The opinion
Justice Sharp
dissenting:
As I see it the “plain view” doctrine is not applicable to the facts of this case, and the trial judge erred in overruling defendants’ motion to suppress State’s Exhibit 1, a box containing several thousand pills, and State’s Exhibit 1-B, a brown glass bottle containing several hundred pills, for the reason that they were the fruits of an unconstitutional seizure. In brief summary, the State’s evidence tended to establish the following facts:
About 4:00 a.m. on 16 May 1973, R. A. Spillman and D. W. Rogers, police officers of the City of Winston-Salem, for the purpose of serving an instanter capias upon defendant Crews, went to the apartment occupied by defendants. They were admitted to the apartment by a third occupant, who directed them to the room where defendants were sleeping. The officers arrested Crews and directed him to get dressed in order to go to jail. When Crews started toward the closet, the door of which was open, the officers observed a pint bottle of clear brown glass, which they could see contained several hundred pills. When Spillman reached up to take the bottle off the shelf Crews said, “Hey, wait a minute. These are not mine.” There wag no label or identification whatever on the outside of the bottle. On the shelf next to the bottle was a pasteboard box.'
*49 Although the officers conceded they could not know the nature of the contents they “thought they knew what it was.” It came to Officer Spillman “as being some kind of contraband, possibly amphetamines.” Crews and the bottle were taken to the county jail. Long, a narcotics’ officer, ran preliminary tests on some of the pills in the bottle and found them to be amphetamines. He testified that he could not say the pills contained a controlled substance merely by looking at them. On the basis of this evidence Crews was arrested upon a warrant charging him with the possession of amphetamines with the intent to distribute, and a warrant authorizing the search of Crews’ apartment was issued. When the officers returned to the apartment the pasteboard box, which had been on the closet shelf, was found concealed beneath a bed. It contained several thousand multicolored pills.
On 21 May 1973 a toxicologist at North Carolina, Baptist Hospital analyzed the pills taken from the defendants’ apartment. He found the pills in the box (Exhibit 1) and the brown bottle (Exhibit 1-B) to contain amphetamine. He testified that, without having made a chemical analysis, he could not have kno,wn that the pills contained a controlled substance; that merely by looking at the bottle of pills he would not know that “there was any law being violated.”
The trial judge’s finding that the officers were legally in defendants’ bedroom and that the brown bottle on the closet shelf was in plain view are clearly supported by the evidence. In my view, however, neither his finding of fact that “the contraband was seen ‘in plain view,’ ” nor his legal conclusion that the later-issued search warrant was valid, can be supported.
. In plain view was only a brown bottle containing pills. The bottle itself was not contraband. Obviously it was impossible by sight to identify pills in a glass bottle, tinted brown and bearing no label, as amphetamines, or any other controlled substance. The evidence conclusively establishes that, even after opening the bottle and scrutinizing the pink pills which it was found to contain’ neither Officers Spillman and Rogers nor Officer Long could” say whether they contained amphetamine. A chemical analysis at the police station was required to establish that the pills were contraband. See People v. Marshall, 69 Cal. 2d 51 , 442 P. 2d 665 , 69 Cal. Rptr. 585 (1968) ; Miramontes v. Superior Court for County of San Mateo, 25 Cal. App. 3rd 877, 102 Cal. Rptr. 182 (1972).
*50 In point with this case is State v. Meichel, 290 So. 2d 878 (La. 1974). In that case the officers removed a bottle of pills from the front seat of the defendant’s automobile. They then searched the trunk of the vehicle and found marijuana. In rejecting the State’s contention “that the plain view seizure of the pills established probable cause for a search of the automobile” the Louisiana Supreme Court said:
“A policeman does not have the right to seize any object in his view in order to examine it and determine if it is or would be evidence in a criminal prosecution. An object in open plain view may be seized only where it is readily apparent that the object is contraband or evidence. See Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022, 2038 , 29 L.Ed. 2d 564 (1971).
“In the instant case the testimony of the officer making the seizure is clearly to the effect that he did not know the nature of the pills until after he had picked up the bottle and examined it. He did not know at the time he saw the pills that there was a probability that they were contraband and probably evidence. This seizure does not fall within the plain view exception to the warrant requirement. As such the seizure violated defendant’s constitutional rights and was illegal.” Id. at 880.
In another recent decision, different factually, but applying the same general principles, the Supreme Court of North Dakota held that the “plain view” exception “does not apply to sealed packages the appearance of which is not indicative of their illicit contents.” State v. Matthews, 216 N.W. 2d 90, 100 (N.D. 1974). In that case, the police had opened two sealed envelopes which they suspected contained marijuana. Their suspicions proved to be correct. However, the court nonetheless excluded this evidence. In concluding that the motion to suppress should have been granted it said: “When police assume the function of the magistrate, they act beyond the law and the evidence they obtain by so acting is excluded. In regrettable consequence, the guilty may go free, but the alternative — permitting warrantless rummaging through private property — is worse. The remedy for both evils is for the police to obey the law, not for the courts to ignore the Constitution.” Id. at 104 . With reference to the nonapplicability of the “plain view” exception to sealed packages, see United States v. Sokolow, 450 F. 2d 324 (5th Cir. 1971) ; People v. Marshall, supra.
In Stanley v. Georgia, 394 U.S. 557 , 22 L.Ed. 2d 542 , 89 S.Ct. 1243 (1969), under a search warrant, federal and state *51 agents searched defendant’s home for evidence of hookmaking activities, which they did not find. However, they did find three reels of film. Using a projector and screen, which they found on the premises, they concluded that the films were obscene and seized them. The Supreme Court disposed of the case by holding that the Georgia statute under which defendant was convicted was unconstitutional insofar as it made mere private possession of obscene matter a crime. In a concurring opinion, however, Justices Stewart, Brennan and White addressed themselves to the ruling of the Georgia Supreme Court that the films had been lawfully seized — a preliminary issue which the majority opinion ignored.
In concluding that the films were inadmissible in evidence at the appellant’s trial, the concurring Justices said: “This is not a case where agents in the course of a lawful search came upon contraband, criminal activity, or criminal evidence in plain view. For the record makes clear that the contents of the film could not be determined by mere inspection. . . . After finding them, the agent spent some 50 minutes exhibiting them by means of the appellant’s projector in another upstairs room. Only then did the agents return downstairs and arrest the appellant. . . . To condone what happened here is to invite a government official to use a seemingly precise and legal warrant only as a ticket to get into a man’s home, and, once inside, to launch forth upon unconfined searches and indiscriminate seizures as if armed with all the unbridled and illegal power of a general warrant.” Id. at 571-572 .
In my opinion the “plain view” doctrine justifies a warrant-less seizure only when it is apparent to the police that they have evidence or contraband before them. My vote, therefore, is to reverse: