U.S. v. Schire, 78-1200

• Citation: 586 F.2d 15
• Decision Date: 18 October 1978
• Docket Number: No. 78-1200,78-1200
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leland L. SCHIRE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 15

586 F.2d 15

UNITED STATES of America, Plaintiff-Appellee, v. Leland L. SCHIRE, Defendant-Appellant.

No. 78-1200.

United States Court of Appeals Seventh Circuit.

Argued Sept. 13, 1978.

Decided Oct. 18, 1978.

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.

NICHOLS, 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 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 is pursuant to a recognized exception to the warrant requirement, such as "hot pursuit." We hold that only one "intrusion" was made in this case, and that it encompassed all the search activities of the police, including the later discovery of the Grand Prix's incriminatory nature and its seizure. This entire search was made legally, pursuant to the warrants issued.

This court has stated that Searches must end when the incriminating item listed in the warrant has been found. United States v. Odland, 502 F.2d 148, 153 (7th Cir.), Cert. denied, 419 U.S. 1088, 95 S.Ct. 679, 42 L.Ed.2d 680 (1974). Thus, if police had to rummage through drawers or peer into closets to find the Grand Prix after the Trans Am was found, that subsequent search might be considered a "second search," and evidence found therein held inadmissible. But in this case, any such rummaging had stopped after the Trans Am was found, although police were still legally on the premises as they were supervising the towing of the Trans Am. While still legally there, they inadvertently discovered the probable relationship of the Grand Prix to defendant's activities, activities which were a feature of the very purpose of the warrant-authorized search, an auto theft ring. The plain view doctrine does not require an additional warrant in this case; no further intrusions were made. The detour into Unit # 3 to search for the Trans Am is irrelevant to Schire's expectation of privacy in Unit # 4. Schire should have expected that Unit # 4 and the surrounding area (if public property) would be intruded upon by police officers, and for a reasonable period of time (until the Trans Am was towed). This is not a question of officers overextending the privileges of a limited search.

The United States Supreme Court dealt with a similar issue in ...