State v. Bunn

STATE OF WASHINGTON, Respondent, v. LEE EARL BUNN, Appellant.

No. 48813-2-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

December 6, 2016

UNPUBLISHED OPINION

LEE, J. — Lee Earl Bunn appeals his conviction for second degree possession of depictions of a minor engaged in sexually explicit conduct. We hold that the plain view exception to the warrant requirement authorized seizure of Bunn's computer because (1) article I, section 7 does not require inadvertent discovery of evidence under the plain view exception to the warrant requirement; and (2) the deputy had probable cause to seize Bunn's computer when he immediately recognized the suggestive file name as evidence of a crime. Accordingly, we affirm.

FACTS

Bunn bought a new computer and contracted with an electronics store to transfer his files from his old computer to his new computer. Bunn signed an agreement with the electronics store that stated he was on notice "that any product containing child pornography [would] be turned over to the authorities." Clerk's Papers (CP) at 24.

When the store employees attempted to execute the file transfer from Bunn's old computer to his new computer, an error message appeared on Bunn's computer screen listing the file name that caused the error. The file name in the error message read, "Homeclips- Spycam-13 Year Old Sister Masturbation & Orgasm With Panties On. Lesbian dildo vagina sex porn Pamela paris ron Jeremy hentai anime kiddie incest preteen fuck Item type Movie Clip." CP at 4. Based on the file name in the error message, the store employees called law enforcement and reported the potential discovery of child pornography.

Deputy Duane Dobbins responded to the call from the store employees reporting the potential discovery of child pornography. Upon arrival, the store employees showed Deputy Dobbins the error message on Bunn's computer.

Deputy Dobbins suspected the presence of child pornography based on words in the file name, including "13-year-old-sister masturbation and orgasm panties on," "Kiddie incest," and "preteen fuck." Verbatim Report of Proceedings (VRP) at 16. Deputy Dobbins did not search Bunn's computer, but he did seize the computer and secure it into evidence for analysis. Deputy Dobbins did not obtain a warrant before seizing the computer.

Detective Gerald Swayze later obtained a search warrant for Bunn's computer. The Washington State Patrol high tech crimes unit then analyzed the computer and found suspected child pornography.

On April 9, 2015, the State charged Bunn with second degree possession of depictions of a minor engaged in sexually explicit conduct. Bunn moved to suppress the evidence seized from his computer. The trial court denied the motion, finding that Deputy Dobbins's seizure of Bunn's computer was permitted under the plain view exception to the warrant requirement because he had probable cause based on his "prior justification for being where he was when he observed the evidence, [and] he discovered it and he immediately recognized it as evidence of a crime." CP at77. After a bench trial on stipulated facts, the trial court found Bunn guilty of the charged offense. Bunn appeals.

ANALYSIS

A. LEGAL PRINCIPLES

Both the Fourth Amendment of the U.S. Constitution and article I, section 7 of our state constitution prohibit warrantless searches and seizures unless an exception to the warrant requirement applies. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). The State must demonstrate that a warrantless search or seizure falls within an exception to the warrant requirement. Id. at 250. Under the plain view exception, an officer can seize items in plain view without a warrant if (1) there is a valid justification for the intrusion into a constitutionally protected area, and (2) the item seen is immediately recognized as incriminating evidence associated with criminal activity. State v. O'Neill, 148 Wn.2d 564, 582-83, 62 P.3d 489 (2003).

We review a trial court's conclusions of law on the suppression of evidence de novo.¹ State v. Weller, 185 Wn. App. 913, 922, 344 P.3d 695, review denied, 183 Wn.2d 1010 (2015). And whether an exception to the warrant requirement applies is a question of law that we also review de novo. Id.

B. PLAIN VIEW EXCEPTION

Bunn argues that the trial court's conclusion that the plain view exception to the warrant requirement justified the warrantless seizure of his computer, without considering inadvertent discovery of the contraband, violated article I, section 7 of our state constitution.² We disagree.

The parties do not dispute that inadvertent discovery of the contraband in question is no longer required under the Fourth Amendment of the U.S. Constitution. Horton v. California, 496 U.S. 128, 139-42, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). But article I, section 7 of the Washington Constitution provides broader privacy protections than the Fourth Amendment. State v. Ladson, 138 Wn.2d 343, 348, 979 P.2d 833 (1999). Thus, the parties dispute whether inadvertent discovery is a required element under the plain view exception to the warrant requirement under article I, section 7 of the Washington Constitution.

Based on our Washington Supreme Court's decisions since 2003 addressing the plain view exception to the warrant requirement, it appears the inadvertent discovery element is no longer required. See O'Neill, 148 Wn.2d at 582-83 (applying the federal plain view doctrine analysis and stating that "[t]he doctrine requires that the officer had a prior justification for the intrusion and immediately recognized what is found as incriminating evidence" without any mention of the inadvertent discovery element). The development of case law that has applied the plain viewexception to the Fourth Amendment of the U.S. Constitution and to article I, section 7 of our state constitution supports the conclusion that the plain view exception to the warrant requirement under article I, section 7 of our state constitution does not include an inadvertent discovery element.

The inadvertent discovery requirement under the plain view exception to the warrant requirement first appeared in Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).³ In Coolidge, the U.S. Supreme Court, in a plurality opinion, considered the application of the plain view exception to the warrant requirement in depth and referenced the inadvertent discovery of evidence:

What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification—whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused—and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the "plan view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.

403 U.S. at 466. The Court stated that the plain view exception to the warrant requirement, when applied to the Fourth Amendment, required prior justification for intrusion and inadvertent discovery of incriminating evidence in plain view. Id. at 466-69; see e.g. Texas v. Brown, 460U.S. 730, 737, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983) (reviewing the plain view doctrine and noting that "the officer must discover incriminating evidence 'inadvertently.'"). In doing so, the Court was mindful of concerns regarding general warrants and noted the importance of inadvertent discovery when applying the plain view exception to the warrant requirement. Coolidge, 403 U.S. at 467-71. Justice White dissented in Coolidge and strongly disagreed with imposing an inadvertent discovery requirement under the plain view exception to the warrant requirement. Id. at 516-17.

The Court, in Horton v. California, later revisited the requirements of the plain view exception, and conclusively resolved the issue of "[w]hether the warrantless seizure of evidence of crime in plain view is prohibited by the Fourth Amendment if the discovery of the evidence was not inadvertent." 496 U.S. 128, 130, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).

The "plain-view" doctrine is often considered an exception to the general rule that warrantless searches are presumptively unreasonable, but this characterization overlooks the important difference between searches and seizures. If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy.

. . . .

It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plain view; its incriminating character must also be "immediately apparent.". . . Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself. As the United States has suggested, Justice Harlan's vote in Coolidge may have rested on the fact that the seizure of the cars was accomplished by means of a warrantless trespass on the defendant's property. In all events, we are satisfied that the absence of inadvertence was not essential to the Court's rejection of the State's "plain-view" argument in Coolidge.

Id. at 133-35, 136-37 (footnotes and citations omitted). The Court directly addressed the inadvertent discovery element along with the concerns about...