Arizona v. Hicks

480 U.S. 321

Case Year: 1987

Case Ruling: 6-3, Affirmed

Opinion Justice: Scalia

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Brennan, White, Marshall, Blackmun, Stevens


1st Concurring Opinion

Author: White


1st Dissenting Opinion

Author: O'Connor

Joiner(s): Rehnquist, Powell

2nd Concurring Opinion



2nd Dissenting Opinion

Author: Powell

Joiner(s): Rehnquist, O'Connor

3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


On April 18, 1984, police were called to a building where a bullet had been fired through the floor of an apartment rented to James Thomas Hicks, injuring the resident of the unit below. Police entered the Hicks apartment searching for the shooter, other victims, and weapons. They found a sawed-off rifle, two other firearms, and a stocking-cap mask. One of the police investigators, Officer Nelson, also noticed a very expensive stereo system that looked out of place in the otherwise squalid and poorly furnished apartment. Suspecting that the stereo equipment was stolen, Nelson moved some of the components so that he could read and record the serial numbers. When the National Crime Information Center confirmed by telephone that the stereo had been reported stolen, Nelson seized the components. Hicks was subsequently charged with robbery.

Hicks moved to suppress the seized stereo component evidence. The state trial court and the court of appeals ruled that the warrantless entry by police was justified because of the exigencies of the shooting incident, but that taking the serial numbers was not related to that emergency situation. Furthermore, the serial numbers could not be considered in "plain view" because Officer Nelson had to move the equipment to read them. The state appealed the ruling.



In Coolidge v. New Hampshire (1971), we said that in certain circumstances a warrantless seizure by police of an item that comes within plain view during their lawful search of a private area may be reasonable under the Fourth Amendment.... We granted certiorari in the present case to decide whether this "plain view" doctrine may be invoked when the police have less than probable cause to believe that the item in question is evidence of a crime or is contraband....

Officer Nelson's moving of the equipment... did constitute a "search" separate and apart from the search for the shooter, victims, and weapons that was the lawful objective of his entry into the apartment. Merely inspecting those parts of the turntable that came into view during the latter search would not have constituted an independent search, because it would have produced no additional invasion of respondent's privacy interest.... But 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 respondent's privacy unjustified by the exigent circumstance that validated the entry. This is why... the "distinction between `looking' at a suspicious object in plain view and `moving' it even a few inches" is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to respondent--serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.

The remaining question is whether the search was "reasonable" under the Fourth Amendment....

We turn, then, to application of the [plain view] doctrine to the facts of this case. "It is well established that under certain circumstances the police may seize evidence in plain view without a warrant," Coolidge v. New Hampshire. Those circumstances include situations "[w]here the initial intrusion that brings the police within plain view of such [evidence] is supported ... by one of the recognized exceptions to the warrant requirement," such as the exigent-circumstances intrusion here. It would be absurd to say that an object could lawfully be seized and taken from the premises, but could not be moved for closer examination. It is clear, therefore, that the search here was valid if the "plain view" doctrine would have sustained a seizure of the equipment.

There is no doubt it would have done so if Officer Nelson had probable cause to believe that the equipment was stolen. The State has conceded, however, that he had only a "reasonable suspicion," by which it means something less than probable cause.... We have not ruled on the question whether probable cause is required in order to invoke the "plain view" doctrine. Dicta in Payton v. New York (1980), suggested that the standard of probable cause must be met, but our later opinions inTexas v. Brown (1983), explicitly regarded the issue as unresolved....

We now hold that probable cause is required. To say otherwise would be to cut the "plain view" doctrine loose from its theoretical and practical moorings. The theory of that doctrine consists of extending to nonpublic places such as the home, where searches and seizures without a warrant are presumptively unreasonable, the police's longstanding authority to make warrantless seizures in public places of such objects as weapons and contraband.... And the practical justification for that extension is the desirability of sparing police, whose viewing of the object in the course of a lawful search is as legitimate as it would have been in a public place, the inconvenience and the risk--to themselves or to preservation of the evidence--of going to obtain a warrant.... Dispensing with the need for a warrant is worlds apart from permitting a lesser standard of cause for the seizure than a warrant would require, i.e., the standard of probable cause. No reason is apparent why an object should routinely be sizable on lesser grounds, during an unrelated search and seizure, than would have been needed to obtain a warrant for that same object if it had been known to be on the premises.

We do not say, of course, that a seizure can never be justified on less than probable cause. We have held that it can--where, for example, the seizure is minimally intrusive and operational necessities render it the only practicable means of detecting certain types of crime. See, e.g., United States v. Cortez (1981) (investigative detention of vehicle suspected to be transporting illegal aliens); United States v. Brignoni-Ponce (1975) (same); United States v. Place (1983) (dictum) (seizure of suspected drug dealer's luggage at airport to permit exposure to specially trained dog). No special operational necessities are relied on here, however--but rather the mere fact that the items in question came lawfully within the officer's plain view. That alone cannot supplant the requirement of probable cause.

