United States v. McLevain

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with criminal activity, the item is not immediately

incriminating." United States. v. Byrd, 211 F.3d 1270, 2000

WL 491511, **3 (6th Cir. 2000) (unpublished opinion). 81,7('67$7(6&28572)$33($/6

Based on the Beal factors this Court has used before and this

statement in Byrd, we find the evidence against McLevain )257+(6,;7+&,5&8,7

was not "intrinsically incriminating, and it was not BBBBBBBBBBBBBBBBB

"immediately apparent" that the evidence provided probable

cause that it was contraband.

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The final aspect of the "plain view" doctrine requires that  1R

an officer have a lawful right of access to the object at issue. Y 

We said in Coolidge, "plain view alone is never enough to !



justify the warrantless seizure of evidence." 403 U.S. at 468. 52*(5 '$/( 0&/(9$,1 

As noted in Horton, this requirement of a lawful right of 'HIHQGDQW$SSHOODQW 

access means that generally an officer should get a warrant if 1

possible before he seizes an item in plain view. He cannot

seize absent exigent circumstances. If he could obtain a $SSHDOIURPWKH8QLWHG6WDWHV'LVWULFW&RXUW

warrant, then the he cannot use the "plain view" exception for IRUWKH:HVWHUQ'LVWULFWRI.HQWXFN\DW2ZHQVERUR

the evidence. 496 U.S. at 137, fn 7. 1R²-RVHSK+0F.LQOH\-U'LVWULFW-XGJH

Acquisito had before him the cut cigarette filter, the twist $UJXHG6HSWHPEHU

tie, and a spoon with residue on it, if not the prescription

bottle, when he field-tested the spoon. Before seizing the 'HFLGHGDQG)LOHG1RYHPEHU

spoon and testing it, he suspected the items were drug

paraphernalia. He should have sought a warrant at that time. %HIRUH0$57,1&KLHI&LUFXLW-XGJH0225(&LUFXLW

The evidence was not going anywhere. McLevain was in -XGJH:,6(0$16HQLRU'LVWULFW-XGJH

custody, and his girlfriend and two children were still in the

house. Acquisito should have taken his evidence of probable BBBBBBBBBBBBBBBBB

cause to a magistrate rather than attempting to seize it under

the "plain view" exception. Acquisito had no lawful right of &2816(/

access to the items. $5*8('7RQ\D65DJHU0F&2<:(67)5$1./,1

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:HVW0F&2<:(67)5$1./,1 %($//H[LQJWRQ experiences as law enforcement agents that led them to

.HQWXFN\IRU$SSHOODQW(UZLQ5REHUWV7HUU\0&XVKLQJ believe that the seemingly quotidian objects were actually

$66,67$1781,7('67$7(6$77251(<6/RXLVYLOOH drug paraphernalia. The connection between these items and

.HQWXFN\IRU$SSHOOHH illegal activities, however, is not enough to render these items

intrinsically incriminating. The connection is not enough to

BBBBBBBBBBBBBBBBB make their intrinsic nature such that their mere appearance

gives rise to an association with criminal activity.

23,1,21

BBBBBBBBBBBBBBBBB The final Beal factor examines whether "the executing

officers can at the timeRIGLVFRYHU\RIWKHREMHFWRQWKHIDFWV

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'DOH 0F/HYDLQ DSSHDOV his conviction and sentence for REMHFW

VLQFULPLQDWLQJQDWXUH´ 810 F.2d at 577 (emphasis in

violation of 21 U.S.C. §841(a)(1) on the grounds that (1)the original). In United States v. Szymkowiak, 727 F.2d 95, 95

district court erred in denying McLevain’s motion to (6th Cir. 1984), the United States had a warrant to search

suppress, (2)the district court erred in admitting several pieces Szymkowiak’s home for a television set and some jewelry,

of evidence of prior bad acts, (3)the communication between and the officers executing the warrant found and seized two

the court and jury outside defense counsel’s presence violated guns. The officers thought that the guns had been illegally

McLevain’s rights, and (4)the district court misapplied adjusted to rapidly fire. Id. The officers had to call an agent

Apprendi v. New Jersey, 530 U.S. 466 (2000), in sentencing. from the Bureau of Alcohol, Tobacco and Firearms to

%HFDXVH ZH ILQG WKDW WKH GLVWULFW FRXUW HUUHG LQ DGPLWWLQJ determine whether the guns were illegal. Id. at 96. We said,

HYLGHQFHWKDWVKRXOGKDYHEHHQVXSSUHVVHGZH5(9(56( "From the facts available to the executing officers in the case

, before us, they could not determine whether they had

discovered evidence of a criminal nature." Id. at 99.

