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Full Opinion
Larry R. FRASIER, Jr., Appellant-Defendant,
v.
STATE of Indiana, Appellee.
Court of Appeals of Indiana.
*451 David C. Grupenhoff, Thomas M. Barr & Associates, Nashville, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. *450
*452 OPINION
SULLIVAN, Judge.
Appellant, Larry R. Frasier, Jr., brings this discretionary interlocutory appeal challenging the trial court's decision to deny his motion to suppress certain evidence. Frasier presents four issues for our review, which we restate as the following three:
I. Whether the search warrant issued by the trial court was supported by probable cause;
II. Whether, if the search warrant was improperly issued, the evidence obtained as a result of the issuance of the warrant is nevertheless admissible under the "good faith" exception; and
III. Whether images discovered during a search of Frasier's personal computer may properly be entered into evidence.
We affirm.
The record reveals that on November 1, 2000, Brown County Sheriff's Department Detective Scott Southerland prepared an affidavit seeking a search warrant authorizing a search of Frasier's residence. The affidavit being essential to the resolution of this case, we set forth the contents thereof:
"I, Scott Southerland, swear or affirm under penalties for perjury that the following is true.
I am a law enforcement officer with the Brown County Sheriff's Department. In that capacity I have received criminal information concerning Larry R. Frasier Jr. who resides at 6390 Oriole Drive, Nineveh, Indiana 46164.
Approximately ninety days ago, I talked with Deputy Bernie McGaha who told me he had received information from a concerned citizen, a person who wished to remain anonymous. (CS# 1) This person wished to remain anonymous because of fear of retaliation. CS# 1 told Deputy McGaha that he/she had been inside the Frasier residence. CS# 1 said he/she had seen processed marijuana and marijuana plants growing in the garage. CS# 1 further said that he/she has seen Frasier smoking marijuana in his house and in his yard, and that he/she had seen Frasier smoke marijuana with his daughter and/or son. CS# 1 also told Deputy McGaha that he/she had seen Frasier's daughter roll marijuana cigarettes for her father, and he/she thought it was likely that Frasier has molested his daughter. Frasier's daughter, [M.F.], is now 19 years old. CS# 1 said that he/she was shown pornographic pictures that Frasier had on his computer. CS# 1 believed these pornographic pictures were of children. CS# 1 told Deputy McGaha that he/she was shown lights used to grown marijuana plants indoors by Larry Frasier.
At about the same time, I talked with Deputy Randy Taggart who related a report taken from CS# 1 where CS# 1 reported in essence the same thing as CS# 1 reported to Deputy McGaha. CS# 1 did tell Deputy Taggart that he/she has seen Larry Frasier and his daughter [M.F.] come outside the house when they were apparently wearing only towels. CS# 1 told Deputy Taggart he/she had heard Larry Frasier make a comment about a neighbor girl, stating that she would be `an easy target.'
CS# 1 later told Deputy McGaha that he/she believed Frasier was trying to `straighten up his act' and didn't want to get involved any further. At the time of CS# 1's statements to Deputy McGaha and Deputy Taggart it is believed that CS# 1 and Frasier were having an argument. CS# 1 and Frasier were friends *453 prior to this and Deputy McGaha believes they are on friendly terms again.
On October 31, 2000 I talked with Deputy John Collins who told me of a report he received a couple months ago from a concerned citizen, a person who wished to remain anonymous. (CS# 2) This person wished to remain anonymous because of fear of retaliation. CS# 2 told Deputy Collins that he/she had visited the Frasier residence about two months ago to pick up his/her children, who were visiting with the Frasier children. CS# 2 told Deputy Collins that while at the residence he/she saw a `bale of marijuana' in the garage. CS# 2 could not remember for sure how long since this happened but it had been several months prior to reporting it.
