U.S. v. Hare

Citation589 F.2d 1291
Decision Date08 January 1979
Docket NumberNo. 78-5220,78-5220
PartiesUNITED STATES of America, Plaintiff-Appellant, v. William Bruce HARE, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

James K. Robinson, U. S. Atty., Detroit, Mich., Thomas W. Cranmer, Birmingham, Mich., for plaintiff-appellant.

William Van Dusen, Jr., Richard Lustig, Michael S. Friedman, Southfield, Mich., for defendant-appellee.

Before EDWARDS and CELEBREZZE, Circuit Judges and PECK, Senior Circuit Judge.

PECK, Senior Circuit Judge.

This case raises the question of the meaning of the "inadvertence" requirement of the plain view exception to the warrant requirement, as set out in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The district court granted the defendant's motion to exclude evidence seized from his home, and the Government has appealed, contending that the district court applied the wrong standard when it concluded that the discovery of the narcotics was not inadvertent. We agree, and reverse the district court's suppression order.

THE INVESTIGATION, SEARCH AND SEIZURE

On September 7, 1976, the defendant was arrested by a city police officer in Redford Township, Michigan, and was discovered to be in possession of a Smith and Wesson revolver, which was registered to another person. This triggered an investigation by Special Agent Quearry, of the Federal Bureau of Alcohol, Tobacco and Firearms. Over the course of the next few weeks, with the help of several confidential informants, Agent Quearry gathered evidence that Hare was involved in the transportation of substantial quantities of firearms into Michigan without a license. In the course of his investigation, Quearry contacted the Drug Enforcement Administration, and discovered that DEA Agents Fling and Crep were investigating Hare for suspected narcotics violations. Three months after Hare's arrest, and after an extensive investigation, Quearry obtained a search warrant which authorized "any special agent of the Bureau of Alcohol, Tobacco and Firearms" to search Hare's home for an unknown quantity of firearms, ammunition, a sawed-off shotgun and a machine gun, all allegedly possessed in violation of federal criminal statutes.

The warrant was executed under Quearry's supervision, by six other ATF agents, and three DEA agents, including Agents Fling and Crep. At the suppression hearing Quearry testified that the DEA agents were asked to accompany the ATF agents to supply additional manpower, and to assist in identifying narcotics in the event that any were found in the course of the search.

The search was actually conducted by the ATF agents, while the DEA guarded the doors to the dwelling. Nineteen guns and a substantial amount of ammunition were seized, and the agents also discovered drugs and drug paraphernalia. In the living room on a table the agents found phencyclidine tablets, marijuana, white powder (later proved to be a narcotic), a cocaine cutting board and a metal strainer. In a kitchen cabinet, three bags of white powder (later proved to be cocaine) were discovered. The DEA agents took possession of the drugs and drug paraphernalia, which formed the basis of this drug distribution prosecution.

THE DISTRICT COURT'S RULING

Since the federal agents had no warrant to search for and seize narcotics, the Government relied on the plain view exception to the warrant requirement in arguing that the evidence of drug violations was lawfully seized and admissible. The defendant contended that the plain view exception only applies when the discovery is inadvertent, in the sense that it is unexpected and unplanned, relying on Coolidge v. New Hampshire, supra, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. This seizure, he argued, was both expected and planned, and was thus unlawful in the absence of a warrant. In any case, he argued, the search was rendered unlawful by the participation of the DEA agents, contrary to the direction in the warrant.

The district court agreed with the defendant, and held that the evidence was inadmissible. It found:

(T)he agents in this case expected to find drugs at the residence, and this expectation supplied at least some impetus for the search. Furthermore, the Court finds that the warrant was executed with the intention of seizing any drugs found in plain view and thus was used, at least in part, as a pretext or subterfuge to search for evidence of drug violations.

The district court went on to observe:

(I)t is impossible for the Court to conclude that the finding here was inadvertent. On the other hand, the Court cannot conclude that the agents Knew that they would discover evidence of drug violations in the course of the search.

