U.S. v. Rutkowski

Decision Date05 April 1989
Docket NumberNo. 88-1730,88-1730
Citation877 F.2d 139
PartiesUNITED STATES of America, Appellant, v. Joseph RUTKOWSKI, Defendant, Appellee. . Heard
CourtU.S. Court of Appeals — First Circuit

Ralph C. Martin, II, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., U.S. Atty., Boston, Mass., was on brief, for U.S.

Joseph S. Callahan, Fall River, Mass., for Joseph Rutkowski.

Before BREYER and SELYA, Circuit Judges, and CAFFREY, * Senior District Judge.

SELYA, Circuit Judge.

In this criminal case, the district court suppressed certain evidence, ruling that the items seized were beyond the scope of the officers' warrant and did not fall within the plain view exception to the fourth amendment. The government appeals the pretrial suppression order pursuant to 18 U.S.C. Sec. 3731. We affirm.

I. BACKGROUND

On November 21, 1985, a state trooper, Robert Friend, obtained warrants to search various premises frequented by defendant-appellee Joseph Rutkowski: Rutkowski's home, summer cottage, and boat house. 1 The warrants described the objects to be seized as "stolen handguns, jewelry and coins." A supporting affidavit explained that the items had been taken in a Brockton, Massachusetts housebreak some seven months earlier. The affidavit incorporated the police report (which, in turn, limned the circumstances of the heist and the nature of the purloined property).

Friend, in command of a decemvirate of lawmen, executed the search warrant later that day. By invitation, Special Agent Daryl Diotte of the United States Postal Service accompanied the search party. The search, which covered Rutkowski's apartment, a common basement in the apartment house, and a detached garage, began shortly after 3:00 p.m. During roughly six hours of exploration, the officers seized over 300 items, including tools, electronic gear, twelve pounds of platinum, a bag of jewelry, a gun, and miscellaneous household effects. As matters turned out, none of the items--including the jewelry and the weapon--had been described in the warrant paperwork or taken in the Brockton burglary.

The platinum is the cynosure of this appeal. The troopers came across it approximately five hours into the search. Behind a layer of wall insulation in the basement, a coffee can was found; inside the coffee can were several envelopes; inside the envelopes were pieces of what appeared to be virgin metal. Friend testified that he was aware that some platinum had been stolen from a United States Post Office in West Chester, Pennsylvania. Although he was unsure of the composition of the metal strips, he seized them. At search's end, he contacted Diotte (who had left Rutkowski's apartment earlier) to tell him of the discovery. A day or two thereafter, Friend brought the metal to the State Police laboratory, where it was identified for the first time as platinum. Friend then provided Diotte with samples for more sophisticated analysis. Eventually, the authorities concluded that the seized pieces had been stolen from the post office.

A federal grand jury indicted Rutkowski for unlawful possession of matter stolen from the mail, i.e., the platinum, in violation of 18 U.S.C. Sec. 1708. He promptly moved to suppress, claiming that seizure of the platinum transgressed his constitutional rights. Following an evidentiary hearing, the district court ordered suppression, rejecting the government's argument that the seizure was lawful under the plain view doctrine. United States v. Rutkowski, Cr. No. 88-103-H (D.Mass. June 24, 1988). This appeal followed.

II. PLAIN VIEW

The plain view doctrine constitutes an exception to the warrant requirement of the fourth amendment. Under certain circumstances, evidence discovered in plain view may be lawfully seized even though the police were not originally authorized to search for it. See Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347 (1987). The exception applies if three criteria are met. First, the officers' presence at the point of discovery must be lawful. Second, discovery of the seized item must be inadvertent. Third, the item's evidentiary value must be immediately apparent to the searchers. See Texas v. Brown, 460 U.S. 730, 736-37, 103 S.Ct. 1535, 1540-41, 75 L.Ed.2d 502 (1983); Coolidge v. New Hampshire, 403 U.S. 443, 465-70, 91 S.Ct. 2022, 2037-40, 29 L.Ed.2d 564 (1971) (plurality opinion); United States v. Garcia-Rosa, 876 F.2d 209, 218-19 (1st Cir. 1989); United States v. Aguirre, 839 F.2d 854, 858 (1st Cir.1988); United States v. Johnston, 784 F.2d 416, 419 (1st Cir.1986) (Johnston I ). One can think of these three criteria as comprising (1) justifiable presence, (2) inadvertent discovery, and (3) immediate awareness.

