United States v. David M. Beal

EDGAR, District Judge,

dissenting.

The question in this case is whether the law enforcement officers properly seized the two .22-caliber pen guns under the “plain view” exception to the fourth amendment’s warrant requirement. See Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971). Under this Circuit’s formulation, evidence may not be seized under the plain view exception unless the executing officers show (1) a prior valid intrusion, (2) an inadvertent discovery, and (3) that the evidence of the unlawful act was “immediately apparent” to them. United States v. Szymkowiak, 727 F.2d 95, 96 (6th Cir.1984).

As the majority points out, the parties do not dispute that the first two requirements of the plain view exception are met in this case. The officers had a valid warrant to search and seize the dresser. The warrant authorized seizure of the furniture but not its contents. The pen guns were observed by Officer Williams when he placed the contents of a dresser drawer on a bed.

The precise issue here is whether the third Coolidge requirement is met, i.e., whether it was immediately apparent to the officers that the pen guns were evidence of unlawful activity. Because a plain view seizure is made without a warrant, the “immediately apparent” requirement is merely a formulation of the requirement that the officers have “probable cause” to seize the item. Probable cause exists where the facts and circumstances within the knowledge of the officers and of which they had reasonably trustworthy information are sufficient within themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. United States v. Truitt, 521 F.2d 1174, 1177 (6th Cir.1975) (citing Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925)). The inquiry, therefore, is whether the discovery of the object under the circumstances “would warrant a police officer of reasonable caution in believing that an offense has been or is being committed and that the object is evidence incriminating the accused.” Truitt, 521 F.2d at 1177 .

This Court in Szymkowiak , citing United States v. Gray, 484 F.2d 352 (6th Cir. 1973), cert. denied, 414 U.S. 1158 , 94 S.Ct. 916 , 39 L.Ed.2d 110 (1974), and Truitt concluded that the seizing officers would have probable cause only if the “intrinsic nature” of the object seized was incriminating. Szymkowiak, 727 F.2d at 99 . Otherwise the “immediately apparent” requirement would not be met because there would be no nexus between the seized items and the criminal behavior. Id. at 98-99 ; see also United States v. McLernon, 746 F.2d 1098, 1125 (6th Cir.1984). 1

*579 It is clear that the pen guns found by the officers in this case were, by their very nature, intrinsically suspicious. Officer Williams and FBI Agent Thornton thought them suspicious enough to consult BATF Agent Baraducci. When Agent Baraducci, who was on the scene, was shown one of the pen guns, his response was, “I think that is a gun. If it is a gun, it is illegal.” 2 Agent Baraducci’s 3 state of mind upon viewing the pen guns was the same as that of the officers in Truitt when they discovered a sawed off shotgun. In both cases, the officers knew that the lawful possession of the weapon they found “is, in ordinary experience, rare indeed. There is very little legitimate use for such a weapon.” Truitt, 521 F.2d at 1177 . It was simply not necessary for Baraducci to disassemble the pen guns for him to connect them with criminal activity.

One can certainly say that a pen gun is not an “intrinsically innocent” object. See Porter v. United States, 335 F.2d 602, 607 (9th Cir.1964), cert. denied, 379 U.S. 983 , 85 S.Ct. 695 , 13 L.Ed.2d 574 (1965), cited in Truitt, 521 F.2d at 1177 . A pen gun is innocent only in its outward appearance which purposely conceals the fact that it can fire deadly .22-caliber bullets. It is ironic that the majority concludes that this purposeful concealment has successfully prevented the illegal nature of these pen guns from being “immediately apparent.”

This case is unlike Gray , where officers seized ordinary looking rifles, copied their serial numbers, and later learned that they had been stolen. It is also different from Szymkowiak , where officers seized a firearm and called in a BATF agent from another location. Upon arriving thirty minutes after the call, the agent in Szymkow-iak did not immediately recognize the firearm’s illegality, and could not make that determination without later disassembling it. Instead, this case is controlled by Truitt . In Truitt , the officers, in the execution of a search warrant for gambling paraphernalia, came upon a sawed off shotgun. Recognizing that such a weapon is usually not registered and is rarely put to legitimate use, the officers seized it. Suppression was denied even though the sawed off shotgun was seized in a sporting goods store.

It is my belief that the conclusion that the majority reaches in this case is not necessarily mandated by Szymkowiak because the facts in the two cases are distinguishable. However, it is also my view that the Szymkowiak decision, with its emphasis on the words “immediate” and “apparent,” places a higher standard on law enforcement officials than the fourth amendment requires and is inconsistent with the Supreme Court’s decision in Texas v. Brown, 460 U.S. 730 , 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983). In that case a four-judge plurality said that:

Decisions of this Court since Coolidge indicate that the use of the phrase “immediately apparent” was very likely an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of the evidence is necessary for an application of the “plain view” doctrine.

460 U.S. at 741 , 103 S.Ct. at 1543 .

As the Court frequently has remarked, probable cause is a flexible, common *580 sense standard. It merely requires that the facts available to the officer would “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. A “practical, nontechnical” probability that incriminating evidence is involved is all that is required.

460 U.S. at 742 , 103 S.Ct. at 1543 (citations omitted).

I would hold that under either the Szym-kowiak “immediately apparent” standard or the Brown “common-sense” standard, the officers here had probable cause to conclude that possession of the pen guns was illegal. The decision of the district court should be REVERSED.

. The majority also seems to indicate that probable cause requires a nexus between the seized object and the items particularized in the search warrant. Even though there is language to the effect in Szymkowiak, 727 F.2d at 98 , there is also language in that same decision which requires a nexus between the viewed item and criminal activity. 727 F.2d at 97 . In McLemon, a decision issued after Szymkowiak , Judge Jones, who wrote Szymkowiak , discusses only a requirement that the police need have probable cause to believe that the seized item has criminal significance or evidentiary value. 746 F.2d at 1125 . In summary, I believe that under the *579 ease law of this circuit the only nexus required for application of the “plain view” exception is a nexus between the seized item and criminal activity or behavior, and not between the seized items and the items listed in the warrant.

. As the majority points out, this statement was hearsay. It was, however, admissible hearsay, and no party has questioned that Agent Bara-ducci made the statement.

. While the pen guns were actually found by Officer Williams, who showed them to FBI Agent Thornton, who then showed them to BATF Agent Baraducci who was on the scene while the search was in progress, it is appropriate to consider the collective knowledge of all the officers on the scene. The admissibility of this evidence is not limited by the fortuity of which officer first happened upon the pen guns. United States v. Johnston, 784 F.2d 416, 420 (1st Cir.1986); United States v. Newton, 788 F.2d 1392, 1395 (8th Cir.1986); United States v. Wright, 641 F.2d 602, 606 (8th Cir.), cert. denied, 451 U.S. 1021 , 101 S.Ct. 3014 , 69 L.Ed.2d 394 (1981).