holding that film container has other uses ánd therefore is not purely single-purpose container; however, given circumstances, trained narcotics detective’s view of container was tantamount to view of narcotic itself
How later courts described this case
- holding that film container has other uses ánd therefore is not purely single-purpose container; however, given circumstances, trained narcotics detective’s view of container was tantamount to view of narcotic itself
- holding that film container has other uses and therefore is not purely single-purpose container; however, given circumstances, trained narcotics detective's view of container was tantamount to view of narcotic itself
- explaining seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming there is probable cause to associate property with criminal activity; experienced officer trained in narcotics can seize object, when he observes it from lawful vantage point, and holder of object tries to conceal object; given incriminating character of object, officer could open object and examine contents
- holding that probable cause “does not demand any showing that such a belief be correct or more likely true than false.”
Written by the judges who cited it.
The opinion
POPOVICH, Judge,
dissenting:
I respectfully dissent. The majority arrives at a conclusion which, taken to its logical extension would ensure the admissibility of contraband secreted in a container which is visible to police even though the container does not imply contraband to the officer; is not, in fact, deduced to be contraband by the officer; and does not resemble a weapon. Even after Texas v. Brown, 460 U.S. 730 , 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983), the Supreme Court had not abandoned the requirement that application of the “plain view” doctrine is permissible only when there is probable cause to associate the observed property with criminal activity. Probable cause may well be a “flexible, common-sense standard”, nevertheless its importance remains undisturbed as a requirement which must be satisfied even though, as here, an individual is in the company of known drug dealers.
When a motion is made to suppress evidence, “the burden is on the Commonwealth to establish by a preponderance of evidence that the challenged evidence is admissible.” Commonwealth v. Ryan, 300 Pa.Super. 156 , 446 A.2d 277, 285 (1982). The Commonwealth had the opportunity to introduce evidence which could have indicated the presence of probable cause arising either from (1) appellee’s behavior or (2) the officer’s view of the film cannister, utilizing the “plain view” doctrine as it has been expanded to embrace the situation where certain containers are characterized as so suspicious as effectively to represent a view of the drugs themselves. (See Commonwealth v. Chamberlain, 332 Pa.Super. 108 , 480 A.2d 1209 (1984). The Commonwealth neglected to offer such evidence and thereby failed to sustain its burden.
As the majority notes “[i]t is important to focus on the circumstances as seen through the eyes of a trained officer and not to view the situation as an average citizen might.” *575 In doing so, we are immediately confronted with Detective Ross’ apparent lack of knowledge or suspicion of the vial’s function as a repository for contraband. The court asked Detective Ross:
Could you identify, could you see what this man had in his hand?
[Ross]: Yes. It was a plastic — I wasn’t sure exactly what it was at that time except it was plastic and it was black. (T-28, 29)
Indeed, an officer need not be possessed of a “near certainty” as to the nature of the time; however, here no evidence was presented which tended to show that the officer who noticed the vial had the requisite probable cause which would have allowed him to confiscate it under the “plain view” doctrine. At a minimum, testimony could have been presented to the effect that the officer’s expertise and background encouraged his belief that the vial contained evidence of a crime or that such vials often act as repositories for drugs. Texas v. Brown, supra, Commonwealth v. Chamberlain, supra; Commonwealth v. Trenge, 305 Pa.Super. 386 , 451 A.2d 701 (1982).
At oral argument, the Commonwealth all but abandoned the “plain view” argument, concentrating on whether probable cause to search appellee existed based on his alleged concealment of the film vial. Coupled with his conduct in attempting to hide in the bedroom and his association with those named in the warrant, a furtive concealment of the vial could have given rise to probable cause to search or arrest appellee. Commonwealth v. Gease, 304 Pa.Super. 433 , 450 A.2d 989 (1982). However, the fact that appellee “put [the cannister] up under his body” does not necessarily indicate an attempt to conceal contraband. Indeed, neither officer involved characterized appellee’s action as suspicious, furtive or in any way indicative of his probable involvement in criminal conduct. This showing was essential to defeat appellee’s motion to suppress.
In Ybarra v. Illinois, 444 U.S. 85 , 100 S.Ct. 338 , 62 L.Ed.2d 238 (1979) the United States Supreme Court stated that
*576 [In this case] we are asked to construe the Fourth and Fourteenth Amendments to permit evidence searches of persons who, at the commencement of the search, are on “compact” premises subject to a search warrant, at least where the police have a “reasonable belief” that such persons “are connected with” drug trafficking and “may be concealing or carrying away the contraband.”
Id., 100 S.Ct. at 344 . The Supreme Court declined the opportunity to sanction such a search. I would affirm the order of court granting appellee’s motion to suppress.