State v. Wilson

Levine, J., delivered the opinion of the Court. We granted certiorari in this case to consider whether the finding and taking of serial numbers from certain equipment during a search for narcotics, conducted pursuant to a valid warrant, was an unconstitutional search and seizure. On appeal from appellee’s conviction for receiving ¹⁹² stolen goods in the Circuit Court for Prince George’s County, the Court of Special Appeals, in Wilson v. State, 30 Md. App. 242, 252 , 351 A. 2d 437 (1976), held that a police officer violated appellee’s rights under the Fourth Amendment by engaging in an illegal search and in unlawfully seizing the serial numbers, and that the State had failed to meet its burden of showing that consent to the subsequent seizure of the equipment was freely and voluntarily given. Since we agree with the Court of Special Appeals, we shall affirm.

The events leading to the arrest and prosecution of appellee began on the evening of June 18, 1974, at the residence in Carmody Hills which he shared with several people. A Prince George’s County police officer, acting as a “back-up,” accompanied federal agents to this residence, where the agents were to execute a valid search warrant for narcotics and narcotics paraphernalia. While the agents searched downstairs, the county officer searched appellee’s upstairs bedroom. He observed that “sitting on top of the drawer, the dressers, on the floors” were “[s]omewhere around twenty, twenty-five” items, consisting of “various t.v. sets, stereo equipment, speakers, one or two clock radios, camera and various items in the house.” The officer “looked over” these items and “jotted down the serial numbers of all of them.” Then, during “the last ten minutes [the officer] was in the bedroom,” the federal agents also searched the room.

To cónduct their narcotics search, the agents “would ... have moved some of these items anyway.” After a thorough search, the federal agents departed empty-handed, finding neither narcotics nor narcotics paraphernalia, while the police officer left with his list of serial numbers. Later that night, the officer checked the serial numbers against those stored in a national computer system which lists serial numbers of stolen equipment. One number matched, indicating that appellee possessed a Sony cassette tape recorder which had been stolen some 4V2 months earlier from an apartment in nearby Lanham. The officer then referred the matter to another division.

On the following day, one Prince George’s County police ¹⁹³ sergeant and two detectives, although lacking a search warrant, proceeded to appellee’s residence. One of appellee’s housemates answered the door and invited the policemen inside. On seeing appellee, one detective “approached the Defendant, advised him of his [Miranda] rights and explained that the stolen property was observed and verified in his home the night before by the uniformed officer.” Asked, then, whether he understood these rights, appellee “acknowledged that he did.” Specifying the serial number of the cassette recorder, the police then requested that appellee “relinquish the property.” Appellee replied that “[i]t was in his room and he led [the officer] up there.” On reaching appellee’s room, the detective located the cassette recorder, verified that its serial number matched the one revealed by the computer, seized it, and arrested appellee. The detective observed, in addition to the recorder, “[s]everal stereo items [and] many, many shoes.” He further specified two television sets and “at least four stereo units,” which “could be receivers, amplifiers, cassettes, tape players or a combination, but there were four separate pieces which could have been off any of the described items.” Their assignment completed, the police transported appellee and the recorder to the police station.

Appellee was charged with burglary, housebreaking, grand larceny, and receiving stolen goods. Confronted during the trial by appellee’s objection to the introduction of the recorder into evidence, the court (Meloy, J.) ruled that appellee had consented to the seizure of the cassette recorder, and thus found it unnecessary to rule on the legality of the police conduct in copying the serial numbers. After the State abandoned the burglary and one of the receiving stolen goods counts, the jury convicted appellee of receiving stolen goods of the value of $100 or more, and the court sentenced him to a term of six years. I We begin by observing that both the State and appellee, correctly in our view, treat the taking of the serial numbers as a seizure within the meaning of the Fourth Amendment. ¹⁹⁴ See United States v. Clark, 531 F. 2d 928, 931-32 (8th Cir. 1976); United States v. Gray, 484 F. 2d 352, 356 (6th Cir. 1973), cert. denied, 414 U. S. 1158 (1974); United States v. Sokolow, 450 F. 2d 324 (5th Cir. 1971) (per curiam); State v. Murray, 84 Wash. 2d 527 , 527 P. 2d 1303, 1308 (1974), cert. denied, 421 U. S. 1004 (1975).

