Arizona v. Hicks – Oral Argument – December 08, 1986

Media for Arizona v. Hicks

Audio Transcription for Opinion Announcement – March 03, 1987 in Arizona v. Hicks

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William H. Rehnquist:

We will hear arguments next in No. 85-1027, Arizona against Hicks.

Mrs. Akers, you may proceed whenever you’re ready.

Linda A. Akers:

Thank you, Mr. Chief Justice, and may it please the Court:

This case presents the question, can a police officer who reasonably suspects that an object in plain view is stolen make a closer inspection of that item to dispel or confirm his suspicion?

This question raises three issues.

First of all, is a Fourth Amendment privacy interest implicated?

Secondly, is a Fourth Amendment possessory interest implicated?

And finally, if such a Fourth Amendment interest is implicated, either in the possessory aspect or in the privacy aspect, can an officer on reasonably, articulable suspicion, make a closer inspection of that particular item.

The State submits that there is no possessory interest.

There is no privacy interest.

And furthermore, if this Court finds such an interest, it is so de minimus that an officer may on reasonable, articulable suspicion make a closer inspection of that item and confirm or dispel his suspicion.

Here Officer Nelson, on April 18, 1984, entered an apartment, Mr. Hicks’ apartment, to investigate a shooting.

He entered the apartment to look for the assailant, his weapon, and perhaps other injured parties.

They found guns, a mask, drug paraphernalia.

And Officer Nelson noticed, as he entered the apartment, a stereo that appeared to him to be out of context with the mean surroundings of the apartment.

It was on concrete block and board shelving.

And it appeared to him to be too expensive for the types of items, the other items, that he saw in the apartment.

This raised a suspicion in his mind.

He suspected, having seen the other items that indicated the instrumentalities of crime, that indicated to him that a crime had been committed, that perhaps this stereo was stolen.

He took the serial number of the stereo down.

He called it in to the identification bureau.

Byron R. White:

Where was the number?

Linda A. Akers:

Your Honor, the record reflects that he couldn’t recall if it was underneath the stereo or behind the stereo.

It was not in plain view, so to speak, in plain sight.

It was not on the front of the stereo.

Byron R. White:

He had to move it?

Linda A. Akers:

He had to move the stereo in order to ascertain the serial number; that’s correct.

Byron R. White:

And if it was under it, he had to turn it upside down?

Linda A. Akers:

If it was under it, that is correct, Your Honor, he did.

The government’s position, however, is that that is such a de minimus… that inspection of a stereo unit already in plain view is so de minimus so as not to raise further privacy interests in the serial number in that the only information that can be conveyed from that serial number is whether or not the item is stolen.

Linda A. Akers:

And if it is stolen, then the legitimate privacy interest that would come into play there is not one that society is willing to recognize.

Officer Nelson called in the number.

It was reported to him to be stolen by a computer check.

He seized the stereo, the one that was reported to him to have been stolen, and took it with them.

He went back to the police station, pulled the robbery reports, ascertained that the other items that he had seen there in plain view, that he had noted the serial numbers on, were also stolen.

An affidavit was sworn out and a search warrant was executed.

Antonin Scalia:

Suppose the government sets up a monster telescope across the street from my house and looked through my window to do nothing else except get the stereo number off of a stereo in my room.

Would that be all right?

Linda A. Akers:

Your Honor, if the only information that can be conveyed from that serial number is whether or not the stereo or whatever the appliance or item that has a serial number on it is stolen, then in that respect, there is no legitimate expectation of privacy, and the Fourth Amendment doesn’t apply in that respect.

So if you can ascertain it by aided sight, as you have indicated here, I mean, I think you could also draw an analogy if an officer had glasses on; needed glasses to inspect the serial number.

Once he’s legitimately where he has a right to be… and perhaps that is the threshold question that your question raises here, is that–

Antonin Scalia:

I’m assuming that they have no business being in my house.

And if a telescope won’t do it, it’s some fancy electronic technique that has nothing to do with sight, but it reaches into my apartment and derives the serial number of my stereo.

And you say that’s… that’s okay, because that’s not very important information.

Linda A. Akers:

–In your hypothetical, the officer does not have a right to make the observation that he makes.

He doesn’t have a right to be where he can observe that serial number.

Antonin Scalia:

That’s right.

Linda A. Akers:

In that case, then, we would say that under the Fourth Amendment–

Antonin Scalia:

But why?

You could say just as much in that case: What’s the big deal about a serial number?

It’s not very important.

I mean, that’s the argument you were running.

That the search here is okay because the serial number is not important.

And what I’m suggesting is, it doesn’t matter whether it’s important or not, does it, for purposes of whether there’s been a search?

Linda A. Akers:

–Okay, for the purposes of whether or not a legitimate privacy interest has been invaded, that is correct.

Because the only information that can be gotten from the serial number is whether or not that item is stolen; and that is it.

Byron R. White:

You couldn’t have gotten the search warrant, though, could you?

Suppose the officer hadn’t looked at the serial number, but he had these suspicions he went back to the magistrate and said, I want a search warrant.

These things don’t look like they belong there.

I think they’re stolen.

Byron R. White:

Do you think he’d have gotten a search warrant for it?

Linda A. Akers:

Your Honor, under these circumstances, the test is, in Texas v. Brown, of whether the facts would warrant a man of reasonable caution in the belief that these items are stolen.

