Looking Versus Moving

Looking Versus Moving

Texas v. Brown showed that an officer's experience can turn an ambiguous sight into probable cause. Arizona v. Hicks takes up the opposite situation, in which the sight leaves the officer with only a suspicion and the officer physically handles the object to resolve it.¹ Plain view covers what an officer can perceive from a place the officer is entitled to be. Hicks marks the point where perceiving turns into manipulating, and the Court treated that point as a constitutional boundary. The officers' presence in the apartment was lawful from start to finish, yet the evidence they gained by handling the equipment was still suppressed.

The facts begin with a shooting. On April 18, 1984, a bullet fired through the floor of Hicks's apartment struck a man in the apartment below, and police officers entered the apartment to look for the shooter, for other victims, and for weapons.² They found and seized three weapons, including a sawed-off rifle, and they also discovered a stocking-cap mask. One of the officers, Nelson, then noticed two sets of expensive stereo components that seemed out of place in a squalid and otherwise ill-appointed four-room apartment. Suspecting that the equipment was stolen, Nelson read and recorded the serial numbers, and to reach some of them he moved components, including a Bang and Olufsen turntable. He phoned the numbers in to headquarters, was told that the turntable had been taken in an armed robbery, and seized it immediately. Some of the other serial numbers later matched equipment taken in the same robbery, so a warrant was obtained and executed to seize that equipment as well, and Hicks was indicted for the robbery.³

The state courts suppressed everything the serial-number check produced. The trial court granted Hicks's motion to suppress, and the Arizona Court of Appeals affirmed.⁴ Everyone conceded that the entry and the initial search were justified by the exigent circumstance of the shooting, which is what made the officers' vantage point lawful. The Court of Appeals nevertheless treated the reading of the serial numbers as an additional search unrelated to that emergency. It relied on the principle from Mincey v. Arizona that a warrantless search must be strictly limited by the exigency that justified starting it. Both state courts also rejected the State's argument that plain view, as described in Coolidge v. New Hampshire, justified Nelson's conduct. The Supreme Court granted review to decide whether the plain view doctrine may be invoked when police have less than probable cause to believe an item is evidence of a crime or contraband, and it affirmed because Nelson lacked probable cause.⁵

The decision yields two holdings, and each gets its own section below. The first concerns the act of moving the equipment, which the Court analyzed separately from the act of looking at it and writing down what was visible. The second concerns the standard the State needed to meet once that act was classified: plain view could rescue the handling only if Nelson had probable cause, and a reasonable suspicion fell short.⁶ Keeping the two holdings apart matters because they answer different questions. One asks whether the officer did something more than look, and the other asks what justification that something more required. Answers on Hicks tend to go wrong by assuming that a lawful entry for one purpose carries authority to investigate whatever else in the room looks suspicious. The next section takes up why the movement itself was a search.

Moving Is a Search

Arizona v. Hicks turned on two different things Officer Nelson did with the stereo equipment: he read and recorded serial numbers, and he moved components, including a turntable, to reach some of them.⁷ The first holding sorts each act into the Fourth Amendment's categories of government conduct. A search is government action that infringes a reasonable expectation of privacy.⁸ A seizure is a meaningful interference with a person's possessory interest in property.⁹ Because the two acts did different things to the owner, the Court classified them differently.

The recording came first, and the Court placed it outside both categories. It accepted that writing down the numbers was the first step in a process through which the owner was eventually deprived of the equipment, but it held that the step standing alone was not a seizure, because it did not meaningfully interfere with his possessory interest in either the numbers or the equipment.¹⁰ The reasoning follows from what the owner kept. The equipment stayed where it was and remained available to him, and the numbers were information already exposed to anyone standing in the room. Copying what is in view takes nothing from the owner, and it adds nothing to what the officer's lawful presence had already revealed.

Moving the equipment was a different kind of act. The Court held that Nelson's moving of the components was a search, separate from the search for the shooter, victims, and weapons that had justified his entry into the apartment.¹¹ Merely inspecting the parts of the turntable that came into view during the authorized search would not have been an independent search, since inspection of that kind produces no additional invasion of the owner's privacy.¹² Taking action unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of privacy, and the exigency that validated the entry did not justify it.¹³ The word "separate" carries the analysis, because it means the movement needed a justification of its own.

The line between looking and moving follows the logic of the entry itself. An emergency or a warrant licenses a defined invasion of privacy, and an officer who looks at what that invasion brings into view adds nothing to it. An officer who handles an object to see what is hidden gathers information the lawful vantage point did not supply, and that gathering is a fresh intrusion whatever the officer's motive. The limit also removes a temptation. If handling counted as part of looking, an officer with a hunch about any object in the room could use the lawful entry as cover to examine it. Each manipulation would seem too small to resist on its own, and the original justification would stretch into the general, exploratory rummaging that the warrant requirement exists to prevent.¹⁴

Justice Powell, dissenting, thought that the distinction between looking at a suspicious object in plain view and moving it even a few inches trivialized the Fourth Amendment.¹⁵ The majority answered that the distinction is much more than trivial for Fourth Amendment purposes.¹⁶ It also rejected the idea that the search mattered less because it turned up nothing of great personal value, since the serial numbers might have been replaced by letters or photographs hidden behind or under the equipment.¹⁷ An officer cannot know in advance what a movement will expose, and a rule keyed to results would let a lucky search justify itself after the fact. The Court therefore fixed the classification by the act, and it put the point in one sentence: "A search is a search, even if it happens to disclose nothing but the bottom of a turntable."¹⁸

Nelson's handling of the turntable shows the search side of the line. He moved components to read numbers that were not plainly visible, and exposing those hidden surfaces was the additional intrusion on the owner's effects.¹⁹ The other side of the line can be shown by changing a single fact.