On October 31, 2000, I received information from a person who wishes to remain anonymous. (CS# 3) This person said that he/she has been inside the Frasier residence within the past 72 hours and saw marijuana. CS# 3 said that Frasier sold marijuana and was growing marijuana in the garage. I found CS# 3 to be credible. CS# 3 expressed fear of retaliation and believes Frasier to be a violent person capable of causing physical harm. CS# 3 believes a person named Tony Cardwell is supplying Frasier with marijuana for resale.
On October 31, 2000 I interviewed a person who lives close to Larry Frasier. (CS# 4) This person wishes to remain anonymous because they live nearby and are afraid of retaliation by Frasier. This person stated he/she had been told that Frasier dealt in drugs and was growing marijuana in his garage. CS# 4 told me the name of the person who told him/her this and I found their source of information to be CS# 1 from above. CS# 4 believes this is probably true because CS# 4 has in the past seen a lot of traffic in and out at the residence. CS# 4 said he/she also believed it to be true because a few weeks ago Frasier obscured the windows on the garage so nobody can see inside. CS# 4 said it looked like Frasier had painted the glass windows. CS# 4 said that about 1 1/2 weeks ago they saw a person they knew as Tony Cardwell at the Frasier, [sic] outside the house, talking with Frasier. CS# 4 said Frasier had a gun and CS# 4 believed he/she witnessed a drug deal but couldn't articulate why he/she though [sic] that except that Frasier had a gun. CS# 4 also told me that his/her spouse was invited into the Frasier's residence by Larry Frasier. Frasier tried to show the spouse pornographic pictures on his computer by [sic] the spouse declined and said he/she didn't want to see them.
On November 1, 2000 I drove past the Frasier residence. It appears to me that the windows on the overhead garage door are covered or painted black. I saw a stack of black plastic pots behind the garage. I have seen this type of pots [sic] many times in the past, during other marijuana investigations, with marijuana plants in them. I viewed the residence with a thermal imager, a device that shows temperature differences between objects. The overhead door to the garage showed signs of higher temperature. What I saw is consistent with the heat pattern that would be present with an indoor marijuana grow where the lights used for the plants produce heat. I have been trained and certified in the use of a thermal imager and it's [sic] application during investigations of indoor marijuana grows.
I checked for criminal history for Larry Frasier through NCIC and found that Frasier was arrested by the Indiana State Police of the Evansville Post for *454 smuggling marijuana. This arrest was in 1978 and shows no disposition.
In my training and experience people who deal in illegal drugs keep records of transactions to show who owes money for drugs bought on credit. The records may be written or kept on a computer. It is also my experience that people who grow marijuana frequently take photographs or make videotape recordings of their marijuana plants. I have also learned in my training and experience that people who deal illegal drugs frequently keep the drugs in a safe, lock-box, or locked room in their residence to keep them secure from visitors and/or their children.
Based upon the above-described information, which I believe to be true, I believe evidence of possession of marijuana, dealing in marijuana, and/or child pornography is located in the residence of Larry Frasier. The residence is located at 6390 Oriole Drive, Brown County, Indiana. From the road the residence appears to be a one-story frame structure with attached garage.
I am requesting a Search Warrant be issued for the above-described residence, outbuildings, and premises. I am asking for authorization to search the residence as well as safes, lock boxes, locked rooms, computers, computer hard drives, computer disks or any other device used to store digital information, photographs, videocassette tapes, and photographic negatives.
I am asking for authorization to seize any evidence related to possession of marijuana, dealing marijuana, and/or child pornography, including but not limited to: marijuana plants, processed marijuana, marijuana packaging materials and equipment, equipment used to grow marijuana, drug paraphernalia, notes and/or records related to the sale of marijuana, scales, safes and/or lock boxes used to store marijuana, and pornographic images depicting persons believed to be children." Appendix at 25-27.
Based upon this affidavit, Brown County Circuit Court Judge Judith A. Stewart issued a search warrant which directed the police to enter Frasier's home and garage and to search for and seize the following:
"Marijuana plants, processed marijuana, marijuana packaging materials and equipment, equipment used to grow marijuana, drug paraphernalia, notes and/or records related to the sale of marijuana, scales, safes and/or lock boxes used to store marijuana...."[1]Id. at 28.