On December 28, 1999, Gary Cauley failed to return from Similarly, from the facts available to the officers in

work release at the Daviess County Detention Center in McLevain’s home, at the time of discovery, they could not

Daviess County, Kentucky. Based on information from a determine if they had seen evidence of criminal activity.

confidential informant, the Daviess County Jailer Harold

Taylor sought a search warrant for Roger Dale McLevain’s ,QDYHU\UHFHQWFDVHIURPWKLV&RXUWZHKHOG³when an

house at 8865 Sacra Drive, Maceo, Kentucky, in the early item appears suspicious to an officer but further investigation

afternoon of December 29. McLevain is the defendant now is required to establish probable cause as to its association

before us.

The affidavit supporting the search warrant suggested a 

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connection between McLevain and Cauley’s girlfriend, Lydia DULVH XSRQ YLHZLQJ WKH REMHFW RU PD\ DULVH ODWHU 7KH &RXUW RI $SSHDOV

Bell. The informant told the police that Bell had been staying IRU WKH )LUVW &LUFXLW IRU H[DPSOH VD\V SUREDEOH FDXVH PD\ DULVH LQ OLJKW

at McLevain’s residence, and she had been picked up from RI RWKHU REMHFWV ODWHU GLVFRYHUHG 8QLWHG 6WDWHV Y -RKQVWRQ  )G

   7KH &RXUW RI $SSHDOV IRU WKH 7HQWK &LUFXLW KRZHYHU

there by a friend on the night Cauley escaped. She went to VDLG YHU\ UHFHQWO\ ³XSRQ YLHZLQJ WKH REMHFW WKH RIILFHU PXVW DW WKDW

Cauley’s mother’s house, where she received a call from PRPHQW KDYH SUREDEOH FDXVH WR EHOLHYH WKH REMHFW WR EH FRQWUDEDQG RU

Cauley at the Detention Center. Bell then borrowed Cauley’s HYLGHQFH RI LOOHJDO DFWLYLW\´ 8QLWHG 6WDWHV Y 7XFNHU  :/

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or a bottle that makes it immediately apparent that those items mother’s car and returned it about an hour and a half later.

are contraband. In McLernon, a room was searched pursuant The affidavit contained no information as to McLevain

to a cocaine conspiracy, and agents seized a note pad and himself, but Cauley and McLevain were known to be friends.

calendar from a desk, under the "plain view" exception. 746 On the basis of this information, Taylor sought a search

F.2d at 1104. We said, in that case, these items "were hardly warrant for McLevain’s house. $ VWDWH FRXUW MXGJH

‘intrinsically’ incriminating. Indeed such items are found in GHWHUPLQHG WKDW 7D\ORU KDG SUREDEOH FDXVH WR EHOLHYH WKDW

plain view of virtually every desk across this country. We do &DXOH\FRXOGEHDW0F/HYDLQ¶VUHVLGHQFHDQGKHLVVXHGWKH

not, and cannot, subscribe to a rule of law which allows ZDUUDQWWRVHDUFKWKHUHVLGHQFH7KHZDUUDQWGHVFULEHGWKH

officers of the state to seize an item as evidence merely UHVLGHQFHWREHVHDUFKHGLQFOXGLQJWKHGHWDFKHGJDUDJHDQG

because it is in ‘plain view.’" Id. at 1125 (emphasis in WKH RXWEXLOGLQJ DQG QDPHG &DXOH\ DQG 0F/HYDLQ WR EH

original). We found that the agents could not have VHL]HG It has never been explained why McLevain was

immediately perceived those items as incriminating; "the included.

agents' ‘immediate’ perceptions produced only visual images

of two ‘intrinsically innocent’ items." Id. Similarly, the Taylor sought assistance from the Daviess County Sheriff’s

items found in McLevain’s home might be found under beds, Department. That department was aware that McLevain had

in sinks, and on mantels in many homes, and not exclusively a criminal record with a narcotics offense. Officers of both

those where methamphetamine is being used. While the cut the Daviess County Detention Center and the Daviess County

cigarette filter and the prescription bottle with fluid in it might Sheriff’s Department executed the warrant at McLevain’s

be out of the ordinary, the police are not authorized to seize home at about 2:00 p.m. on December 29. Law enforcement

odd items. We do not care what the explanation is for the officers surrounded the home and forcibly entered through

items, but we care that there may be some other explanation both the front and the back doors. The officers at the front

for the items. Defense counsel pointed out at oral argument door immediately seized McLevain in the hallway and gained

that sometimes smokers who do not want filters in their control over his girlfriend and two children in the front room.

cigarettes remove them. The "plain view" exception The officers then began searching for Cauley. Narcotics

authorizes seizure of only those items that "immediately Detective Jim Acquisito went into the master bedroom, from

app[ear]" to be contraband. where McLevain had just emerged, and looked under the bed

for Cauley. Acquisito saw there a twist tie and a cut cigarette

In one sense, the facts of this case are similar to those of filter. He suspected these items to be drug paraphernalia. He

Texas v. Brown. In that case, an officer made a "plain view" informed his supervisor and took photographs of this

seizure of narcotics at a routine driver’s license checkpoint. evidence, although he left it undisturbed.

