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...... ~"'\.\':t.."''', Part I of this article discussed the development of the plain view doctrine in the 1971 Supreme Court case of The Coolidge v. New Hampshire 30 and considered the first of the three ele­ ments of a valid plain view seizure, the requirement that the officer have a pri­ Plain View or valid reason to be present within the premises or vehicle where the evi­ dence is observed. The conclusion of the article will continue the analysis of Doctrine the plain view doctrine, focusing on the two remaining requirements for a valid (Conclusion) plain view seizure: (1) The discovery of the item must be "inadvertent"; and (2) the item to be seized must be "immedi­ By JOSEPH R. DAVIS ately apparent" as contraband or evi­ dence of a crime. Special Agent Legal Counsel Division Inadvertence Federal Bureau of Investigation The second requirement for a Washington, D.C. valid plain view seizure is that the dis­ covery of the item be inadvertent. 31 Law enforcement officers of other This was the element of the plain view than Federal jurisdiction who are doctrine found to be lacking in the interested in any legal issue discussed facts of the Coolidge case, because in this article should consult their legal the officers knew the location of the adviser. Some police procedures ruled automobile for several days prior to the permissible under Federal seizure, had ample opportunity to ob­ constitutiona/laware of questionable tain a search warrant, and intended to legality under State law or are not seize the automobile when they en­ permitted at all tered on the suspect's propfl!ty.32 Jus­ tice Stewart explained the reason for the requirement that the discovery be inadvertent: "The rationale of the [plain view] exception to the warrant requirement . . . is that a plain-view seizure will not turn an initially valid (and therefore lim­ ited) search into a 'general' one, while the inconvenience of procuring a war­ rant to cover an inadvertent discovery is great. But where the discovery is antLcipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement

October 1979 I 27 ". . . overwhelming majority of decisions . . . have accepted 'inadvertence' as a constitutionally required element of the plain view doctrine."

of a warrant to seize imposes no incon­ In this case, postal inspectors had The court noted that the postal venience whatever, or at least none determined that certain delivery room inspectors "knew" that other packages which is constitutionally cognizable in a employees of a large department store had been mailed to the employee's legal system that regards warrantless were engaged in a scheme whereby home during the past year, "believed" searches as 'per se unreasonable' in merchandise from the store was being that items other than the items speci­ the absence of 'exigent circum­ mailed, without payment, to wives of fied in the warrant would ,be found, and stances'." 33 the delivery room employees. Postal intended to seize such items. It also The "inadvertent discovery" re­ officials had specifically identified one noted the presence of the store secu­ quirement has been the most contro­ box, containing name-brand cosmet­ rity officer was indicative of the fact versial aspect of the plain view ics, which was mailed on a particular that the authorities "anticipated" dis­ doctrine since it was first articulated by date to the wife of one of the employ­ covery of further store merchandise Justice Stewart in Coolidge. In fact, ees. Additionally, they had been in­ not named in the warrant. 38 The court this is the element of the plain view formed by another store employee that felt the "inadvertence" element of doctrine that prompted Justice Blaok other packages had been mailed over plain view do(}1rine was not present, and Justice White to dissent from that a period of a year to the home of the and therefore, ordered suppression of portion of Justice Stewart's opinion same employee to whom the cosmet­ the items seized. 39 which dealt with the plain view doc­ ics were known to have been mailed, The above case illustrates a trine. 