On that basis, we are very close to probable cause here, but I don’t believe we had probable cause.

Byron R. White:

So you couldn’t have gotten a warrant to do what he did?

Linda A. Akers:

That is correct, Your Honor.

Byron R. White:

And why not, if it isn’t a search?

Linda A. Akers:

I’m sorry, I–

Byron R. White:

Well, what the magistrate should say is, you don’t need one.

Linda A. Akers:

–To inspect the serial number, that’s correct.

Byron R. White:

Except you’d have to… you’d say, well, I have to reenter the house.

So I want a warrant because I want to get the serial number.

Linda A. Akers:

You’re saying, get a search warrant to get the serial from the… the… whatever it is that’s stolen?

In that situation, Your Honor, it’s the State’s position that he does not need a search warrant to ascertain what he can ascertain when he is legitimately and lawfully present.

Byron R. White:

Already in there.

Linda A. Akers:

And that was the situation.

Sandra Day O’Connor:

Mrs. Akers, to the extent that you’re arguing there’s no reasonable expectation of privacy in the number, I’m not sure that that argument was made below, or that it’s even encompassed in the petition… question on petition for certiorari.

Where it seemed to me the question presented was whether police can seize the ID numbers in the course of conducting a search, based on reasonable suspicion as opposed to probable cause.

And it just seems to me maybe you’re making some arguments here that were neither raised below nor fairly encompassed in the questions.

Linda A. Akers:

Your Honor, it’s the position of the State that the Fourth Amendment application must be decided first of all, because the Fourth Amendment is what is involved here on a reasonable, articulable suspicion case.

In this situation, in briefing that, you are quite correct, it was not raised below.

And we felt it was encompassed within our question presented, because if there’s no Fourth Amendment applicability, then we never really reach the reasonable, articulable suspicion question.

Sandra Day O’Connor:

Well, I thought the question as it was presented to us just assumed the application of the Fourth Amendment and assumed the existence of a search and a seizure, and asked us to determine a much more limited question under the plain view exception.

Linda A. Akers:

In reviewing the cases, and especially United States v. Jacobson, we could not reach that determination, and felt it best to brief the issue.

In United States v. Jacobson, this Court found that there was a legitimate expectation of privacy in the information that could be gained from testing a small amount of white powder to determine whether or not it was cocaine; the only possible information that could be conveyed through that test.

And in reading that case and comparing it to the facts of this case, that is, in testing the serial number, all that could be ascertained was whether or not the stereo was stolen, under those circumstances we could not conclude that there was a legitimate expectation of privacy that society was willing to recognize, ergo there was no Fourth Amendment application.

Sandra Day O’Connor:

Well, I just think that’s a new question, personally.

Why do you say that the only information that could have been obtained by lifting up an object and looking underneath is whether it was stolen or not?

Couldn’t there have been a letter underneath or something?

For example, in your other… the Vin case we had a year or two ago, you had to pick up a piece of paper to read the number.

And do you think it’s always true that when you pick up a piece of paper or lift an object to look underneath it, you’ll never discover anything except what’s on the bottom of the object?

Linda A. Akers:

Your Honor, all we are asking this Court–

John Paul Stevens:

Suppose you hide your jewels under your stereo, or something like that?

Linda A. Akers:

–All we are asking this Court to hold is that a police officer may, on reasonable, articulable suspicion, examine the exterior of an item if something is revealed in plain view by–

John Paul Stevens:

But you need not merely examine the exterior, but he must move the item in order to make that examination.

And I take it, when you move something, you may reveal something hidden behind it.

Linda A. Akers:

–Your Honor, that’s entirely possible, and that would have to be assessed under the set of criteria that would be available to the officer, and if he may then examine that in plain view, if it’s contraband or what have you.

All we’re asking this Court to hold is that we may examine the exterior of an item to determine the brand name or serial number of an item.

Antonin Scalia:

What do you mean, “to determine”?

You’re asking us to evaluate the intrusiveness of a search on the basis of what happens to be found, on the basis of what is being looked for and what happens to be found.

But it seems to me to be the point of Justice Stevens’ question that its intrusiveness does not necessarily depend either upon what you’re looking for or on what you in fact find; it depends on what you might find.

There might be a private letter under there, or when you lift it up, there may be something else on the top of the table.

Don’t you have to consider that in deciding how intrusive this activity is?

Linda A. Akers:

I don’t believe you do, Your Honor, in the respect that you can… if this Court finds that you can examine the exterior of an item in plain view for serial number or brand name, you do not have to encompass, then… for example, you mentioned a letter.

The State does not advocate the position that you can read the letter that would be found under there, or anything else.

If, perhaps, it was contraband, then it could be seized.

I’m not going to tell this Court that… that if an officer sees contraband, he can’t seize it.

But I believe that under these circumstances the petitioner would submit that he may make that limited inspection on reasonable articulable suspicion.

John Paul Stevens:

Supposing that the exterior of the stereo had a little notice on it, serial number on warranty; warranty in desk drawer.

Could he open the desk drawer and pick out the warranty and get the serial number?

Linda A. Akers:

No, Your Honor, I don’t believe that he can.

All that we’re asking this Court to hold is that you may look for the serial number or the brand name, without dismantling, opening, unplugging, or any other interference with whatever the object is in plain view that would have the serial number on it, in this case, a stereo.

