State v. Byerley

• Decision Date: 06 July 1982
• Citation: 635 S.W.2d 511
• Parties: STATE of Tennessee, Plaintiff-Appellant, v. William H. BYERLEY, Defendant-Appellee.
• Court: Tennessee Supreme Court

Page 511

635 S.W.2d 511

STATE of Tennessee, Plaintiff-Appellant, v. William H. BYERLEY, Defendant-Appellee.

Supreme Court of Tennessee.

July 6, 1982.

Gordon W. Smith, Asst. Atty. Gen., Nashville, for plaintiff-appellant; William M. Leech, Jr., Atty. Gen., Nashville, of counsel.

Icenhour, Wohlford & Miller, Bristol, for defendant-appellee; Tex R. Morelock, Rogersville, of counsel.

OPINION

BROCK, Justice.

The defendant, William H. Byerley, was convicted of possession of marijuana with intent to sell and sentenced to a prison term of one to two years. At trial, his motion to suppress evidence seized from his car without a warrant, was denied. The Court of Criminal Appeals reversed, holding that the plain view doctrine did not justify the search and seizure, because the officers had not satisfied the inadvertency requirement when they purposely looked in the car to see if drugs were present. Application for permission to appeal was granted to determine the constitutionality of the search and seizure.

On April 2, 1977, police officers obtained a search warrant for a house located at 1946 Fort Robinson Drive, thought to be inhabited by two women dealing in drugs. One of the women, Melanie Erwin, was named in the warrant. The warrant was executed at 3:00 a.m., April 3, 1977, at which time approximately a quarter of a pound of marijuana and assorted drug paraphernalia was found. Erwin was not at home; but the other woman, Janet Williams, was arrested. After leaving the premises, Officer Sampson spotted a 1971 maroon Mustang in which Erwin was riding as a passenger. They followed the car back to Ms. Erwin's residence and arrested Erwin as she was approaching the side door to the house. In her company was the defendant, whose presence and relationship to the drug offense was not known prior to this event. Officer Hickman remained with Erwin while she was seated in the rear of the patrol car. Following Erwin's arrest, pursuant to standard operating procedure, the officers sought the defendant's identification. After looking at his driver's license, they permitted him to get Erwin's keys and enter the house.

At this time, Officer Sampson went to look inside the defendant's car to see if there was any more marijuana. Sampson testified that he made the decision to look in the car when he first spotted Erwin in the car prior to her arrest. He planned to look in the car at the time Erwin was arrested, but, since he was unable to follow them as closely as he had anticipated, they were already at the entrance to the home by the time the officers arrived.

The defendant's car was parked in the yard about 4 to 6 feet from the street. There was a ditch between the car and the street. The yard was open and it would have taken "two or three cruisers" to stop the defendant from departing if necessary. Officer Sampson shined his flashlight in the car, first on the passenger's side and then on the driver's side. He saw a small brown paper bag containing plant material behind the driver's seat on the back floorboard. Officer Hickman gave him permission to seize the bag from the unlocked vehicle, at which time he discovered approximately a half pound of marijuana. The officers returned to the house and arrested the defendant. In addition to the facts and circumstances surrounding Ms. Erwin's arrest, Sampson noted that an informant had told him that Ms. Erwin was giving some of her marijuana to her boy friend. He did not know who the boy friend was, but deduced that Byerley was perhaps Ms. Erwin's boy friend, because he told the officers that the two of them had just been to a dance in Johnson City.

The Court of Criminal Appeals erred in holding that the requirements of the "plain view doctrine" were not satisfied in this case. Generally speaking, the term "plain view" is used to describe two separate and distinct occurrences by which evidence is discovered.

Traditionally, plain view denotes an extension of a prior valid search; i.e., officers executing a warrant or conducting a search by consent or incident to an arrest, etc., may inadvertently come upon unexpected evidence of crime. The plain view doctrine arose primarily as a result of the plurality decision in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and has been restricted to the three requirements in which an officer must: (1) have rightfully been in the place where he made the plain view discovery, (2) have made the discovery inadvertently and (3) have immediately recognized the incriminating nature of the object discovered. Although the U. S. Supreme Court has never adopted this doctrine by a majority decision, most state jurisdictions, including Tennessee, have done so. See, Armour v. Totty, 486 S.W.2d 537, 538-39 (Tenn.1972).

Distinguishable, however, are those cases in which an officer accidentally comes upon incriminating evidence in a place where there is little or no expectation of privacy, and where the discovery he makes is not preceded by an otherwise valid Fourth Amendment search. In other words, the discovery occurs without any prior intrusion into the defendant's privacy; i.e., a "look." There is a clear distinction between a look and a search. Whereas a search is afforded all the Fourth Amendment protections, a look of a non-Coolidge type includes those observations which are clearly visible, readily observable and open to public gaze. See, e.g., Scales v. State, 13 Md.App. 474, 284 A.2d 45, 47 at fn. 1 (1971); State v. Kaaheena, 59 Haw. 23, 575 P.2d 462 (1978); and State v. Daigle, 344 So.2d 1380, 1390 (La.1977). The distinction is also recognized in 1 LaFave, Search and Seizure, § 2.2(a) at 242 et seq., and in Ringel, Searches & Seizures, Arrests and Confessions § 8.2 at 8-4 et seq. (2d ed. 1979) which provides that:

"Not every observation made by a government agent amounts to a search within the meaning of the Fourth Amendment. The police may take note of anything that is evident to any of their senses, as long as they are in a place where they have a right to be, and as long as they do not resort to extraordinary means to make the observation.... These observations are fully usable to provide probable cause to obtain a search or arrest warrant or for the police to conclude that exigent circumstances exist requiring immediate seizure."

In such a case, there is no "search" in the Fourth Amendment sense, and thus, no necessity for the three requirements under Coolidge v. New Hampshire, supra. This distinction is also discussed in 1 LaFave, Search and Seizure § 2.5(c) at 355-356:

"It is a fair generalization that if a law enforcement officer is able, by the use of his natural senses, to discover what is inside a vehicle while 'standing in a place where he had a right to be,' this discovery does not constitute a Fourth Amendment search.... If a vehicle is located on private property, but the police have made a lawful entry upon that property for some legitimate reason, what they see in plain view in the car while present at a place on that property which is consistent with the reason for their presence is also admissible."

In Cook v. Commonwealth, 216 Va. 71, 216 S.E.2d 48 (1975), officers obtained a search warrant for drugs in the defendant's apartment. While the warrant was being executed, the defendant arrived in his car and parked on the street just outside the door. The officers found the drugs in the apartment and arrested the defendant. One of the officers thought there might be other drugs in the defendant's car. Upon looking into the car through the window, the officer saw certain objects associated with illegal drugs and seized them. The parties sought to make the question of inadvertence determinative, but the court pretermitted that issue. As is true in the...