holding that the police officer’s act of moving stereo equipment “did constitute a ‘search’ separate and apart from the search for the shooter, victims, and weapons that was the lawful objective of his entry into the apartment.... [and that] taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent’s privacy unjustified by the exigent circumstance that validated the entry”
How later courts described this case
- holding that the police officer’s act of moving stereo equipment “did constitute a ‘search’ separate and apart from the search for the shooter, victims, and weapons that was the lawful objective of his entry into the apartment.... [and that] taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent’s privacy unjustified by the exigent circumstance that validated the entry”
- holding that police officer’s actions in moving stereo equipment came within the purview of the Fourth Amendment as a “search” independent of the search which was justified by the exigent circumstances validating the entry of the apartment and pointing out, “A search is a search, even if it happens to disclose nothing but the bottom of a turntable.”
- holding that, when warrant-less entry into apartment to search for shooter was justified based on exigent circumstances, seizure of stereo equipment in plain view in the apartment was illegal because police did not have probable cause to believe the stereo equipment was evidence of a crime
- holding an officer’s “moving of [stereo] equipment . . . constitute[d] a [search] separate and apart from the search for the shooter, victims, and weapons that was the lawful objective of [the police officer’s] entry into the STATE V. NEWBORN 2021-NCCOA-426 Opinion of the Court apartment.”
Written by the judges who cited it.
Distinguished
Distinguished by Commonwealth v. Harvard, 2013 Pa. Super. 64 (2013)
Hicks is distinguishable, however, because Officer Kirby was able to observe the vehicle’s flashing lights in plain view from his lawful vantage point, whereas the police in Hicks had to move the stereo to observe concealed portions of it.
Distinguished by State v. Allen, 216 Ariz. 320 (2007)
480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), is distinguishable.
Distinguished by United States v. Jones, 176 F. App'x 809 (2006)
Arizona v. Hicks, 480 U.S. 321, 325, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), is inapposite, because here the movement of the plastic vessel did not “expose[ ] to view concealed portions of the apartment or its contents” or “produce a new invasion of [the defendant’s] privacy unjustified by the exigent circumstance that validated the entry.
Distinguished by State v. Green, Unpublished Decision (12-27-2005), 2005 Ohio 6871 (2005)
o pick up the weapon and lawfully possess it, the decision that officer was entitled to examine both guns for missing serial numbers was not erroneous);State v. Wilson (1998), 93 Wash App. 1025 (there is warrantless seizure exception for officer safety, and where officer is lawfully in possession of gun, officer is lawfully in possession of serial numbers; plain view analysis of Arizona v. Hicks is inapplicable when…
The opinion
Justice Powell’s
dissent reasonably asks what it is we would have had Officer Nelson do in these circumstances. Post, at 332. The answer depends, of course, upon whether he had probable cause to conduct a search, a question that was not preserved in this case. If he had, then he should have done precisely what he did. If not, then he should have followed up his suspicions, if possible, by means other than a search-just as he would have had to do if, while walking along the street, he had noticed the same suspicious stereo equipment sitting inside a house a few feet away from him, beneath an open window. It may well be that, in such circumstances, no effective means short of a search exist. But there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all. Our disagreement with the dissenters pertains to where the proper balance should be struck; we choose to adhere to the textual and traditional standard of probable cause.
The State contends that, even if Officer Nelson’s search violated the Fourth Amendment, the court below should have admitted the evidence thus obtained under the “good faith” exception to the exclusionary rule. That was not the question on which certiorari was granted, and we decline to consider it.
For the reasons stated, the judgment of the Court of Appeals of Arizona is
Affirmed.