John Paul Stevens:

Do you think unplugging would be different, if they had to unplug to get at it, to turn it over, for example; would that make it bad?

Linda A. Akers:

Your Honor, I would defend the unplugging of a stereo, but in this case, you do not have to reach that far.

It’s just the examination of the item for serial number or brand name.

Antonin Scalia:

You do get into that kind of question, though, once we accept what you want us to accept here.

That is, you have to decide, well, what if you turn it over?

What if you move the table it’s on?

What if you unplug?

It’s rather a nice, clear line to say that plain view means plain view.

You walk in there, you don’t disrupt anything, whatever you see you can use.

Linda A. Akers:

The problem–

Antonin Scalia:

It has that great advantage, doesn’t it?

Linda A. Akers:

–The problem is that we come into cases like this where we have reasonable, articulable suspicion, which I believe is a standard that the Courts can employ to protect the Fourth Amendment interests of an individual, where the item itself is already in plain view; it has already been subject to visibility by a police officer, and that’s unquestioned here.

It’s conceded that the exigent circumstances that brought the officer into the apartment was such that the officer could look around him and observe the items within the apartment.

And those included, as I said before, guns, masks, instrumentalities of crime.

There were incriminating objects already present.

And in the opinion of the officer, he believed he had reasonable, articulable suspicion, as the record reflects–

John Paul Stevens:

But if the serial number were on the face of the instruments, so you didn’t have to move it at all, you wouldn’t even need the articulable suspicion, would you?

Linda A. Akers:

–No, Your Honor, you would not.

John Paul Stevens:

So you’ve got kind of an intermediate class.

If you have to move it a little bit, it’s not in plain view, but you have a new category of permissible investigations.

And some serial numbers on some products can’t be found unless you take the product apart.

Linda A. Akers:

That’s correct, Your Honor, and we’re not advocating that position.

We’re only advocating–

Antonin Scalia:

Why not?

It’s only a serial number.

And you’re not sure about unplugging?

Linda A. Akers:

–For the reason… no, I am sure about unplugging, and I would defend that to this Court.

But that’s not this case.

And I would defend the… the taking of the serial number from the stereo, but the problems raised by the opening of the stereo unit are the same as Justice Stevens has alluded to here, which is, whatever you find underneath may be an additional problem.

And what I’m suggesting to this Court is, the police are in great need of flexible standards by which they may respond to those things that they see in their everyday investigations.

Sandra Day O’Connor:

Well, Mrs. Akers, do you think the trial court in this case found the officer acted just out of curiosity–

Linda A. Akers:

No, Your Honor–

Sandra Day O’Connor:

–The trial court’s finding was certainly not clear to me.

Linda A. Akers:

–The trial–

Sandra Day O’Connor:

And it could be interpreted that way.

Linda A. Akers:

–The trial court’s finding, I believe, was not clear; I agree with you in that respect.

But it seemed to be focussed on the immediately apparent aspect, that is, that he could not look at the object and immediately ascertain that it was stolen.

And in light of that, the court held that you did not meet… he did not meet, the State did not meet the third prong of the Coolidge test, which was the test that the trial court employed.

But I submit to you that had… the record is replete with an indication by the officer that he believed, he had reasonable, articulable suspicion, in other words, that the object was stolen.

Linda A. Akers:

And I believe it’s like a mixed question of fact and law, in that respect, and that this Court may review the record that is presented to you.

And in applying the law… applying the law as this Court finds it, may so find that there was reasonable articulable suspicion on the record we have presented to you, even though the trial court focussed on the immediately apparent aspect of that stereo, and how the officer viewed it under that particular test.

Even if this Court finds–

John Paul Stevens:

Let me ask one other question.

Would you draw a distinction if the item were not thought to be stolen, but merely were conclusive evidence of a crime?

For example, say it was a gun, and the serial number on the gun would prove that the instrument was used to kill someone.

Would you apply the same test, or is your test limited to contraband?

Linda A. Akers:

–No, Your Honor, I would apply the same test to a situation such as you have described.

John Paul Stevens:

So in this case, if the stereo might provide for some reason I can’t hypothesize right now, might provide evidence that the man who owned it at that time also committed some other crime, you could still investigate?

Linda A. Akers:

If the examination of the stereo for the serial would reveal such information, then I would not make a distinction between an instrumentality, fruit of a crime, or contraband.

John Paul Stevens:

Or evidence?

Linda A. Akers:

Or evidence.

If that information… and I agree with you, I can’t think of an instance where it would.

Because the only information that is to be garnered from this serial number is whether or not it is listed in the computer banks, NCIC, the National Computer–

John Paul Stevens:

No, but of course, the guns were different.

They also checked a lot of gun numbers, I understand, and they might well have been evidence of a crime, if… you know, if you’d gotten a positive response on one of those instead of on this one.

Linda A. Akers:

–Another item with–

John Paul Stevens:

With a different serial number.

Linda A. Akers:

–a different serial number could indeed reveal that information, yes, Your Honor.

Antonin Scalia:

Suppose I’m walking down the street with a stereo under my arm, could a police officer come over to me and say, turn that stereo around, I want to check the serial number on it?