On November 1, 2001, Detective Southerland and other officers executed the warrant. When Southerland entered the Frasier residence, he went to the bedroom where a personal computer was located. Southerland first noticed an icon labeled "Smoke" located on the computer's "desktop."[2] Upon opening this file to view it, Southerland discovered that it included a letter to a company which sold a product purporting to allow one to pass a urine drug screen. Southerland then began opening documents listed in the "Documents" sub-menu of the computer's "Start" menu. This sub-menu lists recently *455 opened documents on the computer. The first document Southerland opened from this list contained an image of a young, nude female. Southerland believed that the image was evidence of child pornography and printed the image. He then opened "two or three more files," before he realized that the files listed in the "Documents" menu likely contained images. Transcript at 34. Southerland told another deputy what he had found and asked that deputy to seek a warrant to search for evidence of child pornography on the computer. Such a warrant was issued the following day.
On November 6, 2000, the State charged Frasier with one count of Possession of Marijuana as a Class D felony, one count of Possession of Marijuana as a Class A misdemeanor, and one count of Possession of Child Pornography as a Class A misdemeanor. On August 23, 2001, Frasier filed a motion to suppress the evidence seized as a result of the search of his house and computer. A hearing on this motion was held on February 21, 2002, and on May 12, 2002, the trial court entered an order denying[3] the motion. Frasier moved to certify the suppression issue for interlocutory appeal, which the trial court granted on May 31, 2002. See Ind. Appellate Rule 14(B)(1). This court accepted appellate jurisdiction of the appeal on August 26, 2002. See App. R. 14(B)(2).
I
Validity of Search Warrant
Frasier claims that the issuance of the search warrant was erroneous because it was not supported by probable cause.
"In deciding whether to issue a search warrant, `[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit... there is a fair probability that contraband or evidence of a crime will be found in a particular place.' Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). The duty of the reviewing court is to determine whether the magistrate had a `substantial basis' for concluding that probable cause existed. Id. at 238-39, 103 S.Ct. at 2332-33. `[S]ubstantial basis requires the reviewing court, with significant deference to the magistrate's determination, to focus on whether reasonable inferences drawn from the totality of the evidence support the determination' of probable cause. Houser v. State, 678 N.E.2d 95, 99 (Ind.1997). `Reviewing court' for these purposes includes both the trial court ruling on a motion to suppress and an appellate court reviewing that decision. Id. at 98. In this review, we consider only the evidence presented to the issuing magistrate and not post hac justifications for the search. Seltzer v. State, 489 N.E.2d 939, 941 (Ind.1986)." Jaggers v. State, 687 N.E.2d 180, 181-82 (Ind.1997) (modification and italics in original).
See also Bryant v. State, 655 N.E.2d 103, 107 n. 6 (Ind.Ct.App.1995). Although we accord deference to the magistrate's probable cause determination, we review de novo the trial court's decision on a motion to suppress seized evidence. Methene v. State, 720 N.E.2d 384, 388 (Ind.Ct.App. 1999).
*456 A. Thermal Imaging
Our review of probable cause in the present case is somewhat complicated by the use of thermal imaging by the police. As stated in the probable cause affidavit, Detective Southerland, without a warrant, used a thermal imaging device to detect an increase in temperature inside Frasier's garage. This was done on November 1, 2000. On June 11, 2001, the United States Supreme Court held that when the Government uses a device such as a thermal imager, which is not in general public use, to explore details of a home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant. Kyllo v. United States, 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). Thus, by the time of the suppression hearing held on February 21, 2002, Southerland's warrantless use of the thermal imager had been held to be constitutionally impermissible. The trial court dealt with this situation by not considering the information obtained by the use of the thermal imager in ruling on the motion to suppress. This is consistent with the holding of the Kyllo Court, which remanded the case to the District Court to determine whether, without the improperly obtained thermal imaging evidence, the search warrant in that case was supported by probable cause. Id. See also Utley v. State, 589 N.E.2d 232, 236 (Ind.1992) (once false information has been excised from the probable cause affidavit, court determines whether remaining portions are sufficient to establish probable cause), cert. denied, 506 U.S. 1058, 113 S.Ct. 991, 122 L.Ed.2d 142 (1993); Bryant, 655 N.E.2d at 109 (same). We will do likewise.