Id. at 730. In asking for the driver’s license, the officer saw

an opaque party balloon, tied at the end, drop from Brown’s Later in the search for Cauley, who was never found at

hand. Id. The officer knew from his experiences in previous McLevain’s home, another officer drew Acquisito’s attention

narcotics arrests and from conversations with other officers to a spoon with residue on a tackle box in a sink in the garage.

that balloons tied as Brown’s was were often used to carry Acquisito conducted a field test on the residue, and he found

narcotics. Id. at 742-743. In this case, Detective Acquisito it to be residue of methamphetamine. At about the same time,

also testified that from his experiences as a narcotics officer Acquisito noticed on the mantel of the fireplace in the garage

he suspected that the twist tie, cigarette filter, spoon, and a prescription bottle, with no label, filled with a clear liquid

prescription bottle with liquid were being used with that looked like water. Acquisito identified these four items

methamphetamine. In both cases, it was the officers’s as drug paraphernalia, and he used them to establish probable

 8QLWHG6WDWHVY0F/HYDLQ 1R 1R 8QLWHG6WDWHVY0F/HYDLQ 

cause in seeking a second warrant. Upon returning with the IDFWRUVRIIHUDFRQWH[WZLWKLQZKLFKWRHYDOXDWHWKHVHDUFKDQG

second warrant, the officers discovered, concealed inside a VHL]XUHRIWKHIRXULWHPVLQ0F/HYDLQ¶VKRXVH

kerosene heater in the garage, approximately eighty-five

grams of methamphetamine; $5,710 in cash; and various %HIRUHWXUQLQJWRWKHIDFWVRIVLPLODUFDVHVDQGWKHIDFWVDW

plastic bags, syringes, twist ties, and electronic scales. These KDQGZHVKRXOGDOVRQRWHWKDWWKH6XSUHPH&RXUWGRHVQRW

items formed the basis for the charges against McLevain. UHTXLUH WKDW RIILFHUV NQRZ WKDW HYLGHQFH LV FRQWUDEDQG

,QVWHDG  ³Srobable cause is a flexible, common-sense

McLevain filed a motion to suppress, objecting to the plain standard. It merely requires that the facts available to the

view discovery of the evidence in the first search. He argued officer would ‘warrant a man of reasonable caution in the

that none of the first four pieces of evidence was immediately belief’ that certain items may be contraband or stolen property

incriminating. He also argued that the discovery took the or useful as evidence of a crime." Texas v. Brown, 460 U.S.

officers beyond the scope of a search for an escapee. The 730, 742 (1983) (citing Carroll v. United States, 267 U.S.

district court denied this motion. 132, 162 (1925)).

,, We begin with the first of the Beal factors. No nexus

between the object seized and the items in the search warrant

:HUHYLHZDGLVWULFWFRXUW¶VOHJDOFRQFOXVLRQVZLWKUHVSHFW exists in our case. Cauley was the subject of the search.

WR D PRWLRQ WR VXSSUHVV GH QRYR  6HH 8QLWHG 6WDWHV Y McLevain was an afterthought that has never been explained.

&UR]LHU)GWK&LU$GLVWULFWFRXUW¶V The warrant had nothing to do with drug paraphernalia.

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The second factor is whether the "intrinsic nature" of the

$ items gives probable cause to believe it is contraband, such as

marijuana or cocaine on a table in plain view. The case of

7KH)RXUWK$PHQGPHQWRIWKH8QLWHG6WDWHV&RQVWLWXWLRQ Arizona v. Hicks, 480 U.S. 321 (1987), is instructive. In that

SURWHFWV FLWL]HQV IURP XQUHDVRQDEOH VHDUFKHV DQG VHL]XUHV case, the police entered an apartment to search for a shooter.

