read without moving the bag. But the fact remains neither the identifying number on the stereo, the name on the bag nor the mere presence of the jewelry gave the officers probable cause to believe, when those articles were discovered, that one or all of them were stolen property. Only after further investigative steps were taken, albeit most thoroughly, did the officers have probable cause to seize the items as stolen goods.
It is well settled in this State that items in "plain view" may not be seized if the officer does not have reason to believe that they are evidence, or fruits of, or instrumentalities of a crime. [Citations omitted] That standard is today expressly extended to searches conducted pursuant to the plain view doctrine. In the case at bar, the record is devoid of any evidence that it was "immediately apparent" to the inspecting officers that the property discovered was evidence of a crime. Thus, the officers lacked probable cause for further investigation. Arizona v. Hicks, supra.White, 729 S.W.2d at 741 (internal citations omitted). And so it is here. The record before us is devoid of any evidence that it was "immediately apparent" to the police officers that the golf clubs were "evidence, or fruits of, or instrumentalities of a crime." Thus, the officers lacked probable cause for further investigation. And lacking probable cause for further investigation, the plain-view doctrine does not operate to render the seizure of the golf clubs lawful under the Fourth Amendment to the United States Constitution. We affirm the trial court's order. SUE LAGARDE JUSTICE, ASSIGNED Do Not Publish Tex. R. App. P. 47 080840F.U05