State Of Washington v. Lee Earl Bunn ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
December 6, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48813-2-II
Respondent,
v.
LEE EARL BUNN, UNPUBLISHED OPINION
Appellant.
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
No. 48813-2-II
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 at
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No. 48813-2-II
77. 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 Wash. 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 Wash. 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 Wash. App. 913, 922, 344 P.3d 695, review denied, 183 Wash. 2d 1010 (2015). And
whether an exception to the warrant requirement applies is a question of law that we also review
de novo. Id.
1
Bunn does not challenge the trial court’s findings. Therefore, the trial court’s findings of fact
are verities on appeal. State v. Lohr, 164 Wash. App. 414, 418, 263 P.3d 1287 (2011).
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No. 48813-2-II
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 Wash. 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 Wash. 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 view
2
Bunn argues that a constitutional analysis is required under State v. Gunwall, 106 Wash. 2d 54, 720
P.2d 808 (1986), to determine whether article I, section 7 of the Washington Constitution requires
plain view seizures to be inadvertent. It is well settled that article I, section 7 provides greater
protection of an individual’s right to privacy than the Fourth Amendment. State v. Ferrier, 136
Wash. 2d 103, 111, 960 P.2d 927 (1998). Furthermore, when “prior cases direct the analysis to be
employed in resolving the legal issue, a Gunwall analysis is no longer helpful or necessary.” State
v. White, 135 Wash. 2d 761, 769, 958 P.2d 982 (1998). Because the development of case law by the
U.S. Supreme Court and the Washington Supreme Court on the plain view exception guide our
analysis here, a Gunwall analysis is not required.
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No. 48813-2-II
exception 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, 460
3
The emergence of an inadvertent discovery requirement under the plain view exception to the
warrant requirement in this state has mirrored that of the federal courts. The requirement cannot
be found in Washington case law prior to Coolidge. See State v. Miller, 121 Wash. 153, 209 P. 9
(1922); see also State v. LaPierre, 71 Wash. 2d 385, 428 P.2d 579 (1967). After Coolidge,
Washington courts began to require inadvertent discovery under the plain view exception to the
warrant requirement. See State v. Murray, 84 Wash. 2d 527, 527 P.2d 1303 (1974); see also State v.
Lair, 95 Wash. 2d 706, 630 P.2d 427 (1981).
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No. 48813-2-II
U.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.
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No. 48813-2-II
Id. at 133-35, 136-37 (footnotes and citations omitted). The Court directly addressed the
inadvertent discovery element along with the concerns about general warrants and non-inadvertent
discovery raised in Coolidge:
First, evenhanded law enforcement is best achieved by the application of objective
standards of conduct, rather than standards that depend upon the subjective state of
mind of the officer. The fact that an officer is interested in an item of evidence and
fully expects to find it in the course of a search should not invalidate its seizure if
the search is confined in area and duration by the terms of a warrant or a valid
exception to the warrant requirement. If the officer has knowledge approaching
certainty that the item will be found, we see no reason why he or she would
deliberately omit a particular description of the item to be seized from the
application for a search warrant. Specification of the additional item could only
permit the officer to expand the scope of the search. On the other hand, if he or she
has a valid warrant to search for one item and merely a suspicion concerning the
second, whether or not it amounts to probable cause, we fail to see why that
suspicion should immunize the second item from seizure if it is found during a
lawful search for the first.
....
Second, the suggestion that the inadvertence requirement is necessary to
prevent the police from conducting general searches, or from converting specific
warrants into general warrants, is not persuasive because that interest is already
served by the requirements that no warrant issue unless it “particularly describ[es]
the place to be searched and the persons or things to be seized,” and that a
warrantless search be circumscribed by the exigencies which justify its initiation.
Scrupulous adherence to these requirements serves the interests in limiting the area
and duration of the search that the inadvertence requirement inadequately protects.
Once those commands have been satisfied and the officer has a lawful right of
access, however, no additional Fourth Amendment interest is furthered by requiring
that the discovery of evidence be inadvertent. If the scope of the search exceeds
that permitted by the terms of a validly issued warrant or the character of the
relevant exception from the warrant requirement, the subsequent seizure is
unconstitutional without more.
Id. at 138-40 (alteration in original) (footnotes and citations omitted). Thus, the Court found
Justice White’s dissent in Coolidge instructive and held that the inadvertent discovery element
added no additional protections. Id. at 140. As a result, the Court definitively concluded that
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No. 48813-2-II
“even though inadvertence is a characteristic of most legitimate ‘plain-view’ seizures, it is not a
necessary condition.” Id. at 130.
After Horton, our courts applied the inadvertent discovery requirement inconsistently. See,
e.g., State v. Myers, 117 Wash. 2d 332, 346-47, 815 P.2d 761 (1991) (including the inadvertent
discovery element under the plain view exception to the warrant requirement); State v. Goodin, 67
Wash. App. 623, 627-28, 838 P.2d 135 (1992), review denied, 121 Wash. 2d 1019 (1993)
(acknowledging the elimination of the inadvertent discovery element when applied to the Fourth
Amendment and noting that the element had never been explicitly required under article I, section
7); State v. Hudson, 124 Wash. 2d 107, 114, 874 P.2d 160 (1994) (noting the holding in Horton while
also stating that if in the course of a search with a valid warrant, officers “happen across some item
for which they had not been searching and the incriminating character of the item is immediately
recognizable, that item may be seized.”).
