MASSEY, JAMES CALVIN v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0170-22

JAMES CALVIN MASSEY, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY

NEWELL, J., filed a concurring opinion in which HERVEY,
RICHARDSON and MCCLURE, JJ., joined.

I agree with the Court that the court of appeals erred to reverse

the trial court’s ruling on Appellant’s motion to suppress. But I would

uphold the trial court’s denial of the motion to suppress on a more

direct basis. Appellant sought to suppress drugs that officers seized in

plain view off the ground and in a public place. Immediately prior to
Massey Concurring — 2

the seizure, Appellant even said of the drugs the police found, “that’s

not mine.” Nevertheless, the court of appeals held that the plain view

doctrine did not apply, 1 and we granted review to determine whether it

did. 2 I would answer that question and hold that the plain view

doctrine provided an independent justification for the warrantless

seizure of the drugs in this case regardless of whether Appellant’s

attempt to evade the police attenuated the taint from the officer’s

illegal pat-down.

What a person knowingly exposes to the public is not a subject of

Fourth Amendment protection. 3 The Fourth Amendment generally

does not apply to seizures of contraband found in a public place

because there is no expectation of privacy. 4 It is well-settled, as the

United States Supreme Court has observed, “that objects such as

weapons or contraband found in a public place may be seized by the

police without a warrant.” 5 Objects falling in the plain view of an

1
Massey v. State, 649 S.W.3d 500, 521 (Tex. App.—Fort Worth 2022).

2
The Court granted the State’s third ground of review which asked: Is an officer in a public
place not in a “lawful place” under a plain view analysis merely because a Fourth
Amendment violation occurred?

3
United States v. Santana, 427 U.S. 38, 42 (1976).

4
State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013).

5
Payton v. New York, 445 U.S. 573, 586-87 (1980).
Massey Concurring — 3

officer who has a right to be in the position to have that view are

subject to seizure and may be introduced in evidence. 6

In this case, the public nature of the area where Sgt. Lukowsky

found the drugs is not in dispute. And Sgt. Lukowsky had the lawful

ability to be where he was when he found them. Nevertheless, the

court of appeals held that Sgt. Lukowsky was not in a lawful vantage

point even though he was in a public place.7

The court of appeals reached this conclusion by relying primarily

upon an unpublished and factually distinguishable case, State v.

Bishop.8 Unpublished cases do not constitute precedent and cannot be

relied upon as such. 9 More importantly, Bishop involved a seizure of

drugs from a defendant’s pockets, not from the ground in a public

place. 10 Thus, Bishop is significantly different from this case even if it

could be considered precedent.

6
Harris v. United States, 390 U.S. 234, 236 (1968).

7
Massey, 649 S.W.3d at 519.

8
Id. at 520 (citing State v. Bishop, No. 13-16-00322-CR, 2017 WL 10896881 (Tex. App—
Corpus Christi 2017, no pet.) (not designated for publication)).

9
Tex. R. App. P. 47.7(a) (“Criminal Cases: Opinions and memorandum opinions not
designated for publication by the court of appeals under these or prior rules have no
precedential value but may be cited with the notation, ‘(not designated for publication).’”).

10
Bishop, 2017 WL 10896881 at *1.
Massey Concurring — 4

Yet in relying on Bishop, the court of appeals appears to have

created a conflict with our decision in Walter v. State. In that case, we

regarded the plain view doctrine not as an exception to the warrant

requirement but rather as a recognition that a defendant lacks any

expectation of privacy in an object in plain view of the public.11 As

such it would provide an independent justification for the seizure in

this case rather than an exception to the application of the

exclusionary rule.12 As we explained in Walter, “[t]he Supreme Court

has explained that the “plain view” doctrine is not really an “exception”

to the warrant requirement because the seizure of the property in

plain view involves no invasion of privacy and is presumptively

reasonable.”13 If Appellant had no expectation of privacy in the area

in which the drugs were found, there is no reason to address whether

attenuation renders the exclusionary rule inapplicable.14

11
Walter v. State, 28 S.W.3d 538, 541 (2000).

12
See Utah v. Strieff, 579 U.S. 232, 237-38 (2016) (noting the attenuation doctrine as an
exception to an application of the exclusionary rule).

13
Walter, 28 S.W.3d at 541 (citing Texas v. Brown, 460 U.S. 730, 738-39 (1983).

14
This approach appears consistent with that taken by the trial judge who noted at the
hearing on the motion to suppress that the drugs at issue were not discovered by a search
nor recovered by State action.
Massey Concurring — 5

Here, there is no question the officer who seized the drugs

arrived at the location lawfully. 15 His presence there did not become

unlawful because of the pat-down or Appellant’s attempt to avoid the

search. 16 There is no reason a police officer should be precluded from

observing as an officer what would be entirely visible to him as a

private citizen. 17 Neither should an officer be required to leave drugs

lying around in a public place when he sees them. Because this

warrantless seizure was justified under the plain-view doctrine, I would

uphold the trial court’s denial of Appellant’s motion to suppress on that

basis.

With these thoughts, I concur.

Filed: April 26, 2023

Publish

15
Massey, 648 S.W.3d at 512 (“Massey does not dispute that Officer Lukowsky was initially
justified in detaining him for a traffic offense.”)

16
Walter, 28 S.W.3d at 544 (holding that officer lawfully viewed marijuana in the
defendant’s car pursuant to a valid investigatory detention); see also Massey, 648 S.W.3d
at 513 (holding that the investigatory detention in this case was not unduly prolonged).

17
Walter, 28 S.W.3d at 544 (quoting Brown, 460 U.S. at 740).