Washington v. State

• Decision Date: 30 June 1993
• Docket Number: No. CA,CA
• Citation: 42 Ark.App. 188,856 S.W.2d 631
• Parties: Kenyon Trammell WASHINGTON, Appellant, v. STATE of Arkansas, Appellee. CR 92-1054.
• Court: Arkansas Court of Appeals

Page 631

856 S.W.2d 631

42 Ark.App. 188

Kenyon Trammell WASHINGTON, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 92-1054.

Court of Appeals of Arkansas,

Division I.

June 30, 1993.

Jeff Rosenzweig, Little Rock, for appellant.

Clementine Infante, Asst. Atty. Gen., Little Rock, for appellee.

JENNINGS, Chief Judge.

Kenyon Washington entered a conditional plea of guilty to a charge of possession of a controlled substance (crack cocaine) with intent to deliver. He was sentenced by the court to ten years imprisonment. Under Rule 24.3(b) of the Arkansas Rules of Criminal Procedure, Washington now appeals from the trial court's denial of his motion to suppress evidence. We find no error and affirm.

On February 3, 1992, Kirk Lane, a detective with the Pulaski County Sheriff's Department, received information that there was narcotics activity at Poppy's Place, a snack bar and pool hall in Alexander. He had received similar reports before. At 9:30 p.m. Detective Lane arrived at Poppy's Place in plain clothes and in an unmarked car. He walked to a window of the business, while waiting for other officers to arrive. The front door was partially open.

Looking through the window, Lane could see an open area with pool tables and pinball machines. Beyond the open area he could see into another room in which three or four men appeared to be watching television. When other police cars arrived he saw the men go to the window and look out. Detective Lane testified that then "it appeared like they began to panic." Lane testified that Washington had what appeared to be a black film canister in his hand. Lane testified, "[Appellant] made several movements like he didn't know which way to go, turned around and placed the item into the floor ... like he was throwing them into the floor." He then saw another man, Joe Dickerson, come up to the appellant, take a matchbox out of his pocket, and hand it to the appellant. Appellant "did the same thing" with the matchbox.

At this point the officers entered the building as appellant, Joe Dickerson, and another man walked out. Detective Lane testified that one man was left sleeping in a chair.

Lane walked to the place where he had seen the appellant throw the containers down and found a hole in the floor. ¹ Lane shined his flashlight into the hole and could see the matchbox and film canister on the dirt floor of the crawl space beneath the building. He checked for a loose board in the floor and could find none. He then asked another officer to shine a flashlight into the hole and Detective Lane went outside the building.

At one corner of the building Lane saw a loose concrete block in the foundation. Lane removed the block and could see the light from above shining on the matchbox and film canister. He reached his arm through the open space in the foundation and retrieved the containers. He then opened them, both of which contained "white rock-like substances" which subsequently proved to be cocaine.

Detective Lane testified that when he saw the matchbox and film canister through the hole in the floor he had a strong suspicion as to what might be contained in them, due to previous narcotics experience. He testified:

I've been in the narcotics [division] for five years. And in the last two or three years since crack cocaine has really come strong in Pulaski County it became evident to me on people involved in dealing cocaine that these canisters are typical of what they [are] carrying them in. And due to the actions of the panic [sic] and the nervousness and the wanting to conceal these items and the fact of where they threw them and the fact they got rid of them. The fact that they're similar. I can show you a hundred cases that we've done in the last two or three years where these were the exact items that they concealed these items in. Or use to carry them around.

At the hearing on the motion to suppress, the State conceded that appellant had standing to contest the seizure.

As recently as 1991, the Supreme Court has reiterated the "cardinal principle" that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject to a few specifically established and well-delineated exceptions. California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). ² The observation of evidence in plain view, however, is not a search and therefore the resulting seizure is not the result of an unreasonable search. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); Johnson v. State, 291 Ark. 260, 724 S.W.2d 160 (1987), cert. denied, 484 U.S. 830, 108 S.Ct. 101, 98 L.Ed.2d 61 (1987); Kelley v. State, 261 Ark. 31, 545 S.W.2d 919 (1977). The basic test is whether the officer had a right to be in the position he was when the objects fell into his plain view. Johnson, supra; Kelley, supra.