*HQHUDOO\ D ZDUUDQW EDVHG RQ LQIRUPDWLRQ HVWDEOLVKLQJ While they were there, an officer saw stereo equipment that

SUREDEOHFDXVHLVUHTXLUHGWRVHDUFKDSHUVRQRUDSODFHDQGWR he thought was incongruous in the otherwise poorly furnished

VHL]HHYLGHQFHIRXQGWKHUH7KHZDUUDQWUHTXLUHPHQWH[LVWV apartment. Id. at 323. The officer suspected the stereo was

WR PHDVXUH WKH SUREDEOH FDXVH DVVHUWHG DQG WR HQVXUH WKDW stolen, so he moved the equipment in order to read the serial

³WKRVHVHDUFKHVGHHPHGQHFHVVDU\DUHDVOLPLWHGDVSRVVLEOH numbers. Id. The Supreme Court found that "taking action,

+HUHWKHVSHFLILFHYLOLVWKHµJHQHUDOZDUUDQW¶DEKRUUHGE\WKH unrelated to the objectives of the authorized intrusion, which

FRORQLVWV´&RROLGJHY1HZ+DPSVKLUH86 exposed to view concealed portions of the apartment or its

 contents, did produce a new invasion of respondent's privacy

7KHUHH[LVWVHYHUDOH[FHSWLRQVWRWKHZDUUDQWUHTXLUHPHQW unjustified by the exigent circumstance that validated the

EXWDWLVVXHLQWKHFDVHEHIRUHXVLVWKH³SODLQYLHZ´H[FHSWLRQ entry." Id. at 325. There was nothing about the "intrinsic

WRWKHZDUUDQWUHTXLUHPHQW,Q&RROLGJH86DWWKH nature" of the stereo equipment that proclaimed it as

6XSUHPH &RXUW KHOG WKDW ³XQGHU FHUWDLQ FLUFXPVWDQFHV WKH contraband.

SROLFHPD\VHL]HHYLGHQFHLQSODLQYLHZZLWKRXWDZDUUDQW´ McLevain claims that there is nothing about the intrinsic

7KLVKROGLQJZDVFRQVLVWHQWZLWKHarris v. United States, 331 nature of a twist tie, a cigarette filter, a spoon with residue,

U.S. 145, 155 (1947)ZKLFKKHOG³If entry upon the premises

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ZDUUDQWZDVH[HFXWHG7KXVKHGLGQRWVKRUWFXWWKHV\VWHP be authorized and the search which follows be valid, there is

EXWKHGLGFXWWKHFRUQHU&LWLQJWR6DQFKH]WKLV&RXUWKDV nothing in the Fourth Amendment which inhibits the seizure

VDLG³,QWKLVFLUFXLWDIHGHUDODJHQWPD\µWDJDORQJ¶RQDVWDWH by law-enforcement agents of government property the

VHDUFKZLWKRXWWDLQWLQJHYLGHQFHRIIHGHUDOFULPHVXQFRYHUHG possession of which is a crime, even though the officers are

LQWKHSURFHVVLIKHKDVQRSUREDEOHFDXVHWRVHDUFKZKLFK not aware that such property is on the premises when the

ZRXOG DOORZ KLP WR REWDLQ D VHSDUDWH IHGHUDO ZDUUDQW´ search is initiated."

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SUHVHQWWKHQH[WSURQJRIWKH³SODLQYLHZ´GRFWULQHUHTXLUHV RULJLQDOMXVWLILFDWLRQLVOHJLWLPDWHRQO\ZKHUHLWLVLPPHGLDWHO\

WKDW WKH FULPLQDOLW\ RI WKH DUWLFOHV EHIRUH WKH RIILFHUV EH DSSDUHQWWRWKHSROLFHWKDWWKH\KDYHHYLGHQFHEHIRUHWKHP

³LPPHGLDWHO\DSSDUHQW´&RROLGJH86DWThis WKHSODLQYLHZGRFWULQHPD\QRWEHXVHGWRH[WHQGDJHQHUDO

requirement, we found in United States v. McLernon, 746 H[SORUDWRU\VHDUFKIURPRQHREMHFWWRDQRWKHUXQWLOVRPHWKLQJ

F.2d 1098, 1125 (6th Cir. 1984), limits the use of the "plain LQFULPLQDWLQJ DW ODVW HPHUJHV´  ,G  7KXV FDPH WKH ³SODLQ

view" exception in two important ways. Requiring that YLHZ´H[FHSWLRQWRWKHZDUUDQWUHTXLUHPHQW UHTXLULQJWKDW

evidence be "immediate" and "apparent" constrains the RIILFHUVEHOHJDOO\SUHVHQWDQGVHHVRPHWKLQJWKDWLPPHGLDWHO\

expansion of the limited search authorized by the warrant into DSSHDUVWREHHYLGHQFH

a generalized search, and it prevents officers from having an

opportunity to create a reason to expand the search. Id. 7KH³SODLQYLHZ´WHVWZDVUHILQHGLQ+RUWRQY&DOLIRUQLD

