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~ Oil> .. ~ ~~ .. ~ - ' .... ·e·,' '" December 1987, Volume 56, Number 12

.•• r-.

1 Introducing the New Director Transformational Police Leadership by Donald C. Witham

The "Bobby Joe" Long Serial Murder Case: A Study in Cooperation (Conclusion) , J Z, G'i3 By Gary Terry and Michael P. Malone O@]@[Ji)~OlfO@@~O@[Ji) rL..,14 On-Line Exchange of Fingerprint Identification Data By Dennis G. Kurre [b®~@n [QlD©@~~ [17 Look But Don't Touch: The Plain View Doctrine JI2."4~ ~ By Kimberly A. Kingston 24 Book Review 25 1987 Index 31 Wanted by the FBI 112645- U.S. Department of Justice 112646 National Institute of JUstice

This document .has been .reproduced exactly as received from the pe~~on ~r organization originating it. Points of view or opinions stated In IS ocument. ~re tho~e of the authors and do not necessaril repr~sent the official posilion or policies of the National Institute Yf J ustlce. 0

Permission to reproduce this copyrighted material has been granted by FBI -.l!3W Enforcement BuTleITn~ to the National Criminal Justice Reference Service (NCJRS).

Further reproduction outside of the NCJRS system requires permis­ ~ sion of the copYright owner. Law Enforcement Bulletin

United States Department of Justice Published by the Office of Public Affairs The Cover: Federal Bureau of Investigation Milt Ahlerich, Acting Assistant Director The fourth Director of the Federal Bureau of Washington, DC 20535 Investigation-Judge William S. Sessions

William S. Sessions, Director Editor-Thomas J. Deakin Assistant Editor-Kathryn E. Sulewski Art Director-John E. Ott The FBI Law Enforcement Bulletin The Attorney General has determined that the Production Manager/ publication of this periodical is necessary in the (ISSN-0014-5688) is published monthly by the transaction of the public business required by Reprints-Mark A. Zettler Federal Bureau of Investigation, 10th and Penn­ law of the Department of Justice. Use of funds sylvania Ave., N.W., Washington, DC 20535. for printing this periodical has been approved Second-class postage paid at Washington, DC. by the Director of the OHice of Management Postmaster: Send address changes to Federal and Budget through June 6, 1988. Bureau of Investigation, FBI Law Enforcement Bulletin, Washington, DC 20535.

ISSN 0014-5688 USPS 383-310 M

~ i' Look But Don't Touch: il The Plain View Doctrine II ! ! "To be in plain view, an item must be plainly visible to a law i \ enforcement officer standing in a position where he has a lawful I 1 right to be." ! By KIMBERLY A. KINGSTON Special Agent FBI Academy Legal Counsel Division Federal Bureau of Investigation Quantico, VA

Law enforcement officers of other than conducted a cu rsory search for the indicted on ci":Nges of armed robbery. Federal jurisdiction who are interested shooter, other victims, and weapons. P~jN to t-ial, the State court in any legal issue discussed in this arti­ Although no people were found, several grantelJ HiGk~' motion to suppress the cle should consult their legal adviser. weapons and a stocking-cap mask stereo t\quipi nent seized from his apart­ Some police procedures ruled permis­ were discovered during the search. ment. On review, the Arizona Court of sible under Federal constitutional law Before leaving the scene, one of Appeals,4 although recognizing the va­ are of questionable legality under State the officers noticed two sets of expen­ lidity of the initial warrantless entry into law or are not permitted at all. sive stereo components in Hicks' apart­ the apartment due to the exigent cir­ ment. Noting that the stereo equipment cumstances created by the shooting,S appeared out of place in the otherwise affirmed the lower court's order to sup­ ARIZONA V. HICKSI ill-appointed apartment, the officer be­ press on the grounds that the obtaining On April 18, 1984, police officers in gan to suspect that the components of the serial numbers was an additional Phoenix, AZ, were called to a local may have been stolen. To satisfy his search that was unrelated to and, there­ apartment complex to investigate an curiosity, the officer more closely exam­ fore, not justified by the exigency. 6 In so apparent shooting. Early reports indi­ ined the stereos, moving the individual holding, the court of appeals implicitly cated that a bullet, which was fired components in the process, to read and rejected the State's steadfast conten­ through the floor of an apartment oc­ record their serial numbers. A subse­ tion that the officer's actions regarding cupied by James Hicks, struck and in­ quent telephone call to police head­ the stereo components were totally jus­ jured a man living in the apartment be­ quarters revealed that a number of the tified under the "plain view" doctrine. low. Once on the scene, the officers components had been taken in a recent After the Arizona Supreme Court de­ quickly entered Hicks' apartmenf2 and armed robbery. The stolen components nied further review in the matter, the were ultimately seized,3 and Hicks was

