Sanford v. State

MOYLAN, Judge. The appellant, Theodore B. Sanford, was convicted in the Circuit Court for Baltimore City by Judge David Ross, sitting without a jury, of the theft of an antique Seth Thomas clock of the value of $1,000. Judge Ross suspended a three-year sentence and placed the appellant on proba ²⁵ tion for three years. The appellant raises the single contention that Judge Ross erroneously failed to suppress the clock as the product of an unconstitutional search and seizure.

Involved in that ruling were several nuances of the Plain View Doctrine. From the agreed statement of facts on which this case was tried, it is apparent that the form of theft for which the appellant was convicted was that formerly known as receiving stolen goods. The evidence strongly suggested that the appellant was running a professional fencing operation out of Ted’s Lounge at 4507 Pennington Avenue in South Baltimore. A search of that premises on February 3, 1989 was conducted by Baltimore City police, joined by officers from both Anne Arundel and Baltimore Counties.

It was the Anne Arundel County officers who had been instrumental in amassing the probable cause for the search warrant. The warrant authorized the police to search for various specifically described computers and computer equipment originally stolen in the course of three separate burglaries in Anne Arundel County, all perpetrated in November, 1988. The Seth Thomas antique clock had no connection with the Anne Arundel County burglaries or with the Baltimore City search warrant aimed at discovering the fruits of those burglaries. There was also no suggestion that the appellant was involved in any of the burglaries or directly involved in the theft of the Seth Thomas clock.

His only involvement was as the receiver of stolen goods; Baltimore City’s only involvement was as the situs of his fencing operation. The burglars (and thieves) were Raymond Robinson and his live-in girlfriend, Barbara Woods. It was they who perpetrated the Anne Arundel County burglaries and who sold the fruits thereof to the appellant. After the Anne Arundel police notified Baltimore City that the fencing of the stolen property was taking place in the City, Detective McLaughlin, of the Baltimore City Police Department’s Property Crime Section, took charge of that ²⁶ aspect of the investigation.

It was Detective McLaughlin who applied for the search warrant that was executed on Ted’s Lounge on February 3, 1989. Baltimore County became involved in the joint investigation when Robinson and Woods attempted to use a stolen credit card that had been taken in the course of a Baltimore County burglary on October 25, 1988. It was yet another Baltimore County burglary, that of the home of Ms. Olive Louise Warner at 210 Stocksdale Avenue in Reisterstown on December 23, 1988, in which the Seth Thomas antique clock was taken. Although neither the agreed statement of facts nor the search warrant application goes into full detail, it appears that Raymond Robinson and Barbara Woods were arrested at sometime before January 26, 1989.

Found in the trunk of Robinson’s car at the time of his arrest was another item belonging to Ms. Warner, taken at the same time the Seth Thomas clock was taken. Prior to applying for the search warrant, Detective McLaughlin had gone to the Anne Arundel County Detention Center on January 26 to interview Barbara Woods. Ms. Woods confirmed her involvement with Robinson in the Anne Arundel County burglaries and confirmed that the two of them had sold the computers and computer parts to the appellant at Ted’s Lounge. She also indicated that the two of them had sold stolen goods to the appellant on a number of occasions.

She further revealed that she and Robinson had been involved in several Baltimore County burglaries. She specifically mentioned the antique clock which had been stolen by them in Baltimore County. Although the central purpose of the investigation was to prove the appellant’s involvement in the fencing of the stolen computer equipment from Anne Arundel County, Baltimore County authorities were invited to participate in the investigation and in the February 3 raid in order to benefit from any “spin-off” evidence that might coincidentally turn up and be of assistance to them. Detective Edward Lee Bradley led the Baltimore County police contingent in the February 3 execution of the search warrant at ²⁷ Ted’s Lounge.

It was Detective Bradley, moreover, who, during the course of the search of Ted’s Lounge, recovered the Seth Thomas clock that became the subject of the suppression hearing. The Plain View Doctrine The warrant authorizing the search of Ted’s Lounge was constitutionally proper in every respect. Indeed, the appellant does not challenge it. The scope of what may be done under an indisputably proper warrant, however, is limited by the command of the particularity clause.

