dissenting. I respectfully dissent. There is no evidence showing that the contraband was in plain view. The plain-view exception requires that police view the contraband from where they are lawfully located. Horton v. California, 496 U.S. 128 (1990). The officers’ testimony shows that the door to Love’s bedroom was open when police entered the home, but there is no evidence showing what, if anything, was seen through that open door prior to police entering Love’s bedroom to seize the contraband. Therefore, there is no evidence of anything being in plain view. The evidence offered only showed what police saw through Love’s bedroom door after officers were already in her bedroom.
The majority quotes Officer Crossland and Officer Brown in a patently ineffective attempt to show that contraband was in plain view before police entered the bedroom. The quotes from Crossland and Brown are misleading. The issue is not what Crossland and Brown saw through the door when they were called to the door by officers already in Love’s bedroom. Obviously, their testimony is useless on the issue of plain view because according to Crossland’s and Brown’s testimony, other officers were already in the room. What we do not have in this case is any evidence whatever of what, if anything, was seen by the officer who entered the room first. We do not even know which officer entered the room first because no officer would admit to entering the room first. The majority admits that Officer Brown did not look into the bedroom until “somebody hollered.” Thus, it is obvious that the majority recognizes that Officer Brown could not offer any evidence on plain view. It appears that the majority is moving toward the use of harmless error under the plain-view doctrine.
Officer Brown testified that after someone hollered a discovery had been made in Love’s bedroom, he went to the doorway of the bedroom and could see “needles. . . different stuff laying on the bed.. . and on the . . . dresser ... a big glass jar with clear liquid substance inside of it.” Officer Crossland testified that items could be seen on the bed and on an end table. However, neither Officer Brown nor Officer Crossland saw anything before police entered Love’s bedroom. Both responded to a call by a never identified officer who was already in Love’s bedroom. Officer Brown also testified that portions of the contraband were not visible from the doorway, and that they could only be seen upon entering the room. Officer Crossland testified likewise. Was anything ever in plain view before officers entered the room? We do not know..
Officers Crossland, Reid, Stillwell, Delay, and Brown testified about the search and seizure. Officer Crossland testified that he did not discover the contraband in Love’s bedroom, but that either Officer Delay or Officer Brown yelled to tell him of the discovery. Officer Crossland thought that Officers Brown and Delay went into Love’s bedroom first. Officer Reid testified as follows:
Q. Do you recall who was the first one was to go up back there to this bedroom? If you don’t know.
A. I was not there at that point and time.
Q. Someone called you to go back and see these items?
A. When everything took place I wasn’t there. Dudley Crossland had called me after they’d already obtained permission to search.
Thus, Officer Reid was not the first officer to check out Love’s bedroom. Officer Stillwell testified that he never entered the house, so obviously he did not enter the bedroom first. Officer Delay testified that he entered the bedroom once he heard another officer say he found something. Officer Delay was asked specifically which officer went into Love’s bedroom before he did. He responded, “I don’t know.” Officer Delay thought Officers Crossland and Reid were in Love’s bedroom before he entered. Finally, Officer Brown testified that he had no idea who went into Love’s bedroom first. When asked who called out that he had found something in Love’s bedroom, Officer Brown testified that he was not exactly sure, but he thought it might have been Officer Brian Berry. Officer Berry did not testify.
Strangely, no officer was willing to take the credit for finding the contraband in the bedroom. Even the police recognize their approach to the search was problematic with respect to consent and otherwise. When asked if it would have been simpler to get a search warrant, one officer testified, “Looking back now, yes.” We have no idea who entered the bedroom first, let alone whether any officer who entered the bedroom and discovered the contraband saw anything in the bedroom before entering it. There is no evidence of anything being in plain view prior to the officer entering the bedroom and discovering the contraband. The majority affirms Love’s conviction on an assumption. The majority’s decision constitutes a denial of due process. The majority speculates that because Officer Brown testified that the door was open when he entered the house and because both he and Crossland testified that contraband could be seen from the door when they were later called there after officers were already in Love’s bedroom, then the contraband was in plain view before officers entered Love’s bedroom. Unfortunately, the record is utterly devoid of any evidence of plain view. No officer offered any testimony whatever regarding what, if anything, was in plain view. There simply is no evidence on the issue. The majority bases-its decision on rank speculation.