B. Probable Cause
Frasier claims that the information supporting the search warrant is mostly unreliable hearsay obtained from anonymous sources. Frasier's argument is based upon the Fourth Amendment and Indiana Code § 35-33-5-2(b) (Burns Code Ed. Repl.1998),[4] which has codified changes in Fourth Amendment doctrine on the use of informants to establish probable cause. Jaggers, 687 N.E.2d at 183; Methene, 720 N.E.2d at 388.
In Illinois v. Gates, 462 U.S. 213, 227, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court, interpreting the Fourth Amendment, held that uncorroborated hearsay from a source whose credibility is itself unknown is insufficient by itself to support a finding of probable cause. See also Jaggers, 687 N.E.2d at 182. Such hearsay must exhibit some hallmarks of reliability. Jaggers, 687 N.E.2d at 182. Use of information received from anonymous informants presents heightened reliability concerns. Id. at 182. This "situation is rife with the potential for pranks and mischief." Id. at 182-83. Because of these concerns, some form of corroboration of the accusations is even more essential when the informant is anonymous. Id. at 183.
Frasier claims that the hearsay contained in Southerland's affidavit failed to meet the standards for reliability set forth in I.C. § 35-33-5-2(b) and Gates. The State responds by claiming that the informants mentioned in the affidavit are not "anonymous" simply because their names are not set forth in the affidavit. Rather, the State claims that each informant was a "concerned citizen" who simply desired to remain anonymous out of fear of *457 retaliation and that it is reasonable to infer that the police knew the identity of the informants. Information gleaned from cooperative citizens who are either eyewitnesses or victims of a crime may be relied upon in determining whether probable cause exists for a search where there are no circumstances which call the informant's motives into question. Bryant, 655 N.E.2d at 108; Pawloski v. State, 269 Ind. 350, 354-55, 380 N.E.2d 1230, 1232-33 (1978). See also Gates, 462 U.S. at 233-34, 103 S.Ct. 2317 ("if an unquestionably honest citizen comes forward with a report of criminal activitywhich if fabricated would subject him to criminal liabilitywe have found rigorous scrutiny of the basis of his knowledge unnecessary").
Frasier also complains that the information in the affidavit is stale. "It is a fundamental principle of search and seizure law that the information given to the magistrate or judge in the application for a search warrant must be timely." Breitweiser v. State, 704 N.E.2d 496, 499 (Ind. Ct.App.1999) (citing Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932)). Stale information gives rise to a mere suspicion and not a reasonable belief, especially when the items to be obtained in a search are easily concealed and moved. Raymer v. State, 482 N.E.2d 253, 255 (Ind. 1985). Although the age of the information supporting an application for a warrant can be a critical factor when determining the existence of probable cause, our courts have not established a bright-line rule regarding the amount of time which may elapse between obtaining the facts upon which the search warrant is based and the issuance of the warrant. Breitweiser, 704 N.E.2d at 499. Instead, whether the information is tainted by staleness must be determined by the facts and circumstances of each particular case. Id.
In the present case, there are legitimate questions regarding whether the issuing magistrate had enough information to determine whether the informants were truly anonymous or merely citizen informants. It also appears that it is difficult if not impossible to tell the age of much of the information in the affidavit. Regardless, it is not necessary for us to determine whether Southerland's affidavit was sufficient to establish probable cause, for even if we assume that it was insufficient, the evidence which Frasier seeks to suppress would be admissible under the "good faith" exception to the exclusionary rule.