The application for the warrant did not remotely seek authorization to search for or to seize the Seth Thomas clock. The warrant itself contained no such authorization. The clock, therefore, was not seized under authority of the warrant. The only arguable theory of legitimacy is that it was a reasonable warrantless seizure under the aegis of the Plain View Doctrine exception to the warrant requirement.

Coolidge v. New Hampshire, 403 U.S. 443, 464-473 , 91 S.Ct. 2022, 2037-2042 , 29 L.Ed.2d 564, 581-587 (1971); Texas v. Brown, 460 U.S. 730 , 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983); Arizona v. Hicks, 480 U.S. 321 , 107 S.Ct. 1149 , 94 L.Ed.2d 347 (1987); Horton v. California, 495 U.S. -, 110 S.Ct. 2301 , 110 L.Ed.2d 112 (1990). Three conditions must be satisfied for there to be a reasonable seizure under the Plain View Doctrine: 1. There must be a prior valid intrusion into the constitutionally protected area; 2. There must be a spotting in plain view of the item ultimately seized; and 3.

There must be probable cause to believe that the item spotted in plain view is evidence of crime. In this case, Ted’s Lounge, in terms of the late-night hour of the search and the nonpublic parts of the establishment that were subjected to the search, was a constitutionally protected area. The police entered the establishment and conducted the search, however, under a validly issued ²⁸ search and seizure warrant. In the course of searching for the items particularly described in the warrant, the Seth Thomas antique clock was discovered and seized.

Prior to that seizure, there clearly was a valid intrusion into the constitutionally protected area. Inadvertence Not Required The second necessary condition is that the item ultimately seized shall have been spotted in plain view. This requirement ensures that the police do not go searching for an item not particularized in the search warrant— that what begins as an initially good search not degenerate into a “fishing expedition” or general rummaging about. In this case, Detective Bradley spotted the Seth Thomas clock on a shelf behind the bar in full view of everyone.

No lids or covers were lifted; no drawers were opened; no closets were ransacked. There was simply no searching for the Seth Thomas clock at all. The appellant points out, however, that this plain view spotting of the clock was advertent rather than inadvertent. We agree with the appellant.

Detective Bradley fully anticipated that the Seth Thomas clock, and other stolen items from Baltimore County, might be found in Ted’s Lounge. He was not at all surprised by what he saw. Indeed, his strong suspicions in this regard were reassuringly confirmed. What then is the significance of this absence of inadvertence?

The Plain View Doctrine was born in 1971 in the plurality opinion (with respect to this part of the opinion, Part IIC) of Justice Potter Stewart in Coolidge v. New Hampshire, supra. Justice Stewart, to be sure, added the additional requirement to the second necessary condition that the plain view spotting be inadvertent. “The second limitation is that the discovery of evidence in plain view must be inadvertent.” 403 U.S. at 469 , 91 S.Ct. at 2040 , 29 L.Ed.2d at 585 . Not only the inadvertence requirement, but, indeed, the entire Plain View Doctrine was, however, only persuasive and not authoritative precedent. Justice Harlan, the neces ²⁹ sary fifth vote, concurred in the decision that Coolidge’s conviction be reversed and concurred in other parts of the opinion but pointedly declined to concur in Part IIC, announcing the Plain View Doctrine.

In vehement dissent, moreover, Justice White objected mildly to the general concept of the Plain View Doctrine but railed vehemently against any inadvertence requirement. Except for a fleeting and peripheral appearance in Washington v. Chrisman, 455 U.S. 1 , 102 S.Ct. 812 , 70 L.Ed.2d 778 (1982), not remotely involving this issue, the second coming of the Plain View Doctrine had to await Texas v. Brown, 460 U.S. 730 , 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983). The Supreme Court there, in another plurality opinion, pointed out that the Plain View Doctrine was only the persuasive product of a mere plurality. They did observe, however, “While not a binding precedent, as the considered opinion of four Members of this Court, it should obviously be the point of reference for further discussion of the issue.” 460 U.S. at 737 , 103 S.Ct. at 1541 , 75 L.Ed.2d at 511 .

