Exceptions to the Warrants Rule
Plain View
Arizona v. Hicks (1987)
480 U.S. 321 (1987)
Vote: 6-3
Decision: Affirmed
Majority: Scalia, joined by Brennan, White, Marshall, Blackmun, and Stevens
Concurrence: White
Dissent: Powell, joined by Rehnquist and O’Connor
Dissent: O’Connor, joined by Rehnquist and Powell
JUSTICE SCALIA delivered the opinion of the Court.
In Coolidge v. New Hampshire, we said that, in certain circumstances, a warrantless seizure by police of an item that comes within plain view during their lawful search of a private area may be reasonable under the Fourth Amendment. We granted certiorari in the present case to decide whether this “plain view” doctrine may be invoked when the police have less than probable cause to believe that the item in question is evidence of a crime or is contraband.
On April 18, 1984, a bullet was fired through the floor of respondent’s apartment, striking and injuring a man in the apartment below. Police officers arrived and entered respondent’s apartment to search for the shooter, for other victims, and for weapons. They found and seized three weapons, including a sawed-off rifle, and in the course of their search also discovered a stocking-cap mask.
One of the policemen, Officer Nelson, noticed two sets of expensive stereo components, which seemed out of place in the squalid and otherwise ill-appointed four-room apartment. Suspecting that they were stolen, he read and recorded their serial numbers — moving some of the components … in order to do so — which he then reported by phone to his headquarters. On being advised that the turntable had been taken in an armed robbery, he seized it immediately. … Respondent was subsequently indicted for the robbery.
The state trial court granted respondent’s motion to suppress the evidence that had been seized. The Court of Appeals of Arizona affirmed. It was conceded that the initial entry and search, although warrantless, were justified by the exigent circumstance of the shooting. The Court of Appeals viewed the obtaining of the serial numbers, however, as an additional search, unrelated to that exigency … the Court of Appeals held that the police conduct violated the Fourth Amendment, requiring the evidence derived from that conduct to be excluded. … Both courts — the trial court explicitly and the Court of Appeals by necessary implication — rejected the State’s contention that Officer Nelson’s actions were justified under the “plain view” doctrine of Coolidge v. New Hampshire, supra. The Arizona Supreme Court denied review, and the State filed this petition.
As an initial matter, the State argues that Officer Nelson’s actions constituted neither a “search” nor a “seizure” within the meaning of the Fourth Amendment. We agree that the mere recording of the serial numbers did not constitute a seizure … it did not “meaningfully interfere” with respondent’s possessory interest in either the serial numbers or the equipment, and therefore did not amount to a seizure.
Officer Nelson’s moving of the equipment, however, did constitute a “search” separate and apart from the search for the shooter, victims, and weapons that was the lawful objective of his entry into the apartment. Merely inspecting those parts of the turntable that came into view during the latter search would not have constituted an independent search, because it would have produced no additional invasion of respondent’s privacy interest. But taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent’s privacy unjustified by the exigent circumstance that validated the entry. This is why, contrary to JUSTICE POWELL’s suggestion, the “distinction between ‘looking’ at a suspicious object in plain view and `moving’ it even a few inches” is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to respondent — serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.
The remaining question is whether the search was “reasonable” under the Fourth Amendment.
On this aspect of the case, we reject, at the outset, the apparent position of the Arizona Court of Appeals that, because the officers’ action directed to the stereo equipment was unrelated to the justification for their entry into respondent’s apartment, it was ipso facto unreasonable. …
We turn, then, to application of the doctrine to the facts of this case. “It is well established that, under certain circumstances, the police may seize evidence in plain view without a warrant,” Coolidge v. New Hampshire. …
It would be absurd to say that an object could lawfully be seized and taken from the premises, but could not be moved for closer examination. It is clear, therefore, that the search here was valid if the “plain view” doctrine would have sustained a seizure of the equipment.