34 Aithough legal scholars, and although the specific mailing dates and "broad" interpretation of the inadver­ occasionally courts, continue to debate contents of these other packages were tence requirement, seemingly requiring whether this portion of the Supreme not known. the suppression of evidence seized Court's opinion in Coolidge is binding An assistant U.S. attorney, who where oificers "suspected" or "ex­ as precedent,35 it appears that the was consulted in the course of the pected" that items not named in the overwhelming majority of decisions investigation, advised the postal offi­ search warrant would be located, but which have considered it have accept­ cials that probable cause existed only did not have probable cause to believe ed "inadvertence" as a constitutionally for the seizure of the package of name­ the items would be found. required element of the plain view doc­ brand cosmetics. Accordingly, a The majority of the cases have t~ine. 36 Therefore, for purposes of this search warrant was sought and ob­ interpreted the inadvertence require­ article, it will be assumed that this ele­ tained describing only the one package ment more narrowly and have required ment must be satisfied. and its contents. the suppression of evidence seized in Given the requirement that a dis­ When the search warrant was ex­ plain view only where, prior to the sei­ covery must be "inadvertent," a further ecuted at the employee's residence, a zure, officers had probable cause to question remains: Just how "inadver­ store security officer accompanied the believe the items would be present, tent" must the discovery be? postal authorities for the purpose of and therefore, could have obtained a A few courts have interpreted in­ identifying any additional merchandise search warrant specifically describing a,dvertent to mean "unexpected" or belonging to the store found in the the items. 4o "unanticipated," and therefore, have home. The box described in the war­ A recent Federal court of appeals refused to sanction plain view seizures rant was never found, but a number of case, United States v. Hare,41 illus­ where the officer had some expecta­ other boxes, identified as containing trates the majority view. In this case, tion that such items would be found. A merchandise from the store, were dis­ special agents of the Bureau of Alco­ recent Federal district court decision, covered and seized. hol, Tobacco and Firearms (AT F) had In Re Motion for Return of Property, 37 gathered evidence that Hare was in­ illustrates this approach. volved in the illegal interstate transpor­ tation of substantial quantities of firearms. In the course of their investi­ gation, the ATF agents had contacted agents of the Drug Enforcement Ad­ ministration (DEA) and had determined

28 I FBI Law Enforcement Bulletin ". . .'probable cause' is the appropriate standard of certainty to justify a warrantless plain view seizure."

the DEA agents were also investigating "If 'inadvertent' is interpreted as plain view in situations where the offi· Hare for suspected narcotics viola­ 'unexpected,' an absurd scenario cers had insufficient facts prior to the tions. After extensive investigation, an would take place every time the police seizure to apply for and obtain .a ATF agent obtained a search warrant execute a search warrant on tl1e prem­ search warrant. for Hare's residence, which authorized ises of a person suspected of engaging "any special agent of the Bureau of in a variety of criminal activities, but Immediately Apparent Alcohol, Tobacco and Firearms" to when they have probable cause (and a The third and final requirement for search Hare's home fer an unknown warrant) to search for the fruits of only a valid plain view seizure is that the quantity of firearms, ammunition, a on.e crime. In such a case, whenever incriminating nature of the item to be sawed-off shotgun, and a machinegun, evidence of one of these other crimes seized be "immediately apparent" to all possessed in violation of Federal turns up, even though it would have the officer. As Justice Stewart ex­ criminal statutes. been impossible to obtain a warrant plained in Coolidge: The search warrant was executed previously, someone must be sent to "Of course, the extension of the by ATF agents, while three DEA obtain a new warrant to authorize the original justification is legitimate only agents guarded the doors to the resi­ seizure. . . . At the same time, the where it is immediately apparent to the \ ' dence. The ATF case agent testified intrusion has already occurred in a fully police that they have evidence before that the DEA agents were there to legal, limited manner, so Fourth them; the 'plain view' doctrine may not provide additional manpower and to Amendment interests are not served be used to extend a general explorato­ identify narcotics in the event that any by delay. The courts do try to avoid ry search from one object to another were found in the course of the search. imposing significant limitations and until something incriminating at last In the living room, on a table in burdens on the ability of the police to emerges." 