Horton v. California/Dissent Brennan

by William J. Brennan, Jr.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

I remain convinced that Justice Stewart correctly articulated the plain-view doctrine in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The Fourth Amendment permits law enforcement officers to seize items for which they do not have a warrant when those items are found in plain view and (1) the officers are lawfully in a position to observe the items, (2) the discovery of the items is "inadvertent," and (3) it is immediately apparent to the officers that the items are evidence of a crime, contraband, or otherwise subject to seizure. In eschewing the inadvertent discovery requirement, the majority ignores the Fourth Amendment's express command that warrants particularly describe not only the places to be searched, but also the things to be seized. I respectfully dissent from this rewriting of the Fourth Amendment.

* The Fourth Amendment states:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Amendment protects two distinct interests. The prohibition against unreasonable searches and the requirement that a warrant "particularly describ[e] the place to be searched" protect an interest in privacy. The prohibition against unreasonable seizures and the requirement that a warrant "particularly describ[e] . . . the . . . things to be seized" protect a possessory interest in property. ^[1] See ante, at 133; Texas v. Brown, 460 U.S. 730, 747, 103 S.Ct. 1535, 1546, 75 L.Ed.2d 502 (1983) (STEVENS, J., concurring in judgment). The Fourth Amendment, by its terms, declares the privacy and possessory interests to be equally important. As this Court recently stated: "Although the interest protected by the Fourth Amendment injunction against unreasonable searches is quite different from that protected by its injunction against unreasonable seizures, neither the one nor the other is of inferior worth or necessarily requires only lesser protection." Arizona v. Hicks, 480 U.S. 321, 328, 107 S.Ct. 1149, 1154, 94 L.Ed.2d 347 (1987) (citation omitted).

The Amendment protects these equally important interests in precisely the same manner: by requiring a neutral and detached magistrate to evaluate, before the search or seizure, the government's showing of probable cause and its particular description of the place to be searched and the items to be seized. Accordingly, just as a warrantless search is per se unreasonable absent exigent circumstances, so too a seizure of personal property is "per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized." United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110 (1983) (footnote omitted) (citing Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927)). "Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights." United States v. United States District Court, Eastern District of Michigan, 407 U.S. 297, 318, 92 S.Ct. 2125, 2137, 32 L.Ed.2d 752 (1972). A decision to invade a possessory interest in property is too important to be left to the discretion of zealous officers "engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). "The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Marron, supra, at 196, 48 S.Ct., at 76.

The plain-view doctrine is an exception to the general rule that a seizure of personal property must be authorized by a warrant. As Justice Stewart explained in Coolidge, 403 U.S., at 470, 91 S.Ct., at 2040, we accept a warrantless seizure when an officer is lawfully in a location and inadvertently sees evidence of a crime because of "the inconvenience of procuring a warrant" to seize this newly discovered piece of evidence. But "where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it," the argument that procuring a warrant would be "inconvenient" loses much, if not all, of its force. Ibid. Barring an exigency, there is no reason why the police officers could not have obtained a warrant to seize this evidence before entering the premises. The rationale behind the inadvertent discovery requirement is simply that we will not excuse officers from the general requirement of a warrant to seize if the officers know the location of evidence, have probable cause to seize it, intend to seize it, and yet do not bother to obtain a warrant particularly describing that evidence. To do so would violate "the express constitutional requirement of 'Warrants . . . particularly describing . . . [the] things to be seized,' " and would "fly in the face of the basic rule that no amount of probable cause can justify a warrantless seizure." Id., at 471, 91 S.Ct., at 2040.

Although joined by only three other Members of the Court, Justice Stewart's discussion of the inadvertent discovery requirement has become widely accepted. See Texas v. Brown, supra, at 746, 103 S.Ct., at 1546 (Powell, J., concurring in judgment) ("Whatever my view might have been when Coolidge was decided, I see no reason at this late date to imply criticism of its articulation of this exception. It has been accepted generally for over a decade"). Forty-six States and the District of Columbia ^[2] and 12 United States Courts of Appeals ^[3] now require plain-view seizures to be inadvertent. There has been no outcry from law enforcement officials that the inadvertent discovery requirement unduly burdens their efforts. Given that the requirement is inescapably rooted in the plain language of the Fourth Amendment, I cannot fathom the Court's enthusiasm for discarding this element of the plain-view doctrine.

