State v. White

*780 Justice FRYE

dissenting in part.

On 16 January 1986, four Mecklenburg County police officers, armed with a search warrant, pried open the door of 512 West Worthington Street and seized property suspected of being the fruits of crime. Though the warrant possessed by these officers listed only a stereo, watch, and two pistols as the items to be seized, the officers in fact seized some fifty-five items. The only item found that was actually listed in the application for the search warrant was a JVC stereo.

The Court today endorses the actions of these officers by holding that the items not specifically identified in the warrant application were inadvertently discovered while the officers engaged in a lawful search. The majority, therefore, concludes that the seizure falls within the “plain view” exception to the warrant requirement of the United States Constitution, and satisfies the requirements of N.C.G.S. § 15A-253. Because this holding is a drastic departure from our cases interpreting the plain view exception to warrantless searches, I dissent from this portion of the majority’s opinion.

The United States Supreme Court, in Coolidge v. New Hampshire, 403 U.S. 443 , 29 L.Ed. 2d 564 (1971), held that the police may seize without a warrant the instrumentalities, fruits, or other evidence of crime which is in plain view if three requirements are met. To remain within the strictures of the constitution, the warrantless seizure requires: (1) that the initial intrusion be lawful; (2) the discovery of the incriminating evidence be inadvertent; and last, (3) it be immediately apparent that the items observed constitute evidence of a crime. Id. at 466 , 29 L.Ed. 2d at 583 . The State falls woefully short in satisfying the second prong.

In its opinion in Coolidge , the United States Supreme Court gave little guidance as to what was meant by “inadvertent” discovery. In State v. Richards, 294 N.C. 474 , 242 S.E. 2d 844 (1978), this Court interpreted the inadvertent requirement of the plain view doctrine to mean “that there must be no intent on the part of investigators to search for and seize the contested items not named in the warrant.” Id. at 489-90 , 242 S.E. 2d at 854 . Quite recently, this interpretation was restated in State v. Williams, 315 N.C. 310 , 338 S.E. 2d 75 (1986). In applying this now well-established standard, it is eminently evident that the seizure of *781 those items listed in the police reports and not listed in the application for the search warrant was not inadvertent as that requirement has been interpreted by this Court.

After securing the search warrant from a magistrate, Officer Bailey testified that he and several other officers drove to the home of defendant to execute the warrant. Officer Bailey took with him fifteen police incident reports which contained information concerning break-ins covering a period of almost two months. In fact, Officer Bailey stated:

When we went to the residence to execute the warrant, I took with me a series of Mecklenburg County Police Reports that had occurred in the vicinity of South Mecklenburg High School over a six-week to eight-week period prior to the execution of the search. And the purpose of that was because of the property listed on those Police Reports to be compared with property that may have been found in the residence. (Emphasis added.)

Moreover, Officer McMurray, who assisted in executing the warrant, stated at trial that he studied these reports before leaving for defendant’s home.

After arriving at the home of defendant and finding no one present, the officers forced their way in. The State’s testimony revealed that the officers, almost immediately, discovered the stereo that was listed on the application to the search warrant. The officers found nothing else which comported with the items listed in the warrant application. The officers, however, did discover other items which, when checked against the fifteen reports that they had taken along, were thought to be fruits of crime. The officers confiscated these items along with the stereo and other items not listed in the reports.

The officers confiscated a total of fifty-five items including such seemingly innocuous evidence as screwdrivers and blank VCR tapes. Not only did the officers seize these items that were not named in the warrant, they also seized a copy of defendant’s lease and a copy of a traffic citation. Apparently, these items were seized to support the State’s contention that this residence was in fact that of the defendant. Officer Bailey stated at trial that some of the confiscated items still remained at police head *782 quarters, unclaimed by their owners. In fact, it was revealed at trial that some of the property seized was the personal property of defendant and his wife. In my opinion, this wholesale rummaging through the defendant’s home was never contemplated as being an exception to the fourth amendment’s admonition against unreasonable search and seizures. Nor, until today, could such a search survive the scrutiny given this type of evidence by this Court.

The majority states that its result comports with State v. Williams, 315 N.C. 310 , 338 S.E. 2d 75 , and State v. Richards, 294 N.C. 474 , 242 S.E. 2d 844 . It simply does not. Those cases stand firmly for the proposition that, for a discovery to be inadvertent, there must be no intent on the part of the investigators to search for and seize contested items not named in the warrant. The Court’s departure from this established and prudent principle goes unexplained.

Through the State’s own witnesses, it was revealed that the only reason the officers took with them the incident reports of other crimes was to compare the items listed in the reports with what was to be found in defendant’s home. It was the intention of the officers to go to defendant’s home not only to search for items enumerated in the search warrant but also to search for other items of contraband. This is supported not only by the taking of the reports to the search but also by the careful study of the reports by the officers prior to departing for defendant’s home. It thus becomes exceedingly evident that the reports were taken for no other reason than to search for and confiscate items listed therein. It follows then that the discovery of these items was not inadvertent but intentional.

The holding of the Court does little to discourage law enforcement officers from securing a warrant to search for one item, and then embarking on “exploratory rummaging in a person’s belongings,” Coolidge v. New Hampshire, 403 U.S. at 467 , 29 L.Ed. 2d at 583 , in one last effort to find fruits of crime. The inadvertent requirement of the plain view doctrine, as followed before by this Court, was an effort to thwart these attempts by law enforcement officers to cloak general exploratory searches under the veil of plain view. The majority succeeds in dismantling this effort.

*783 I, therefore, respectfully dissent from that portion of the Court’s opinion which holds that the discovery of items not mentioned in the application for the search warrant was inadvertent and allows the seized items into evidence under the plain view doctrine. I would affirm the unanimous decision of the Court of Appeals on this issue.