The pair differs in one variable, which is whether the officer's act exposed anything that the lawful view had not already supplied. Answers on this point usually go wrong by weighing how little the officer moved the object, an inquiry the Court rejected when it called the difference between looking and moving much more than trivial.²⁰ Classifying the movement as a search settles only half of the case. Whether that search was reasonable depends on what the officer knew when the equipment was moved, and that is the second holding, taken up in the next section.²¹

Probable Cause, Not Suspicion

Once the Court classified the moving of the equipment as a search, the remaining question was whether that search was reasonable under the Fourth Amendment.²³ The Arizona Court of Appeals had answered no for a reason the Supreme Court set aside at the outset. Because the officers' handling of the stereo equipment had nothing to do with the shooting that justified their entry, the lower court treated the handling as unreasonable on that ground alone.²⁴ The Court replied that this lack of relationship exists in every plain-view case, since an officer who acts for the very purpose that justified the entry has no need for the doctrine. The statement in Mincey v. Arizona that a warrantless search must be strictly circumscribed by the exigencies that justify it addressed only the scope of the primary search, and it did not overrule the many decisions recognizing that plain view can legitimate action beyond that scope.²⁵ The officers' presence in the apartment and Nelson's noticing of the equipment were therefore never the problem. Everything depended on what Nelson knew when he moved the components.

The Court tied the reasonableness of the search to the validity of a seizure. Police may seize evidence in plain view without a warrant when the initial intrusion that brought them within view rests on a recognized exception to the warrant requirement, and exigent circumstances are such an exception.²⁶ It would be absurd to allow an officer to seize an object and carry it off the premises while forbidding the officer to move it for a closer look, because the power to take an object includes the lesser power to handle it. The search was therefore valid if plain view would have sustained a seizure of the equipment, and that framing reduces the case to one question about the officer's state of knowledge. Plain view would have sustained the seizure beyond doubt if Nelson had probable cause to believe the equipment was stolen, but the State conceded that he had only reasonable suspicion, which means something less than probable cause.²⁷

Whether reasonable suspicion could ever be enough was a question the Court had left open. Dicta in Payton v. New York suggested that probable cause must be met, but Texas v. Brown expressly treated the issue as unresolved.²⁸ In the meantime, the overwhelming majority of state and federal courts had allowed a minimal inspection of an item in plain view, including picking it up or moving it for a better view, on reasonable suspicion alone, and had reserved probable cause for more extensive examinations.²⁹ That approach was the one the dissent defended and the majority declined to adopt. The Court held that officers must have probable cause, not mere reasonable suspicion, to believe an item is evidence or contraband before plain view can justify seizing it, and that moving an object to obtain its serial number is a separate search that is unlawful without probable cause and a warrant or exception.³⁰ Nelson's suspicion may have been sensible, and it may even have been correct, but it was the wrong grade of suspicion for the act he performed.

The probable-cause line has two separate supports. The first is administrability. A reasonable-suspicion tier would create a third category of police conduct between a plain-view inspection that needs no suspicion and a full search that needs probable cause, and the majority refused to send police and judges into that new and unclear area of Fourth Amendment law.³¹ Every case would then turn on how cursory a particular handling was, a question that courts could answer only after the fact. The second support is the incentive the rule removes. Plain view stands in for a magistrate's judgment that probable cause supports taking an item, so an officer who must handle an object to find out whether it is stolen is doing the investigating that the probable-cause finding is supposed to follow. If suspicion sufficed, an officer with a hunch about any object in a lawfully entered room could handle it, and whatever the handling exposed could support the next, more intrusive step. Holding the line at probable cause keeps a hunch from growing into an exploratory search.

The Court later restated this point in Minnesota v. Dickerson. If police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object, then its incriminating character is not immediately apparent, and plain view cannot justify its seizure.³² That sentence connects Hicks to the immediately-apparent element taught earlier in this chapter. When the officer has to do something to the object to learn what it is, the object's character was not apparent from the lawful vantage point, and the doctrine has nothing to attach to. The same restatement carries the logic over to touch, which the next section takes up.

Hicks itself shows the failing side of the line. Nelson saw expensive equipment that looked out of place in a shabby apartment and suspected it was stolen, but he had nothing beyond reasonable suspicion when he moved the turntable to read its serial number, and the State conceded as much.³³ The search and the seizure that followed fell for that reason alone. The Court's own description of the other side is that plain view would have sustained the seizure if Nelson had probable cause to believe the equipment was stolen, and a single changed fact produces that result.

The only variable that differs between the two scenes is what the officer knew at the moment of handling. The entry was lawful in both, the object was in view in both, and the movement was equally slight in both. Answers on this holding go wrong by accepting reasonable suspicion plus a slight movement as enough, which is the reading the majority declined to adopt and which the dissent's approach would have produced.³⁴