Probable Cause From Experience

Probable Cause From Experience

The immediately apparent element demands probable cause, but it leaves open whose understanding the probable cause judgment reflects. Texas v. Brown supplies the answer on facts that are easy to picture.¹ On a June evening in 1979, Officer Maples of the Fort Worth police helped set up a routine driver's license checkpoint, and shortly before midnight he stopped a car driven by Brown, who was alone.² While asking for the license, Maples shined his flashlight into the car and saw Brown draw his hand from his pants pocket with an opaque green party balloon, knotted about half an inch from the tip, caught between two fingers, and Brown let it fall to the seat beside his leg.³ Maples testified that his earlier drug arrests had taught him that narcotics are frequently packaged in balloons like that one.⁴

The Texas Court of Criminal Appeals reversed Brown's heroin conviction and held that the balloon should have been suppressed.⁵ It leaned on the plurality opinion in Coolidge v. New Hampshire, and in particular on the requirement that the item's incriminating character be immediately apparent. The state court read that requirement to mean that Maples had to know that "incriminatory evidence was before him when he seized the balloon."⁶ The Supreme Court reversed, and it began by treating the Coolidge formulation as a point of reference rather than binding precedent, since no majority had ever adopted it and it had been sharply criticized when issued.⁷ Three judges of the state court had dissented from the denial of rehearing on the view that the issue was whether an officer, relying on years of practical experience and commonly accepted knowledge, had probable cause to seize the balloon.⁸ That framing matches the question the Supreme Court asked.⁹

Before probable cause could matter, the Court had to confirm that Maples stood on lawful ground, and he did. The license-check stop was valid, as the state court itself accepted, and shining a flashlight into the car was not a search, because the Court treated a searchlight like a field glass and held that artificial light used to see into a darkened area triggers no Fourth Amendment protection.¹⁰ That is the same reasoning that kept the lawful vantage point intact in the earlier discussion of flashlights. With a lawful stop and a lawful view, the case reduced to one remaining question, because plain view is better understood as an extension of whatever prior justification gave the officer access to the object than as a freestanding exception to the warrant requirement.¹¹ Here the prior justification was the checkpoint stop, and all that was left was whether Maples had probable cause to associate the balloon with criminal activity.

The Court held that he did. An officer may seize an item in plain view when, based on training and experience, the officer has probable cause to believe it contains contraband, even if the connection would not be obvious to an average person.¹² The balloon was opaque, so Maples could not see its contents, and the Court treated that as nearly beside the point, writing that "the distinctive character of the balloon itself spoke volumes as to its contents—particularly to the trained eye of the officer."¹³ A balloon that signals nothing to a layperson signalled a familiar narcotics package to an officer who had made drug arrests, and the seizure was proper.

The state court's demand for knowledge fails for reasons that attach to two different parts of the doctrine. The first concerns whose perspective counts. Probable cause asks what the facts known to the officer reasonably indicate, and the same fact means different things to different observers: a knotted party balloon is harmless to most people and a recognizable package to an officer who has repeatedly seen drugs sold in them. Measuring the officer against an average bystander would require the best-informed officer to disregard what the officer actually knows, and the Court declined to impose that handicap.¹⁴ The second reason concerns how much certainty is required. Plain view stands in for the step in which a magistrate decides whether probable cause supports taking the item, and the Fourth Amendment requires only probable cause before a warrant issues.¹⁵ A rule making the officer know the contents would therefore hold a warrantless seizure to a stricter standard than the warrant it replaces. The balance of interests points the same way: once an officer has perceived the object first-hand from a lawful position, the owner's remaining interests are those of possession and ownership, and sending the officer off for a warrant would be a needless inconvenience that could also endanger police and public.¹⁶

Experience does not work as a password, however. It counts only when it connects what the officer sees to contraband or evidence of crime.

Set beside Brown, this pair isolates the variable. In both situations the officer is lawfully placed and looks at a similar object, and the outcome turns on whether training, experience, or surrounding facts convert the sight into probable cause. Where they do not, the lawful vantage point does not entitle the officer to investigate the object further. That is the problem the next section takes up in Arizona v. Hicks, where officers who had only reasonable suspicion moved stereo components to read their serial numbers, and the Court held that the serial numbers were not immediately apparent before the movement.¹⁷ Answers on Brown go wrong by measuring probable cause against what an average person would see, because the trained officer's inference is the judgment that counts.¹⁸