There is no doubt it would have done so if Officer Nelson had probable cause to believe that the equipment was stolen. The State has conceded, however, that he had only a “reasonable suspicion,” by which it means something less than probable cause. We have not ruled on the question whether probable cause is required in order to invoke the “plain view” doctrine. …
We now hold that probable cause is required. To say otherwise would be to cut the “plain view” doctrine loose from its theoretical and practical moorings. The theory of that doctrine consists of extending to nonpublic places such as the home, where searches and seizures without a warrant are presumptively unreasonable, the police’s longstanding authority to make warrantless seizures in public places of such objects as weapons and contraband. And the practical justification for that extension is the desirability of sparing police … the risk — to themselves or to preservation of the evidence — of going to obtain a warrant. Dispensing with the need for a warrant is worlds apart from permitting a lesser standard of cause for the seizure than a warrant would require. …
We do not say, of course, that a seizure can never be justified on less than probable cause. We have held that it can — where, for example, the seizure is minimally intrusive and operational necessities render it the only practicable means of detecting certain types of crime. …
The same considerations preclude us from holding that, even though probable cause would have been necessary for a seizure, the search of objects in plain view that occurred here could be sustained on lesser grounds. A dwellingplace search, no less than a dwellingplace seizure, requires probable cause, and there is no reason in theory or practicality why application of the “plain view” doctrine would supplant that requirement. …
In short, whether legal authority to move the equipment could be found only as an inevitable concomitant of the authority to seize it, or also as a consequence of some independent power to search certain objects in plain view, probable cause to believe the equipment was stolen was required.
JUSTICE O’CONNOR’s dissent suggests that we uphold the action here on the ground that it was a “cursory inspection,” rather than a “full-blown search,” and could therefore be justified by reasonable suspicion instead of probable cause. As already noted, a truly cursory inspection — one that involves merely looking at what is already exposed to view, without disturbing it — is not a “search” for Fourth Amendment purposes, and therefore does not even require reasonable suspicion.
JUSTICE POWELL’s dissent reasonably asks what it is we would have had Officer Nelson do in these circumstances. The answer depends, of course, upon whether he had probable cause to conduct a search, a question that was not preserved in this case. If he had, then he should have done precisely what he did. If not, then he should have followed up his suspicions, if possible, by means other than a search … But there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all. …
The State contends that, even if Officer Nelson’s search violated the Fourth Amendment, the court below should have admitted the evidence thus obtained under the “good faith” exception to the exclusionary rule. That was not the question on which certiorari was granted, and we decline to consider it.
For the reasons stated, the judgment of the Court of Appeals of Arizona is
Affirmed.
JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE O’CONNOR join, dissenting.
I join JUSTICE O’CONNOR’s dissenting opinion, and write briefly to highlight what seem to me the unfortunate consequences of the Court’s decision.
Today the Court holds for the first time that the requirement of probable cause operates as a separate limitation on the application of the plain view doctrine. The plurality opinion in Coolidge v. New Hampshire, required only that it be
“immediately apparent to the police that they have evidence before them; the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.”
There was no general exploratory search in this case, and I would not approve such a search. All the pertinent objects were in plain view, and could be identified as objects frequently stolen. There was no looking into closets, opening of drawers or trunks, or other “rummaging around.” JUSTICE O’CONNOR properly emphasizes that the moving of a suspicious object in plain view results in a minimal invasion of privacy. The Court nevertheless holds that “merely looking at” an object in plain view is lawful but “moving” or “disturbing” the object to investigate a reasonable suspicion is not. The facts of this case well illustrate the unreasonableness of this distinction.
The officers’ suspicion that the stereo components at issue were stolen was both reasonable and based on specific, articulable facts. Indeed, the State was unwise to concede the absence of probable cause. The police lawfully entered respondent’s apartment under exigent circumstances that arose when a bullet fired through the floor of the apartment struck a man in the apartment below. What they saw in the apartment hardly suggested that it was occupied by law-abiding citizens. A .25-caliber automatic pistol lay in plain view on the living room floor. During a concededly lawful search, the officers found a .45-caliber automatic, a .22-caliber, sawed-off rifle, and a stocking-cap mask. The apartment was littered with drug paraphernalia. The officers also observed two sets of expensive stereo components of a type that frequently was stolen.