Arkansas courts have treated "plain view" as an exception to the warrant requirement. See e.g., Johnson, supra. The United States Supreme Court has suggested that the doctrine of plain view may perhaps be better understood not as being an independent exception to the warrant clause. See Texas v. Brown, 460 U.S. 730 at 738-39, 103 S.Ct. 1535, 1541, 75 L.Ed.2d 502 (1983); see also Horton v. California, 496 U.S. 128 at 133-34, 110 S.Ct. 2301 at 2305-06 (1990). In Texas v. Brown, the Court said, in a plurality opinion:

The question whether property in plain view of the police may be seized therefore must turn on the legality of the intrusion that enables them to perceive and physically seize the property in question. The Coolidge plurality, while following this approach to "plain view," characterized it as an independent exception to the warrant requirement. At least from an analytical perspective, this description may be somewhat inaccurate. We recognized in Payton v. New York, 445 U.S. 573, 587, 63 L.Ed.2d 639, 100 S.Ct. 1371 [1380] (1980), the well-settled rule that "objects such as weapons or contraband found in a public place may be seized by the police without a warrant. The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." A different situation is presented, however, when the property in open view is " 'situated on private premises to which access is not otherwise available for the seizing officer.' " As these cases indicate, "plain view" provides grounds for seizure of an item when an officer's access to an object has some prior justification under the Fourth Amendment. "Plain view" is perhaps better understood, therefore, not as an independent "exception" to the Warrant Clause, but simply as an extension of whatever the prior justification for an officer's "access to an object" may be.

The principle is grounded on the recognition that when a police officer has observed an object in "plain view," the owner's remaining interests in the object are merely those of possession and ownership. Likewise, it reflects the fact that requiring police to obtain a warrant once they have obtained a first-hand perception of contraband, stolen property, or incriminating evidence generally would be a "needless inconvenience," that might involve danger to the police and public.... [O]ur decisions have come to reflect the rule that if, while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object, they may seize it immediately. This rule merely reflects an application of the Fourth Amendment's central requirement of reasonableness to the law governing seizures of property. [Citations omitted.]

Our courts have held that in order for the plain view doctrine to apply three criteria must be met: (1) the initial intrusion was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent. Johnson v. State, 291 Ark. 260, 724 S.W.2d 160 (1987); McQueen v. State, 283 Ark. 232, 675 S.W.2d 358 (1984); Freeman v. State, 37 Ark.App. 81, 824 S.W.2d 403 (1992); Munguia v. State, 22 Ark.App. 187, 737 S.W.2d 658 (1987). This formulation was clearly based on the United States Supreme Court's holding in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). See e.g. Johnson v. State, supra. The requirement of Coolidge that the discovery of the evidence be "inadvertent" was overruled by the Supreme Court in Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

Although appellant suggests that we might continue to require inadvertent discovery in plain view cases under the Arkansas Constitution, we need not decide that question here. As the court said in Johnson v. State:

The real concern expressed in Coolidge was with "a planned warrantless seizure." The inadvertence requirement has generally been interpreted to mean that "immediately prior to the discovery, the police lacked sufficient information to establish probable cause to obtain a warrant to search for the object." Inadvertence does not "encompass total surprise" or mean "unexpected." It is absurd to believe that the officers planned in advance to see Johnson walking on this property near the highway carrying an armful of marijuana, use that as a pretext to follow him onto the premises to make the arrest, and at that time seize the marijuana they expected to find there. The fact that the officers had an informant's tip that marijuana could be growing there does not make the sighting of the marijuana "advertent" in these circumstances. [Citations omitted.]

291 Ark. at 263, 724 S.W.2d at 162. We reach the same conclusion in the case at bar.

Appellant's argument focuses on two issues: (1) whether the intrusion of Detective Lane by reaching into the crawl space to seize the matchbox and film canister was constitutionally impermissible, and (2) whether the...