496 U.S. 128, 137 (1990),ZKHQWKH6XSUHPH&RXUWFODULILHG

7KLV &RXUW KDV ORQJ GHOLEHUDWHG ZKDW ³LPPHGLDWHO\ WKDW³SODLQYLHZ´UHTXLUHVIRXUIDFWRUV,QDGGLWLRQWRWKHWZR

DSSDUHQW´PHDQV:HVXPPDUL]HGWKHIDFWRUVXVHGLQPDQ\ DERYHWKHLWHPVHL]HGPXVWDFWXDOO\EHLQSODLQYLHZDQGWKH

RIRXUSULRUFDVHVLQ United States v. Beal, 810 F.2d 574, 576 RIILFHU³must also have a lawful right of access to the object

-577 (6th Cir. 1987)  :H IRXQG WKDW ZKLOH QRQH RI WKHVH itself." Id. Here Horton cites to Coolidge: "‘7KLVLVVLPSO\

IDFWRUVLVQHFHVVDU\WKH\DUHLQVWUXFWLYHDVWRZKDWWKLVFRXUW DFRUROODU\RI WKH IDPLOLDUSULQFLSOHWKDWQRDPRXQWRI

KDVXVHGWRILQGWKDWWKHFULPLQDOLW\RIDSLHFHRIHYLGHQFHZDV SUREDEOH FDXVH FDQ MXVWLI\ D ZDUUDQWOHVV VHDUFK RU VHL]XUH

³LPPHGLDWHO\DSSDUHQW´,G7KHIDFWRUVLQFOXGH 1)"a nexus DEVHQW³H[LJHQWFLUFXPVWDQFHV´¶´,GDWIQ

between the seized object and the items particularized in the

search warrant," 2)"whether the ‘intrinsic nature’ or %

appearance of the seized object gives probable cause to

believe that it is associated with criminal activity," and :HQRZWXUQWRWKHDQDO\VLVRIWKHIRXUSURQJVRIWKH³SODLQ

3)whether "the executing officers can at the time of discovery YLHZ´H[FHSWLRQ:KLOHWKHUHZDVGLVSXWHDWWKHGLVWULFWFRXUW

of the object on the facts then available to them determine OHYHO DV WR ZKHWKHU RU QRW WKH LWHPV VHL]HG LQ 0F/HYDLQ¶V

probable cause of the object's incriminating nature." Id. KRPHZHUHDFWXDOO\LQSODLQYLHZWKHGLVWULFWFRXUWZHLJKHG

(internal citations omitted) (emphasis in original). 7KHVH

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WKHFUHGLELOLW\RIWKHWHVWLPRQ\DQGIRXQGWKDWWKH\ZHUH Even if the warrant application was supported by more

:HQHHGQRWIXUWKHUDGGUHVVWKLVLVVXH than a ‘bare bones’ affidavit, a reviewing court may

properly conclude that, notwithstanding the deference

McLevain complains that the search and seizure of the that magistrates deserve, the warrant was invalid because

evidence against him, as a basis for a second warrant, was the magistrate's probable-cause determination reflected

particularly egregious in light of the fact that the search was an improper analysis of the totality of the circumstances

for two full-grown men. While the Supreme Court held in or because the form of the warrant was improper in some

Harris, "7KHVDPHPHWLFXORXVLQYHVWLJDWLRQZKLFKZRXOGEH respect.

DSSURSULDWHLQDVHDUFKIRUWZRVPDOOFDQFHOHGFKHFNVFRXOG

QRW EH FRQVLGHUHG UHDVRQDEOH ZKHUH DJHQWV DUH VHHNLQJ D While granting due deference to the state court judge, we

VWROHQDXWRPRELOHRUDQLOOHJDOVWLOO´86DWWKH question why McLevain was named for seizure in the

LWHPVIRXQGLQWKLVFDVHZHUHXQGHUDEHGDQGLQWKHJDUDJH warrant. The United States offered no evidence of his having

ZKHUHDPDQFRXOGKLGH:KLOHDPDQFRXOGQRWSHUKDSVKLGH played an active role in facilitating or effectuating Cauley’s

LQ D VLQN RU RQ D PDQWHO WKH SODLQ YLHZ LV REMHFWLYHO\ escape. Nevertheless, we find that the warrant was valid, and

UHDVRQDEOH the officers were lawfully present at McLevain’s house.

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