It is fair to ask what Officer Nelson should have done in these circumstances. Accepting the State’s concession that he lacked probable cause, he could not have obtained a warrant to seize the stereo components. Neither could he have remained on the premises and forcibly prevented their removal. Officer Nelson’s testimony indicates that he was able to read some of the serial numbers without moving the components. To read the serial number on a Bang and Olufsen turntable, however, he had to “turn it around or turn it upside down.” Officer Nelson noted the serial numbers on the stereo components and telephoned the National Crime Information Center to check them against the Center’s computerized listing of stolen property. The computer confirmed his suspicion that at least the Bang and Olufsen turntable had been stolen. On the basis of this information, the officers obtained a warrant to seize the turntable and other stereo components that also proved to be stolen.
The Court holds that there was an unlawful search of the turntable. It agrees that the “mere recording of the serial numbers did not constitute a seizure.” Thus, if the computer had identified as stolen property a component with a visible serial number, the evidence would have been admissible. But the Court further holds that “Officer Nelson’s moving of the equipment … did constitute a ‘search.’ … ” It perceives a constitutional distinction between reading a serial number on an object and moving or picking up an identical object to see its serial number. To make its position unmistakably clear, the Court concludes that a “search is a search, even if it happens to disclose nothing but the bottom of a turntable.” With all respect, this distinction between “looking” at a suspicious object in plain view and “moving” it even a few inches trivializes the Fourth Amendment. The Court’s new rule will cause uncertainty, and could deter conscientious police officers from lawfully obtaining evidence necessary to convict guilty persons. Apart from the importance of rationality in the interpretation of the Fourth Amendment, today’s decision may handicap law enforcement without enhancing privacy interests. Accordingly, I dissent.
Horton v. California (1990)
496 U.S. 128 (1990)
Vote: 7-2
Decision: Affirmed
Majority: Stevens, joined by Rehnquist, White, Blackmun, O’Connor, Scalia, and Kennedy
Dissent: Brennan, joined by Marshall
Justice STEVENS delivered the opinion of the Court.
In this case, we revisit an issue that was considered, but not conclusively resolved, in Coolidge v. New Hampshire (1971): Whether the warrantless seizure of evidence of crime in plain view is prohibited by the Fourth Amendment if the discovery of the evidence was not inadvertent. We conclude that even though inadvertence is a characteristic of most legitimate “plain view” seizures, it is not a necessary condition.
Petitioner was convicted of the armed robbery of Erwin Wallaker, the treasurer of the San Jose Coin Club. When Wallaker returned to his home after the Club’s annual show, he entered his garage and was accosted by two masked men, one armed with a machine gun and the other with an electrical shocking device, sometimes referred to as a “stun gun.” The two men shocked Wallaker, bound and handcuffed him, and robbed him of jewelry and cash. …
Sergeant LaRault, an experienced police officer, investigated the crime and determined that there was probable cause to search petitioner’s home for the proceeds of the robbery and for the weapons used by the robbers. His affidavit for a search warrant referred to police reports that described the weapons as well as the proceeds, but the warrant issued by the Magistrate only authorized a search for the proceeds. …
LaRault searched petitioner’s residence, but he did not find the stolen property. During the course of the search, however, he discovered the weapons in plain view and seized them. … LaRault testified that, while he was searching … he also was interested in finding other evidence connecting petitioner to the robbery. Thus, the seized evidence was not discovered “inadvertently.”
The trial court refused to suppress the evidence found in petitioner’s home and, after a jury trial, petitioner was found guilty and sentenced to prison. The California Court of Appeal affirmed. It rejected petitioner’s argument that our decision in Coolidge required suppression of the seized evidence that had not been listed in the warrant because its discovery was not inadvertent. …
Because the California courts’ interpretation of the “plain view” doctrine conflicts with the view of other courts, and because the unresolved issue is important, we granted certiorari.
