Remember, there are two issues here. First, you must legitimately be on the premises. Second, you
must have probable cause for the seizure. "There must be facts and circumstances from which the
probability of the item's contraband nature may be inferred." U.S. v. Thomas, 36 CMR 462 (CMA,
1966). In one case, the investigators were searching the suspect's room for marijuana. The
commander had authorized a search thereof as a result of a marijuana detection dog's alert. Once
inside the room, the agents looked through various papers, printed materials, and magazines. This
resulted in a seizure of some obscene materials. The court explained 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." For this
to apply, however, it must be "immediately apparent to the police that they have evidence before them."
It "may not be used to extend a general exploratory search from one object to another until something
incriminating at last emerges." In other words, the intrusion which afforded the view must be lawful.
Once that has been established, the incriminating nature of the item seized must be "immediately
apparent;" i.e., is there a sufficient factual basis to support a reasonable belief that the item is
contraband or evidence of a crime? In this case, the police were legitimately present in the room. This,
however, was not enough, as the incriminating nature of the items seized was not immediately
apparent. "The material found was not contraband nor was its mere possession illegal." There was no
reasonable cause to believe that the items were evidence of a crime. They were, then, unlawfully
seized. U.S. v. Van House, 11 MJ 878 (AFCMR, 1981).
This problem confronted the U.S. Supreme Court in Arizona v. Hicks, 40 Cr.L. 3320 (1987).
There, a suspect fired a shot through the floor of his apartment and injured a person on the floor below.
The police responded to the scene and entered the suspect's apartment. While there, a police officer
noticed two sets of expensive stereo components, which seemed to be out of place in the otherwise
"squalid" apartment. Suspecting that they were stolen, the officer read and recorded their serial
numbers, moving some of the components in order to locate their serial numbers. The officer phoned
in the information and it was determined that they were, in fact, stolen. The Court held that merely
recording the serial numbers was permissible, as this did not constitute a search: "Merely inspecting
those parts of the turntable that came into view during the (search for the assailant) would not have
constituted an independent search." The moving of the equipment in order to locate the serial numbers,
however, "did constitute a search separate and apart from the search for the shooter, victims, and
weapons that was the lawful objective of his entry into the apartment...taking action, unrelated to the
objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its
contents, did produce a new invasion of respondent's privacy."
There was no probable cause to believe that the equipment was stolen, or to support a search
of the equipment. Here, it was not immediately apparent that the property was stolen; this wasn't
discovered until the police had conducted a further search. In other words, they could record the serial
numbers that they could observe without moving the components. They could not, however, turn the
items over and inspect them, as this constituted a separate search. Plain view, then, didn't apply.
Remember, you must be lawfully on the premises and you must have probable cause for the seizure.
Here, since the police had to conduct an additional search in order to locate the serial numbers on
some of the components, they could not argue that such evidence was in plain view.
MP1021
1-54
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