Arizona v. Hicks

Justice Powell,

with whom The Chief Justice and Justice O’Connor join, dissenting.

I join Justice O’Connor’s dissenting opinion, and write briefly to highlight what seem to me the unfortunate consequences of the Court’s decision.

Today the Court holds for the first time that the requirement of probable cause operates as a separate limitation on the application of the plain-view doctrine. 1 The plurality opinion in Coolidge v. New Hampshire, 403 U. S. 443 (1971), *331 required only that it be “immediately apparent to the police that they have evidence before them; the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” Id., at 466 (citation omitted). There was no general exploratory search in this case, and I would not approve such a search. All the pertinent objects were in plain view and could be identified as objects frequently stolen. There was no looking into closets, opening of drawers or trunks, or other “rummaging around.” Justice O’Connor properly emphasizes that the moving of a suspicious object in plain view results in a minimal invasion of privacy. Post, at 338. The Court nevertheless holds that “merely looking at” an object in plain view is lawful, ante, at 328, but “moving” or “disturbing” the object to investigate a reasonable suspicion is not, ante, at 324, 328. The facts of this case well illustrate the unreasonableness of this distinction.

The officers’ suspicion that the stereo components at issue were stolen was both reasonable and based on specific, articulable facts. Indeed, the State was unwise to concede the absence of probable cause. The police lawfully entered respondent’s apartment under exigent circumstances that arose when a bullet fired through the floor of the apartment struck a man in the apartment below. What they saw in the apartment hardly suggested that it was occupied by law-abiding citizens. A .26-caliber automatic pistol lay in plain view on the living room floor. During a concededly lawful search, the officers found a .45-caliber automatic, a .22-caliber, sawed-off rifle, and a stocking-cap mask. The apartment was littered with drug paraphernalia. App. 29. The officers also observed two sets of expensive stereo components of a type that frequently was stolen. 2

*332 It is fair to ask what Officer Nelson should have done in these circumstances. Accepting the State’s concession that he lacked probable cause, he could not have obtained a warrant to seize the stereo components. Neither could he have remained on the premises and forcibly prevented their removal. Officer Nelson’s testimony indicates that he was able to read some of the serial numbers without moving the components. 3 To read the serial number on a Bang and Olufsen turntable, however, he had to “turn it around or turn it upside down.” Id., at 19. Officer Nelson noted the serial numbers on the stereo components and telephoned the National Crime Information Center to check them against the Center’s computerized listing of stolen property. The computer confirmed his suspicion that at least the Bang and Olufsen turntable had been stolen. On the basis of this information, the officers obtained a warrant to seize the turntable and other stereo components that also proved to be stolen.

The Court holds that there was an unlawful search of the turntable. It agrees that the “mere recording of the serial numbers did not constitute a seizure.” Ante, at 324. Thus, if the computer had identified as stolen property a component with a visible serial number, the evidence would have been admissible. But the Court further holds that “Officer Nelson’s moving of the equipment . . . did constitute a ‘search’ . . . .” Ibid. It perceives a constitutional distinction between reading a serial number on an object and moving or picking up an identical object to see its serial number. To make its position unmistakably clear, the Court concludes that a “search is a search, even if it happens to disclose nothing but the bottom of a turntable.” Ante, at 325. With *333 all respect, this distinction between “looking” at a suspicious object in plain view and “moving” it even a few inches trivializes the Fourth Amendment. 4 The Court’s new rule will cause uncertainty, and could deter conscientious police officers from lawfully obtaining evidence necessary to convict guilty persons. Apart from the importance of rationality in the interpretation of the Fourth Amendment, today’s decision may handicap law enforcement without enhancing privacy interests. Accordingly, I dissent.

In Texas v. Brown, 460 U. S. 730 (1983), the plurality opinion expressly declined to “address whether, in some circumstances, a degree of suspicion lower than probable cause would be sufficient basis for a seizure . . . .” Id., at 742, n. 7 . Even the probable-cause standard, in the plurality’s view, requires only facts sufficient to “ ‘warrant a man of reasonable caution in the belief’. . . that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.” Id., at 742 (quoting Carroll v. United States, 267 U. S. 132, 162 (1925)). See also Texas v. Brown, swpra, at 746 (Powell, J., concurring in judgment) (leaving open the question whether probable cause is required to inspect objects in plain view). As the Court recognizes, ante, at 326, the statements in Payton v. New York, 445 U. S. 573, 587 (1980), are dicta.

Responding to a question on cross-examination, Officer Nelson explained that his suspicion was “based on 12 years’ worth of police experience. I have worked in different burglary crimes throughout that period *332 of time and. . . I’m just very familiar with people converting stolen stereos and TV’s into their own use.” App. 28-29.

Officer Nelson testified that there was an opening of about a foot between the back of one set of stereo equipment and the wall. Id., at 20. Presumably this opening was large enough to permit Officer Nelson to view serial numbers on the backs of the components without moving them.

Numerous articles that frequently are stolen have identifying numbers, including expensive watches and cameras, and also credit cards. Assume for example that an officer reasonably suspects that two identical watches, both in plain view, have been stolen. Under the Court’s decision, if one watch is lying face up and the other lying face down, reading the serial number on one of the watches would not be a search. But turning over the other watch to read its serial number would be a search. Moreover, the officer’s ability to read a serial number may depend on its location in a room and light conditions at a particular time. Would there be a constitutional difference if an officer, on the basis of a reasonable suspicion, used a pocket flashlight or turned on a light to read a number rather than moving the object to a point where a serial number was clearly visible?