In Re Interest of Thomas B.D. ( 1997 )

GOOLSBY, Judge

(concurring):

This is an appeal from an adjudicatory proceeding concerning a charge of simple possession of marijuana. The family court found Thomas D., the juvenile defendant, to be delinquent and sentenced him to probation with special conditions. Thomas D. appeals. I agree the judgment should be affirmed, but for different reasons.

As I read the record, Lieutenant Nelson Brown of the Georgetown police department received a telephone call from Thomas’s mother. She stated Thomas had spent the night at an older female’s house. She asked Lieutenant Brown to pick Thomas up and to take him to school. After waiting a short while, Lieutenant Brown found Thomas and placed him in the police car.

Lieutenant Brown and two other officers transported Thomas to Georgetown High School in a police car. While en route, Thomas told the officers he wanted to smoke.¹ After they arrived at the school and while they were “[pjarked directly in front of the Georgetown High School and getting ready to go in the door ...,” Lieutenant Brown noticed Thomas had a pack of cigarettes in the pocket of his tee-shirt. Lieutenant Brown, who knew of the school policy that proscribed the possession of cigarettes on school property, took the cigarettes from Thomas. In so doing, Lieutenant Brown inadvertently found marijuana. He then placed Thomas under arrest for simple possession of marijuana and transported him to the police station. There, officers found more marijuana in Thomas’s wallet when they searched him.

The seizure by the arresting officer of the pack of cigarettes, which was in plain view, was a reasonable confiscation of property that was illegal for Thomas to possess at that time and place. See Washington v. Chrisman, 455 U.S. 1, 5-6, 102 S.Ct. 812, 815-16, 70 L.Ed.2d 778 (1982) (the “plain view” doctrine “permits a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be”); State v. Culbreath, 300 S.C. 232, 237, 387 S.E.2d 255, 257 (1990) (“The ‘plain view’ doctrine is applicable where a police officer is not searching for evidence against the accused but inadvertently comes across an incriminating object.”); cf. Johnson v. Multiple Misc. Items 1-424, 523 N.W.2d 238 (Minn.Ct.App.1994) (defining contraband as property that is illegal for a particular offender to possess, even if possession of such property by another would not be illegal). Thus, the subsequent discovery and seizure of the marijuana was lawful as well.

1 . Thomas testified he never asked the officers for a cigarette and the officers knew he smoked only ‘‘[b]ecause he [sic] saw me smoking when he [sic] pulled up.”