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Evidence was admissible under plain view doctrine

Where the police had a valid warrant to search appellant’s electronic devices for evidence of drug crimes, the trial court incorrectly suppressed evidence of unrelated crimes discovered during the search.

The unrelated evidence was admissible under the plain view doctrine.

Further, appellant was not materially prejudiced by the commonwealth’s failure to provide notice of filing transcripts for its appeal of the circuit court’s suppression order.

Appellant had copies of the transcripts on which the commonwealth would rely, and counsel was aware of the commonwealth’s intent to use them in the appeal.

Overview

Police served a warrant and protective order on appellant Stanley, who was staying in a hotel room. When Stanley opened the door, Smith, one of the officers, smelled marijuana and saw a large amount of it on the bed. Stanley was detained, handcuffed and advised of his Miranda rights. He consented to a search of the room.

The search revealed smoking devices, methamphetamine in a backpack, electronic devices, including cell phones, laptops and thumb drives. Smith also saw “dolls and little girls’ stuff everywhere in the room.”

Jones, another officer, arrived to process the scene. Smith said that as Stanley was being transported, he remarked that if Jones “gets a hold of those devices, I’m done, so if I get bond, I’m running.”

On May 10, 2018, Jones obtained 18 warrants, one for each electronic device seized. His averments for the warrants stated that persons who traffic in illegal drugs keep records on their electronic devices and frequently photograph the transactions.

He also referenced Stanley’s statements that “the dolls dressed as little girls and bottles and pacifiers were used for sexual gratification involving a sexual [fantasy involving] small children. He stated that he and his friends would get high at ‘rave parties’ and just stare at the dolls dressed in little girl panties for sexual reasons. He stated if he was given a bond he would disappear because of what we would find on the cell phones, thumb drives, and computers.”

Jones reviewed one of the thumb drives seized under a warrant and noted “that the suspect is wearing female undergarments and his penis covered in a child[’]s sock.” This led to the issuance of another warrant to search Stanley’s hotel room for devices containing child pornography.

Stanley moved to suppress all evidence seized under the warrants. He “argued that nothing in Jones’ affidavits supporting the May 10 and 11 warrants provided a basis for concluding that there was probable cause to search either the electronic devices or the room for child pornography; however, he appeared to concede that there was probable cause to allow the officers to search the room and electronic devices for evidence related to drug crimes.”

Ultimately, the trial court ruled that the warrants were sufficient to allow the police to search for drug evidence but there was no probable cause to search for child pornography.

The commonwealth appealed.

Procedural challenge

Initially, Stanley “asserts that we were required to dismiss the Commonwealth’s petition for appeal because the Commonwealth never filed a notice of filing transcripts in the circuit court. …

“The requirement that an appellant file a notice of filing transcripts with the clerk of the circuit court is found in Rule 5A:8(b)(1). … [I]n an ordinary appeal, ‘striking the subject transcripts from the record on appeal is the appropriate sanction for failing to file a notice of filing transcript(s); however, such sanction is imposed only if the appellee suffers material prejudice as a result of the failure to file the notice.’ …

“A review of the record reveals that Stanley has not suffered such material prejudice because there is no question that he both had a copy of the relevant transcripts and was aware that the Commonwealth intended to use them. …

“[W]e note that, despite seeking dismissal for the violation of the Rules, Stanley has not suggested how he has been ‘materially prejudiced’ as that phrase is defined in Rule 5A:8(b)(4).”

On the merits

“The ultimate issue here can be resolved completely by the circuit court’s conclusion that Jones’ affidavits provided sufficient probable cause for the May 10 search warrants to authorize searching the electronic devices for photographs and other evidence of criminal activity related to drugs.

“As a result, the officers, consistent with the Fourth Amendment, were permitted to search the files, including any photographic files, found on the electronic devices. Thus, the question becomes what the officers were required to do when they encountered clear evidence of crimes that were not drug-related during the authorized search.

“Contrary to Stanley’s argument, the officers were not required to cease their search of the electronic devices when they discovered clear evidence of criminal activity that was non-drug-related. Rather, they were able to continue the search and seize any such evidence of unrelated crimes under the plain view doctrine.

“The plain view doctrine exempts from the warrant requirement evidence of criminality that police see in plain view from a vantage point where they are lawfully authorized to be. ‘The theory of the plain view doctrine is that an individual has no reasonable expectation of privacy in items that are in plain view.’ …

“[O]fficers were authorized by the May 10 warrants to search all of the photographic files on the electronic devices wholly independent of a search for child pornography. Thus, they did not violate the Fourth Amendment by accessing the photographic files on the electronic devices.

“The ‘incriminating character’ of the images depicting child pornography was readily apparent; after all, the pornographic images were not simply evidence of a crime, in a very real sense, their mere existence on Stanley’s electronic devices was the crime.”

Reversed and remanded.

Commonwealth v. Stanley, Record No. 0962-19-3, Nov. 12, 2019. CAV (Russell) from Wise Cir. Ct. (Dotson). Victoria Johnson for appellant, C. Adam Kinser for appellee. VLW 019-7-201, 9 pp. Unpublished.

VLW 019-7-201

Virginia Lawyers Weekly