The Fourth Amendment provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The right to security in person and property protected by the Fourth Amendment may be invaded in quite different ways by searches and seizures. A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property. United States v. Jacobsen, (1984). The “plain view” doctrine is often considered an exception to the general rule that warrantless searches are presumptively unreasonable, but this characterization overlooks the important difference between searches and seizures. If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. Arizona v. Hicks, (1987). A seizure of the article, however, would obviously invade the owner’s possessory interest. If “plain view” justifies an exception from an otherwise applicable warrant requirement, therefore, it must be an exception that is addressed to the concerns that are implicated by seizures, rather than by searches.
The criteria that generally guide “plain view” seizures were set forth in Coolidge v. New Hampshire, (1971). …
“What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.”
. …
Justice Stewart’s analysis of the “plain view” doctrine did not command a majority, and a plurality of the Court has since made clear that the discussion is “not a binding precedent.” Texas v. Brown [1983]. …
Justice Stewart concluded that the inadvertence requirement was necessary to avoid a violation of the express constitutional requirement that a valid warrant must particularly describe the things to be seized. …
We find two flaws in this reasoning. First, even-handed law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer. The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement. …
Second, the suggestion that the inadvertence requirement is necessary to prevent the police from conducting general searches, or from converting specific warrants into general warrants, is not persuasive, because that interest is already served by the requirements that no warrant issue unless it “particularly describ[es] the place to be searched and the persons or things to be seized,” Maryland v. Garrison, (1987). …
Thus, in the case of a search incident to a lawful arrest,
“[i]f the police stray outside the scope of an authorized Chimel [v. California, (1969)] search, they are already in violation of the Fourth Amendment, and evidence so seized will be excluded; adding a second reason for excluding evidence hardly seems worth the candle.” Coolidge. …
In this case, the scope of the search was not enlarged in the slightest by the omission of any reference to the weapons in the warrant. …
Again, Justice WHITE’s dissenting opinion in Coolidge is instructive:
“Police with a warrant for a rifle may search only places where rifles might be, and must terminate the search once the rifle is found; the inadvertence rule will in no way reduce the number of places into which they may lawfully look.”
As we have already suggested, by hypothesis the seizure of an object in plain view does not involve an intrusion on privacy. If the interest in privacy has been invaded, the violation must have occurred before the object came into plain view, and there is no need for an inadvertence limitation on seizures to condemn it. …
In this case, the items seized from petitioner’s home were discovered during a lawful search authorized by a valid warrant. When they were discovered, it was immediately apparent to the officer that they constituted incriminating evidence. He had probable cause not only to obtain a warrant to search for the stolen property, but also to believe that the weapons and handguns had been used in the crime he was investigating. The search was authorized by the warrant, the seizure was authorized by the “plain view” doctrine. The judgment is affirmed.
Oliver v. United States (1984)
466 U.S. 170 (1984)
Vote: 6-3
Decision: Affirmed
Majority: Powell, joined by Burger, Blackmun, Rehnquist, O’Connor, and White, in part
Concurrence: White
Dissent: Marshall, joined by Brennan and Stevens
JUSTICE POWELL delivered the opinion of the Court.
The “open fields” doctrine, first enunciated by this Court in Hester v. United States, (1924), permits police officers to enter and search a field without a warrant. We granted certiorari in these cases to clarify confusion that has arisen as to the continued vitality of the doctrine.
Acting on reports that marihuana was being raised on the farm of petitioner Oliver, two narcotics agents of the Kentucky State Police went to the farm to investigate. Arriving at the farm, they drove past petitioner’s house to a locked gate with a “No Trespassing” sign. A footpath led around one side of the gate. The agents walked around the gate and along the road for several hundred yards, passing a barn and a parked camper. At that point, someone standing in front of the camper shouted: “No hunting is allowed, come back up here.” The officers shouted back that they were Kentucky State Police officers, but found no one when they returned to the camper. The officers resumed their investigation of the farm and found a field of marihuana over a mile from petitioner’s home.
Petitioner was arrested and indicted for “manufactur[ing]” a “controlled substance.” After a pretrial hearing, the District Court suppressed evidence of the discovery of the marihuana field. Applying Katz v. United States, (1967), the court found that petitioner had a reasonable expectation that the field would remain private because petitioner “had done all that could be expected of him to assert his privacy in the area of farm that was searched.” He had posted “No Trespassing” signs at regular intervals and had locked the gate at the entrance to the center of the farm. Further, the court noted that the field itself is highly secluded: it is bounded on all sides by woods, fences, and embankments, and cannot be seen from any point of public access. The court concluded that this was not an “open” field that invited casual intrusion.