______December 1987 I 17 , ¥ III A

U.S. Supreme Court granted certiorari? parked in his driveway. The automobile to more closely examine the State's was thoroughly searched and vac­ contention in light of previous decisions uumed 2 days later. Evidence obtained ! involving the "plain view" doctrine. during the search was later admitted I against Coolidge, who was found guilty ORIGIN OF THE and sentenced to life in prison. Both the I PLAIN VIEW DOCTRINE judgment and sentence were pffirmed I I The U.S. Supreme Court officially by the Supreme Court of New recognized the concept of "plain view" Hampshire.12 The U.S. Supreme Court ~ in the 1968 case of Harris v. United j then granted certiorari to "consider the \ States. s In Harris, a police officer, while " constitutional questions raised by the i Special Agent Kingston in the process of securing an im­ admission of [certain] evidence against i pounded automobile, discovered evi­ Coolidge at his trial."13 !, dence of a robbery. The evidence, a ve­ The first question considered by ! hicle registration card that was found the Court in Coolidge was the validity of I lying face down on the door jamb, was i the warrant that authorized the search later introduced against Harris, the of Coolidge's car. The warrant in ques­ owner of the impounded automobile, tion was signed by the State attorney and he was convicted on robbery general acting ?,,!:, a justice of the I charges. The conviction was first re­ 14 ~ peace. The attorney general, versed, then affirmed by the court of ap­ however, was also actively in charge of l 9 [} peals. Finally, when the U.S. Supreme the murder investigation and later as­ Court had an opportunity to address the sumed the role of chief orosecutor at issue of whether the registration card trial. Because the Court found that the Ill. had been obtained by means of an un­ 'I attorney general was so closely aligned lawful search,10 the Court, in a very with law enforcement in this case that short per curiam decision, simply an­ he could not be considered a neutral I nounced that "objects falling in the plain and detached magistrate as required by 1 view of an officer who has a right to be the Constitution,15 the warrant was de­ in the position to have that view are !I clared invalid. With the warrant nullified, subject to seizure and may be intro­ the search of Coolidge's automobile duced in evidence."11 Because the stood "on no firmer ground than if there 1 Court found that the officer had a right i had been no warrant at all."16 If, there­ ! to be in a position to view the vehicle fore, the search was to be justified, it registration card, the card was deemed had to be justified on one of the excep­ to have been lawfully seized and admit­ tions to the warrant requirement. 1? ted into evidence. Consequently, the In an effort to preserve the evi­ t conviction was affirmed, and the plain dence seized from the automobile, the I view doctrine was formally adopted. State advanced a number of theories A few years later, in the case of i which would bring the search of the au­ t Coolidge v. New Hampshire, the Su­ tomobile within one of the exceptions to preme Court had another opportunity to the warrant requirement. 18 One of the clarify the concept of plain view. In ! theories proposed by the State sug­ Coolidge, police officers investigating ! gested that the vehicle could have been \ the murder of a 14-year-old girl ob­ seized under the plain view doctrine tained warrants to arrest Coolidge and and searched later as part of a search his car. Acting on those war­ custodial inventory. Ignoring the inven­ rants, officers arrested Coolidge in his tory portion of the State's argument, a home and seized the automobile eM t 54 n 'M' &£

u • •• if probable cause to believe that an item is evidence of a crime cannot be established without making some further intrusion, no matter how slight, then the search and seizure of that item cannot be justified under the plain view doctrine."

