Arizona v. Hicks, 480 U.S. 321 (1987)

JUSTICE WHITE, concurring.

I write only to emphasize that this case does not present, and we have no occasion to address, the so-called "inadvertent discovery" prong of the plain view exception to the Warrant Clause. See Coolidge v. New Hampshire, 403 U.S. 443, 469-471 (1971) (plurality opinion). This "requirement" of the plain view doctrine has never been accepted by a judgment supported by a majority of this Court, and I therefore do not accept JUSTICE O’CONNOR’s dissent’s assertion that evidence seized in plain view must have been inadvertently discovered in order to satisfy the dictates of the Fourth Amendment. See post at 334. I join the majority opinion today without regard to the inadvertence of the officers’ discovery of the stereo components’ serial numbers. The police officers conducted a search of respondent’s stereo equipment absent probable cause that the equipment was stolen. It is for this reason that the judgment of the Court of Appeals of Arizona must be affirmed.

1. In Texas v. Brown, 460 U.S. 730 (1983), the plurality opinion expressly declined to

address whether, in some circumstances, a degree of suspicion lower than probable cause would be sufficient basis for a seizure. . . .

Id. at 742, n. 7. Even the probable cause standard, in the plurality’s view, requires only facts sufficient to

"warrant a man of reasonable caution in the belief" . . . that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.

Id. at 742 (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). See also Texas v. Brown, supra, at 746 (POWELL, J., concurring in judgment) (leaving open the question whether probable cause is required to inspect objects in plain view). As the Court recognizes, ante at 326, the statements in Payton v. New York, 445 U.S. 573, 587 (1980), are dicta.

2. Responding to a question on cross-examination, Officer Nelson explained that his suspicion was

based on 12 years’ worth of police experience. I have worked in different burglary crimes throughout that period of time and . . . I’m just very familiar with people converting stolen stereos and TV’s into their own use.

App. 28-29.

3. Officer Nelson testified that there was an opening of about a foot between the back of one set of stereo equipment and the wall. Id. at 20. Presumably this opening was large enough to permit Officer Nelson to view serial numbers on the backs of the components without moving them.

4. Numerous articles that frequently are stolen have identifying numbers, including expensive watches and cameras, and also credit cards. Assume for example that an officer reasonably suspects that two identical watches, both in plain view, have been stolen. Under the Court’s decision, if one watch is lying face up and the other lying face down, reading the serial number on one of the watches would not be a search. But turning over the other watch to read its serial number would be a search. Moreover, the officer’s ability to read a serial number may depend on its location in a room and light conditions at a particular time. Would there be a constitutional difference if an officer, on the basis of a reasonable suspicion, used a pocket flashlight or turned on a light to read a number, rather than moving the object to a point where a serial number was clearly visible?