criteria for admitting expert testimony on ultimate issue
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- criteria for admitting expert testimony on ultimate issue
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The opinion
*116 PRYOR, Chief Judge,
concurring:
I vote to affirm the convictions, but do not join in Part II of the majority opinion.
I do not think that the trial judge erred in applying the “plain view doctrine” to uphold the seizure of items taken from the residence in which appellant was arrested. Relying upon the same decisions cited in the majority opinion, my difference can be simply stated. Given the fast-moving circumstances surrounding the sighting of a suspect in a sexual attack, the police entered the house to arrest him. After appellant was taken into custody on the second floor, an officer observed certain clothes in a chair in an adjacent room. Still another officer observed a razor and hair particles in an upstairs bathroom.
A critical question then is whether the items seized are the consequence of an exploratory search? We start with the premise that the scope of a warrantless search is limited as to time, place, and circumstance. In a situation, as here, law enforcement officers need not assume, but can reasonably assure themselves that no unknown danger lurks within a house that is being searched. Aside from the security factor, I read Chimel v. California, 895 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969), as rejecting a warrantless rummaging at will, but to allow a contemporaneous search of the immediate area where an arrest occurs. I would offer that Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971), instructs that if the police are in a place where they have a right to be, they may act on what they happen to see. A further limitation is that the discovery must be inadvertent in the sense that the police cannot know, in advance, the location of items which they intend to seize before undertaking a search.
In this instance, the police legitimately entered the house, arrested the suspect, and secured the premises for their own safety. Without a warrant, they were not free to conduct a “general” search. However, the Coolidge requirement of inadvertence does not mean that police must be inattentive to pertinent evidence in the area of arrest which they observe without obstruction. Here the trial judge ruled, in effect, that the officers observed the items in the course of their lawful intrusions, and not as a result of a broad search. I find no error in that ruling.