In The

Supreme Court of the United States




Decided March 3, 1987

Justice O’Connor, Dissenting


Arizona v. Hicks, 480 U.S. 321 (1987), held that the Fourth Amendment requires the police to have probable cause to seize items in plain view.

Topic: Criminal Procedure*Court vote: 6–3
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Joining O'Connor opinion: Justice POWELL Justice POWELL Chief Justice REHNQUIST Chief Justice REHNQUIST
Holding: Police require probable cause to seize items in plain view.
Citation: 480 U.S. 321 Docket: 86–1027Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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The Court today gives the right answer to the wrong question. The Court asks whether the police must have probable cause before either seizing an object in plain view or conducting a full-blown search of that object, and concludes that they must. I agree. In my view, however, this case presents a different question: whether police must have probable cause before conducting a cursory inspection of an item in plain view. Because I conclude that such an inspection is reasonable if the police are aware of facts or circumstances that justify a reasonable suspicion that the item is evidence of a crime, I would reverse the judgment of the Arizona Court of Appeals, and therefore dissent.

In Coolidge v. New Hampshire, 403 U. S. 443 (1971), Justice Stewart summarized three requirements that the plurality thought must be satisfied for a plain view search or seizure. First, the police must lawfully make an initial intrusion or otherwise be in a position from which they can view a particular area. Second, the officer must discover incriminating evidence "inadvertently." Third, it must be "immediately apparent" to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. As another plurality observed in Texas v. Brown, 460 U. S. 730, 460 U. S. 737 (1983), these three requirements have never been expressly adopted by a majority of this Court, but

as the considered opinion of four Members of this Court [the Coolidge plurality] should obviously be the point of reference for further discussion of the issue.

There is no dispute in this case that the first two requirements have been satisfied. The officers were lawfully in the apartment pursuant to exigent circumstances, and the discovery of the stereo was inadvertent -the officers did not " know in advance the location of [certain] evidence and intend to seize it,' relying on the plain view doctrine only as a pretext." Ibid. (quoting Coolidge v. New Hampshire, supra, at 403 U. S. 470 ). Instead, the dispute in this case focuses on the application of the "immediately apparent" requirement; at issue is whether a police officer's reasonable suspicion is adequate to justify a cursory examination of an item in plain view.

The purpose of the "immediately apparent" requirement is to prevent "general, exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. at 403 U. S. 467. If an officer could indiscriminately search every item in plain view, a search justified by a limited purpose -such as exigent circumstances -could be used to eviscerate the protections of the Fourth Amendment. In order to prevent such a general search, therefore, we require that the relevance of the item be "immediately apparent." As Justice Stewart explained:

Of course, the extension of the original justification [for being present] is legitimate only where it is immediately apparent to the police that they have evidence before them; the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Cf. 394 U. S. Georgia, [394 U.S. 557], 394 U. S. 571 -572 [(1969)] (Stewart, J., concurring in result).

Id. at 403 U. S. 466 -467.

Thus, I agree with the Court that, even under the plain view doctrine, probable cause is required before the police seize an item, or conduct a full-blown search of evidence in plain view. Ante at 480 U. S. 326 -328. Such a requirement of probable cause will prevent the plain view doctrine from authorizing general searches. This is not to say, however, that even a mere inspection of a suspicious item must be supported by probable cause. When a police officer makes a cursory inspection of a suspicious item in plain view in order to determine whether it is indeed evidence of a crime, there is no "exploratory rummaging." Only those items that the police officer "reasonably suspects" as evidence of a crime may be inspected, and perhaps more importantly, the scope of such an inspection is quite limited. In short, if police officers have a reasonable, articulable suspicion that an object they come across during the course of a lawful search is evidence of crime, in my view they may make a cursory examination of the object to verify their suspicion. If the officers wish to go beyond such a cursory examination of the object, however, they must have probable cause.

This distinction between a full-blown search and seizure of an item and a mere inspection of the item was first suggested by Justice Stewart. In his concurrence in Stanley v. Georgia, 394 U. S. 557 (1969), which is cited in Coolidge, Justice Stewart observed that the federal agents there had acted within the scope of a lawful warrant in opening the drawers of the defendant's desk. When they found in one of the drawers not the gambling material described in the warrant but movie films, they proceeded to exhibit the films on the defendant's projector, and thereafter arrested the defendant for possession of obscene matter. Justice Stewart agreed with the majority that the film had to be suppressed, but in doing so he suggested that a less intrusive inspection of evidence in plain view would present a different case:

This is not a case where agents, in the course of a lawful search, came upon contraband, criminal activity, or criminal evidence in plain view. For the record makes clear that the contents of the films could not be determined by mere inspection.

Id. at 394 U. S. 571 (emphasis added) (footnote omitted).

Following Justice Stewart's suggestion, the overwhelming majority of both state and federal courts have held that probable cause is not required for a minimal inspection of an item in plain view. As Professor LaFave summarizes the view of these courts,

the minimal additional intrusion which results from an inspection or examination of an object in plain view is reasonable if the officer was first aware of some facts and circumstances which justify a reasonable suspicion (not probable cause, in the traditional sense) that the object is or contains a fruit, instrumentality, or evidence of crime.

