Thomson v. State
| Docket Number | 01-20-00434-CR |
| Decision Date | 18 August 2022 |
| Parties | WADE HARRELL THOMSON, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 12th District Court Grimes County, Texas Trial Court Case No. 18072 CT I - X
Panel consists of Justices Goodman, Landau, and Countiss.
Wade Harrell Thomson was convicted of possession of child pornography and sentenced to seven years' confinement. Thomson challenges the (1) denial of his pretrial motion to suppress evidence of child pornography found on his cell phone during a traffic stop, (2) sufficiency of the evidence to support the jury's factual determinations underlying the admissibility of that same evidence, and (3) denial of his motion for new trial that argued there was newly discovered evidence that would probably bring about a different result in another trial.
Because the trial court erred in denying the motion for new trial, we reverse and remand for a new trial.
Deputy M. Payne stopped Thomson for a routine traffic violation at almost midnight on a Monday night. Thomson-who was over 40 years old-had a young, female passenger in his car. Deputy Payne thought the passenger was a minor, but she was a few days past her 18th birthday. Deputy Payne asked Thomson and the passenger questions. Their stories did not match.
A Terry[1] frisk revealed a cell phone on Thomson's hip and a marijuana pipe in his pocket. A search of Thomson's vehicle revealed a duffle bag containing three knives, duct tape, bungie cords, two screwdrivers, binoculars, Benadryl, "pills in powder form," a bar of soap, and a second cell phone. The combination of items, considering Thomson's and his passenger's mismatched stories, led Deputy Payne to ask Thomson about the bag's contents.
Deputy Payne's bodycam recorded the conversation about the contents of Thomson's bag. In response to questioning Thomson said that he used the items for his work as a chicken farmer and that the cell phone was a storage device for his pictures. He told Deputy Payne that the secondary phone did not have cellular service. As Deputy Payne was handling the bag and its contents, the secondary phone's screen illuminated, and Deputy Payne saw a "3G" on the screen. He asked Thomson about the symbol, noting that it was inconsistent with Thomson's statement that the phone did not have cellular service. Thomson maintained that the phone did not have cellular service: referring to the phone on his hip. To further prove his point, Thomson said to Deputy Payne, "Uh, try to make a call on it." Deputy Payne responded that he did not know the code to unlock the phone.
Thomson offered to show Deputy Payne how to unlock the phone commenting, "I don't get why that's important." Thomson walked Deputy Payne through unlocking the phone, assuring him that there was no cellular service. Thomson told Deputy Payne,
The bodycam video does not show Deputy Payne's navigation of the phone screens. The audio does not include any narration of Deputy Payne's activities. But the record indicates that Deputy Payne unlocked the phone using Thomson's instructions. He tried to make a call but was unsuccessful because the phone lacked prepaid minutes.
After failing to make a phone call, Deputy Payne told Thomson he had asked about the bag's contents because they looked like tools to commit a crime. As Deputy Payne was saying this, he walked away from Thomson and toward Thomson's vehicle, where the open duffle bag sat on the trunk. When Deputy Payne reached the vehicle and bag, he stood silent and still for 15 seconds. The bodycam does not show the phone's screen during the 15 seconds.
At the end of the 15 seconds of silence, Deputy Payne turned to Thomson and said, Thomson responded, "I have no idea." Deputy Payne walked to his police vehicle flashed the phone screen to his bodycam, laid Thomson's phone in his passenger seat, and called for additional instructions.
Thomson was arrested on charges related to the marijuana pipe found in his pocket. Later, Deputy Payne obtained a search warrant to access Thomson's phone. More than 1,400 child pornography images were found on the secondary phone. Thomson was charged with possession of child pornography.
Thomson moved to suppress all evidence of the images obtained from the secondary phone.
The suppression hearing
At the suppression hearing, Thomson argued that the images were recovered through an illegal search. The State responded that Thomson had given consent. Thomson replied that his consent was limited to making a phone call and that he had not consented to a search of his phone's contents.
Deputy Payne testified at the suppression hearing. He said that when he first pulled Thomson over, he saw Thomson make furtive movements toward his backseat. Thomson appeared to be extremely anxious. Deputy Payne The combination of furtive movements and nervousness led Deputy Payne to conduct the Terry frisk, which revealed the marijuana pipe in Thomson's pocket.
According to Deputy Payne, the discovery of the marijuana pipe gave him probable cause to expand his search to Thomson's vehicle. When Deputy Payne found the secondary phone in the duffle bag, Thomson said it stored his photos and did not have service. Thomson told Deputy Payne to try to make a phone call and led him though unlocking the phone. Deputy Payne testified that he had only ever owned Apple iPhones and was not familiar with how to operate Thomson's Android phone. It took several tries to unlock the phone.
At Thomson's urging, Deputy Payne tried to make a phone call, but the phone lacked prepaid minutes. Deputy Payne described his efforts to return the phone to the duffel bag:
I turned to go put the phone back in the bag. As I did-I have an iPhone and on an iPhone, it clears back to home screen. You hit the- there is a centrally-located button in the middle of the phone. You hit it and it sends it back to the lock screen. . . . As I turned to go back, I hit that-well, he didn't have an iPhone, it was something else. And a screen full of, I guess, JPEGs or thumbnails popped up. It was all very young girls in sexual positions, half-dressed or undressed.
When asked what he intended to do as he walked toward the duffle bag with Thomson's unlocked phone, Deputy Payne responded that he only intended to close the phone and return it to the bag. But he added that Thomson had not placed any limitations on his use of the phone.
Deputy Payne reiterated how and why he touched the phone after attempting a call. He was trying to return the phone to its locked screen. An icon in the lower middle portion of the phone's screen reminded him of an iPhone home button. When Deputy Payne pressed that button, the pornographic images appeared. Deputy Payne testified, "I hit one button" and the images appeared.
At the suppression hearing, Thomson argued that Deputy Payne conducted an illegal search of his phone in violation of his Fourth Amendment rights. He argued that the images did not fall within the plain-view exception because Deputy Payne did not have a lawful vantage point to inadvertently see the evidence.
Deputy Payne's vantage point was not lawful because he accessed a portion of Thomson's phone beyond the limited consent Thomson had granted: to make a phone call. Thomson argued that, if an officer is "not lawfully where [they] are supposed to be, how [they] got there shouldn't make a difference." In other words, the fact that Deputy Payne may have wandered beyond his lawful vantage point by accident should not turn the vantage point into a lawful one.
The State focused its arguments against suppression on Thomson's consent to unlock the phone and make the phone call. The State argued that Thomson
The trial court took the matter under advisement, noting that its focus was "the issue of consent," "how far that consent may go," and "the effect of potentially an accidental opening of that phone."
The trial court denied Thomson's motion to suppress and issued findings of fact and conclusions of law. The court found that Thomson authorized the unlocking of his phone, told Deputy Payne to try to make a phone call, and instructed Deputy Payne to call someone on the saved-contacts list. Thomson consented to Deputy Payne making a phone call, but that consent did not extend to a general search of the phone. The court found that Deputy Payne was familiar with iPhones but not with this type of phone. According to the court's fact findings, when Deputy Payne "went to return the phone back to the duffle bag," he "hit the button that he believed would return the phone to the locked screen," which is when the images appeared. The court noted Deputy Payne's testimony that he had no intent to search the phone's contents and did not manipulate the phone for that purpose. Instead, he was attempting to close the screen. Finally, the court found Deputy Payne's testimony credible that he inadvertently opened the images as he touched the icon to lock the phone.
The court's conclusions of law included that Thomson voluntarily consented to Deputy...
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