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Supreme Court Seal
South Carolina
Judicial Department
2009-UP-086 - State v. Tran


In The Court of Appeals

The State, Appellant,


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Unpublished Opinion No. 2009-UP-086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���


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.�


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