Linda A. Akers:

The ironic thing is, I believe, under the status of the laws that exist, under Terry v. Ohio, that an officer could stop you, that is seize your person briefly and momentarily, to ascertain some identification and explanation from you if he has reasonable, articulable suspicion, or reason to suspect that you and that stereo are evidence of some crime or criminal activity.

So I think in that respect you can accost a person on the street, which is a much greater intrusion, and ask for its identification; but you cannot get the identifying marks off of a stereo, which is an inanimate object, and seemingly, a much lesser intrusion.

Antonin Scalia:

And your argument is that once the police are lawfully in my apartment, that they ought to be able to do the same thing to the stereo that they would be able to do on the street, were I walking about with it?

Linda A. Akers:

Absolutely, Your Honor; once they are lawfully present.

Byron R. White:

What if you had a search warrant to search for something that could only be found in one room, for example; you knew where it was, you wanted to search the living room.

You see through the door a stereo that looks out of place.

You wouldn’t think you could exceed the bounds of your search warrant, do you, just on reasonable suspicion?

Linda A. Akers:

Your Honor, if in the course of executing a search warrant, an officer has reasonable, articulable suspicion to believe that something else he may come across, and in this situation, Justice Stevens, guns may come into play here, where I am aware of cases where officers have executed drug search warrants and found an arsenal, 70, 80 guns.

Byron R. White:

Sure.

Linda A. Akers:

In that situation, I believe that given the criminality that the officer may see–

Byron R. White:

Sure.

Linda A. Akers:

–he might be able to… and he could reasonably articulate it, that he should be able to inspect those guns for the serial number, and ascertain whether or not they are lawfully maintained or possessed by the person who has… wherever he’s executing the warrant.

It is the State’s position that under United States v. Jacobson, that the… testing the white powder, and the consuming of the white powder in the test does not… has been found by this Court to be a de minimus intrusion on the possessory interest of the person who owns the white powder.

And in so finding, this Court found that… in so finding this Court has concluded that there is no legitimate expectation of privacy or possession in the powder that is revealed by the tests.

So that, in this case, if we draw the direct analogy that we have here, we do not advance… or we do not regress upon any Fourth Amendment protections, any more than we’ve had under United States v. Jacobson.

John Paul Stevens:

Maybe I don’t recall the opinion that well, but I thought in that case we said there was a virtual certainty there was heroin or cocaine or something like that; just by looked at it in the bag.

Linda A. Akers:

All the officer could tell was that they had a white powder that someone was very interested in keeping protected.

John Paul Stevens:

Didn’t we say the plain view test was equated with virtual certainty that it was contraband?

Linda A. Akers:

In that case, it might well have been, Your Honor, that the officer viewing the white powder, and the circumstances in which the white powder was encased, that is, the several boxes and the tube; but they did not know conclusively that it was cocaine.

I take it that–

Linda A. Akers:

Any more than in this case he suspected that it was stolen.

John Paul Stevens:

–Well, he had a much better reason to… there was a much greater degree of probability that that was contraband than that the stereo was contraband.

Linda A. Akers:

I would disagree with Your Honor–

John Paul Stevens:

You would disagree with that?

Linda A. Akers:

–in the respect that in this case there were instrumentalities of crime that had been found in this apartment, masks, guns–

John Paul Stevens:

But you’ve agreed that it wasn’t even probable cause here.

And surely there was probable cause in the Jacobson case.

Linda A. Akers:

–Your Honor, this Court found probable cause, but I–

John Paul Stevens:

But you’ve admitted there’s no probable cause here, so there’s a difference.

Linda A. Akers:

–That’s true, but we’re within a gnat’s eyelash of probable cause in this case.

Byron R. White:

Well, I take it, part of your argument is that given reasonable suspicion, the only way that an officer could ever check it out is either then or never?

Linda A. Akers:

That is true, Your Honor.

Byron R. White:

If he had to leave to get a warrant, he could never get a warrant to get back into the house, unless you said he can get a warrant on reasonable suspicion.

In which event, you might as well let him look at it in the first place.

Linda A. Akers:

Correct, Your Honor.

Byron R. White:

Or except that I suppose if you could get a warrant on reasonable suspicion, at least you’d have the magistrate agreeing with him that there was reasonable suspicion.

Linda A. Akers:

But I believe this… excuse me, Your Honor.

Byron R. White:

Except that the magistrate would never have seen the stereo in the apartment.

Linda A. Akers:

I believe this will eventually be subjected to judicial scrutiny in the respect that this information can be challenged in a court of law in determining the admissibility of whatever the evidence is against the individual.

Thurgood Marshall:

Mrs. Akers, the case that says, you can search for cocaine, and it’s okay, that sets a precedent that anybody with cocaine in his possession has no privacy.

Thurgood Marshall:

If we in this case say that he can search a TV set, then that means that he can search anybody’s TV set under any circumstances.

And I’m sure you don’t want to go that far.

Linda A. Akers:

Well, Your Honor, I believe that the same interest in stolen property, it’s the same illegitimate interest in contraband or in stolen property.

Thurgood Marshall:

I’m not talking about the guilty person.

I’m talking about the innocent person.

Linda A. Akers:

If, Your Honor–

Thurgood Marshall:

Under that case, any innocent person with powder in his room has a chance of being searched, as of right now.

So if we rule fully with you, then anybody with a TV set has a possibility that somebody’s going to search it for a serial number.

And you don’t want to go that far, do you?