46 plain view, the agents found narcotics do their job when those burdens would Thus, it is clear that not all objects and narcotics paraphernalia which serve no purpose. We conclude that within the plain view of an officer who were immediately recognizable as unless the police had the abih'ty and is lawfully present are subject to sei­ such. The trial court held the seizure of opportunity to obtain fl warrant prior to zure-only if the item's incriminating the narcotics could not be justified un­ the seizure and failed to do so, the nature is readily apparent may it be der the plain view doctrine because the inadvertency requirement of the plain taken. discovery of the narcotics was "ex­ view doctrine has not been violated." 43 The requirement that an item be pected" and the agents intended to (Emphasis added), immediately apparent as contraband or seize any drugs found in plain view. 42 The court concluded that no prob­ evidence has been universally accept­ On appeal, the court of appeals able calise to believe narcotics would ed as a necessary limitation on plain reversed the lower court and upheld be found existed prior to the officers' view seizures. However, the interpreta­ the seizure under the plain view excep­ entry; therefore, the seizure was inad­ tion of the requirement and its applica­ tion. The court of appeals interpreted vertent within the meaning of Coo­ tion to real-life fact situations has Coolidge as requiring that warrantless lidge. 44 created some division among the lower plain view seizures be condemned only The view of the inadvertence re­ courts. 47 when a warrant could have been ob­ quirement expressed in Hare reflects The controversy has centered tained, that is, when prior to the seizure the approach of a growing majority of around thE; degree of certainty with the officers had probable cause to be­ the cases which have considered this which the items in plain view must be lieve the evidence seized would be issue. 45 It appears to offer a workable apparent as evidence. Put another located in the premises. The court ex­ rule that upholds the established fourth way, the question is: Is a mere suspi­ plained: amendment prinCiple that whenever cion that the item is contraband or practicable a search warrant must be evidence enough to justify its seizure obtained prior to a search or seizure, or is probable cause, or even a higher while not penalizing law enforcement standard, such as virtual certainty, re­ officers for seizures of contraband or quired? Neither Coolidge nor subse­ other incriminating items discovered in quent Supreme Court cases shed any light on this issue.

October 1979/ 29 "The requirement that an item be immediately apparent as contraband or evidence has been universally accepted as a necessary limitation of plain view seizures."

A few decisions have appeared to would warrant a police officer of rea­ On the other hand, some courts allow plain view seizures of items on sonable caution III believing that an have taken the position that if an offi­ mere suspicion, or at least a lesser offense has been or is being commit­ cer's reasonable suspicion has been standard than probable cause. 48 Going ted and that the object is evidence aroused concerning an item, he may to the other extreme, at least one Fed­ incriminating the accused. . . . The then examine it more closely and if i.ts eral case has indicated that although question is one of probability ..•." 52 incriminating nature then becomes ap­ "absolute certainty" is not required, The court went on to conclude that in parent, at least without leaving the the officer must have "more than prob­ this case probable cause was present premises, then the "immediately ap­ able cause to believe" that the item is to believe the item was incriminating, parent" requirement is sufficiently satis­ contraband or evidence of a crime to and therefore, the seizure and admis­ fied. 56 There does not seem to be any justify its seizure. 