The opinion
NEWMAN, Circuit Judge,
concurring in the result:
The “inadvertence” qualification to the doctrine of “plain view” seizures was endorsed in Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971), by only four Justices and was also rejected as unsound in that same case by four Justices. The uncertain status of the “inadvertence” notion has been noted by this Court, see United States v. Morell, 524 F.2d 550, 555 (2d Cir. 1975); United States v. Santana, 485 F.2d 365, 369-70 (2d Cir. 1973) , and others, see, e. g., United States v. Bradshaw, 490 F.2d 1097 , 1101 n.3 (4th Cir. 1974) . I would not deem it the law of the land, and I prefer not to resolve my own doubts about the doctrine in a case like this one, which does not require its acceptance or rejection.
Even as announced in Justice Stewart’s plurality opinion in Coolidge , the “inadvertence” qualification has no application to stolen goods, 403 U.S. at 471 , 91 S.Ct. 2022 . The goods at issue in this case were stolen, and that is sufficient reason for me to reject the “inadvertence” qualification here and reverse the suppression order, whether or not the Government chooses to advance this ground.
The majority prefers to rest decision on the ground that a “plain view” seizure of an item not covered by a search warrant is “inadvertent” when officers lack probable cause to search for and seize that item. That approach creates the anomaly that a householder’s interest in protecting his goods from seizure is made to turn on his ability to prove that the officers had probable cause, while the officers’ authority to seize depends on their successful disclaimer of probable cause. The reversal of traditional roles on the issue of probable cause suggests that making “inadvertence” turn on the absence of probable cause may be unsound. Moreover, this approach places the householder in the position of probing for law enforcement information and thereby risking the integrity of continuing criminal investigations in order to prove the presence of probable cause, a matter normally not within his knowledge. The best that can be said for making inadvertence turn on the absence of probable cause is that it creates less of an anomaly than the District Court’s approach. The latter obliges officers seeking a search warrant to delay their activity and occupy the time of the magistrate while they report all information in their possession so that the magistrate can decide whether they have probable cause to seize any items in addition to those for which they seek a warrant.
Perhaps these anomalies put in issue the basic soundness of the “inadvertence” qualification. In any event, whether there was “inadvertence” in this cáse need not be determined since the doctrine, even if valid, does not apply to stolen goods. For that reason, I concur in the result.