Opened letter could be read under plain view doctrine

An opened letter could be read during a plain view. It is not material that the “immediately apparent” requirement is not met by looking only at the first page and that the incriminating nature of the letter was not found on an exposed page. The court relies on cases from other jurisdictions, and finds logic compels this result. Commonwealth v. Johnson, 2007 PA Super 88, 921 A.2d 1221 (2007):

[*P11] We find that logic also dictates our result. The plain view doctrine functions differently depending upon the thing that is perceived. If a police officer spies a pistol on a table, its potentially incriminating nature is not only “immediately apparent,” it is very likely instantaneous. In contrast, if it is a sheet of paper on the table, there is nothing inherently incriminating in paper alone and nothing may be “immediately apparent.” On the other hand, if the paper contains writing, the writing itself may be incriminating. However, the incriminating nature of writing is not perceived until it is read. Only then does its incriminating nature become “immediately apparent.”

[*P12] Furthermore, we see no sense in imposing some artificial limit on the number of words that may be read before the incriminating nature of a document is no longer “immediately apparent.” The incriminating nature of a letter cannot be known until the key words are read and it should not matter whether they occur in the first sentence of the letter or the last. We will not restrict a police officer either to the first few words of a letter, where the eyes are naturally drawn, or to those that “jump off the page.” Simply stated, it seems foolish to tell our police officers that they may observe items in plain view, but that they must not look too closely. If a letter is left lying open on a table, we find that its entire contents are exposed to plain view and the letter is subject to seizure under that doctrine. n5

n5 We further find, without holding, that a police officer could not turn the pages of a multiple-page letter to reveal the unexposed pages as this would constitute improper manipulation and an independent search requiring probable cause. Arizona v. Hicks.

[*P13] Thus, we find that pursuant to both case law and logic, the court below erred in suppressing the letter at issue. The entire contents, including the passage at issue, were openly exposed in plain view, and its incriminating nature was immediately apparent upon the key words being read. Accordingly, we will reverse the order below and allow the letter to be admitted at trial.

Defendant was stopped for a traffic offense, and reasonable suspicion was developing, and another officer smelled marijuana on the defendant’s person. They told him that a dog would be called, and defendant then consented to a search. The videotape shows that it was voluntary consent. Lambeth v. State, 221 S.W.3d 831 (Tex. App. — Ft. Worth 2007).*