Appellee is entitled to Fourth Amendment protection because he did not “knowingly [expose] to the public” either the numbers or the equipment they identified. Katz v. United States, 389 U. S. 347, 351 , 88 S. Ct. 507 , 19 L.Ed.2d 576 (1967). Appellee’s expectation of privacy, moreover, was reasonable. Id. at 361 (Harlan, J., concurring).

The issue in controversy here is whether the search for the serial numbers and their seizure were lawful. To prevent the issuance of general warrants, the Fourth Amendment requires that a warrant “particularly [describe] the place to be searched, and the persons or things to be seized.” The warrant which was issued here mentioned only narcotics and narcotics paraphernalia. Manifestly, then, the seizure of the serial numbers cannot be justified under the terms of the warrant. Moreover, “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, supra, 389 U. S. at 357 (footnotes omitted).

To sustain the seizure here, therefore, the State must shoulder the heavy burden of showing that one of the exceptions applies. Coolidge v. New Hampshire, 403 U. S. 443, 455 , 91 S. Ct. 2022 , 29 L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U. S. 30, 34 , 90 S. Ct. 1969 , 26 L.Ed.2d 409 (1970). II The State contends, first, that the seizure was valid under the “plain view” exception enunciated in the plurality opinion in Coolidge v. New Hampshire, supra, 403 U. S. at 464-73 . This doctrine serves to supplement a previously justified intrusion, such as a search warrant for other ¹⁹⁵ property, and permits a warrantless seizure.

Id. at 466 . The exception, on the other hand, may not be used to expand a justified, but limited, intrusion into a general exploratory search of a person’s belongings until something incriminating at last emerges. Id. at 466-67 . To confine the exception within these boundaries, the Court prohibited the use of any evidence seized outside the warrant unless (1) the police have a prior justification for the intrusion; (2) they find the evidence in plain view; (3) they find it inadvertently; and (4) it is “immediately apparent to the police that they have evidence before them,” id. at 466-71 .

Accord, United States v. Johnson, 541 F. 2d 1311, 1316 (8th Cir. 1976); United States v. Clark, supra, 531 F. 2d at 932 ; United States v. Wilson, 524 F. 2d 595, 598 (8th Cir. 1975), cert. denied, 424 U. S. 945 (1976); State v. Keefe, 13 Wash. App. 829 , 537 P. 2d 795, 797 (1975). Appellee contends that neither the third nor fourth requirement imposed by Coolidge for application of the “plain view” exception has been met here. In our view, it is unnecessary to consider the “inadvertence” requirement, since, in any event, it was not “immediately apparent to the police that they [had] evidence before them.” This element, in essence, amounts to a requirement that police have probable cause to believe the evidence is incriminating before they seize it.

As the court said in United States v. Gray, supra, 484 F. 2d at 356 , “[I]t must be ‘immediately apparent’ to the police that the object is in fact incriminating or the seizure of the object would be without probable cause and would turn the search into a general or exploratory one.” Accord, United States v. Clark, supra, 531 F. 2d at 932 ; United States v. Wilson, supra, 524 F. 2d at 598-99 ; United States v. Truitt, 521 F. 2d 1174, 1176 (6th Cir. 1975); see United States v. Golay, 502 F. 2d 182, 184-86 (8th Cir. 1974). Stated another way, to be subject to seizure, the object must be one for which the police could have obtained a warrant because they had probable cause. Coolidge v. New Hampshire, supra, 403 U. S. at 467-68 . In the context of another exception to the warrant requirement, the “hot pursuit” doctrine, the Supreme Court ¹⁹⁶ has indicated what information a police officer must possess before he can be said to have probable cause to seize evidence: “.. .

There must, of course, be a nexus — automatically provided in the case of fruits, instrumentalities or contraband — between the item to be seized and criminal behavior. Thus in the case of ‘mere evidence,’ probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction.” Warden v. Hayden, 387 U. S. 294, 307 , 87 S. Ct. 1642 , 18 L.Ed.2d 782 (1967) (emphasis added). This standard has also been used to determine whether probable cause existed to seize articles in plain view. See, e.g., United States v. Golay, supra, 502 F. 2d at 185 ; United States v. Maude, 481 F. 2d 1062, 1071-72, n. 73 (D.C. Cir. 1973).

