Supreme Court precedent allows the seizure of an item in plain view when it is immediately apparent the item is evidence without any further search of the object. But in White v. State, this Court held that an item in plain view may only be seized when its evidentiary nature is apparent without any further investigation. Should White be overruled because it is contrary to binding Fourth Amendment precedent of the Supreme Court?Pretty straightforward case. Police were surveilling Dobbs prior to executing a warrant at his house for cocaine and marijuana. Dobbs left with some golf clubs, and police executed the warrant after Dobbs was stopped on some outstanding traffic warrants. [I always love that, the warrants weren't simply great, no, they were OUTSTANDING! Like it's a blurb on the back of a book.] While searching the residence police noticed two bags of golf clubs with the price tags still on them and several shirts from a nearby country club. Police called dispatch to see if there had been any burglaries at the country club, and lo and behold, some golf clubs and golf shirts had been stolen. The items in the home matched the description of the items stolen, and the officers seized the evidence without a warrant. Dobbs was charged with theft of the golf clubs (and shirts), and he moved to suppress on the ground that the officer did not have probable cause to seize the clubs because it was not immediately apparent that the clubs were stolen. The trial court suppressed the evidence, specifically finding that the officer had reasonable suspicion before they investigated further, but the officers exceeded the scope of the warrant because they had to conduct a further investigation to establish probable cause to believe the clubs were stolen.
The Dallas Court of Appeals affirmed the trial court's suppression of the evidence. According to the court of appeals, the CCA held in White v. State, that there must be probable cause to immediately believe that items were stolen before they can be seized. The State noted that White was decided when there was still a requirement that the discovery of the contraband be "inadvertent" as well as "immediately apparent" as contraband. Because the Supreme Court dropped the "inadvertence" requirement subsequent to White, the State argued that the CCA's interpretation of the the Fourth Amendment in White was outdated. However, the court of appeals rejected this argument noting that White had also prohibited additional investigation on the part of law enforcement beyond a search of the items themselves. Here's a link to the underlying court of appeals case info and the CCA case info.
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This case does highlight how problematic White is. White dealt with a case where police entered an apartment in response to a disturbance and saw objects that they thought were stolen. Unfortunately for them, every person they called to check on whether these items were stolen indicated that the objects weren't stolen. It wasn't until the police left the apartment that they finally verified that the items were stolen. The CCA held that the seizure was bad because there was no evidence that it was readily apparent that the items were stolen AND the discovery that the items were in fact stolen was not inadvertent. Complicating matters further, the CCA based its decision on the Supreme Court's decision in Arizona v. Hicks, a case where the police had actually manipulated the objects they suspected to be stolen rather than pursuing other investigative avenues. Hicks makes sense as a comparison when there's an inadvertence requirement, but without it, it becomes distinguishable.
Factually, this case seems very distinguishable from White just in the fact that White was a situation where the police pretty much unreasonably extended their search. This case looks more like a house search version of Arizona v. Johnson, where the police were lawfully executing a search warrant, could've looked in the golf bags themselves (you can put cocaine and marijuana in golf bags, right?), but making a phone call in the process exceeds the scope of the warrant? I'll be interested to see what guidance we get on what makes something "immediately apparent" as contraband. The CCA is already interested in this issue, as evidence by them granting review in Powell v. State. (Click here for my post on when review was granted and here for a link to the oral arguments.) When Powell is decided, we might get some idea how Dobbs will turn out.
And doesn't the fact that this involves the mere theft of golf clubs seem like it's one of those cases that's going to end up being important? Or perhaps I just jinxed it. I take it back. How mundane. However, the case is well set up for the State's appeal of this issue, so good work on the part of the Collin County appellate prosecutors.