The Court of Appeals for the Sixth Circuit, sitting en banc, reversed the District Court. The court concluded that Katz, upon which the District Court relied, had not impaired the vitality of the open fields doctrine of Hester. Rather, the open fields doctrine was entirely compatible with Katz’ emphasis on privacy. The court reasoned that the “human relations that create the need for privacy do not ordinarily take place” in open fields, and that the property owner’s common law right to exclude trespassers is insufficiently linked to privacy to warrant the Fourth Amendment’s protection. We granted certiorari.
. …
The rule announced in Hester v. United States was founded upon the explicit language of the Fourth Amendment. That Amendment indicates with some precision the places and things encompassed by its protections. As Justice Holmes explained for the Court in his characteristically laconic style:
“[T]he special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects’ is not extended to the open fields. The distinction between the latter and the house is as old as the common law.”
Nor are the open fields “effects” within the meaning of the Fourth Amendment. In this respect, it is suggestive that James Madison’s proposed draft of what became the Fourth Amendment preserves
“[t]he rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures. … ”
Although Congress’ revisions of Madison’s proposal broadened the scope of the Amendment in some respects, the term “effects” is less inclusive than “property,” and cannot be said to encompass open fields. We conclude, as did the Court in deciding Hester v. United States, that the government’s intrusion upon the open fields is not one of those “unreasonable searches” proscribed by the text of the Fourth Amendment.
This interpretation of the Fourth Amendment’s language is consistent with the understanding of the right to privacy expressed in our Fourth Amendment jurisprudence. Since Katz v. United States, the touchstone of Amendment analysis has been the question whether a person has a “constitutionally protected reasonable expectation of privacy.” The Amendment does not protect the merely subjective expectation of privacy, but only those “expectation[s] that society is prepared to recognize as reasonable.'”
No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant. In assessing the degree to which a search infringes upon individual privacy, the Court has given weight to such factors as the intention of the Framers of the Fourth Amendment, the uses to which the individual has put a location, and our societal understanding that certain areas deserve the most scrupulous protection from government invasion. These factors are equally relevant to determining whether the government’s intrusion upon open fields without a warrant or probable cause violates reasonable expectations of privacy, and is therefore a search proscribed by the Amendment.
In this light, the rule of Hester v. United States, that we reaffirm today, may be understood as providing that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. … The Court, since the enactment of the Fourth Amendment, has stressed “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.”
In contrast, open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. Moreover, as a practical matter, these lands usually are accessible to the public and the police in ways that a home, an office, or commercial structure would not be. It is not generally true that fences or “No Trespassing” signs effectively bar the public from viewing open fields in rural areas. And both petitioner Oliver and respondent Thornton concede that the public and police lawfully may survey lands from the air. For these reasons, the asserted expectation of privacy in open fields is not an expectation that “society recognizes as reasonable.”
. …
We conclude, from the text of the Fourth Amendment and from the historical and contemporary understanding of its purposes, that an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers.
. … Initially, we reject the suggestion that steps taken to protect privacy establish that expectations of privacy in an open field are legitimate. … The test of legitimacy is not whether the individual chooses to conceal assertedly “private” activity. Rather, the correct inquiry is whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment. …
Nor is the government’s intrusion upon an open field a “search” in the constitutional sense because that intrusion is a trespass at common law. The existence of a property right is but one element in determining whether expectations of privacy are legitimate. …
Thus, in the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment.
We conclude that the open fields doctrine, as enunciated in Hester, is consistent with the plain language of the Fourth Amendment and its historical purposes. Moreover, Justice Holmes’ interpretation of the Amendment in Hester accords with the “reasonable expectation of privacy” analysis developed in subsequent decisions of this Court. We therefore affirm Oliver v. United States; Maine v. Thornton is reversed and remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