plurality19 of the Court in Coolidge was merely a plurality opinion which es­ minutes later, defendant and two others focused on the plain view exception to tablished no binding precedent, the exited the room and were arrested. One the warrant requirement and concluded lower courts have generally adhered to agent then entered the hotel room to in­ that it was inapplicable to that case. In the plurality's interpretation of the plain sure that no one else remained inside. reaching this conclusion, the Court view doctrine and applied the inherent Once in the room, the agent noticed made the following statement regarding limitations to subsequent cases. 21 The marijuana residue in the bathtub and the plain view doctrine: remainder of this article will examine marijuana cigarette butts in the ash­ "What the 'plain view' cases have in the concept of plain view, analyze its trays. While this evidence was being common is that the police officer in limitations, and discuss what effect collected, a second agent entered the each of them had a prior justification these limitations had on the outcome of hotel room to assist in securing the for an intrusion in the course of Arizona v. Hicks. premises. In the bathroom, the which he came inadvertently across second agent noted that a soundproof­ a piece of evidence incriminating the LIMITATIONS TO THE ing panel in the ceiling was ajar. Climb­ accused. The doctrine serves to PLAIN VIEW DOCTRINE ing onto the toilet and looking into the supplement the prior justification­ Officers in a Lawful Position space above the drop-ceiling, the agent found and seized three guns, two pack­ whether it be a warrant for another To See object, hot pursuit, search incident ages of marijuana, and one package of Before the seizure of an item of ev­ iO lawful arrest, or some other legiti­ cocaine.23 Defendant was subse­ idence can be fully scrutinized in terms mate reason for being present un­ quently charged with possession of the of the limitations of the plain view doc­ connected with a search directed at firearms and possession of the con­ trine to determine whether it is admis­ the accused-and permits the war­ trolled SUbstance with intent to deliver. sible against a criminal defendant, the rantless seizure. Of course the ex­ Prior to trial, defendant moved to item must first be found to have been in tension of the original justification is suppress all the evidence seized from plain view at the time it was seized. In legitimate only where it is imme­ the hotel room. This motion, along with other words, before the plain view doc­ diately apparent to the police that a second identical motion made during trine can apply, a court must find that they have evidence before them; the trial, was denied and defendant was the particular object in question was 'plain view' doctrine may not be convicted. On appeal, the government plainly visible at the time it was seized used to extend a general exploratory offered a two-step justification for the by a law enforcement officer and that search from one object to another hotel room seizures. First, they argued no unauthorized intrusion was neces­ that the initial entry and brief search of until something incriminating at last sary to bring the object into view. emerges. H20 the room were made necessary by the This initial requirement for applica­ This synopsis of the plain view exigent circumstances surrounding the tion of the plain view doctrine was illus­ arrest. Second, the government as­ doctrine recognizes three limitations in­ trated in the case of United States v. herent in the concept: (1) The law en­ serted that all items of evidence confis­ Irizarry.22 In Irizarry, Federal agents cated, including those items discovered forcement officer must be in a lawful and local law enforcement officers, position when he (2) inadvertently above the ceiling, were in plain view armed with a valid arrest warrant, and could lawfully be seized by agents comes across an item, (3) the evidenti­ knocked and announced their presence ary value of which is immediately ap­ legitimately on the premises. prior to making a demand to enter the Conceding the government's first parent. Applying these limitations to the defendant's hotel room in Isla Verde, facts in Coolidge, the plurality found argument, the court of appeals in Iri­ Puerto Rico. Before entering, one of the zarry readily recognized that the emer­ that the plain view doctrine did not ap­ agents peered through the hotel room ply because the discovery of the auto­ gency situation created by the lawful ar­ window and observed the defendant re­ rest of the hotel room occupants mobile in Coolidge's driveway was ex­ moving a gun from a handbag resting pected, not inadvertent. The seizure of justified the subsequent entry of that on a dresser. The agents and officers room to search for others who might be the automobile was, therefore, uncon­ quickly took cover and made repeated stitutional, as was the subsequent present. Likewise, the court accepted a demands for defendant and others in portion of the government's second ar­ search. the room to come out. Approximately 5 Although the decision in Coolidge gument-that the marijuana residue in the bathtub and the cigarette butts in