Linda A. Akers:

–Your Honor, I don’t have any problem with going that far, because I don’t think the interest in–

Thurgood Marshall:

Well, I do.

I have trouble… I have trouble with you searching my TV set.

Linda A. Akers:

–Your Honor, I believe that the information that could be conveyed from the exterior, and calling it a search… I’m not conceding that it is a search… but the inspection of the television set I don’t believe reveals any information other than whether or not the item is stolen; and that you have, and anyone else has, no legitimate expectation of privacy in that area.

Thurgood Marshall:

Well, that validates every search.

If you find what you’re looking for, it’s a legal search.

Linda A. Akers:

No, Your Honor–

Thurgood Marshall:

xxx going on for years.

Linda A. Akers:

–I disagree with your conclusion in the respect… and petitioner would submit to this Court that the examination of the exterior of an item in plain view that reveals only the serial or the brand name, which assists the officer in determining whether or not it is stolen, is not an intrusion that–

Thurgood Marshall:

xxx tell him it was stolen?

Linda A. Akers:

–Well, Your Honor, the only hypothesis I can think of on that situation is if an officer knew that a television had been stolen within, say, the same apartment complex, and that he knew it was a particular brand, perhaps an RCA; and by determining the brand name, then that would focus it more on the television as opposed to just any television set.

Thurgood Marshall:

You want us to say that?

Linda A. Akers:

Yes; a brand name or a serial number.

Thurgood Marshall:

Yes.

That they can search for a brand name?

Linda A. Akers:

Or a serial number, that is correct, Your Honor.

Thurgood Marshall:

I’m not talking about serial number.

I’m talking about brand name.

You want us to go that far?

Linda A. Akers:

You Honor, I think–

Thurgood Marshall:

You don’t want to limit it to serial number, which is what you have in this case.

Thurgood Marshall:

You don’t want to limit it to that.

You want it to also go to brand name.

Linda A. Akers:

–In this case, the Court doesn’t have to go that far.

However, brand name is the same kind of information that is encompassed within the serial number.

In United States v. Place, this Court found that the expectation of privacy in a dog sniff of a suitcase on reasonable suspicion was appropriate under the circumstances because officers were in need of a flexible array of means to respond to suspected criminal activity.

And in that regard, Your Honor, I believe that this case can be controlled by the principles in United States versus Place, and that this Court should reverse the Court of Appeals’ judgment finding that there was a Fourth Amendment violation here.

I’d like reserve the remainder of my time for rebuttal.

William H. Rehnquist:

Thank you, Mrs. Akers.

We’ll hear now from you, Mr. Rood.

John W. Rood, III:

Thank you, Mr. Chief Justice, and may it please the Court:

I think initially I want to say a couple of things that came up in the first part of the argument.

As Justice O’Connor pointed out, it has never been before argued, until the petition was granted here, that this was not a search nor a seizure.

That never happened in the lower court.

That was never argued in the Arizona Court of Appeals.

So this is a new argument that the State has attacked the judgment of the trial court on.

The other thing I’d like to bring to your attention is the question about serial numbers, and the State’s position that all they want to be able to do is see serial numbers.

I’m not sure serial numbers are strictly on items for the purpose of determining whether they’re stolen or not stolen.

Obviously, they have lot numbers and all sorts of things.

That may be true, but I’m not sure that that’s the case always.

William H. Rehnquist:

The police apparently think they’re helpful.

John W. Rood, III:

Obviously, they think they’re helpful.

Our position is, quite frankly, that this is not a plain view case.

That’s been the position from the beginning.

Obviously the stereo units… and the Court must be aware, under the facts of this case, we’re not just talking about one stereo.

When the police came into the apartment, Officer Nelson noted a stereo on the living room wall.

He apparently during his search for guns noticed another stereo in the living… excuse me, in the bedroom.

When he decided to copy down all these stereo numbers, not only the one Bang and Olufsen turntable was copied from, but apparently, although the record isn’t clear what he had to do to get the other serial numbers, he copied down a whole series of them.

And while he was phoning in the serial numbers on the guns, he decided he might as well phone in these other serial numbers.

The only thing that turned up on the computer was this one piece of property.

At a later point, it was determined the rest of the property was stolen.

John W. Rood, III:

Again, our position is that this is not a plain view case.

I note that Judge Myland, of the… of the Maryland Court of Special Appeals some ten years ago in a law review article in which they analyze the Coolidge v. New Hampshire decision, said that those who overapply the plain view doctrine to every situation where there is… where there is visual, open view have not learned the lesson long since mastered by old hands at the burlesque houses: you can’t touch everything you see.

Wherever a policeman’s eye may go, his body need not follow.

The thrust of the argument presented by the State of Arizona is aimed at the reasonableness of police conduct once they were legally inside Mr. Hicks’ apartment.

They argue the serial numbers were in plain view.

They weren’t in plain view.

The police officer had to walk over and pick up the stereo unit, turn it over, look at it.

Byron R. White:

What if he had to go up and get real close?

It was right on the top, but he couldn’t… he had to get awfully close to it to see it.

John W. Rood, III:

Obviously.

I have… although that isn’t the fact here, I have no problem with that necessarily.

Sandra Day O’Connor:

What if had to use a magnifying glass to bring the number out a little bit?