II
Good Faith Exception
Generally, when evidence is obtained in violation of the Fourth Amendment, such evidence may not be used against a defendant at trial. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). There are certain exceptions and limitations to this general principle. Among them is the "good faith" exception set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). As explained by the Leon Court, the exclusionary rule does not require the suppression of evidence obtained in reliance upon a defective search warrant if the police relied upon such a warrant in objective good faith. 468 U.S. at 922-23, 104 S.Ct. 3405. See also Jaggers, 687 N.E.2d at 184.
The good faith exception has been codified in Indiana Code § 35-37-4-5(a) (Burns Code Ed. Repl.1998), which states, "In a prosecution for a crime or a proceeding to enforce an ordinance or a statute defining an infraction, the court may not grant a motion to exclude evidence on the grounds that the search or seizure by which the evidence was obtained was unlawful if the evidence was obtained by a *458 law enforcement officer in good faith." Pursuant to I.C. § 35-37-4-5(b):
"evidence is obtained by a law enforcement officer in good faith if:
(1) it is obtained pursuant to:
(A) a search warrant that was properly issued upon a determination of probable cause by a neutral and detached magistrate, that is free from obvious defects other than nondeliberate errors made in its preparation, and that was reasonably believed by the law enforcement officer to be valid; or
(B) a state statute, judicial precedent, or court rule that is later declared unconstitutional or otherwise invalidated; and
(2) the law enforcement officer, at the time he obtains the evidence, has satisfied applicable minimum basic training requirements established by rules adopted by the law enforcement training board under IC 5-2-1-9."
There are in turn certain exceptions to the good faith exception. As stated in Leon, the good faith exception is not applicable in situations where (1) the magistrate is misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth; (2) the issuing magistrate wholly abandoned his judicial role; (3) the warrant was based upon an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) the warrant is so facially deficient, i.e., in failing to particularize the place to be searched or the things to be seized, that the executing police officers cannot reasonably presume it to be valid. 468 U.S. at 923, 104 S.Ct. 3405. Although we should be careful not to equate the reasonableness of the officer's belief with the establishment of probable cause in the affidavit, it is equally critical that we do not construe the good faith exception so broadly as to obliterate the exclusionary rule. Figert v. State, 686 N.E.2d 827, 832 (Ind. 1997).
In the case at bar, the State claims, and we agree, that even if the search warrant was unsupported by probable cause, the police acted in good faith in relying thereon and the evidence need not be excluded at trial. Frasier insists that there are reasons that the good faith exception should not apply. Frasier does not argue that the magistrate was misled by information in an affidavit that Detective Southerland knew was false or would have known was false except for his reckless disregard for the truth.[5] Frasier's main argument is that the warrant was based upon an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.[6] Frasier also claims that the use of the *459 thermal imaging device, although constitutionally permissible at the time, has since been held to be illegal, and therefore, the police should not have been allowed to benefit from the such use.
Whether or not Southerland's affidavit was sufficient to establish probable cause, it was not so deficient as to render reliance thereon entirely unreasonable. In Jaggers, our Supreme Court wrote:
"Law enforcement officers are trained to distinguish the incriminating from the innocuous.... Because the informant in this case was anonymous, it would have been clear at the outset to a reasonable police officer that some corroboration of the caller's allegations would be critical if a warrant was to be obtained. Indeed, our decisions have emphasized that corroboration of inculpating information can sometimes be crucial to determining the existence of good faith." 687 N.E.2d at 185.
The Jaggers court determined that the good faith exception did not apply because in that case, in addition to somewhat misleading information contained in the affidavit, the police investigation was limited to confirming factual allegations which shed no light on whether Jaggers's house contained evidence of a crime. Id.