The Court posits two "flaws" in Justice Stewart's reasoning that it believes demonstrate the inappropriateness of the inadvertent discovery requirement. But these flaws are illusory. First, the majority explains that it can see no reason why an officer who "has knowledge approaching certainty" that an item will be found in a particular location "would deliberately omit a particular description of the item to be seized from the application for a search warrant." Ante, at 138. But to the individual whose possessory interest has been invaded, it matters not why the police officer decided to omit a particular item from his application for a search warrant. When an officer with probable cause to seize an item fails to mention that item in his application for a search warrant-for whatever reason-and then seizes the item anyway, his conduct is per se unreasonable. Suppression of the evidence so seized will encourage officers to be more precise and complete in future warrant applications.

Furthermore, there are a number of instances in which a law enforcement officer might deliberately choose to omit certain items from a warrant application even though he has probable cause to seize them, knows they are on the premises, and intends to seize them when they are discovered in plain view. For example, the warrant application process can often be time consuming, especially when the police attempt to seize a large number of items. An officer interested in conducting a search as soon as possible might decide to save time by listing only one or two hard-to-find items, such as the stolen rings in this case, confident that he will find in plain view all of the other evidence he is looking for before he discovers the listed items. Because rings could be located almost anywhere inside or outside a house, it is unlikely that a warrant to search for and seize the rings would restrict the scope of the search. An officer might rationally find the risk of immediately discovering the items listed in the warrant-thereby forcing him to conclude the search immediately-outweighed by the time saved in the application process.

The majority also contends that, once an officer is lawfully in a house and the scope of his search is adequately circumscribed by a warrant, "no additional Fourth Amendment interest is furthered by requiring that the discovery of evidence be inadvertent." Ante, at 140. Put another way, " 'the inadvertence rule will in no way reduce the number of places into which [law enforcement officers] may lawfully look.' " Ante, at 141 (quoting Coolidge, 403 U.S., at 517, 91 S.Ct., at 2063 (WHITE, J., concurring and dissenting)). The majority is correct, but it has asked the wrong question. It is true that the inadvertent discovery requirement furthers no privacy interests. The requirement in no way reduces the scope of a search or the number of places into which officers may look. But it does protect possessory interests. Cf. Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983) ("The plain-view doctrine is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owner's privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy") (emphasis added). The inadvertent discovery requirement is essential if we are to take seriously the Fourth Amendment's protection of possessory interests as well as privacy interests. See supra, at 143. The Court today eliminates a rule designed to further possessory interests on the ground that it fails to further privacy interests. I cannot countenance such constitutional legerdemain.

Fortunately, this decision should have only a limited impact, for the Court is not confronted today with what lower courts have described as a "pretextual" search. See, e.g., State v. Lair, 95 Wash.2d 706, 717-718, 630 P.2d 427, 434 (1981) (en banc) (holding pretextual searches invalid). For example, if an officer enters a house pursuant to a warrant to search for evidence of one crime when he is really interested only in seizing evidence relating to another crime, for which he does not have a warrant, his search is "pretextual" and the fruits of that search should be suppressed. See, e.g., State v. Kelsey, 592 S.W.2d 509 (Mo.App.1979) (evidence suppressed because officers, who had ample opportunity to obtain warrant relating to murder investigation, entered the premises instead pursuant to a warrant relating to a drug investigation, and searched only the hiding place of the murder weapon, rather than conducting a "top to bottom" search for drugs). Similarly, an officer might use an exception to the generally applicable warrant requirement, such as "hot pursuit," as a pretext to enter a home to seize items he knows he will find in plain view. Such conduct would be a deliberate attempt to circumvent the constitutional requirement of a warrant "particularly describing the place to be searched, and the persons or things to be seized," and cannot be condoned.

The discovery of evidence in pretextual searches is not "inadvertent" and should be suppressed for that reason. But even state courts that have rejected the inadvertent discovery requirement have held that the Fourth Amendment prohibits pretextual searches. See State v. Bussard, 114 Idaho 781, 788, n. 2, 760 P.2d 1197, 1204, n. 2 (1988); State v. Kelly, 718 P.2d 385, 389, n. 1 (Utah 1986). The Court's opinion today does not address pretextual searches, but I have no doubt that such searches violate the Fourth Amendment. ^[4]

The Fourth Amendment demands that an individual's possessory interest in property be protected from unreasonable governmental seizures, not just by requiring a showing of probable cause, but also by requiring a neutral and detached magistrate to authorize the seizure in advance. The Court today ignores the explicit language of the Fourth Amendment, which protects possessory interests in the same manner as it protects privacy interests, in order to eliminate a generally accepted element of the plain-view doctrine that has caused no apparent difficulties for law enforcement officers. I am confident, however, that when confronted with more egregious police conduct than that found in this case, ante, at 130-131, such as pretextual searches, the Court's interpretation of the Constitution will be less parsimonious than it is today. I respectfully dissent.

