Moving an item to see if it is stolen is not a plain view seizure


In 1996, Robert Thaddison spoke with Officer Frank Leggett concerning an alleged kidnaping and aggravated assault which was allegedly perpetrated upon him by Cornelius Godbold. Mr. Thaddison signed an affidavit concerning these matters and an arrest warrant was issued for the arrest of Godbold.

A few days later, Godbold called the Sheriff’s Office to inquire about any charges pending against him concerning this matter. Leggett advised Godbold that he needed to speak with Godbold in person. Godbold came to the Sheriff’s Office and spoke with Leggett concerning this incident involving Mr. Thaddison.

Leggett did not advise Godbold of the arrest warrant which had already been issued for his arrest. Instead, Leggett informed Godbold of the charges alleged against him by Mr. Thaddison and then read Godbold his Miranda rights and obtained a signed waiver of those rights before beginning discussions with Godbold.

Godbold admitted owning a .45 caliber pistol. Based on the information received during this conversation with Godbold and the interview with Mr. Thaddison, Leggett made out an affidavit in pursuit of a search warrant for Godbold’s mobile home.

During the execution of this search warrant, Godbold ran to the bathroom of his mobile home and attempted to flush crack cocaine down the commode. Leggett and various other officers who were there stopped Godbold from flushing the cocaine and seized it.

In addition to the seized cocaine, the policemen seized various other items from Godbold’s residence – none of which were listed on the search warrant. Among these other items that were seized, three items were found to be stolen: a Coleman generator, a Sunbeam grill, and a Murray lawn mower.

Godbold was convicted of possession of cocaine and possession of stolen property and sentenced to eight years. On appeal, he argued the search warrant was invalid and all items should have been suppressed. MSC found the warrant valid but noted some of the items collected did not fall within the search warrant or any fourth amendment exceptions. Thus, MSC affirmed in part and reversed in part.


A. Miranda

Leggett testified that before he began discussions with Godbold at this meeting he read Godbold his Miranda rights and obtained a signed waiver from Godbold. At no time during this discussion between Godbold and Leggett did Godbold ever invoke his right to remain silent or his right to the presence of his attorney.

In Hunt, we said that the test for whether a person is ‘in custody’ is whether a reasonable person would feel that he was in custody. That is whether a reasonable person would feel that she was going to jail – and not just being temporarily detained. The officer’s subjective intent is irrelevant.

Hunt lists the factors courts use to determine whether custodial interrogation occurred: (a) the place of interrogation; (b) the time of interrogation; (c) the people present; (d) the amount of force or physical restraint used by the officers; (e) the length and form of the questions; (f) whether the defendant comes to the authorities voluntarily; and (g) what the defendant is told about the situation.

It becomes apparent that Godbold was not undergoing custodial interrogation. The first contact between the parties was made by Godbold, not Leggett. Leggett advised Godbold that he needed to talk with Godbold in person. Godbold was questioned by Leggett during regular office hours in Leggett’s office, not in an interrogation room. No force or physical restraint was used to get Godbold to the meeting; he came voluntarily.

Leggett did not tell Godbold that there was an arrest warrant that had been already issued for Godbold’s arrest at the time of this meeting. However, there are no statutes or court rules which say you must execute an arrest warrant at the very first opportunity you have. In fact, Miss. Code Ann. § 99-3-3 states: Arrests for criminal offenses may be made at any time or place.

Even if there had been custodial interrogation here, there still was no Fifth Amendment right to counsel violation because Godbold, during this entire discussion, never requested the presence of an attorney. Godbold had been orally advised of his rights and had signed a waiver of those rights.

B. Warrant

The affidavit detailed an interview with Robert Thaddison who had come to the Sheriff’s Department and reported that Godbold had ran him off of the road with his car and then shoved a pistol into Mr. Thaddison’s mouth while threatening him. It also detailed the discussion Godbold had with Officer Leggett where Godbold admitted to owning a .45 caliber Ruger semi-automatic pistol which he kept at his mobile home.

Given the totality of the circumstances of this case, there was enough information from which the issuing magistrate could make a practical, common-sense decision that evidence would be found at Godbold’s mobile home.

C. Plain View

The scope of the search warrant, however, was very limited. It listed only two items to be searched for: “a .45 caliber semi-automatic pistol, and a 9mm semi-automatic pistol.” Neither was found in the search.

The issue then becomes, does the plain view doctrine encompass all of the other evidence of crimes seized during the search of Godbold’s premises?

Items seized in the search and introduced as evidence against Godbold at his trial included: multiple rocks of crack cocaine and the container which had contained the cocaine, also items alleged to have been stolen which included a Murray riding lawn mower, a Coleman electric generator, and a Sunbeam gas grill.

The U.S. Supreme Court in Harris v. U.S., 390 U.S. 234 (1968), said that it has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence. However, it must be immediately apparent (probable cause) that the object is subject to seizure.

If you have to move the object to gather probable cause, you can not utilize plain view. See U.S. Supreme Court case Arizona v. Hicks, 480 U.S. 321 (1987).

The cocaine which was dumped into the commode by Godbold in the presence of  Leggett was in the plain view of Leggett. Also, the Sunbeam gas grill was in the plain view due to distinctive white paint specks all over the grill (which resulted from the owner having left the grill in the garage while he was painting the garage ceiling) was readily identifiable by merely looking at it. This amounted to probable cause that this grill was stolen.

However, the Murray riding lawn mower and the Coleman generator did not fall under the plain view doctrine. The police at best only had a reasonable suspicion that these items were stolen. The police seized and moved those items to the Sheriff’s Office for the purpose of determining whether they were stolen.

This action clearly violates the scope of the plain view doctrine. Accordingly, the trial court’s decision as to possession of stolen property, is reversed and remanded for a new trial on that charge. Only the Sunbeam gas grill may be admitted into evidence on that count as the Coleman generator and Murray riding lawn mower evidence was illegally obtained and, therefore, will be excluded.