------______December 1987 i 19 • p.' e 'H E eM" 4 e·

ft••• [pJlain view alone is never enough-the doctrine requires a catalyst to place an officer in a lawful position to seize the evidence." the ashtrays were items of evidence forcement officer had a right to be in the objects may, during the COUise of that found in plain view by agents lawfully in position he occupied when he seized search, come across some other items the hotel room. However, the court was the evidence. Simply because an of­ of an incriminating nature, and thus, be not willing to extend its acceptance to ficer is in a lawful position to see an in a lawful position to seize those the items found above the ceiling item does not necessarily mean he is in items. 29 Similarly, the initial intrusion soundproofing panel. Although noting a lawful position to seize that item. If, for which brings the law enforcement of­ that a law enforcement officer may example, an officer standing on a public ficer into contact with plain view evi­ "crane his neck, or bend over, or sidewalk, where he undoubtedly has a dence may be lawful, not because a squat"24 to observe items of interest right to be, can look through the window warrant exists, but because one of the without rendering the plain view doc­ of a private residence and see some­ exceptions to the warrant requirement trine inapplicable, the court held that thing he has reason to believe is evi­ applies, such as consent,30 hot pur­ the doctrine was not intended to "permit dence of a crime, the plain view doc­ sUit,31 or a search incident to arrest,32 an officer to indulge in a frolic of his trine would not justify the warrantless Regardless of the reason legitimizing own.·'25 More simply, the plain view entry on to those premises to seize that an officer's presence in an area, one doctrine, by itself, cannot authorize any item.27 Although the officer was in a thing is clear: Plain view alone is never further intrusion into premises. 26 lawful position to see the evidence, he enough-the doctrine requires a cata­ To be in plain view, an item must was not in a lawful position to seize it. lyst to place an officer in a lawful posi­ be plainly visible to a law enforcement The difference between being in a tion to seize the evidence. officer standing in a position where he lawful position to see and seize evi­ had a lawful right to be. Clearly, the dence is often explained by distinguish­ Inadvertent Discovery agents who arrested Irizarry had a right ing "plain view" from "open view." After concluding that a law en­ to be in his hotel room, and they could Judge Charles Moylan of the Maryland forcement officer was in a lawful posi­ lawfully seize items of evidence plainly Special Court of Appeals artly dis­ tion to both see and seize an item of ev­ visible to them. Unfortunately, the items tinguished these two concepts as fol­ idence, a court must next decide of evidence found above the ceiling lows: whether the discovery of that particular panel were not plainly visible to the "Seeing something in open view item of evidence was inadvertenl,33 The agents standing in the room. Discovery does not, of course, dispose, ipso inadvertency requirement, although of those items required the additional facto, of the problem of crossing discussed at length in Coolidge, has intrusion of climbing on the toilet, lifting constitutionally protected thresholds. never been defined by ~he Supreme the panel, and peering into the space Those who thoughtlessly overapply Court, and consequently, has caused above the ceiling. Because an addi­ the plain view doctrine to every sit­ considerable confusion in the lower tional intrusion, for which the agents uation where there is a visual open courts. Some courts interpret the in­ had no legal basis, was required, sei­ view have not yet learned the simple advertent limitation as requiring the dis­ zure of these items could not be justi­ lesson long since mastered by old covery of plain view evidence to be to­ fied under the plain view doctrine. Con­ hands at the burlesque houses, 'You tally unexpected. 34 An ever-increasing sequently, the court of appeals in can't touch everything you see.' majority of courts,35 however, considers Irizarry suppressed these items of evi­ "Ught waves cross thresholds with a the inadvertency requirement satisfied dence and reversed defendant's con­ constitutional impunity not permitted if, prior to conducting a search, law en­ viction. arms and legs. Wherever the eye forcement officers had less than proba­ may go, the body of a policeman ble cause to believe that the plain view To Seize 36 may not necessarily follow."28 evidence would be found. Both inter­ Once a reviewing court has deter­ pretations of the inadvertency require­ The Court in Coolidge recognized mined that a particular item of evidence ment are involved in the case of United that a variety of reasons could justify an was plainly visible to a law enforcement HareY officer being in a lawful position to seize States v. officer prior to its seizure, that court evidence in plain view. For instance, In Hare, defendant was arrested by must next ascertain whether the law en- the Court pointed out that an officer ex­ local police officers and was found to be ecuting a search warrant for specific

