Horton v. California Page 2

Horton v. California general information

Media for Horton v. California

Audio Transcription for Oral Argument - February 21, 1990 in Horton v. California

Juliana Drous:

At that point, it's up to the magistrate to make the decision.

If the police officers have no probable cause to search, they have no business searching for those items.

Sandra Day O'Connor:

Well, I have put to you the possibility that there may be several items, some of which they have probable cause to get a warrant to search, and some they don't.

They know they don't have probable cause for everything so they don't list everything.

But when they go to the house, they find it.

Juliana Drous:

Your Honor, if they find those items because they searched for those items, the seizure would be invalid.

Sandra Day O'Connor:

No, they find it because it's in plain view when they enter pursuant to a valid search warrant for other items.

Juliana Drous:

If they find the items in plain view and the seizure is inadvertent, yes, they may seize those items.

Sandra Day O'Connor:

But they knew they were there, likely to be there, but they lacked probable cause to include them in the warrant requirement.

Juliana Drous:

The fact that you... that you look at, I believe, is... for inadvertence, is whether or not the police officers were in fact searching for them.

If they were searching for the items listed on the warrant and came upon the items... the other items that they knew might be there, that's not a violation.

Antonin Scalia:

How do you... how do you instruct these police officers when you send them out?

Let's... let's... you know, they... they know the thing's "a", are there, and... and they have probable cause so that's in the warrant.

Thing "b" they suspect may be there.

So, when I send them out with their warrant, what do I tell them?

Don't... don't look for "b" whatever you do.

How can you... can you erase from your mind the notion that "b" may be there?

I mean, this is a weird rule you're proposing for... for... the police have to act in some realistic fashion.

How can they possibly act that way?

Juliana Drous:

There's a difference in saying, we believe that "b" might be there, but don't look for it.

There's a difference in that and saying, well, the warrant doesn't authorize the search, but look for it anyway.

Of course... and I understand what you're saying--

Antonin Scalia:

I mean, you--

Juliana Drous:

--and you're quite right--

Antonin Scalia:

--you can tell them, don't look in any place where "a" wouldn't be just because you think that "b" might be there.

You can tell them that.

Juliana Drous:

--That's right.

Antonin Scalia:

But how can you tell them, while you're looking for "a", for pete's sake, don't think "b"?

That's totally unrealistic.

And yet... and yet you say that if they're thinking "b" while they're looking for "a", it's bad.