U.S. v. Schire, 78-1200

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation586 F.2d 15
Docket NumberNo. 78-1200,78-1200
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Leland L. SCHIRE, Defendant-Appellant.
Decision Date18 October 1978

Page 15

586 F.2d 15
UNITED STATES of America, Plaintiff-Appellee,
Leland L. SCHIRE, Defendant-Appellant.
No. 78-1200.
United States Court of Appeals,
Seventh Circuit.
Argued Sept. 13, 1978.
Decided Oct. 18, 1978.

Page 16

Ralph A. Kalal, Madison, Wis., for defendant-appellant.

Grant C. Johnson, Asst. U. S. Atty., Madison, Wis., for plaintiff-appellee.

Before PELL, Circuit Judge, NICHOLS, Judge, * and SPRECHER, Circuit Judge.


Defendant was convicted for receiving and concealing a stolen brown 1975 Grand Prix automobile, in violation of 18 U.S.C. § 2313. The only issue on appeal is whether that Grand Prix was lawfully seized.

Police officers in Monona, Wisconsin were granted a search warrant allowing a search of Unit # 4 of the Syene Road warehouse for a silver Trans Am. The police also had arrest warrants for defendant Schire and one Joe Gervasi. The warrants were based on violations of state law not the Federal offense litigated here although the search was in part related to an F.B.I. and local

Page 17

police investigation of an auto theft ring, and Federal officers accompanied local police to the warehouse.

The police arrested Gervasi outside Unit # 4, and found defendant working on the Grand Prix inside Unit # 4. They arrested Schire, and saw but initially did not seize the Grand Prix. Moving into adjoining Unit # 3, (the legality of their entry is not an issue in this case), the police found the Trans Am. Information obtained from the tow truck driver summoned to tow the Trans Am away, and portions of other cars seen about the premises, revealed that the Grand Prix might also have been stolen. We gather that this was suspected to be an operation where stolen cars were transformed and made impossible to identify, by substitution of parts. The officers returned to Unit # 4 and seized the Grand Prix.

Appellant's theory is that the law enforcement officers made two searches of the warehouse. Schire argues that by finding the Trans Am and arresting the two suspects, the police fully executed the only warrants authorizing their entry. His theory implies that the officers should have turned on their heels and left Unit # 4 as soon as they effected the arrest and learned the silver Trans Am was not there. Any search or seizure subsequently made there was a "second search." He maintains that such a "second search" was illegal, as no warrant authorized it, and that the plain view doctrine could not justify seizure of items during the warrantless "second search."

The motion to suppress use of the Grand Prix as evidence was denied by the district court. We agree with that decision, rejecting appellant's argument as too narrowly defining the scope of the plain view doctrine.

In order for evidence seized during a search to qualify for the plain view exception to the warrant requirement, it has been said it must be shown that (1) the initial intrusion which afforded the authorities the plain view was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent. United States v. Wilson, 524 F.2d 595, 598 (8th Cir. 1975), Cert. denied, 424 U.S. 945, 96 S.Ct. 1415, 47 L.Ed.2d 351 (1976). In United States v. Cooks, 493 F.2d 668 (7th Cir.), Cert. denied, 420 U.S. 996, 95 S.Ct. 1437, 43 L.Ed.2d 679 (1974), this court held the plain view doctrine inapplicable to sustain a seizure, where the first two criteria were not met.

The activities of the police officers in this case meet all three criteria. Disposing of the easiest at once, the record indicates that the discovery was inadvertent, since police had no knowledge of the existence or location of the brown Grand Prix.

The first criterion a lawful intrusion is designed to insure that any official invasion of a citizen's property is made with a careful prior judicial determination of necessity (a warrant), or...

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  • U.S. v. Williams, s. 83-1642
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 12, 1984
    ...the end of the search there is probable cause to believe that the item is evidence of a crime, it may be seized. See United States v. Schire, 586 F.2d 15, 19 (7th Cir.1978). We could also note that the 33 challenged conversations are "suspicious" and that the government's Title III search c......
  • U.S. v. Jefferson, 82-1463
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 22, 1983
    ...v. Graham, 638 F.2d 1111, 1115 (7th Cir.), cert. denied, 450 U.S. 1034, 101 S.Ct. 1748, 68 L.Ed.2d 231 (1981); United States v. Schire, 586 F.2d 15, 17 (7th Cir.1978). The question here, then, is whether the seized items not specified in the warrant (i.e., the fur coats, jewelry and firearm......
  • Moya v. U.S., 81-2225
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 21, 1984
    ...was immediately apparent." United States v. McDonald, 723 F.2d 1288, 1295 (7th Cir.1983) ("McDonald") (citing United States v. Schire, 586 F.2d 15, 17 (7th Cir.1978)). See also Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971); United States v. Reed, 7......
  • State v. Lee, 16566
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    • June 30, 1981
    ...supra note 15, 403 U.S. at 466, 91 S.Ct. at 2038.44 See United States v. Rodriguez, 596 F.2d 169 (6th Cir. 1979); United States v. Schire, 586 F.2d 15 (7th Cir. 1978); United States v. Jackson, 576 F.2d 749 (8th Cir. 1978).45 Instead of addressing the recognized requirements of the "plain-v......
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