20 i FBI Law Enforcement Bulletin ______a -

in possession of an illegal firearm. The this expectation supplied at least Although the interpretation advanced weapon and information regarding some impetus for the search. Fur­ by the court of appeals in Hare appears Hare was turned over to agents of the thermore, the Court finds that the to be more logical, no definitive state­ Federal Bureau of Alcohol, Tobacco warrant was executed with the inten­ ment can be made regarding the valid­ and Firearms (ATF) who began an in­ tion of seizing any drugs found in ity of either interpretation without a pro­ tensive investigation which led them to plain view and thus was used, at nouncement from the Supreme Court. believe that Hare was a key figure in an least in part, as a pretext or subter­ Until then, law enforcement officers can illegal firearms operation. During the fuge to search for evidence of drug avoid the potential risks of suppression course of their investigation, ATF violation. "38 by obtaining search warrants whenever agents also discovered that Hare was The court of appeals reviewing the possible and by describing in the war­ suspected by agents of the Drug En­ decision in Hare, however, subscribed rants all items for which probable cause forcement Administration (DEA) of to a different interpretation of the can be established. being involved in the illegal distribution Coolidge inadvertency requirement. of cocaine. Consequently, when ATF According to the court of appeals, the Immediately Apparent agents obtained a warrant to search requirement that the discovery of evi­ The final limitation placed on the Hare's premises, DEA agents were re­ dence be inadvertent was intended only plain view doctrine by the Supreme quested to participate in the search to to condemn reliance on the plain view Court in Coolidge is the requirement identify any controlled substances that doctrine for seizures that could have that the incriminating nature of seized may be found at the scene. The subse­ been authorized by warrant. 39 Because items be "immediately apparent" to law quent search resulted in the seizure of the mere expectation that evidence will enforcement officers. Like the inadver­ numerous weapons and large quan­ be found during a search could not sup­ tent requirement, the concept of "imme­ tities of cocaine. port the issuance of a warrant, the pur­ diately apparent" was never defined in During the preliminary stages of pose of the inadvertency requirement Coolidge and caused considerable his narcotics prosecution, Hare moved would not be contravened by allowing consternation in the lower courts.42 In to suppress the cocaine on the grounds the plain view seizure of such evidence. fact, the Supreme Court itself later ob­ that it had been illegally seized. The If, on the other hand, prior to the search served that "the use of the phrase 'im­ government, recognizing that a warrant probable cause exists to believe that mediately apparent' was very likely an to search for illegally possessed certain evidence will be found, a war­ unhappy choice of words, since it can weapons could not support the seizure rant could be issued, and the purpose be taken to imply that an unduly high of controlled substances, argued that of the inadvertency requirement would degree of certainty as to the incrimina­ the cocaine was discovered in plain be satisfied by prohibiting the plain view tory value of evidence is necessary for view while the agents were lawfully on seizure of that evidence.4o Applying this an application of the 'plain view' doc­ Hare's premises pursuant to the search interpretation of the inadvertency re­ trine."43 Fortunately, the confusion warrant. Resolving the dispute, the dis­ quirement to the facts in Hare, the court caused by the phrase "immediately ap­ trict court analyzed the seizure of the of appeals concluded that prior to com­ parent" was, for the most part,44 re­ cocaine in light of the limitations an­ mencing the search, the agents solved by the Court in the 1983 case of 45 nounced in Coolidge and found it to be did not have probable cause to search Texas v. Brown. illegal. The discovery of the cocaine, for drugs, no warrant could have been In Brown, defendant's automobile claimed the district court, was ex­ issued to authorize such a search, and was stopped by a local police officer pected, and therefore, not inadvertent. consequently, the discovery of the co­ manning a routine driver's license Proof of the agents' expectations was caine was inadvertent. The decision of checkpoint. When asked to produce his found in the presence of DEA agents the district court was, therefore, re­ driver's license, Brown withdrew his during the search. In granting defend­ versed, and the evidence was declared hand from his pocket and dropped an ant's motion to suppress, the district admissible. opaque, green party balloon, knotted court stated: Both interpretations of the inadver­ about one-half inch from the top, onto "The Agents in this case expected tency requirement have won accept­ the seat beside him. While looking for to find drugs at the residence, and ance in various courts over the years.41

