indicating that the “mere viewing and evaluation” of a “rectangular package, measuring a certain size [resembling a Mlo of cocaine], wrapped in duct tape,” by a trained officer who “had participated in the seizure of three or four hundred separate kilos of cocaine” and learned that “a Mlogram of cocaine [i]s typically wrapped in some variety of tape,” did not give the officer “probable cause” to believe that the package contained drugs
How later courts described this case
- indicating that the “mere viewing and evaluation” of a “rectangular package, measuring a certain size [resembling a Mlo of cocaine], wrapped in duct tape,” by a trained officer who “had participated in the seizure of three or four hundred separate kilos of cocaine” and learned that “a Mlogram of cocaine [i]s typically wrapped in some variety of tape,” did not give the officer “probable cause” to believe that the package contained drugs
- finding that an officer was lawfully in a public place, an apartment building hallway, in which the defendant has no expectation of privacy
- finding no legitimate expectation of privacy in a common hallway of multi-dwelling apartment even when area is bounded by a locked door
- noting that “[w]e do not mean to suggest that the mere viewing and evaluation of the package alone constituted probable cause,” when officer arrested suspect carrying a “rectangular object wrapped in tape”
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Horton v. California, 496 U.S. 128 (1990)
872 F.2d 12, 17 (2d Cir. 1989), abrogated on other grounds by Horton v. California, 496 U.S. 128
The opinion
PIERCE, Circuit Judge,
dissenting:
I dissent from the conclusion that the confluence of earlier events and the substantial experience of the federal agent warranted his “plain view” seizure of the duct-tape-wrapped rectangular package in appellant’s open shopping bag.
Given the volume of crime and drug trafficking which occurs in metropolitan areas daily, by the court’s holding today, citizens who reside in such areas will be rendered subject to stops and seizures as occurred herein, merely for pausing momentarily alongside the “wrong” automobile, failing to close the top of one’s shopping bag, carrying therein a brick-size package wrapped in hardware-store duct tape, and happening to continue on one’s way when a law enforcement officer calls to one to stop.
Importantly, in the “balloon case,” Texas v. Brown, 460 U.S. 730 , 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983), the Supreme Court, in upholding a seizure, noted that the police officer looked in the glove compartment and saw “several small plastic vials, quantities of loose white powder, and an open bag of party balloons.” Id. at 734 , 103 S.Ct. at 1539 (emphasis added). Herein, the agent simply saw a package wrapped in duct tape, which he testified in his experience is commonly used to wrap kilogram packages of cocaine. I agree with the majority that the mere viewing and evaluation of the package alone did not constitute probable cause. However, unlike the majority, I do not believe that appellant’s pausing before the Audi automobile and his failing to stop in response to the agent’s call while walking upstairs to his apartment added enough to the probable cause calculus to justify the search and seizure.
I would reverse on the ground that the suppression motion should have been granted.