49 However, the clear sion of the weapon as evidence was clear majority view on this issue, and majority of cases which have cDnsid­ proper. 53 officers would be well-advised to as­ ered this issue have concluded that A second closely related, but sep­ certain tit:; view their State and local "probable cause" is the appropriate arate, question is also emerging with courts have taken with regard to such standard of certainty to justify a war­ regard to the "immediately apparent" limited examinations. rantless plain view seizure. 50 requirement. The question is: Must the A Federal court of appeals case, incriminating nature of the item be im­ Summary United States v. Truitt, 51 mentioned mediately apparent at first glance, or is The fourth amendment to the Con­ earlier in this article, illustrates the ma­ a closer, more careful examination of stitution prohibits "unreasonable" jority view. In Truitt, officers had ob­ the item permissible in order to deter­ searchs and seizures. The Supreme tained a search warrant for a fishing mine whether it is contraband or evi­ Court has repeatedly interpreted the tackle and gun shop in Louisville, Ky. dence? Several courts have taken the fourth amendment as prohibiting war­ The warrant described various gam­ position that if there is not probable rantless searchs and seizures-sub­ bling records as the items to be seized. cause to telieve the item is incriminat­ ject only to a few specifically During the course of the search, ing at first glance, then a more careful established and carefully delineated and before the gambling records were examination of the item may constitute exceptions to the warrant requirement. located, one of the officers discovered a further search or seizure which is not One such exception is the plain view a sawed-off shotgun lying on top of two permissible under the plain view doc­ doctrine. boxes which were underneath a trine. 54 Copying down the serial number Simply put, the doctrine permits counter. A repair tag with the defend­ of a weapon or a television set, in the the warrantless seizure of items within ant's name on it was attached to the absence of probable cause to believe the plain view of an officer if three weapon. The gun was seized and later the item was stolen or otherwise in­ conditions or limitations are satisified. offered as evidence in a prosecution of criminating, has been condemned in 1. The officer must be present the defendant for unlawful possession several cases, with the result that a within the premises or other area of an unregistered sawed-off shotgun, later seizure of the item pursuant to a entitled to fourth amendment protec­ a violation of Federal firearms statutes. search warrant also has been tion pursuant to a search or arrest The defendant argued that since a invalidated. 55 warrant or some other traditionally rec­ sawed-off shotgun was not per se con­ ognized exception to the warrant traband, because it may be lawfully requirement. possessed if it is validly registered, it should not have been seized. The court of appeals, in affirming the trial court's ruling, held that the weapon was seized properly under the plain view doctrine. The court noted that the question was "not primarily whether the object is contraband, but whether its discovery under the circumstances

3D/FBI Law Enforcement Bulletin 2. The officer must come across Footnotes "521 F.2d 1174 (6th Clr. 1975). "Id. at 1177, the item inadvertently. If the officer has "Id. at 1178. "probable cause" to believe the item "403 U.S. 443 (197t). "Uniled States v. SokoloW, 450 F. 2d 324 (5th Cir. "Id. at 46& 1971): Slanleyv. Goorgia, 394 U.S. 557, 571~72 (1969) will be located within the premises prior "Id. at 472. (Concurring opinion by J. SIewart); United Slales v. Clark, to the entry, and hence, could have "Id at 469-71. 