------______December 1987/21 z ¥ m " ... law enforcement officers can avoid the potential risks of suppression by obtaining search warrants whenever possible and by describing in the warrants all items for which probable cause can be established." his license, Brown rummaged through what he saw was either evidence or trine. On this particular point, despite the contents of the glove compartment, contraband. Citing the language in pre­ vehement dissents by three members which included an open bag of party vious decisions, the Court stated that of the Court,50 the majority concluded balloons and several plastic vials of a "the seizure of property in plain view in­ that the plain view doctrine could not white powder. All of Brown's actions volves no invasion of privacy and is justify the recording of the serial num­ were observed by the police officer presumptively reasonable, assuming bers. While accepting that the officers standing next to the automobile. 46 Un­ that there is probable cause to associ­ were lawfully present in Hicks' apart­ able to produce his license, Brown was ate the property with criminal ac­ ment based upon the emergency cre­ asked to step out of the car. When tivity. "49 Requiring probable cause for ated by the shooting, the Court found Brown complied, the attending police the seizure, reasoned the Court, was that the concealed serial numbers on officer reached inside the vehicle and consistent with fourth amendment prin­ the stereo components were not plainly seized the green balloon which ap­ ciples and constituted a workable visible to those officers because they peared to contain a powdery sub­ standard for law enforcement officers. had to move the components to gain 51 stance. Believing the substance to be a Applying the now clearer concept access to those numbers. Inasmuch narcotic, the officer placed Brown under of "immediately apparent" to the facts as an additional intrusion was required arrest and conducted a search of the in Brown, the Court found that it was to reveal the serial numbers, the search entire vehicle. Later, it was determined obvious, based on the arresting of­ for the serial numbers could not be jus­ that the balloon contained heroin. ficer's observations and expertise, that tified under the plain view doctrine. Brown moved to suppress the con­ probable cause existed to believe that In the second phase of its analysis, tents of the balloon on the grounds that the party balloon contained a controlled the Court contemplated whether the the initial seizure was unlawful. Specifi­ slJbstance. Accordingly, seizure of the plain view doctrine would have sus­ cally, Brown argued that contrary to the balloon was deemed lawful under the tained the seizure of the stereo equip­ government's assertions, the balloon plain view doctrine, and the decision of ment itself. For, according to the Court, could not have been seized pursuant to the court of appeals was reversed. "it would be absurd to say that an object the plain view doctrine because the evi­ could lawfully be seized and taken from dentiary value of the balloon was not the premises, but could not be moved "immediately apparent" at the time of APPLICATION OF THE PLAIN VIEW for closer examination."52 Clearly, the the seizure. Not swayed by Brown's DOCTRINE IN ARIZONA v. HICKS stereo equipment was plainly visible to argument, the trial court denied the mo­ In Hicks, the Supreme Court was the officers lawfully on Hicks' premises. tion to suppress, and Brown was sub­ tasked with determining whether the Additionally, there was no question that sequently convicted on charges of pos­ stolen stereo components were prop­ those same officers were in a lawful sessing the heroin. The State court of erly seized from Hicks' apartment. As position to seize the equipment which appeals, however, was more receptive previously noted, the stereo equipment they inadvertently discovered. The final to Brown's contentions and ultimately was seized pursuant to a search war­ issue was, therefore, whether the evi­ reversed the conviction on the grounds rant. However, if the serial numbers dentiary value of the stereo compo­ that the "immediately apparent" limita­ that formed the basis of the probable nents was "immediately apparent" to tion of the plain view doctrine required cause used to support the issuance of those officers. In other words, prior to the police officer to "know that in­ the warrant were obtained unlawfully. the search which revealed the serial criminatory evidence was before him then the warrant would be rendered in­ numbers, did the officers have probable when he seized the balloon."47 The valid. To resolve this issue, the Su­ cause to believe the equipment was U.S. Supreme Court granted certiorari48 preme Court focused its attention on stolen. Unfortunately, in response to to resolve the conflict over the meaning the initial search which had revealed this question, the State had previously of the phrase "immediately apparent." those serial numbers. The Court's anal­ conceded that the officers merely had a A majority of the Supreme Court in ysis was divided into two phases. reasonable suspicion that the items Brown had no trouble deciding that the In the first phase of its analysis, the were stolen. 53 Consequently, the Su­ "immediately apparent" requirement Supreme Court considered whether preme Court had no alternative but to would be satisfied if a law enforcement those serial numbers were obtained in find that the "immediately apparent" re­ officer had probable cause to believe accordance with the plain view doc- quirement of the plain view doctrine