2 W. LaFave, Search and Seizure § 6.7(b), p. 717 (2d ed. 1987); see also id. at 345 ("It is generally assumed that there is nothing improper in merely picking up an unnamed article for the purpose of noting its brand name or serial number or other identifying characteristics to be found on the surface"). Thus, while courts require probable cause for more extensive examination, cursory inspections -including picking up or moving objects for a better view -require only a reasonable suspicion. See, e.g., United States v. Marbury, 732 F.2d 390, 399 (CA5 1984) (police may inspect an item found in plain view to determine whether it is evidence of crime if they have a reasonable suspicion to believe that the item is evidence); United States v. Hillyard, 677 F.2d 1336, 1342 (CA9 1982) (police may give suspicious documents brief perusal if they have a "reasonable suspicion"); United States v. Wright, 667 F.2d 793, 798 (CA9 1982) ("[A]n officer may conduct such an examination if he at least has a reasonable suspicion' to believe that the discovered item is evidence"); United States v. Roberts, 619 F.2d 379, 381 (CA5 1980) ("Police officers are not required to ignore the significance of items in plain view even when the full import of the objects cannot be positively ascertained without some examination"); United States v. Ochs, 595 F.2d 1247, 1257-1258, and n. 8 (CA2 1979) (Friendly, J.) (same).

Indeed, several state courts have applied a reasonable suspicion standard in factual circumstances almost identical to this case. See, e.g., State v. Noll, 116 Wis.2d 443, 343 N.W.2d 391 (1984) (officer, upon seeing television, could check serial numbers); State v. Riedinger, 374 N.W.2d 866 (ND 1985) (police, in executing warrant for drugs, could check serial number of microwave oven); People v. Dorris, 110 Ill.App.3d 660, 442 N.E.2d 951 (1982) (police may note account number of deposit slip because, when the police have a reasonable suspicion that an item in plain view is stolen property, the minimal additional intrusion of checking external identification numbers is proper); State v. Proctor, 12 Wash.App. 274, 529 P.2d 472 (1974) (upholding police notation of serial numbers on calculators); People v. Eddington, 23 Mich.App. 210, 178 N.W.2d 686 (1970) (upholding examination of heels of shoes), rev'd on other grounds, 387 Mich. 551, 198 N.W.2d 297 (1972).

This distinction between searches based on their relative intrusiveness -and its subsequent adoption by a consensus of American courts -is entirely consistent with our Fourth Amendment jurisprudence. We have long recognized that searches can vary in intrusiveness, and that some brief searches

may be so minimally intrusive of Fourth Amendment interests that strong countervailing governmental interests will justify a [search] based only on specific articulable facts

that the item in question is contraband or evidence of a crime. United States v. Place, 462 U. S. 696, 462 U. S. 706 (1983). In Delaware v. Prouse, 440 U. S. 648, 440 U. S. 654 (1979), we held that the permissibility of a particular law enforcement practice should be judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. Thus,

[w]here a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard.

New Jersey v. T.L.O., 469 U. S. 325, 469 U. S. 341 (1986). The governmental interests considered include crime prevention and detection. Terry v. Ohio, 392 U. S. 1, 392 U. S. 22 (1968). The test is whether these law enforcement interests are sufficiently "substantial," not, as the Court would have it, whether

operational necessities render [a standard less than probable cause] the only practicable means of detecting certain types of crimes.

Ante at 480 U. S. 327. See United States v. Place, supra, at 462 U. S. 704.

In my view, the balance of the governmental and privacy interests strongly supports a reasonable suspicion standard for the cursory examination of items in plain view. The additional intrusion caused by an inspection of an item in plain view for its serial number is minuscule. Indeed, the intrusion in this case was even more transitory and less intrusive than the seizure of luggage from a suspected drug dealer in United States v. Place, supra, and the "severe, though brief, intrusion upon cherished personal security" in Terry v. Ohio, supra, at 392 U. S. 24 -25.

Weighed against this minimal additional invasion of privacy are rather major gains in law enforcement. The use of identification numbers in tracing stolen property is a powerful law enforcement tool. Serial numbers are far more helpful and accurate in detecting stolen property than simple police recollection of the evidence. Cf. New York v. Class, 475 U. S. 106, 475 U. S. 111 (1986) (observing importance of vehicle identification numbers). Given the prevalence of mass-produced goods in our national economy, a serial number is often the only sure method of detecting stolen property. The balance of governmental and private interests strongly supports the view, accepted by a majority of courts, that a standard of reasonable suspicion meets the requirements of the Fourth Amendment.

Unfortunately, in its desire to establish a "bright-line" test, the Court has taken a step that ignores a substantial body of precedent and that places serious roadblocks to reasonable law enforcement practices. Indeed, in this case no warrant to search the stereo equipment for its serial number could have been obtained by the officers based on reasonable suspicion alone, and, in the Court's view, the officers may not even move the stereo turntable to examine its serial number. The theoretical advantages of the "search is a search" approach adopted by the Court today are simply too remote to justify the tangible and severe damage it inflicts on legitimate and effective law enforcement.

Even if probable cause were the appropriate standard, I have little doubt that it was satisfied here. When police officers, during the course of a search inquiring into grievously unlawful activity, discover the tools of a thief (a sawed-off rifle and a stocking mask) and observe in a small apartment two sets of stereo equipment that are both inordinately expensive in relation to their surroundings and known to be favored targets of larcenous activity, the "flexible, common-sense standard" of probable cause has been satisfied. Texas v. Brown, 460 U.S. at 460 U. S. 742 (plurality opinion).

Because the Court today ignores the existence of probable cause, and in doing so upsets a widely accepted body of precedent on the standard of reasonableness for the cursory examination of evidence in plain view, I respectfully dissent.

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