John W. Rood, III:

I’m not sure that I have a lot of problem with that either, although one of the problems in this case, and that may be presented in that situation, is, there is no connection between the reason that the officer was in this apartment and the serial numbers.

In other words, the reason–

Sandra Day O’Connor:

Well, I noticed the Court of Appeals went off on… at least in part on the theory that there had to be some nexus between the exigent circumstances that gave them cause to enter and the object they were examining in plain view.

Do you find any support in our cases for that idea?

John W. Rood, III:

–I think I do.

I think both Coolidge and Brown talk in terms of that.

I think that–

Sandra Day O’Connor:

I hadn’t thought there was a nexus requirement at all, Mr. Rood.

John W. Rood, III:

–Well, I’m not sure it’s nexus, or at least some–

Sandra Day O’Connor:

I thought anything that an officer, once he was lawfully on the premises, spotted in plain view, and that it was immediately apparent was evidence of a crime or contraband, was subject to seizure, whether or not it was related to the reason for entry?

John W. Rood, III:

–Well, that’s true, if it’s contraband, or if it’s immediately apparent that the object has some incriminating nature whatever, it can be seized.

The district courts in various cases have talked in terms of, when you go in on a search warrant, or for any other exception to the rule, and you find something that can be reasonable connected to your reason for being in there, you may… you might seize it.

An example might be one of the cases where they’re in on a search warrant for stolen property.

The police officer’s aware certain property has been stolen two nights before.

He recognizes that property.

The fact of the matter is, they know these people who reside in this place are dealing in stolen property or hold stolen property.

The belief is that they should be able to seize items that they think are stolen property.

And I don’t disagree with that proposition at all.

Lewis F. Powell, Jr.:

Mr. Rood, any problem with the officer seizing all of the guns?

John W. Rood, III:

I don’t think so.

It never came up.

The record in the case is unclear.

It’s my understanding, nothing ever happened as a result of the seizures of any of these guns.

Lewis F. Powell, Jr.:

Were the guns seized?

John W. Rood, III:

The guns were seized.

Lewis F. Powell, Jr.:

That was my recollection.

John W. Rood, III:

That’s my understanding, yes.

Lewis F. Powell, Jr.:

Now, a bullet was fired through the floor into the apartment below.

John W. Rood, III:

That’s correct.

Lewis F. Powell, Jr.:

Which justified the search under exigent circumstances.

John W. Rood, III:

That’s correct.

Lewis F. Powell, Jr.:

Suppose there had been a shotgun among the weapons there?

Could that have been seized?

John W. Rood, III:

I’m not sure that it could.

I’m not sure that they could articulate a reason why it should be seized unless it’s a saved off shotgun and some sort of illegal-type weapon.

Lewis F. Powell, Jr.:

Well, suppose it were a sawed off shotgun.

It couldn’t have fired through the floor.

John W. Rood, III:

Well, that’s true.

But under State law, I believe, it would be contraband, illegal to have sawed off shotguns.

So it could be seized.

It’s like contraband.

It’s like drugs or narcotics or whatever.

Lewis F. Powell, Jr.:

But in a State that permitted the ownership of handguns, provided they were registered, suppose there had been no shot fired through, but the officers were there under some other exigent circumstances.

Could they have looked at the serial numbers on the handguns they saw?

John W. Rood, III:

Well, they certainly might have looked at the serial numbers.

In other words, if it was in plain view to them.

If they didn’t have to go over and turn it around and look at the stock or something, it would be our position that if they saw it, they could remember it, write it down, whatever.

But I don’t believe it’s our position that if they walked over and picked up the gun and looked at it and copied down the serial number, that that would be permissible for some other reason.

Lewis F. Powell, Jr.:

So this case turns on whether or not the stereo was turned over?

John W. Rood, III:

I think that’s a crucial point of this case, that they actually went up, picked it up, and looked at the back of it.

Lewis F. Powell, Jr.:

Would the same be true of the… I think they were called a stocking mask, but suppose they had been ski masks, and the store had reported the ski masks had been stolen, could the officers have turned the ski masks over?

John W. Rood, III:

Well, it would seem to me, that would depend upon who they reported it to.

Were there a gross of ski masks there rather than just one?

Lewis F. Powell, Jr.:

Just one.

John W. Rood, III:

I don’t think they could take it, unless there was something else.

Lewis F. Powell, Jr.:

Couldn’t turn it over?

John W. Rood, III:

Couldn’t turn it over?

Lewis F. Powell, Jr.:

To see which store had sold it?

John W. Rood, III:

Well, if in the case, they were attempting to look for guns, they might pick up the ski mask and look under it.

Thurgood Marshall:

Let me give you an easy one.

He walked around behind the television to see the serial number.

He didn’t touch the television.

John W. Rood, III:

I… I have no problem with that unless… well, I do have a problem with it.

The fact is, that they’re not in there looking for stolen property.

They’re in there looking to see if anyone’s hurt.

They’re looking to see if they can find the weapon that was fired.

That’s the only reason they’re there.

Thurgood Marshall:

And contraband?

John W. Rood, III:

And contraband, if it’s… if it’s in plain sight.

But they can’t just go about making a general search.

That’s what the State would ask this Court to allow them to do.

The fact of the matter is that the only real basis for this search is, this is a low rent apartment that a bullet has been fired through the floor in.

And a person living in a low rent apartment shouldn’t be able to own an expensive stereo.