22 I FBI Law Enforcement Bulletin ______, ME e

was not satisfied. Because neither the lieve those weapons are evidence of a 23The agent used a flashlight when searching the 58 space above the ceiling. However the use of the flashlight serial numbers nor the stereo equip­ crime. Similarly, notebooks could not had no bearing on the outcome of the case. For plain view ment itself could be seized pursuant to be opened or video tapes played 59 to cases involving the use of flashlights, see United States v. Wright, 449 F.2d 1355 (D.C. Cir. 1971); United States v. the plain view doctrine, the search was reveal their contents without the requi­ Lara, 517 F.2d 209 (5th Cir. 1975); United States v. Lewis, 504 F.2d 92 (6th Cir. 1974); United States v. Johnson, declared unlawful and the evidence site probable cause, In short, if proba­ 506 F.2d 674 (8th Cir. 1974); and United States v. Hood, was suppressed. ble cause to believe that an item is evi­ 493 F.2d 677 (9th Cir. 1974). 24/rizarry, supra note 22, at 560. dence of a crime cannot be established 2sld. CONCLUSION without making some further intrusion, 261n Irizarry, the court noted that if the plain view doc· trine coutd be Cited as justification for further entry Into The importance of the decision in no matter how slight, then the search premises, a "police officer who entered a student's room to break up a brawl would be allowed to Clamber up the Hicks is found, not so much in what the and seizure of that item cannot be justi­ bookcase to see what sort of illicit matter might be hiding Court did, as in what it did not do. Spe­ fied under the plain view doctrine. behind Madame Bovary." Id. 27For an excellent discussion on this issue, see Ensor cifically, the Supreme Court refused to v. State, 403 So.2d 349 (Fla. 1981). make a distinction between cursory in­ 2BMoylan, "The Plain View Doctrine: Unexpected Child of the Great 'Search Incident' Geography Battle," 26 spections involving minor intrusions Mercer L. Rev. 1047. 1096 (1975). Footnotes and "full blown" searches.54 Instead, 29Coolidge, supra note 12, at 582. '107 S.Ct. 1149 (1987) [hereinafter cited as Hlcksj. 30See. e.g., United States v. BaldWin. 621 F.2d 251 the Court ruled that both actions require 2The officers were admitted to Hicks' aparlment by (6th Cir. 1980) and Lance v. State. 425 N.E. 2d 77 (Ind. the manager of the apartment complex. 1981). probable cause to make them reason­ 30ne turntable was seized immediately. The remain· 31See. e.g., Warden v. Hayden, 387 U.S. 58 (1967). able under the fourth amendment. Al­ ing components were seized pursuant to a search warrant 32See, e.g., Chimel v. California, 395 U.S. 752 (1969). issued on the basis of an affidavit containing the serial 33The Inadvertency requirement has never been though numerous lower courts have number information. adopted by a majority of the U.S. Supreme Court. Justice made this distinction and allowed cur­ 4State ,. Hicks, 707 P.2d 331 (Ariz. App. 1985). White is particularly opposed to this requirement and has sThis point was conceded by both parties to the ec· made his position quite clear. See, e.g., Hicks, supra note sory inspections of items in plain view tion. 1 (White, J" concurring); Texas v. Brown, 460 U.S. 730 for which law enforcement officers had 6The Arizona Court of Appeals relied on a statement (1983) (White, J" concurring); Coolidge, supra note 12 in Mincey v. Arizona, 437 U.S. 385 (1978), that a "war­ (White. J" dissenting). only a reasonable suspicion that the rantless search must be 'strictly ctrcumscribed by the ex­ 34See, e.g., State v. Caponi, 466 N.E.2d 551 (Ohio igencies which justify its initiation:" Id. at 393 (citation 1984); Gonzales v. State, 507 P.2d 1277 (Okla. Crim. items were evidence or contraband,55 a omitted). See, supra note 4, at 332. 1973); State v. Cat/ette, 221 N.W.2d 25 (S.D. 1974). majority of the Supreme Court56 held 7106 S.Ct. 1512 (1986). 35See, e.g., United States v. Hare, 589 F.2d 1291 (6th 8390 U.S. 234 (1968) [hereinafter cited as Harris]. Cif. 1979); United States v. Boits, 558 F.2d 316 (5th Cir. that such a distinction contravenes the 9The U.S. Court of Appeals for the District of Colum· 1977); United States v. Montiel/, 526 F.2d 1008 (2d Cir. probable cause requirement of the bia Circuit reversed the conviction of Harris on the grounds 1975). that the registration card had been seized as a result of an 36Justifying its position on this issue, the court of ap· fourth amendment. With respect to the unlawful search. However, the government's petition for an peals in United States v. Hare, 589 F.2d 1291 (6th Cir. en bane review was granted, and the conviction was af· 1979) made the following statement: facts in Hicks, the Court stated that "it firmed. See Harris v. United States, 370 F.2d ~77 (D.C. ''We conclude, then, that 'inadvertence' in this context matters not that the search uncovered Cir.1966). loThe Supreme Court granted certiorari at 386 U.S. means tnat the police must be without probable cause nothing of any great value to [Hicks]­ 1003 (1967). to believe eVidence would be discovered until they ac­ llHarris, supra note 8. at 236. tually observe it in the course of an otherwise-justified serial numbers rather than (what might, 12403 U.S. 443 (1971) [hereinafter cited as Coolidgej. search. There are many times when a police officer conceivably have been hidden behind 13See State v. Coolidge, 260 A.2d 547 (N.H. 1969). may 'expect' to find evidence in a particular place, and 14Coolidge, supra note 12. at 448. that expectation may range from a weak hunch to a or under the equipment) letters or pho­ ISThe Supreme Court found that the policy underlying strong suspicion. However, the Fourth Amendment tographs. A search is a search, even if it the fourth amendment to the Constitution requires that all prohibits either a warrant to issue or a search based warrants be issued by neutral and detached magistrates. on such expectation. Yet, if .. that hunch or suspicion is confirmed by actual observation, the police are in happens to disclose nothing but the Coolidge, supra note 12. at 449. precisely the same position as if they were taken bottom of a turntable,"S7 IBid. at 453. 17 Any search ccnducted without a warrant is per se wholly by surprise by the discovery. The same exigent circumstances exist, and no warrant could have been The Supreme Court's refusal to invalid unless it can be fit into one of the narrowly defined obtained before the discovery." Id. at 1294. exceptions to the warrant requirement. Katz v. United 37589 F.2d 1291 (6th Cir. 1979) fhereinafter cited as permit cursory inspections of items in States, 389 U.S. 347 (1967). lBln addition to "plain view," tne State also argued un­ Hare]. plain view absent probable cause to be­ 3Bld. at 1293. successfully that the search was justified either as a 391d. at 1294. lieve that those item have evidentiary search incident to arrest or under the Illotor vehicle excep· 4old. tion to the warrant requirement. value may have a wide-ranging effect 41See supra notes 34 and 35. 190nly four justices agreed on the portion of the deci­ 42See Ronnie Altman Cintron, 'The Plain View Excep· on law enforcement investigations. For sion that pertained to plain view. tion to the Fourth Amendment," Search and Seizure Law 20Coo/idge, supra note 12. at 466. Report, vol. 10, No.1 0, November 1983, p. 178. See also, instance, the Hicks decision makes it 21{n Texas v. Brown, 460 U.S. 730 (1983), the Su­ United States v. Thomas, 676 F.2d 239 (7th Cir. 1980); preme Court noted that although the Coolidge decision clear that under the plain view doctrine, United States V. Schire, 586 F.2d 15 (7th Cir. 1978). was not binding precedent, it should obviously be the point 43Texas V. Brown, 460 U.S. 730, 741 (1983). weapons found during a search could of reference for further discussion on the issue. Id. at 737. 441n Brown, the Court did not answer whether "in not be moved to reveal serial nllmbers 22673 F.2d 554 (1st Cir. 1982) [hereinafter cited as Inzarryj. unless there is probable cause to be-

