Christmas v. United States

REILLY, Chief Judge

(dissenting):

I am unable to agree with the majority decision. While it recognizes one well established exception to the general rule forbidding warrantless searches of automobiles, viz., that “ . . . objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence,” Harris v. United States, 390 U.S. 234 at 236 , 88 S.Ct. 992 at 993 , 19 L.Ed.2d 1067 (1968) — a doctrine recently re-emphasized by the Supreme Court 1 — it seems to create a new exception to such exception. Its underlying premise is that the object seized in this instance — a vial containing dangerous drugs —was an “innocent looking nonsuspicious article” and therefore even though it was lying in plain view on the front seat of the car, the officer had no right to take it from the seat and inspect it. The majority concede that in holding up the vial, the officer did observe that the prescription label was “old and worn” and that the pills inside “did not match the prescription.” Obviously at that point the officer had every reason to believe that it contained illicit material, for D.C.Code 1973, § 33-413, makes it unlawful to carry even prescribed narcotic drugs except in the original container, and §§ 33-412 and 33-702 of that title impose stringent labeling requirements on the dispenser. The opinion avoids the impact of this testimony, however, by holding that when it was picked up the “vial was ’seized’ at that point” [italics supplied].

If this view of the matters becomes a fixed rule, we have severely hobbled the efforts of the police to enforce laws against traffickers in narcotics. It would mean that only when an object like a handgun, a bomb, or a stick of dynamite falls within the view of an officer, could he pick it up and use it as evidence against the possessor. It is clear that all containers of narcotics, whether in capsule, pill, or powdered form, look no different from the ordinary containers of nonprescription drugs or such powdered substances as prophylactics, unless one can hold them *481 close enough to read the labels and compare them with the contents.

In Harris, supra, the leading case on the “plain view” rule, the object seized was a registration card lying on the floor of an automobile. This was later identified as having been taken from a stolen wallet. But obviously the officer was unaware that it did not belong to the car owner until he had picked it up and read the name typed or printed on it.

The notion that an object which might contain illicit drugs is immune from on-the-spot inspection is not supported by decisions in this jurisdiction. See Wise v. United States, D.C.App., 277 A.2d 476 (1971), where officer observed occupant of car stopped for unrelated reason placing capsules in pocket; United States v. Johnson, 143 U.S.App.D.C. 215 , 442 F.2d 1239 (1971), capsules scattered on floor of car halted for traffic violation.

Similar seizures have been upheld in other jurisdictions. In State v. Waltz, 61 N.J. 83 , 293 A.2d 167 (1972), an officer stopping a speeding van noticed a Bufferin bottle on the floor, picked it up, and in looking through the bottle saw that it contained pills other than Bufferin tablets, and tinfoil. In People v. Childs, 4 Cal.App.3d 702 , 84 Cal.Rptr. 378 (1970), also a traffic stop case, the officer observed a small pill bottle labeled “tranquillizers” lying on the car floor. He picked up the bottle, opened it and found it held narcotic pills.

In short, courts both in this jurisdiction and elsewhere have found no difficulty in distinguishing police inspection of the kind of vials or bottles dispensed by pharmaceutical manufacturers or apothecaries from the seizure of such objects as suit cases, valises, and handbags — the carriage of which in an automobile would normally provide no ground for suspicion. Our decision in Backstrom v. United States, D.C.App., 252 A.2d 909 (1969), upon which the majority opinion relies so heavily, falls into the latter category, for the object suppressed was an ordinary cigarette case, not a vial or a glass medicine bottle. In Back-strom, appellant was a traffic offender unable to post collateral, who was searched prior to being placed in a cell. A pill bottle containing 58 unmarked tablets was found on him. Being dissatisfied with appellant’s explanation that these tablets were vitamins, the officer remembered seeing a cigarette case in the car, went out, retrieved it, and, upon emptying the contents, discovered marijuana. It was this latter seizure which the government tried to justify on the plain view theory, the cigarette case having been clearly visible at the time of the arrest when the driver brushed it off the front seat to the floor. It was this article and its contents which the appellant vainly sought to suppress in the trial court. In holding that it was error not to grant the suppression motion, the court’s reference to the innocent nature of the object seized pertained to the cigarette case, not the pill bottle. Hence the Backstrom case is clearly distinguishable from the one before us.

. See Cady v. Dombrowski, 413 U.S. 433 , 93 S.Ct. 2523 , 37 L.Ed.2d 706 (1973).