           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. PD-0873-09



                               THE STATE OF TEXAS

                                            v.

                        MATTHEW RYAN DOBBS, Appellee

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE FIFTH COURT OF APPEALS
                            COLLIN COUNTY

      P RICE, J., delivered the opinion of the Court in which K ELLER, P.J., and
M EYERS, J OHNSON, K EASLER, H OLCOMB, and C OCHRAN, JJ., joined. W OMACK and
H ERVEY, JJ., concurred in the result.

                                      OPINION

       While executing a lawful search of the appellee’s residence pursuant to a warrant,

police officers in this cause came upon items in plain view that they lacked probable cause

to believe were connected to any crime. While still lawfully on the premises, however, they

conducted further investigation and determined that the items were stolen property, seizing

them accordingly. The Fifth Court of Appeals held, on the strength of this Court’s opinion
                                                                                      Dobbs — 2


in White v. State,1 that the seizure violated the Fourth Amendment to the United States

Constitution because it had not been “immediately apparent” to the officers that the items

were stolen.2 We granted the State’s petition for discretionary review to re-examine our

holding in White. We now hold that, so long as probable cause to believe that items found

in plain view constitute contraband arises while police are still lawfully on the premises, and

any further investigation into the nature of those items does not entail an additional and

unjustified search of, or unduly prolonged police presence on, the premises, the seizure of

those items is permissible under the Fourth Amendment. We disavow White to the extent

that it is inconsistent with our present holding.

                        FACTS AND PROCEDURAL POSTURE

       In the course of executing a search warrant for narcotics at 1608 Sherrye Lane in

Plano, police officers came upon two sets of golf clubs out in the middle of the floor of one

of the bedrooms. The clubs looked brand new. In a closet of the same room, the officers

discovered brand new golf shirts with a Los Rios Country Club logo embroidered on them.

It is uncontested that at this time the officers lacked probable cause to believe that these items

were connected to any crime, but they were suspicious. The officers contacted dispatch to



       1

        729 S.W.2d 737 (Tex. Crim. App. 1987).
       2

       State v. Dobbs, No. 05-08-00840-CR, 2009 WL 692681 (Tex. App.—Dallas, delivered March
18, 2009).
                                                                                   Dobbs — 3


inquire whether there had been any reports of recent burglaries, especially of a country club.

They were informed by a burglary detective that the Los Rios Country Club had indeed

reported the theft of golf merchandise. The officers then made contact with the country club

to confirm the report and obtain a description of the stolen property. This description gave

the officers probable cause to believe that the items they had come across in plain view in the

bedroom were those that had been stolen from the country club. The officers then seized the

golf clubs and the golf shirts. The appellee was later charged with theft.

       The appellee filed a pre-trial motion to suppress these items as the product of an

unlawful search and seizure. He argued that, because the police officers did not have

probable cause to seize the items at the moment they discovered them in plain view in the

bedroom, it had not been “immediately apparent” to them that the items constituted stolen

goods. Relying on this Court’s opinion in White, the appellee maintained that police may not

lawfully seize items in plain view if they must conduct some “further investigation” to

develop probable cause to believe the items constitute contraband.3 The trial court agreed

with the appellee that White was controlling, and reluctantly granted the appellee’s motion

to suppress. The State appealed, but the court of appeals also held that White controlled, and

affirmed the trial court’s ruling.

       In White, following an altercation between two tenants, the apartment manager invited


       3

        White v. State, supra, at 741.
                                                                                       Dobbs — 4


police officers into White’s apartment to inspect purported damage to the premises. While

in the apartment, the officers observed, inter alia, a backpack. Without disturbing it, the

officers were able to record a name and address from the backpack. They left the apartment

and, from the manager’s apartment, telephoned the records and identification section of the

police department and were informed that the person named on the backpack had filed a

burglary complaint. A phone call to the complainant confirmed that several items the

officers had observed in White’s apartment had been taken in the burglary, and they returned

to White’s apartment and seized them.

       The court of appeals in this case expressly relied upon the following excerpt from our

opinion in White in holding that the seizure of the golf merchandise in this case was not

authorized under the plain view doctrine:

               It is well settled in this State that items in “plain view” may not be
       seized if the officer does not have reason to believe that they are evidence, or
       fruits of, or instrumentalities of a crime. [Citations omitted] That standard is
       today expressly extended to searches conducted pursuant to the plain view
       doctrine. In the case at bar, the record is devoid of any evidence that it was
       “immediately apparent” to the inspecting officers that the property discovered
       was evidence of a crime. Thus, the officers lacked probable cause for further
       investigation. Arizona v. Hicks, [480 U.S. 321 (1987)].4

In effect, we held in White, on authority of Arizona v. Hicks, that when police officers lack

probable cause to believe items in plain view are contraband at the very instant they first see



       4

       State v. Dobbs, supra, slip op. at *4, quoting White v. State, supra, at 741.
                                                                                       Dobbs — 5


them, they must have probable cause to conduct any further investigation specifically

designed to develop probable cause to authorize their seizure of those items. In its petition

for discretionary review, the State argues that White overextends the legitimate scope of

Fourth Amendment protection. We agree with the State’s assessment.

                                           ANALYSIS

       A police officer in a public place has the authority to seize anything he has probable

cause to believe constitutes contraband, without the necessity of a warrant.5 A police officer

who is lawfully on private premises pursuant to a warrant (or some legitimate exception to

the Fourth Amendment requirement of a warrant) may also seize anything he discovers in

plain view on those premises if it is “immediately apparent” to him—that is to say, if he has

probable cause to believe—that it constitutes contraband, without the necessity of obtaining

a second warrant to justify the seizure.6 Because such an officer is legitimately on the private

premises, and so long as he has not exceeded the authority granted him by the warrant or the

exigency that legitimizes his presence in the first place, he may seize any item in plain view

that probable cause tells him is contraband. He may seize this item, just as he would be

permitted to seize any item in public that it was “immediately apparent” to him was



       5

       Texas v. Brown, 460 U.S. 730, 738 (1983) (plurality opinion); Arizona v. Hicks, 480 U.S. 321,
326-27 (1987).
       6

        E.g., Minnesota v. Dickerson, 508 U.S. 366, 375 (1993).
                                                                                    Dobbs — 6


contraband, without first obtaining a warrant.

       In this case, the police were legitimately on the private premises by virtue of a search

warrant authorizing them to look for and to seize illicit drugs, namely, marijuana and

cocaine. While executing this warrant, they came across the golf clubs and shirts in issue

here. The golf clubs sat in the middle of the floor in a room that the officers were permitted

to enter under the warrant, and the shirts lay on a shelf in a closet of the room that they were

permitted to search for the drugs specified in the warrant. These items were, therefore, in

plain view. The only question for the trial court at the appellee’s motion to suppress hearing

was whether it was “immediately apparent” to the officers that these items were contraband

in contemplation of the Supreme Court’s plain-view doctrine.

       Based on this Court’s opinion in White, both the trial court and the court of appeals

held that it was not immediately apparent to the officers that these items were stolen.7 And

indeed, it is undisputed on the record that, at the instant the officers came across the golf

clubs and the shirts, they lacked probable cause to believe these items were stolen. It was not

until after the officers, while remaining on the premises, conducted further investigation that

they developed probable cause. White construed the plain-view doctrine to require that, if

police officers do not instantly recognize an item in plain view to be contraband, then they

must have “probable cause for further investigation” to develop probable cause to believe


       7

        State v. Dobbs, supra, slip op. at *5.
                                                                                    Dobbs — 7


the item is contraband before they may seize it.8 White cited Arizona v. Hicks for this

proposition.9 Understandably, both the trial court and the court of appeals abided by our

holding in White in upholding that appellee’s motion to suppress.10

       The State argues that White mistakenly relied on Hicks for the proposition that the

plain-view doctrine requires probable cause for further investigation whenever it is not

immediately apparent that items discovered in plain view are contraband. Only if that

investigation entails an additional search of the private premises beyond the scope of the

search already authorized by the warrant or exigency that originally justified the police

presence on the premises, the State maintains, should the officers be required to have

probable cause to look for probable cause to seize the plain-view items. Otherwise, the

investigation does not incrementally impinge upon any protected privacy or possessory

interest of the defendant.

       We agree. The further investigation that the officers undertook in this cause did not

involve any search of the premises that was not already authorized by the search warrant. So

the appellee’s privacy interest was not compromised. Nor were the golf clubs and shirts

actually seized until after the officers, still legitimately on the premises, developed probable


       8

        729 S.W.2d at 741.
       9

        480 U.S. 321 (1987).
       10

        State v. Dobbs, supra.
                                                                                             Dobbs — 8


cause to believe they were stolen, by conducting further investigation that did not involve an

unjustifiedly incremental search of the actual premises. So the appellee’s possessory interest

was compromised—but legitimately so, even without an additional warrant. It does not serve

the interests of the Fourth Amendment to construe the “immediately apparent” aspect of the

plain-view doctrine to prohibit this kind of further investigation because it does not impact

either the privacy or the possessory rights of the defendant beyond the encroachment already

legitimized by the warrant.11

        To appreciate the sensibleness of this understanding of the plain-view doctrine,

suppose the facts were slightly altered. Suppose that at the instant the officers executing the

search warrant had originally come across the golf clubs and shirts, they had thought nothing

of it and conducted no further investigation of those items. Then suppose an officer in the

burglary division had called one of the searching officers to inform him to be on the lookout

for stolen golf clubs and shirts on the premises, describing them with particularity, because

of probable cause the burglary division had just developed, independently of the officers

executing the warrant, to believe these items were stolen. What was not “immediately”

apparent to the searching officers would now be readily apparent, while the officers are still