And I think that is clear in the record that the officer, on a hunch, knowing that stereos are stolen, that this person shouldn’t own one, decided to search it.

And that’s what he did.

Antonin Scalia:

On that basis, you couldn’t do a Terry stop–

John W. Rood, III:

Well–

Antonin Scalia:

–of somebody who is, I don’t know, wearing baggy pants, and obviously secondhand clothes, walking down the street carrying a… gee, I don’t know… pick the most expensive piece of personal property you can imagine, and this person is carrying it on his shoulders, and you say–

John W. Rood, III:

–Well, there–

Antonin Scalia:

–one should not think that somebody who dresses in shabby clothes can’t own the best stereo in the world.

That’s sort of silly, isn’t it?

John W. Rood, III:

–Sure–

Antonin Scalia:

Isn’t that a reasonable… isn’t that a reasonable situation to raise a suspicion?

John W. Rood, III:

–I don’t think it is a reasonable situation.

In fact, the example that was given earlier on about stopping a person in a… in a Terry situation to briefly detain them, if that person was wearing… in a poor neighborhood was wearing a gold watch, I take it that Officer Nelson, in this case, would believe that that’s a reasonable suspicion for him to take that watch off and look at it.

And that isn’t a reasonable type of thing.

Antonin Scalia:

xxx stopping a rich man who’s carrying something that’s thought stolen and normally belongs to poor people?

John W. Rood, III:

Well, I think–

Antonin Scalia:

It’s the disparity, isn’t it?

John W. Rood, III:

–both situations are bad.

Antonin Scalia:

You think both are bad?

John W. Rood, III:

Both are bad.

I don’t think that there was a reasonable suspicion in this case.

And I think there has to be something more.

Antonin Scalia:

Does your case depend on my agreeing with you that there has been, not just a search here, but a seizure?

Do I have to agree with you that when you copy down the number of a stereo, you are seizing that number?

I mean, he didn’t actually rip off the label and take it out with him or anything, right?

All he did was write it down?

John W. Rood, III:

Right.

Antonin Scalia:

And you contend that that’s a seizure, right?

John W. Rood, III:

Well, we never had to contend that before, but yes.

And I believe–

Antonin Scalia:

Suppose I don’t agree with that?

John W. Rood, III:

–Well, I think you have to get over the threshold problem of the search.

Antonin Scalia:

The case would be the same if there’s just a search but no seizure?

John W. Rood, III:

Pardon me?

Antonin Scalia:

The case would be the same if it was just an unlawful search with no seizure?

John W. Rood, III:

Well, I think the case would be the same if there was a search here that was illegal, yes.

Antonin Scalia:

Because the fruit of the search, to wit–

John W. Rood, III:

Right.

Antonin Scalia:

–the knowledge of the serial number, would be excluded?

John W. Rood, III:

That’s correct.

Antonin Scalia:

That’s a great relief, because it doesn’t look like a seizure to me.

John W. Rood, III:

Well, as I’ve said, the focus of the case has never been the search or the seizure.

It’s whether or not the object was in plain view, and there was a sufficient reasonable basis to believe it was stolen.

We don’t believe that that has been shown anywhere previously.

We’d just say that this Court has stated that searches without warrants are, per se… or are deemed per se unreasonable, unless there are circumstances, which this Court has delineated previously, that fit the facts of the situation.

The State contends that the plain view doctrine is simply an exemption to the warrant requirement.

They do that in their reply brief.

My understanding is that the plain view doctrine, according to Coolidge, merely supplements the prior justification for the original intrusion.

The State can’t point out any exception to the warrant requirement as it applies to stereos.

They are not inherently stolen property or contraband.

Even a–

Antonin Scalia:

Why couldn’t you do it on the street?

Let’s assume that I would think that a Terry stop here would have been all right.

John W. Rood, III:

–Okay.

Antonin Scalia:

Seeing somebody walking down the street and obviously–

John W. Rood, III:

Well–

Antonin Scalia:

–Walking briskly.

Somebody walking briskly, pretty shabbily dressed, carrying, you know, a very spiffy stereo.

Do you think the policeman would be able to stop him and say, excuse me there, young fellow, where are you going with that?

John W. Rood, III:

–He may, on less than probable cause, if he has some basis, stop the person, briefly, to determine who he is, where he’s going.

I have no problem with that.

I have a problem with–

Antonin Scalia:

Could he… could he ask for the identification number of the stereo?

John W. Rood, III:

–Well, he could ask.

I take it he could ask.

Antonin Scalia:

He could ask?

Antonin Scalia:

If the fellow said, no, he couldn’t–

John W. Rood, III:

That would be our position, right.

He couldn’t take it.

Antonin Scalia:

–He could ask the person to turn the stereo around, if the person said, sure.

But he couldn’t require him to do that?

John W. Rood, III:

If it goes that far, yes.

Because it would be the position that he’s being briefly detained to check out where he’s going, he he is.

And if he has nothing more, it wouldn’t be–

xxx probable cause to arrest?

John W. Rood, III:

–That’s correct.

That would be our… our position.

As the… unless you take the view that the status of a person occupying an apartment gives a person… give police suspicion that they are involved in criminal activity, in this case, there isn’t even reasonable suspicion.

That would be petition… respondent’s position.

