Ralph B. Strickland, Jr.
Agency Legal Specialist
North Carolina Justice Academy

Volume 1 Number 5
June 1994

Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).

Look, but don't always touch: What plain view means today .

In April of 1984 Mr. James Thomas Hicks fired a bullet into the floor of his apartment. The bullet traveled through the floor but was stopped in its flight by an individual in the apartment directly below Mr. Hicks'. Injured, the victim called the police. Police officers arrived and entered Hicks' apartment, and though they did not find him, they found three weapons (including a sawed-off shotgun) and a stocking-cap mask.

Officer Nelson noticed, not one, but two sets of expensive stereo equipment, which seemed out of place "...in the squalid and otherwise ill-appointed four-room apartment." Officer Nelson suspected that the stereo components were stolen and recorded their serial numbers (including a Bang and Olufsen turntable which he had to move in order to do so). To the surprise of few in the law enforcement community the equipment was stolen, the turntable having been taken during an armed robbery. When located, Mr. Hicks was arrested for his various crimes.

The state trial court and the Arizona Court of Appeals granted Mr. Hicks' motion to suppress all the evidence seized on the grounds that the seizure was unconstitutional. When the Arizona Supreme Court denied review, the United States Supreme Court accepted the State of Arizona's request for a hearing.

The Supreme Court first ruled that the warrantless entry by the officers, under the exigent circumstances exception to the warrant requirement, was valid. Next, the Court held that the mere recording of serial numbers of appliances and equipment was not a seizure under the Fourth Amendment. These items would be admissible at trial. However, when Officer Nelson moved the turntable it was held to be a search separate and apart from the search for Mr. Hicks and his weapons (which was the initial objective of the officers' entry).

The Supreme Court then held that the search of the turntable was unreasonable since there was no probable cause to support it (the State of Arizona had concealed that only reasonable suspicion existed to search the turntable).

Bob Farb, in his excellent text, Arrest, Search and Investigation in North Carolina, Institute of Government (2nd edition) makes the following comments on this case and the plain-view doctrine:

While searching for a particular item named in the warrant to be seized, officers may search everywhere they reasonably may find the objects the warrant permits them to seize. Officers also may seize other property that they find "inadvertently" in plain view, if they have probable cause to believe it is evidence of a crime, even if it is not related to the crime under investigation. For example, while searching for stolen television sets, officers may seize illegal drugs they see in plain view. Officers seize an object "inadvertently" if, before the warrant was issued, they did not have probable cause to seize it and did not specifically intend to search for and seize it. Officers' authority to seize objects in plain view under these circumstances is known as the plain-view doctrine.

So, let's sum up what we know about the plain-view doctrine.

1. First, you must be in a place in which you have a right to be: you must make a valid intrusion into an area protected by the Constitution. Prior valid intrusions include:

a. search incident to arrest

b. stop and frisk

c. executing a search warrant

d. hot pursuit

e. exigent circumstances (see G.S. 15A-285).

2. You must actually "see" the item (although the other four senses - taste, touch, smell, hearing - can often be used to establish probable cause - Farb, Arrest, pp. 80-81).

3. You must have probable cause to believe that the object you see is subject to seizure and this must be "immediately apparent" to you without moving the item (unless you have justification to move the object other than just to determine if it is seizable).

4. Your discovery of the item of evidence must be inadvertent - you had no probable cause to believe the item would be where you discovered it.

Two examples should make this reasonably clear. Suppose you are in a home by consent to talk to an irate homeowner about a barking dog. You see a stereo you reasonably believe is stolen. Well, you have a right to be where you are; your discovery is inadvertent; but it is not immediately apparent to you that the item is stolen. You have no separate justification to move the stereo to look for the serial number, and so, without permission, you cannot.

A second example is the execution of a search warrant for a small, easily concealable item, such as drugs. If you wish, while in the home, you can move the stereo to look for drugs concealed behind or under the unit. That reveals the serial numbers. You may then write them down and check to see if the item is stolen. As you had a right to look behind the stereo for drugs, then the serial numbers are in plain view for Constitutional purposes.

If you have any questions, call me or the other attorneys here at the Justice Academy at (910) 525-4151.