As noted, there is no indication here that Southerland provided misleading or false information to the magistrate. Indeed, Southerland even included information in the affidavit which was not favorable to a finding of probable cause, such as the fact that C.S.1 and Frasier had been arguing. Moreover, Southerland's investigation did, to a certain extent, corroborate the information from the informants. Although the warrantless use of the thermal imager has since been held unconstitutional, we believe it relevant to the existence of Southerland's good faith at the time the warrant was executed. See Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) (good faith exception applicable where officer's reliance upon constitutionality of statute authorizing search was objectively reasonable despite the fact that the statute was later held to be unconstitutional); State v. Ward, 231 Wis.2d 723, 604 N.W.2d 517 (2000) (good faith exception applicable where police action was based upon judicial precedent allowing no-knock entries although court simultaneously overruled that precedent).
The information gathered from the thermal imaging device, combined with the otherwise relatively innocuous facts that Frasier had plastic planting pots behind his garage and had covered up the windows on his garage door, do lend credence to the information the police had received that Frasier was growing marijuana in his garage. Therefore, we hold that, at the time the warrant was executed, it was not based upon an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. In short, the good faith exception to the exclusionary rule is applicable to the present situation, and the trial court did not err in denying Frasier's motion to suppress with regard to evidence obtained as a result of this warrant.[7]
III
Images on Frasier's Computer
Frasier contends that images discovered during a search of his personal computer may not properly be entered into evidence *460 against him. The warrant issued on November 1, 2001, did not authorize the police to search Frasier's computer for child pornography as Southerland had requested. The warrant did nevertheless authorize the police to search Frasier's computer for notes and records related to the sale of marijuana. In the process of executing the warrant, the police discovered pornographic images of what appeared to be children on Frasier's computer. In several respects Frasier challenges the admissibility of these images.
B. Plain View Doctrine
The State and Frasier differ as to whether the images on Frasier's computer are admissible under the "plain view" doctrine. Under the plain view doctrine, police may seize evidence not identified in a warrant when a police officer inadvertently discovers items of readily apparent criminality while rightfully occupying a particular location. Jones v. State, 783 N.E.2d 1132, 1137 (Ind.2003). For the plain view doctrine to be applicable, (1) the initial intrusion must have been authorized under the Fourth Amendment, (2) the items must be in plain view, and (3) the incriminating nature of the evidence must be immediately apparent. Id.
1. Initial Police Intrusion
Although Frasier's argument focuses mainly upon the second of these requirements, we must also determine whether the first requirement has been met. We have not decided whether the search warrant was supported by probable cause. Such a decision might seem necessary to determine whether the initial police intrusion was authorized. However, we have held that the Leon good faith rule does not require exclusion of the evidence even if it was seized in violation of the Fourth Amendment. The question before us is whether the good faith of the police in reliance upon a search warrant, even if it is later determined to be not supported by probable cause, is sufficient to satisfy the first requirement of the plain view doctrine. We conclude that it is. To hold otherwise would lead to the somewhat incongruous result that evidence seized in good-faith reliance upon a search warrant later held to be invalid would be admissible, but that evidence seen in plain view by the officers executing that warrant would not be.
A similar result was reached in United States v. Legg, 18 F.3d 240 (4th Cir.1994), cert. denied, 512 U.S. 1244, 114 S.Ct. 2761, 129 L.Ed.2d 876, wherein the court held that good faith reliance upon a warrant was sufficient to permit application of the plain view doctrine. The Legg court wrote, "because the deputies possessed an objectively reasonable belief that the warrant was valid, they were lawfully present in Legg's apartment during execution of the warrant." Id. at 244. The Legg court further noted:
"We recognize that an officer's reasonable good faith belief in the validity of a warrant does not cause his presence in an individual's home to be any less violative of the Fourth Amendment.... Nonetheless, we conclude that the rationale of Leon should apply to render an officer lawfully present for purposes of applying the plain view doctrine as long as the officer possesses a reasonable good faith belief in the validity of the warrant and the warrant was issued by a detached and neutral magistrate."[8]Id. at n. 2 (citations omitted).