Ala. Taylor v. State, 399 So.2d 881, 892 (Ala.1981)

Alaska Deal v. State, 626 P.2d 1073, 1079 (Alaska 1980)

Ariz. State v. Ault, 150 Ariz. 459, 464, 724 P.2d 545, 550 (1986)

Ark. Johnson v. State, 291 Ark. 260, 263, 724 S.W.2d 160, 162 (1987)

Colo. People v. Cummings, 706 P.2d 766, 771 (Colo.1985)

Conn. State v. Hamilton, 214 Conn. 692, 701, 573 A.2d 1197, 1201 (1990)

D.C. Gant v. United States, 518 A.2d 103, 107 (DC App.1986)

Fla. Hurt v. State, 388 So.2d 281, 282-283 (Fla.App.1980), review denied, 399 So.2d 1146 (Fla.1981) Ga. Mooney v. State, 243 Ga. 373, 383-384, 254 S.E.2d 337, 346, cert. denied, 444 U.S. 886, 100 S.Ct. 179, 62 L.Ed.2d 116 (1979)

Haw. State v. Barnett, 68 Haw. 32, 35, 703 P.2d 680, 683 (1985)

Ill. People v. Madison, 121 Ill.2d 195, 208, 117 Ill.Dec. 213, 520 N.E.2d 374, 380-381, cert. denied, 488 U.S. 907, 109 S.Ct. 257, 102 L.Ed.2d 246 (1988)

Ind. Clark v. State, 498 N.E.2d 918, 921 (Ind.1986)

Iowa State v. Emerson, 375 N.W.2d 256, 259 (Iowa 1985)

Kan. State v. Doile, 244 Kan. 493, 497, 769 P.2d 666, 669 (1989)

Ky. Patrick v. Commonwealth, 535 S.W.2d 88, 89 (Ky.1976)

La. State v. Stott, 395 So.2d 714, 716 (La.1981)

Me. State v. Cloutier, 544 A.2d 1277, 1281, n. 4 (Me.1988)

Md. Wiggins v. State, 315 Md. 232, 251-252, 554 A.2d 356, 365 (1989)

Mass. Commonwealth v. Cefalo, 381 Mass. 319, 330-331, 409 N.E.2d 719, 727 (1980)

Mich. People v. Dugan, 102 Mich.App. 497, 503-505, 302 N.W.2d 209, 211-212 (1980), cert. denied, 455 U.S. 927, 102 S.Ct. 1292, 71 L.Ed.2d 471 (1982)

Minn. State v. Buschkopf, 373 N.W.2d 756, 768 (Minn.1985)

Miss. Smith v. State, 419 So.2d 563, 571 (Miss.1982), cert. denied, 460 U.S. 1047, 103 S.Ct. 1449, 75 L.Ed.2d 803 (1983)

Mo. State v. Clark, 592 S.W.2d 709, 713 (Mo.1979), cert. denied, 449 U.S. 847, 101 S.Ct. 132, 66 L.Ed.2d 57 (1980) Mont. State v. Hembd, 235 Mont. 361, 368-369, 767 P.2d 864, 869 (1989)

Neb. State v. Hansen, 221 Neb. 103, 108-109, 375 N.W.2d 605, 609 (1985)

Nev. Johnson v. State, 97 Nev. 621, 624, 637 P.2d 1209, 1211 (1981)

N.H. State v. Cote, 126 N.H. 514, 525, 526, 493 A.2d 1170, 1177-1178 (1985)

N.J. State v. Bruzzese, 94 N.J. 210, 237-238, 463 A.2d 320, 334-335 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984)

N.M. State v. Luna, 93 N.M. 773, 779, 606 P.2d 183, 188 (1980)

N.Y. People v. Jackson, 41 N.Y.2d 146, 150-151, 391 N.Y.S.2d 82, 359 N.E.2d 677, 681 (1976)

N.C. State v. White, 322 N.C. 770, 773, 370 S.E.2d 390, 392, cert. denied, 488 U.S. 958, 109 S.Ct. 399, 102 L.Ed.2d 387 (1988)

N.D. State v. Riedinger, 374 N.W.2d 866, 874 (N.D.1985)

Ohio State v. Benner, 40 Ohio St.3d 301, 308, 533 N.E.2d 701, 709-710 (1988), cert. denied, 494 U.S. 1090, 110 S.Ct. 1834, 108 L.Ed.2d 962 (1990)

Okla. Farmer v. State, 759 P.2d 1031, 1033 (Okla.Crim.App.1988)