However, in 2003, the Washington Supreme Court followed the direction of Horton and
applied its holding for purposes of article I, section 7 in O’Neill, 148 Wash. 2d at 582-83. The O’Neill
court expressly acknowledged that the inadvertent discovery requirement had been eliminated by
Horton, and omitted the inadvertent discovery requirement from its analysis when it applied the
plain view exception to the warrant requirement under article I, section 7. O’Neill, 148 Wash. 2d at
583 n.6, 582-83. Since O’Neill, our Washington Supreme Court seems to have omitted the
inadvertent discovery requirement from its analysis of the plain view exception to the warrant
requirement under article I, section 7.4
4
See, e.g., State v. Khounvichai, 149 Wash. 2d 557, 565-66, 69 P.3d 862 (2003) (discussing the plain
view exception to the warrant requirement when applied to article I, section 7, without referencing
inadvertent discovery); State v. Hatchie, 161 Wash. 2d 390, 395, 166 P.3d 698 (2007) (setting forth
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No. 48813-2-II
Bunn cites State v. Murray, 8 Wash. App. 944, 509 P.2d 1003 (1973) and State v. Dimmer,
7 Wash. App. 31, 497 P.2d 613 (1972), and argues that the inadvertent discovery requirement
remains under the plain view exception to the warrant requirement. However, as analyzed above,
the development of case law regarding the application of the plain view exception to the warrant
requirement under article I, section 7, eliminates this murky inquiry into inadvertence. In fact,
Bunn only cites to the early cases that included inadvertence as a requirement5 and does not cite
to any recent case law on the issue. Given the progression of the case law in this state after the
elimination of the inadvertent discovery requirement under the Fourth Amendment of the U.S.
Constitution, we hold that inadvertent discovery is not required for the plain view exception to the
warrant requirement under article I, section 7 of the Washington Constitution.
C. IMMEDIATE RECOGNITION AS CONTRABAND
Bunn argues that the trial court erred when it found that the file name seen by Deputy
Dobbins was immediately recognizable as contraband. We disagree.
Under the plain view exception to the warrant requirement, the test for determining when
an item is immediately recognized as contraband is whether, considering the circumstances, the
officer can reasonably conclude the item is incriminating evidence. Weller, 185 Wash. App. at 926.
Officers do not need to be certain the item is evidence of a crime—“probable cause is sufficient.”
the requirements for a plain view search without mentioning inadvertent discovery); State v. Ruem,
179 Wash. 2d 195, 200, 313 P.3d 1156 (2013) (defining the plain view exception to the warrant
requirement under article I, section 7 and omitting inadvertent discovery); but see State v. Kull,
155 Wash. 2d 80, 85, 118 P.3d 307 (2005) (including the inadvertent discovery requirement, without
analysis, based on State v. Chrisman, 94 Wash. 2d 711, 715, 619 P.2d 971 (1980), rev’d and
remanded on other grounds, 455 U.S. 1 (1982), but acknowledging that the inadvertent discovery
requirement was eliminated under the Fourth Amendment).
5
Murray, 8 Wash. App. at 948-49; Dimmer, 7 Wash. App. at 33.
9
No. 48813-2-II
Id. Probable cause exists when the facts available to the officer would warrant a reasonable person
to believe that certain items may be evidence of a crime. State v. Dorsey, 40 Wash. App. 459, 468-
69, 698 P.2d 1109 (1985); Brown, 460 U.S. at 742. Only a nontechnical probability that
incriminating evidence is present is required. Dorsey, 40 Wash. App. at 468-69; Brown, 460 U.S. at
742.
Here, the trial court properly found that the plain view exception to the warrant requirement
authorized the warrantless seizure of Bunn’s computer because Deputy Dobbins had probable
cause to reasonably conclude that the computer contained evidence of a crime. At the electronics
store, employees showed Deputy Dobbins the error message and file name that appeared on Bunn’s
computer. Based on the file name, Deputy Dobbins immediately suspected that the computer may
contain child pornography because the file name contained references to sexual acts, “13-year-
old,” “preteen,” and “Kiddie incest.” VRP at 16. While Bunn argues that Deputy Dobbins could
not conclude that the suggestive file name was in fact contraband and that Deputy Dobbins did not
actually see any child pornography, certainty is not required. Weller, 185 Wash. App. at 926; Brown,
460 U.S. at 742. Probable cause is sufficient, and, after Deputy Dobbins observed the suggestive
file name, probable cause arose because the words in the file name could lead a reasonable person
to believe that the computer contained evidence of a crime, child pornography. Therefore, we hold
that the trial court properly found that the plain view exception to the warrant requirement
authorized warrantless seizure of Bunn’s computer because Deputy Dobbins immediately
recognized the suggestive file name as evidence of a crime. As a result, Deputy Dobbins had
probable cause to reasonably conclude that the computer may contain evidence of the crime of
child pornography. Bunn’s challenge fails.
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No. 48813-2-II
CONCLUSION
We hold that the plain view exception to the warrant requirement authorized seizure of
Bunn’s computer because (1) inadvertent discovery is not required for the plain view exception to
the warrant requirement under article I, section 7 of the Washington Constitution; and (2) Deputy
Dobbins had probable cause to seize Bunn’s computer when he immediately recognized the
suggestive file name as evidence of a crime. Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, J.
We concur:
Worswick, P.J.
Sutton, J.
11