See also United States v. Sedillo, 496 F. 2d 151, 152-53 (9th Cir.) (Hufstedler, J., dissenting), cert. denied, 419 U. S. 947 (1974). In Hayden , of course, the Court held that mere evidence, as well as fruits, instrumentalities, and contraband, may be seized under certain circumstances. Under the Hayden formulation, so long as police have probable cause to believe that what they see is contraband, or the fruit or instrumentality of some unspecified criminal activity, they may seize the object. See, e.g., United States v. Golay, supra, 502 F. 2d at 184-86 (fruits and instrumentalities); United States v. Canestri, 518 F. 2d 269, 274-75 (2d Cir. 1975) (contraband); United States v. Lopez-Ortiz, 492 F. 2d 109, 111 (5th Cir. 1974) (contraband).

Where, however, they possess probable cause to believe that the object is mere evidence, officers may seize it as an aid in a particular apprehension or conviction. See, e.g., Mapp v. Warden, N. Y. State Corr. Inst., Etc., 531 F. 2d 1167 , 1172 (2d Cir. 1976); United States v. Jones, 518 F. 2d 384, 390-92 (7th Cir.) (Swygert, J., dissenting), cert. denied, 423 U. S. 997 (1975); United States v.Damitz, 495 F. 2d 50, 56 (9th Cir. 1974). ¹⁹⁷ These standards furnish guidelines to determine the ultimate issue, whether an officer of reasonable caution would be warranted in believing that an offense is being or has been committed and that the object is evidence incriminating the accused. United States v. Truitt, supra, 521 F. 2d at 1177 .

Whether we regard the cassette recorder as the “fruit of crime” or “mere evidence,” the record fails to support the State’s contention that the officer possessed probable cause to seize the serial numbers. In support of its claim, the State first urges that since drug users frequently deal in stolen goods to support their habit, the officer possessed probable cause to believe the equipment was stolen. This “nexus,” standing alone, is too remote in this case to establish probable cause. The cases upon which the State relies are all distinguishable. 1 In each instance, either the same or a similar kind of criminal conduct was involved.

Although finding the articles named in the search warrant is not an essential element of the nexus argument, see, e.g., United States v. Golay, supra, we observe that here the agents and officer found neither the narcotics nor the paraphernalia named in the warrant. The State also argues that the large quantity of equipment observed in appellee’s bedroom created probable cause. In our view, however, the record justifies no more than a mere suspicion that any of the goods were stolen. It is important to recognize that although the officer observed a total of 20 to 25 items, they were of many varieties: “various t.v. sets, stereo equipment, speakers, one or two clock radios, camera and various items in the house.” Cf.

Comi v. State, 26 Md. App. 511, 519 , 338 A. 2d 918 , cert. denied, 276 Md. 740 (1975). ¹⁹⁸ Relying heavily on Crawford v. State, 9 Md. App. 624, 626 , 267 A. 2d 317 (1970), the State argues, finally, that these two factors — the quantity of items and the nexus to the narcotics search — taken together, created probable cause. Because we regard Crawford as distinguishable, however, we disagree. There, in addition to finding the narcotics paraphernalia for which the warrant had been issued, the police found approximately 30 pawn tickets. These tickets immediately suggested a repeated course of conduct to obtain cash necessary to purchase narcotics.

In contrast, the State has failed to show any connection here between possession of the items and receipt of cash; indeed, since no narcotics were discovered, the State has also failed to link the supposed need for cash to possession of narcotics. Other courts, on facts which parallel those found here, have held the seizure of serial numbers to be invalid. United States v. Clark, supra, 531 F. 2d at 931-33 (serial numbers of firearms seized during search for narcotics); United States v. Gray, supra, 484 F. 2d at 355-56 (serial numbers of firearms seized during search for unlicensed liquor); United States v. Sokolow, supra, 450 F. 2d at 326 (seizure of serial numbers of air conditioning units during arrest for stolen cigarettes); State v. Murray, supra, 527 P. 2d at 1306-08 (serial number of television seized during consent search for stolen items other than televisions). In each of those cases, as in this case, the incriminating nature of the evidence became apparent only after seizure of the serial number.

We hold that seizure of the serial number was not justified under the plain view doctrine. Ill The State argues that even if the officer lacked probable cause to believe the equipment was stolen, the seizure of the serial number was justified under another exception to the general rule proscribing warrantless searches. The State premises this contention on the ground that the Fourth Amendment prohibits “unreasonable” searches and seizures. Stressing that the officer’s action neither deprived appellee of possession of the equipment nor required that it be moved ¹⁹⁹ any more than was