Decernber 1987 ! 23 Book Review

Personal Identification From Human ifest greater accuracy in timing where Remains, death happens to occur in less than 2 some clrcumstt·' ir·.:=ts, a degrep. of suspicIon lower than by Spencer L. Rogers, probable cause "auld be sufficient basis for a seizure in weeks, even down to time periods certain cases.' Id. at 742, n. 7. This question was not Charles C, Thomas-Publisher measured in hours. We are not refer­ completely resu,ved In the negative until the Court·s decI­ sion In Hicks, supra note 1. 1987. $23,50, 70 pages. ring here to a newly found body, but "460 U.S. 730 (1983) [hereinafter cited as Brown]. one that is, for instance, a week or so 46The police officer In Brown used a flashlight to see into the automobile. However, th6 use of the flashlight had On a scale of 1 to 10, Personal old. The lack of this particular element no Impact on the outcome of the case. See supra note 23. Identification From Human Remains is not so much a failure of the book, but 47Brown v. Siale, 617 SW.2d 196, 200 (Tex. Cnm. App.1982). has to score top marks, The book is a a failure of current forensic fact in terms '"457 U.S. 1116 (1982). good companion analysis of forensic "Brown, supra note 45, at 741, 742 {emphasIs in of needed research. onglnal) [quOling Paylon v. New York, 445 U.S. 573 medicine and is short enough, full The chapter dealing with the trans­ (1980)]. enough, and nontechnical enough to be "Cnlef Justice RehnqUist along with Justices Powell formation of death and visual recogni­ and a Conoor dissented on the grounds that recording of understood by those officers with no tion is exceptionally good and well writ­ the senal numbers could be Justified on less than probable cause. The dissenters expressed the belief that the cur­ previous forensic background. This ten. For instance, an example of the sOlY Inspection of an item found in plain view is reason· does not mean the work is superficial; author's style in this chapter reads: "In able if there IS reasonable suspicion that the Item IS eVidence of a cnme. Hicks. supra note 1, at 1157 (O'Con­ on the contrary, it is precise and accu­ summary, the decomposition of the nor, J., dissenting). mte and covers all spectrums of foren­ body depends on four primary factors: "The Court In Hicks made the following observation: Merely inspecting those parts of the turntable that sic investigation. Professor Rogers has warmth, air, moisture and bacteria, The came Into view dunng the latter search would not have somehow managed to condense a constituted an independent search, because It would presence or absence of any or a com­ have produced no additional Invasion of respondent's great deal of knowled(:1e on the subject bination of these has a profound effect pnvacy Interest. But taking action, unrelated to the 00' into some 70 pages of easy-to-reed text jeclives of the authonzed Intrusion, which exposed to on the preservation of a body." view concealed portions of the apartment or its con· and still retain excellence and thor­ The text on fingerprinting the dead tents. did produce a new Invasion of respondent's pri· vacy unjustified by the exigent circumstances that oughness in six chapters embracing is both definitive and easy to follow. validated the entry.' Hicks, supra note 1. at 1152 (eita' (1) The Transformations of Death and Dental identification, reconstruction tions omitted). Visual Recognition, (2) Fingerprinting "Hie/IS. sllpra note 1. at 1153. from the skeletal remains, reconstruct­ ;:lJustice Powell termed the State's actions in conced· the Dead, (3) Identification Through ing the face, and the subjects of pathol­ ing thiS point as unwise.' Id. at 1156 (Powell, J., dissent· Dentition, (4) Reconstruction From the Ing). ogy, trauma, and surgery are normally ''"'The court held that the distinctIOn between looking' Skeleton, (5) Reconstructing the Face deemed to be quite complicated fields at a SUSP'CIOUS object in plain view and :'Tlovlng' It even a few Inches is much more than tnvial for purposes of the and (6) Pathology, Trauma and Sur­ of study. Nevertheless, this book will Fourth Amendment. .. Id. at 1152. gery. meet most of the requirements of of­ 55 See, e.g .. Untied Stales v. Marbury, 732 F.2d 390 (5th Cif. 1984): Uniled Slates v. Hillyard, 677 F.2d 1336 The dental section is extremely ficers in county sheriff and police de­ (9th C'f. 1982): United Slates v. Wflght, 667 F.2d 793 (9th Clf. 1982): Uniled Stales v. CrOUCh, 648 F.2d 932 (4th well done-very detailed, nicely di­ partments who have to deal with identi­ Cif. 1981): United Slates v. Roberts. 619 F.2d 379 (5th agrammatic, and with many useful ta­ fication from human remains. Clf. 1980): Untted Stales v. Damitz, 495 F.2d 50 (9th Cir. 1974). bles. The early part of the book could Law enforcement officers wishing ""Chief Justice RehoqUist along With Justices Powell possibly use a bit more in the way of ta­ to specialize in the forensic aspects of and O'Connor dissented on this Issue. The dissenting Jus­ tices would support making a distinction between the cur· bles, not necessarily diagrams, but ta­ investigatory procedures will find a sory Inspection of an Item and a "full blown" search of that bles which relate to timing. The os­ wealth of further reading listed in the item. See supra nole 50. 57Hle!

24 ! FBI Law Enforcement Bulletin ______