Petitioner attempts to argue many ancillary issues, such as the facts… the fact this is not a search or a seizure, and that Mr. Hicks’ had no privacy interest in the stereo, and therefore the Fourth Amendment does not apply.

In fact, the State’s petition, as I said earlier, states that this was a seizure.

To take the argument to its logical conclusion, police… when police are in someone’s home legitimately, they can begin a general rummaging about the place to determine if there is stolen property, with no relationship to the fact that they’re in there on a domestic violence call or an emergency call.

And all they have to say, at a later point in court, that they were suspicious of the circumstances.

The other argument is that this search is minimally intrusive.

I’d point out to the Court that, first of all, I believe there is a higher degree of protection in a person’s home than necessarily elsewhere; that it certainly isn’t minimally intrusive for individuals to handle personal effects.

And it would be our position that it’s not reasonable.

What is, it seems to us, invidious here, is that the major basis for the search is the circumstances, and the circumstances presented at the suppression hearing.

Except for the fact that this was a low-rent apartment, the officer wouldn’t have had any reasonable suspicion.

To have this mere suspicion as a basis for search is contrary to the Fourth Amendment and beyond any cases that have been decided by this Court.

The State, in actual fact, in the court below, in the trial court, never argued anything other than the fact that they believed that the Leon case should apply to them.

In other words, in the trial court, that was their large argument.

When they appealed the case, that was their argument, that no matter what, that this officer had relied on a good faith belief that these items were stolen, and therefore, the items should not be suppressed.

In fact, I believe that Judge Livermore, in his decision in the case, took care of that by saying… well, first of all, that this wasn’t a warrant case; the other thing being, you can’t present the fruits of an illegal search, or as he put it, the police cannot launder the fruits of their illegal search by having a magistrate put some sort of stamp of approval on it.

Based on all that, we would ask that this Court affirm the judgment of the Court of Appeals and the trial court.

William H. Rehnquist:

Thank you, Mr. Rood.

Mrs. Akers, do you have anything more?

William H. Rehnquist:

You have three minutes remaining.

Linda A. Akers:

Thank you, Your Honor.

Just briefly.

In response to questions that the respondent received, there are some eight circumstances that appear in the record that would indicate the reasonable, articulable suspicion that the officer had.

First of all, there were guns that they found.

A.45 caliber gun, a.25 caliber gun, and a.22 caliber rifle.

Masks.

The stereo was on a temporary shelving, concrete block and wood.

The experience of the officer: He had 12 years of experience, and he knew that stereos were frequently the subject of property crimes.

He had heard the name of one of the occupants of the apartment as being an individual who was involved in a criminal investigation.

There was a shooting, and indeed, an injury, just shortly before the officer came into this apartment; that is, more criminal activity.

And there was drug paraphernalia all around the apartment.

I believe that under the Fourth Amendment, the test is reasonableness, and that is the final test.

Antonin Scalia:

Mrs. Akers, what do you answer to Mr. Rood’s point that even if you can persuade us that this is analogous to a Terry stop, all that you’d be allowed to do on the basis of an articulable suspicion in a Terry stop is ask for the individual’s name, ask him to identify himself and give an account of why he’s there or whatever?

That individual is entitled to say, none of your business, right?

At which point the officer would have to either decide that he has enough probable cause to arrest or let him go.

You couldn’t ask somebody on a Terry search, could you, to let me see the name of this fancy… on the label of the fancy jacket that you’re wearing?

I mean, you could ask him.

But if he said no, the officer wouldn’t have the ability to open the jacket, would he?

Linda A. Akers:

In a Terry stop, the individual can be stopped under suspicion for identification and information, or response to questions about the suspected criminal activity.

Antonin Scalia:

Right, and what if he says, I don’t want to answer?

Linda A. Akers:

And that is encompassed within the serial number of the stereo unit, as opposed to… I mean, an inanimate object doesn’t respond to questions, so he wouldn’t have the option, I guess, of not responding.

Antonin Scalia:

Supposing he’s carrying a stereo on his shoulder.

Could you stop him and demand that he show you the identification number of the stereo?

Linda A. Akers:

If he has reasonable, articulable suspicion that there’s criminal afoot, then he could investigate that criminal activity, and if it involved a stereo, he could.

Antonin Scalia:

And the individual says, no, I won’t turn it around.

The serial number’s on my shoulder, I’m not going to show it to you.

Linda A. Akers:

Then at that point–

Antonin Scalia:

What can the officer do then?

Linda A. Akers:

–Either arrest him, or decide that the information that he had and the information that he got from the suspect was such that he didn’t feel that it should be pursued further.

Antonin Scalia:

But to arrest him, he would need probable cause, wouldn’t he?

Not just an articulable suspicion?

Linda A. Akers:

Yes, Your Honor, if he’s refusing–

Antonin Scalia:

So an articulable suspicion does not get him the identification number?

Linda A. Akers:

–The articulable suspicion will allow him to do the further investigation, which is to stop the man and ask him the questions that you have proposed.

Antonin Scalia:

And if he gets a “no”, that’s the end of it?

Linda A. Akers:

And if he gets a “no” or answers that do not lead him to a logical conclusion, that he can explain his presence at the suspected criminal activity, the scene, wherever he is, then in that circumstance, that could be considered by the officer in making a determination as to whether to arrest or not.

William H. Rehnquist:

Thank you, Mrs. Akers.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.