We will reverse a district court's decision as to the availability of the plain view exception only for clear error. United States v. Doherty, 867 F.2d 47, 66 (1st Cir.1989), pet. for cert. filed (Apr. 1, 1989); United States v. Gilliard, 847 F.2d 21, 24 (1st Cir.1988), cert. denied --- U.S. ----, 109 S.Ct. 846, 102 L.Ed.2d 978 (1989); United States v. $10,000 in U.S. Currency, 780 F.2d 213, 220 (2d Cir.1986). The government, of course, has the burden of establishing entitlement to the exception, which means that it must demonstrate in any given case that each and all of the three criteria were satisfied. See Coolidge, 403 U.S. at 455, 91 S.Ct. at 2032; United States v. Chesher, 678 F.2d 1353, 1356 (9th Cir.1982); United States v. Weber, 668 F.2d 552, 565 (1st Cir.1981), cert. denied, 457 U.S. 1105, 102 S.Ct. 2904, 73 L.Ed.2d 1313 (1982); see generally United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951) (government always has burden of proving applicability of exceptions to the warrant requirement); W. LaFave, Search and Seizure Sec. 11.2(b) at 218 n. 23 (2d ed. 1987) (same). Thus, the question before us reduces to whether the district court committed clear error in determining that the government failed to construct the solid tripodal base on which the plain view doctrine must rest.

Justifiable Presence

Although we acknowledge that Rutkowski has consistently questioned the validity of the search warrant, we believe that contention to be shaky and decline to address it. At least for now, we assume the warrant's validity. Thus, we regard the troopers' entry into the dwelling as lawful. What is more, there is no meaningful evidence that the search exceeded the scope and intensity which the warrant authorized. Friend had a right to be where he was, looking at what he was looking at, when he came across the pieces of metal: after all, the warrant authorized a search of the entire premises for easily-hidden objects like jewelry and coins. In executing the warrant, therefore, the troopers had every right to examine the basement and to inspect the area behind the wallboard. They also had a right to look inside both the coffee can and the envelopes. As we have said:

As a general proposition, any container situated within residential premises which are the subject of a validly-issued warrant may be searched if it is reasonable to believe that the container could conceal items of the kind portrayed in the warrant.

United States v. Gray, 814 F.2d 49, 51 (1st Cir.1987). See also United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 2170-71, 72 L.Ed.2d 572 (1982) (lawful search is not circumscribed because further acts of opening may be necessary); Doherty, 867 F.2d at 66 (searchers could open manila envelope); United States v. Gomez-Soto, 723 F.2d 649, 654 (9th Cir.) (police could inspect contents of briefcase), cert. denied, 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 831 (1984); United States v. Crouch, 648 F.2d 932, 933 (4th Cir.) (officers entitled to remove contents of envelopes), cert. denied, 454 U.S. 952, 102 S.Ct. 491, 70 L.Ed.2d 259 (1981). Because the officers had a warrant which authorized them to look for, and to seize, relatively small items, they were entitled to open the coffee can, and subsequently, the envelopes.

In sum, the first requirement for application of the plain view doctrine was clearly met. On this record, there is no legitimate reason to question that "the seizing officer [had] a prior justification for being in a position to see the [platinum]." Johnston I, 784 F.2d at 419.

Immediate Awareness

We next consider the district court's conclusion that "the incriminating nature of the platinum was not immediately apparent." This conclusion, we think, is eminently supportable. 2

The principle upon which the "immediate awareness" prong of the plain view exception operates is akin to that underlying the incandescent light bulb. When an officer spots an object not described in the warrant, authority to seize depends upon knowledge--the extent to which bits and bytes of accumulated information then and there fall into place. The sum total of the searchers' knowledge must be sufficient to turn on the bulb; if the light does not shine during the currency of the search, there is no "immediate awareness" of the incriminating nature of the object. Put in more conventional terms, the officers' discovery of the object must so galvanize their knowledge that they can be said, at that very moment or soon thereafter, to have probable cause to believe the object to be contraband or evidence. See Hicks, 480 U.S. at 326, 107 S.Ct. at 1153; Johnston v. United States, 832 F.2d 1, 3 (1st Cir.1987) (Johnston II ); Emery v. Holmes, 824 F.2d 143, 149 (1st Cir.1987). Hicks illuminates the extent to which the incriminating nature of the spotted object must be "apparent." There, the Court ruled flatly that "reasonable suspicion" of inculpation was not enough. Hicks, 480 U.S. at 326, 107 S.Ct. at 1153. Allowing seizure of evidence under the plain view doctrine upon any standard less than probable cause, the Court reasoned, would allow officers to use the doctrine as a device "to extend a general exploratory search from one object to another...

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