        11

         An investigation that does not impinge upon a defendant’s legitimate privacy or possessory
interest does not implicate Fourth Amendment protections. E.g., Illinois v. Caballes, 543 U.S. 405
(2005) (canine alert for narcotics in trunk of car during the course of legitimate traffic stop (i.e., not
extended beyond scope of original justification for the stop) does not violate Fourth Amendment
because it reveals only the presence of contraband and therefore does not impinge upon any legitimate
expectation of privacy).
                                                                                                Dobbs — 9


on the premises and legitimately conducting their search. They would now have probable

cause to seize the stolen items. Under these circumstances, it makes no more sense to require

an additional warrant to justify seizing the items than it would to require a warrant to seize

apparent contraband that is found in a public place. Moreover, it should make no difference

that the searching officers generated their own probable cause while still on the premises, so

long as their investigation did not entail any greater intrusion on the premises (from which

the defendant’s privacy interest, after all, derives) than the intrusion already legitimately

underway.12

        The Supreme Court has construed “immediately apparent” to mean simply that the

viewing officers must have probable cause to believe an item in plain view is contraband

before seizing it.13 So long as the probable cause to believe that items in plain view

        12

        Suppose, on the other hand, that the search of the premises had been expanded, not physically,
but temporally, beyond the time it should reasonably have taken for the officers to execute the warrant,
because of their ancillary investigation into the status of the golf clubs and shirts. Such a scenario
might well have constituted an unjustified invasion of the appellee’s privacy interest, invoking the
Fourth Amendment’s exclusionary rule. But the trial court expressly found that no such temporal
expansion of the warranted search occurred. The judge explicitly stated on the record:

                 There is nothing in the record . . . that leads this trial judge to believe that the
        Plano Police Department was intentionally or otherwise inappropriately taking their
        time or stalling or whatever verb you want to use, merely as a pretext to give them the
        opportunity to further investigate. I don’t believe that and there’s nothing credible that
        raises that issue.

Our independent review of the record bears out this finding, and the appellee does not challenge it.
        13

        E.g., Minnesota v. Dickerson, supra, at 375 (“If . . . the police lack probable cause to believe
that an object in plain view is contraband without some further search of the object—i.e., if its
                                                                                         Dobbs — 10


constitute contraband arises while the police are still lawfully on the premises, and their

“further investigation” into the nature of those items does not entail an additional and

unjustified search of (i.e., a greater physical intrusion than originally justified), or presence

on (i.e., a longer intrusion than originally justified), the premises, we see no basis to declare

a Fourth Amendment violation. Supreme Court precedent does not dictate that we construe

“immediately apparent” necessarily to mean “quickly apparent.” Rather, “immediately

apparent” in this context means without the necessity of any further search.14

       To the extent that we broadly held in White that Hicks requires probable cause to

justify any “further investigation” to develop probable cause to seize items in plain view, we

now expressly disavow it. Although we believe that the Court reached the correct result in

White, 15 we erred to announce categorically that the officers there needed “probable cause


incriminating character is not immediately apparent—the plain view doctrine cannot justify its
seizure.”) (internal citations omitted).
       14

          Historically, the first sense in which the word “immediate” was used in English was to denote
a causational rather than a temporal relationship. See W EBSTER’S T HIRD INTERNATIONAL D ICTIONARY
OF THE E NGLISH LANGUAGE, U NABRIDGED 1129 (2002) (“1 a: acting or being without the intervention
of another object, cause, or agency: DIRECT, PROXIMATE +the ~ cause of death,”). We think this
is the sense in which the Supreme Court almost certainly intended that the phrase “immediately
apparent” should be understood in the context of its plain-view jurisprudence, viz., that the character
of the item as evidence or contraband be apparent without the intervention of any additional invasion
of a privacy or possessory interest.
       15

         The police in White were invited into the apartment by the manager to inspect purported
damage after a fracas. Finding no such damage, they nevertheless tarried in the apartment to conduct
what was essentially an exploratory search. Without yet having generated probable cause to seize
anything, they exited the apartment but continued their investigation. Only after they left did they
establish probable cause to believe certain items they had viewed in the apartment were stolen. Not
                                                                                        Dobbs — 11


for further investigation.” 16 Unless it involves a greater search of the premises than that

which is initially authorized, or in some other manner invades a legitimate privacy interest,17

a “further investigation” of the kind that occurred both in White and in this case need not

itself be justified by probable cause before it can permissibly supply the probable cause to

support a plain-view seizure of contraband.

                                         CONCLUSION

       Without faulting the court of appeals for following precedent, we nevertheless reverse

its judgment upholding the appellee’s motion to suppress and remand the cause to the trial

court for further proceedings not inconsistent with this opinion.




DELIVERED:             October 20, 2010
PUBLISH




only did their initial search of the apartment exceed the original justification for entering it, they
actually left the apartment before obtaining probable cause. Under these circumstances, they should
have obtained a warrant before re-entering the apartment and seizing the stolen items.
       16

        729 S.W.2d at 741.
       17

        See note 12, ante.