Ore. State v. Handran, 97 Ore.App. 546, 550-551, 777 P.2d 981, 983, review denied, 308 Ore. 405, 781 P.2d 855 (1989)

Pa. Commonwealth v. Davidson, 389 Pa.Super. 166, 175, 566 A.2d 897, 901 (1989) R.I. State v. Robalewski, 418 A.2d 817, 824 (R.I.1980)

S.C. State v. Culbreath, 300 S.C. 232, 237, 387 S.E.2d 255, 257 (1990)

S.D. State v. Albright, 418 N.W.2d 292, 295 (S.D.1988)

Tenn. State v. Byerley, 635 S.W.2d 511, 513 (Tenn.1982)

Tex. Stoker v. State, 788 S.W.2d 1, 9 (Tex.Crim.App.1989) (en banc)

Vt. State v. Dorn, 145 Vt. 606, 620-621, 496 A.2d 451, 459-460 (1985)

Va. Holloman v. Commonwealth, 221 Va. 947, 949, 275 S.E.2d 620, 621-622 (1981)

Wash. State v. Bell, 108 Wash.2d 193, 196, 737 P.2d 254, 257 (1987)

W.Va. State v. Moore, 165 W.Va. 837, 852-853, 272 S.E.2d 804, 813-814 (1980)

Wis. State v. Washington, 134 Wis.2d 108, 119-121, 396 N.W.2d 156, 161 (1986)

Wyo. Jessee v. State, 640 P.2d 56, 63 (Wyo.1982)

CA1: United States v. Caggiano, 899 F.2d 99, 103 (1990)

CA2: United States v. Barrios-Moriera, 872 F.2d 12, 16, cert. denied, 493 U.S. 953, 110 S.Ct. 364, 107 L.Ed.2d 350 (1989) CA3: United States v. Meyer, 827 F.2d 943, 945 (1987)

CA4: Tarantino v. Baker, 825 F.2d 772, 777, n. 3 (1987)

CA5: Crowder v. Sinyard, 884 F.2d 804, 826, n. 30 (1989), cert. pending, No. 89-

CA6: United States v. Poulos, 895 F.2d 1113, 1121 (1990)

CA7: United States v. Perry, 815 F.2d 1100, 1105 (1987)

CA8: United States v. Peterson, 867 F.2d 1110, 1113 (1989)

CA9: United States v. Holzman, 871 F.2d 1496, 1512 (1989)

CA10: Wolfenbarger v. Williams, 826 F.2d 930, 935 (1987)

CA11: United States v. Bent-Santana, 774 F.2d 1545, 1551 (1985)

CADC: In re Search Warrant Dated July 4, 1977, for Premises at 2125 § Street, Northwest, Washington, D.C., 215 U.S.App.D.C. 74, 102, 667 F.2d 117, 145 (1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 441 (1982)

Notes

1. As the majority recognizes, the requirement that warrants particularly describe the things to be seized also protects privacy interests by preventing general searches. Ante, at 139-141. The scope of a search is limited to those places in which there is probable cause to believe an item particularly described in the warrant might be found. A police officer cannot search for a lawnmower in a bedroom, or for an undocumented alien in a suitcase. Ante, at 140-141 (citing United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982)). Similarly, once all of the items particularly described in a warrant have been found, the search must cease and no further invasion of privacy is permitted. Ante, at 141.
2. See Appendix A, infra, at 149-152. Only three States California, Idaho, and Utah-have rejected the inadvertent discovery requirement. See People v. Bittaker, 48 Cal.3d 1046, 1076, 259 Cal.Rptr. 630, 644, 774 P.2d 659, 673-674 (1989), cert. pending, No. 89-6223; State v. Pontier, 95 Idaho 707, 712, 518 P.2d 969, 974 (1974); State v. Kelly, 718 P.2d 385, 389, n. 1 (Utah 1986). The status of the inadvertent discovery requirement in Delaware is unclear. See, e.g., Wicks v. State, 552 A.2d 462, 465 (Del.Super.1988).
3. See Appendix B, infra, at 152-153.
4. The Court also does not dispute the unconstitutionality of a search that goes "so far astray of a search for the items mentioned in the warrant that it [becomes] a general exploratory search for any evidence of wrongdoing that might be found." United States v. Tranquillo, 330 F.Supp. 871, 876 (MD Fla.1971). Indeed, the Court reiterates that "converting specific warrants into general warrants" is unconstitutional and emphasizes the need for scrupulous adherence to the requirements that warrants particularly describe the place to be searched and the things to be seized and that a warrantless search "be circumscribed by the exigencies which justify its initiation." Ante, at 139-140.