See also United States v. Morris, 904 F.2d 518 (9th Cir.1990) (holding that plain view *461 requirement that there be a prior justification for the officer's presence was met by search warrant, and that even assuming that warrant was invalid, good faith exception was applicable to permit admission of the evidence).
2. Inadvertence
Frasier claims that the images were not inadvertently discovered. We recognize that inadvertence is no longer an indispensable element of the plain view doctrine as far as federal Fourth Amendment analysis is concerned. See Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); Neville v. State, 663 N.E.2d 169, 173 n. 3 (Ind.Ct.App.1996); Wood v. State, 592 N.E.2d 740, 742 (Ind. Ct.App.1992). Nevertheless, the inadvertence requirement still has application with respect to Article 1, Section 11 of the Indiana Constitution. Parker v. State, 662 N.E.2d 994, 1000 (Ind.Ct.App.1996) ("We have previously noted that in order to be admissible under a `plain view' theory, the discovery of the contraband must be inadvertent.") (Sullivan, J., dissenting), trans. denied. See also Warner v. State, 773 N.E.2d 239, 245 (Ind.2002) (plain view doctrine applicable when police are not searching for evidence against accused, but nonetheless inadvertently come across incriminating object).
Frasier contends that the discovery of the images on his computer was not inadvertent in that "it is undisputed that Southerland expected to find illegal pornography on the computer." Appellant's Br. at 34. Frasier bases this claim upon the fact that Southerland had originally sought authorization from the magistrate to search Frasier's computer for child pornography. Although the warrant authorized Southerland to search Frasier's computer for evidence relating to marijuana, Frasier claims that Southerland's true intention all along was to search the computer for child pornography, and that Southerland's claim that he was looking for records relating to marijuana was simply a pretext.
Frasier insists that Southerland's testimony was incredible and could not be relied upon by the trial court. It is well settled that, upon review of motions to suppress, we will neither reweigh evidence nor judge the credibility of witnesses. Allen v. State, 743 N.E.2d 1222, 1227 (Ind.Ct. App.2001), trans. denied. Frasier's claim relies upon Clark v. State, 173 Ind.App. 295, 297, 363 N.E.2d 1045, 1047 (1977), for the proposition that an appellate court is not bound to accept testimony of a witness which is incredible. While that may be an accurate statement, it begs the question and misapplies the holding of Clark. In that case the court held that since the testimony of the State's witnesses was not incredible, it was required to accept the trial court's assessment of their credibility. Here, Southerland indicated at the suppression hearing that he was unaware that the first image file he opened was an image file before he opened it. Southerland had previously indicated that he was aware that it was an image file and that he was looking for images that might relate to marijuana. This testimony, although inconsistent, is not so incredibly dubious or inherently improbable that it runs counter to human experience. Cf. Heeter v. State, 661 N.E.2d 612, 615 (Ind.Ct.App.1996). The trial court was within its discretion as the trier of fact to accept Southerland's testimony as true.
Southerland testified that while executing what he believed to be a valid search warrant, he opened a file on Frasier's computer and discovered that it contained an image which appeared to be child pornography. Southerland further testified that he came across this file by accessing the "Documents" sub-menu of the "Start" *462 menu, which contains a list of recently opened files on the computer. Although his testimony was inconsistent with his prior statements, Southerland stated that he did not know that the first image file he opened was an image file until after he opened it.
Frasier has not established that Southerland's discovery of this image was not inadvertent. The position advocated by Frasier would render the plain view doctrine inapplicable any time an officer, while executing a search warrant for certain items, discovered in plain view items for which he had unsuccessfully sought a search warrant. We reject such a narrow interpretation of the inadvertence requirement.
3. Whether Images were in Plain View
Frasier's main point of contention regarding the applicability of the plain view doctrine is that the images discovered by Southerland were not in "plain view." Specifically, Frasier claims that the closed image files on his computer were not in plain