531 F. 2d 928 (8th Clr. 1976): Un,1ed Slales V. Scias, 590 "Id at 506 (Concurring and dissenting Opinion of J. F. 2d 956 (D.C. Cil. 1978); Uniled Slales v. Gray, 484 F.2d obtained a search warrant specifically Black) and at 516 (Concurring and DlssanUng Opinion of J. 352 (6th Cir. 1973), cerl. denied, 414 U.S. 1158 (1974); White). Slalev. Williams, 317 N.E.?'d 1013 (Ohio 1978); Uniled describing it, the discovery will not be "Comment, "Plein View"-Anything BI1I Plain: Sioies v. Robinson, 535 F. 2d 881 (5th Cir. 1976). considered inadvertent. Most courts Coolidge Divlde5 Ihe Lower Courts, 7 Loyola of LA L. .. United Sleles v. Clerk, supra'11ote 54; Uniled Slaies Rav. 469, 506 (hereinafter cited as Comment: Plain View); v. Grey, supra note 54; United Slates v. Sokolow, supra have concluded that a suspicion or Moylan, The Plain View Doclrine: Unexpecled Child o{ Ihe note 54. expectation that an item might be pres­ Greet ''Seerch Incid~lnl" Geography Battle, 26 Mercer L. .. Uniled Slales v. Schire, 58e F. 2d 15 (7th Cir. 1978) Rev. 1047. 1040-49 (herolnafter cited at Moylan). (Further invesligatlon on premises while executing a ent which does not rise to the level of "Comment: Plein View, supra note 35; Moylan, supra search warrant led to Information that automobile was probable cause will not render the note 35 at 1082. probabty stolen. The court said, "We do not Interpret the "24 Crim. L. Rep. 2418, - F. Supp. - (S.D.N.Y. 'immediately apparent' requirement to connote apparent 11t plain view seizure invalid. 1I3179). first glance, but rather, apparent without other Information "Id than that which the officers properly possessed before S. The item seized must be "im­ "/d. at 2419. their search was over"): also see the dissenting opinion of mediately apparent" as contraband or ··Comment, Plain View, supre notG 35; Moylan, supra Judge MacKinnon In United Sleles v. Sclos, supra note 54, note 35: C. WHITEBREAD, CONSTITUTIONAL CRIMINAL at 975-78, wherein he argues that the plain view doctrine evidence of a crime. The standard PROCEDURE, sec. 6.7, at 95-98 (1978). See, e.g., Uniled allows an officer to examine more closely "suspicious adopted by the majority of the courts Slstesv. Bolts, 558 F. 2d 316 (5th Clr. 1977), cert. denied, items" to determine if his "suspicion" Is Justified; United 434 U.S. 930 (Inadvertent does not mean a foreseeable Siaies v. Griffin, 530 F. 2d 739 (7th Cir. 1976) (Officers has been "probable cause" to believe POSSiOllity, If discovery was "unplanned" and officer dl~ Investigating report of stolen mailbag were Justified In that the item is contraband or other­ not intend to seize it before his enlly, seizure was picking up and examining addresses on unopened leiters "Inadvertent"). Mapp v. Warden. 531 F. 2d 1167 (2d Cir. seen on fioor and table In apartment) wise incriminating. Although some 1976), cert. denied, 429 U.S. 982 (Seizure was inadvertent even though officers knew of existence of Item prior to courts have allowed a closer examina­ seizure, because the localion 01 the item was unKnown tion of the item by the officer in order to prior to entry and officers did nol inlend 10 seize the Item at the time of their entry.) ascertain whether it is contraband or "589 F. 2d 1291 (6th Cir. 1979). n Id. at 1293. evidence, several courts have held that ., !d. at 1295. the item must be apparent at first "Id at ~296 • .. Authorities cited supre note 40, and in Hare, supra . glance as evidence or contraband and note 4';. have considered closer examinations .. Sl1pra note 30, at 466 . ., Comment, Plain View, supra note 35, at 502-507; to be impermissible searches or Moylan, supra note 35, at 1084. seizures. "Slalev. Hoffman, 190 S.E. 2d 842 (N.C. 1972) (While lawfully in house, officer lawfully seized rifle as II The plain view doctrine is a rela­ "suspicious object"); Slale v. Anderson, 469 P. 2d 722 tively recent exception to the -Narrant (Ariz. Ct. App. 1971) (Officer tawfully present in residence seized seeds he bolleved to be contraband); Uniled Slaies requirement. Further refinement by the v. Hill, 447 F. 2d 817 (7th Cir. 1971) (Officers seized keys on ground near suspect, opened garage nearby and courts will be helpful in resolving the seized staten auto parts, bas:>d on "suspicion"). differing interpretations of certain as­ .. Uniled Slates v. Smolla" 357 F. Supp. 628 (S.O.N.Y. 1972). pects of the doctrine. FBI '·Comment, Plein View, supra note 35. at 505 and n. 121; Moylan, supra note 35, at 1084 states, "The broad and evolving consensus, however, Is that the standard of certainty must be probable cause." See, e.g" Shipman v. Siale, 282 So. 2d 700 (Ala. 1973); Peop/ev. LaRocco. 496 P. 2d 314 (Colo. 1972); Uniled Stales v. Clark, 531 F.2d 928 (8th Clr. 1976); Stale v. Elkins, 422 P. 2d 250 (Ore. 1966).

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