In applying the Coolidge plain view standards to his findings, the district judge recognized that "this case involves a fact situation which does not fall neatly within the holding of Coolidge." However, he concluded that a planned warrantless seizure is illegal under Coolidge whether that plan is based on knowledge or expectation, transforming the limited, narrow search contemplated by the warrant clause of the constitution into an illegal general exploratory search.

COOLIDGE: "INADVERTENCE"

Our consideration of this case begins with the most basic constitutional rule in search and seizure law: "(S)earches conducted outside the judicial process, without prior approval by judge or magistrate, are Per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). For the most part, these exceptions are based upon a conclusion that under certain circumstances, the exigencies of a situation make immediate search and seizure without benefit of a warrant imperative. The plain view doctrine is one of those exceptions, and it is well-established that when a police officer, with a prior justification for a search in progress, inadvertently comes across contraband or an incriminating piece of evidence, a warrantless seizure is permitted. Coolidge v. New Hampshire, Supra, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. While Coolidge made it clear that "inadvertence" is required under the plain view doctrine, and devoted a considerable amount of space to the subject, the term is not defined in the opinion. The district court interpreted the phrase to mean "unexpected," or "unanticipated," and given the facts of this case, was wholly justified in concluding that the discovery of narcotics was not unexpected. However, after a careful reading of Coolidge, we conclude that "unexpected" was not what the Supreme Court intended when it held that a plain view discovery must be inadvertent. We reverse, holding that the evidence was legally seized under the facts of this case, and is admissible.

We note, first of all, that whatever the Supreme Court meant by its use of "inadvertent," it was probably not "unexpected" or "unanticipated." The word does not mean unexpected; its root meaning is "not to turn toward," and it means heedless, inattentive or unintentional. Oxford English Dictionary (1971 ed.). We think it most likely that the Supreme Court had the last meaning in mind in its use of the word Interpreting Coolidge is not an easy task, but it appears on careful reading that the Court meant only to condemn warrantless seizures when a warrant could have been obtained in other words, when the exigency which normally accompanies a plain view seizure is not present. Ordinarily, in the course of an otherwise permissible search, if the police unexpectedly come across evidence, it would be likely to disappear or be destroyed if the police then had to obtain a warrant before seizure. In the words of Coolidge, "as against the minor peril to Fourth Amendment protections, there is a major gain in effective law enforcement" if seizure is permitted under these circumstances. However, if the police had probable cause to believe they would find the evidence or contraband Before making the seizure, and had an opportunity to obtain a warrant, any exigency which results is of their own making, and cannot serve as grounds for a warrantless seizure.

since that meaning emphasizes a close link between the inadvertence requirement and the constitutional limitation on the scope of a search. A search must be as narrow as possible, and a police officer may not search places where the legitimate object of his search will not be found. A warrant for moonshine whiskey will not authorize a search of a briefcase or purse. A search must be limited to the scope of the warrant, and the police officer must intend to search for the items specified therein; but if, in the course of such a properly limited search, the officer comes across other incriminating evidence, which he did not Know he would find and thus did not intend to seize, its discovery is inadvertent.

We conclude, then, that "inadvertence" in this context means that the police must be without probable cause to believe evidence would be discovered until they actually observe it in the course of an otherwise-justified search. There are many times when a police officer may "expect" to find evidence in a particular place, and that expectation may range from a weak hunch to a strong suspicion. However, the Fourth Amendment prohibits either a warrant to issue or a search based on such an expectation. Yet if in the course of an intrusion wholly authorized by another legitimate purpose, that hunch or suspicion is confirmed by an actual observation, the police are in precisely the same position as if they were taken wholly by surprise by the discovery. The same exigent circumstances exist, and no warrant could have been obtained before the discovery.

This reading of the inadvertency requirement is supported by Coolidge itself. The thrust of the discussion is aimed at condemning seizures...

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