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Unpublished Opinion No. 2009-UP-086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.