Concurring, Justice White pointed out that the plurality opinion did not purport to endorse the inadvertence requirement, which he continued to condemn. 460 U.S. at 744 , 103 S.Ct. at 1544 , 75 L.Ed.2d at 515 . The Plain View Doctrine only achieved status as a constitutionally binding, majority opinion of the Court in Arizona v. Hicks, 480 U.S. 321 , 107 S.Ct. 1149 , 94 L.Ed.2d 347 (1987). The decision in Hicks , however, did not require the Court to take a position on the inadvertence requirement. Once again, Justice White concurred, pointing out that the inadvertence requirement had never commanded a majority of the Court.

It was in Horton v. California, 495 U.S.-, 110 S.Ct. 2301 , 110 L.Ed.2d 112 (1990), that the Supreme Court was finally called upon to take an authoritative position for or against the inadvertence requirement. Justice Stevens wrote for a 7-to-2 majority. Acknowledging that its decision was one of first impression, the Court found Justice White’s stubborn and steadfast opposition to inadvertence ³⁰ over the years more logically compelling than Justice Stewart’s earlier championing of it. The holding was clear: “We conclude that even though inadvertence is a characteristic of most legitimate ‘plain view’ seizures, it is not a necessary condition.” 495 U.S. at---, 110 S.Ct. at 2304 , 110 L.Ed.2d at 118-119 .

After setting out Justice Stewart’s arguments in Coolidge in favor of an inadvertence requirement, the Court flatly rejected the rationale: “We find two flaws in this reasoning. First, evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer. The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in an area and duration by the terms of a. warrant or a valid exception to the warrant requirement____ Second, the suggestion that the inadvertence requirement is necessary to prevent the police from conducting general searches or from converting specific warrants into general warrants, is not persuasive because that interest is already served by the requirements that no warrant issue unless it ‘particularly describe[s] the place tó be searched and the persons or things to be seized,’ ... and that a warrantless search be circumscribed by the exigencies which justify its initiation____ Scrupulous adherence to these requirements serves the interests in limiting the area and duration of the search that the inadvertence requirement inadequately protects. Once those commands have been satisfied and the officer has a lawful right of access, however, no additional Fourth Amendment interest is furthered by requiring that the discovery of evidence be inadvertent.” (citations omitted). 495 U.S. at---, 110 S.Ct. at 2309-2310 , 110 L.Ed.2d at 124-125 . ³¹ At one end of the spectrum of subjective expectation, had Detective Bradley of Baltimore County been utterly shocked at the unanticipated bonanza of discovering the Seth Thomas clock, the Plain View Doctrine, of course, would not have been offended.

At the other end of the spectrum, had Detective Bradley joined the raiding party with mathematical certainty that the clock would be found and warrantlessly seized, the Plain View Doctrine would be similarly indifferent. In the more intermediate and equivocal ranges of expectation, hope, or chance, the Plain View Doctrine would be equally unconcerned. The subjective state of Detective Bradley’s expectations simply did not matter. The Horton opinion referred specifically to the situation prevailing in this case.

The police unquestionably had a valid warrant to search Ted’s Lounge for the computer equipment stolen in the burglaries in Anne Arundel County. Whether their degree of certainty with respect to the presence of other stolen goods taken in the Baltimore County burglaries was enough to support the inclusion of those items in the warrant is beside the point for present purposes. As the Supreme Court observed, at — U.S.-, 110 S.Ct. 2309 , 110 L.Ed.2d 124 : “[I]f he or she has a valid warrant to search for one item and merely a suspicion concerning the second, whether or not it amounts to probable cause, we fail to see why the suspicion should immunize the second item from seizure if it is found during a lawful search for the first.” (emphasis supplied). Probable Cause: When Do We Measure It?

The third necessary