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2009-UP-086 - State v. Tran

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Appellant,

v.

That Tran, Respondent.


Appeal From York County
Larry R. Patterson, Circuit Court Judge


Unpublished Opinion No. 2009-UP-086
Submitted January 8, 2009 – Filed February 12, 2009   


REVERSED


Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor Kevin S. Brackett, of York, for Appellant. 

Christopher A. Wellborn, of Rock Hill, for Respondent.

PER CURIAM:  On September 12, 2006, a Clover police officer entered the Friendly Mart to investigate a report of illegal video poker machines at the establishment.  He noticed video screens in an open storage room simultaneously go dark as he entered the store.  After viewing the dark machines, he asked That Tran, the store owner, to turn them back on.  Tran complied without objection, and the machines displayed a video game known to the officer to be illegal.  The police department then seized all three video machines, and Tran was indicted for operating a gaming house and possession of gambling devices.  Tran made a pretrial motion to suppress evidence of the poker machines.  The circuit court granted Tran’s motion.  The State appealed. 

The State argues the circuit court erred in suppressing the video poker machines because their discovery falls within the plain view exception to the Fourth Amendment prohibition against warrantless searches.  We agree.

In criminal cases, the appellate court sits to review errors of law only.  State v. Butler, 353 S.C. 383, 388, 577 S.E.2d 498, 500 (Ct. App. 2003).  Our review in Fourth Amendment search and seizure cases is limited to determining whether any evidence supports the circuit court’s finding.  State v. Bowman, 366 S.C. 485, 501, 623 S.E.2d 378, 386 (2005).  The Fourth Amendment’s exclusionary rule prohibits unreasonable searches and seizures.  U.S. Const. amend. IV; see also S.C. Const. art. I, § 10.  Evidence seized in violation of the Fourth Amendment is inadmissible.  State v. Forrester, 343 S.C. 637, 643, 541 S.E.2d 837, 840 (2001).  “Generally, a warrantless search is per se unreasonable and thus violative of the Fourth Amendment’s prohibition against unreasonable searches and seizures.”  State v. Bultron, 318 S.C. 323, 331, 457 S.E.2d 616, 621 (Ct. App. 1995).  However, a warrantless search may be constitutional if it falls within a recognized exception.  Id. at 331-32, 457 S.E.2d at 621.  Under the plain view exception, “a law enforcement officer who is lawfully in a position to view [an] object” may seize it.  State v. Abdullah, 357 S.C. 344, 352, 592 S.E.2d 344, 349 (Ct. App. 2004).  The plain view doctrine applies when “‘(1) the initial intrusion which afforded the authorities the plain view was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating [nature of the] evidence was immediately apparent to the seizing authorities.’”  Id. at 352-53, 592 S.E.2d at 349 (quoting State v. Culbreath, 300 S.C. 232, 237, 387 S.E.2d 255, 257 (1990)).  The United States Supreme Court has eliminated the requirement that the discovery be inadvertent, as long as the seizure meets the other two requirements.  Horton v. California, 496 U.S. 128, 130 (1990).

The seizure in this case clearly fell within the plain view exception.  The officer’s entry into the Friendly Mart, a place of business, and into the open storage room was lawful.  The officer encountered no signage or barrier indicating the storage room was off-limits to customers, and store personnel did not attempt to stop him entering the room.  The circuit court erred in finding the seizure failed the remaining prong of the plain view test, that the incriminating nature of the machines be immediately apparent.  The evidence did not indicate the police conducted an additional search of the video poker machines or otherwise forced them to reveal their programming.  Rather, Tran maintained full control of them until their seizure.  At the request of a man who had not identified himself as a police officer, Tran consensually turned on the machines and displayed their incriminating nature. 

Because the officer observed the machines while lawfully present in the Friendly Mart and seized them only after the store’s owner willingly displayed their programming contents, their seizure falls into the plain view exception to the exclusionary rule.  Consequently, the circuit court erred in suppressing the seized machines. 

REVERSED.

HEARN, C.J., SHORT and KONDUROS, JJ., concur.