The same considerations preclude us from holding that, even though probable cause would have been necessary for aseizure, the search of objects in plain view that occurred here could be sustained on lesser grounds. A dwelling-place search, no less than a dwelling-place seizure, requires probable cause, and there is no reason in theory or practicality why application of the "plain view" doctrine would supplant that requirement. Although the interest protected by the Fourth Amendment injunction against unreasonable searches is quite different from that protected by its injunction against unreasonable seizures,... neither the one nor the other is of inferior worth or necessarily requires only lesser protection. We have not elsewhere drawn a categorical distinction between the two insofar as concerns the degree of justification needed to establish the reasonableness of police action, and we see no reason for a distinction in the particular circumstances before us here. Indeed, to treat searches more liberally would especially erode the plurality's warning inCoolidge that "the `plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incrimination at last emerges." In short, whether legal authority to move the equipment could be found only as an inevitable concomitant of the authority to seize it, or also as a consequence of some independent power to search certain objects in plain view, probable cause to believe the equipment was stolen was required....

JUSTICE POWELL's dissent reasonably asks what it is we would have had Officer Nelson do in these circumstances.... The answer depends, of course, upon whether he had probable cause to conduct a search, a question that was not preserved in this case. If he had, then he should have done precisely what he did. If not, then he should have followed up his suspicions, if possible, by means other than a search--just as he would have had to do if, while walking along the street, he had noticed the same suspicious stereo equipment sitting inside a house a few feet away from him, beneath an open window. It may well be that, in such circumstances, no effective means short of a search exist. But there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all. Our disagreement with the dissenters pertains to where the proper balance should be struck; we choose to adhere to the textual and traditional standard of probable cause....

For the reasons stated, the judgment of the Court of Appeals of Arizona is



...Today the Court holds for the first time that the requirement of probable cause operates as a separate limitation on the application of the plain-view doctrine....

The officers' suspicion that the stereo components at issue were stolen was both reasonable and based on specific, articulable facts. Indeed, the State was unwise to concede the absence of probable cause. The police lawfully entered respondent's apartment under exigent circumstances that arose when a bullet fired through the floor of the apartment struck a man in the apartment below. What they saw in the apartment hardly suggested that it was occupied by law abiding citizens. A .25-caliber automatic pistol lay in plain view on the living room floor. During a concededly lawful search, the officers found a .45-caliber automatic, a .22-caliber, sawed-off rifle, and a stocking-cap mask. The apartment was littered with drug paraphernalia. The officers also observed two sets of expensive stereo components of a type that frequently was stolen.

It is fair to ask what Officer Nelson should have done in these circumstances. Accepting the State's concession that he lacked probable cause, he could not have obtained a warrant to seize the stereo components. Neither could he have remained on the premises and forcibly prevented their removal....

The Court holds that there was an unlawful search of the turntable. It agrees that the "mere recording of the serial numbers did not constitute a seizure."... Thus, if the computer had identified as stolen property a component with a visible serial number, the evidence would have been admissible. But the Court further holds that "Officer Nelson's moving of the equipment ... did constitute a `search'...." It perceives a constitutional distinction between reading a serial number on an object and moving or picking up an identical object to see its serial number. To make its position unmistakably clear, the Court concludes that a "search is a search, even if it happens to disclose nothing but the bottom of a turntable." Ante, at 325. With all respect, this distinction between "looking" at a suspicious object in plain view and "moving" it even a few inches trivializes the Fourth Amendment. The Court's new rule will cause uncertainty, and could deter conscientious police officers from lawfully obtaining evidence necessary to convict guilty persons. Apart from the importance of rationality in the interpretation of the Fourth Amendment, today's decision may handicap law enforcement without enhancing privacy interests. Accordingly, I dissent.


The Court today gives the right answer to the wrong question. The Court asks whether the police must have probable cause before either seizing an object in plain view or conducting a full-blown search of that object, and concludes that they must. I agree. In my view, however, this case presents a different question: whether police must have probable cause before conducting a cursory inspection of an item in plain view. Because I conclude that such an inspection is reasonable if the police are aware of facts or circumstances that justify a reasonable suspicion that the item is evidence of a crime, I would reverse the judgment of the Arizona Court of Appeals, and therefore dissent....

... [T]he overwhelming majority of both state and federal courts have held that probable cause is not required for a minimal inspection of an item in plain view.... Thus, while courts require probable cause for more extensive examination, cursory inspections--including picking up or moving objects for a better view--require only a reasonable suspicion....

Indeed, several state courts have applied a reasonable suspicion standard in factual circumstances almost identical to this case....

This distinction between searches based on their relative intrusiveness--and its subsequent adoption by a consensus of American courts--is entirely consistent with our Fourth Amendment jurisprudence. We have long recognized that searches can vary in intrusiveness, and that some brief searches "may be so minimally intrusive of Fourth Amendment interests that strong countervailing governmental interests will justify a [search] based only on specific articulate facts" that the item in question is contraband or evidence of a crime. United States v. Place (1983). In Delaware v. Prouse (1979), we held that the permissibility of a particular law enforcement practice should be judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. Thus, "[w]here a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard." New Jersey v. T. L. O.(1985). The governmental interests considered include crime prevention and detection.... The test is whether these law enforcement interests are sufficiently "substantial," not, as the Court would have it, whether "operational necessities render [a standard less than probable cause] the only practicable means of detecting certain types of crimes."...

In my view, the balance of the governmental and privacy interests strongly supports a reasonable suspicion standard for the cursory examination of items in plain view. The additional intrusion caused by an inspection of an item in plain view for its serial number is minuscule....

Weighed against this minimal additional invasion of privacy are rather major gains in law enforcement. The use of identification numbers in tracing stolen property is a powerful law enforcement tool. Serial numbers are far more helpful and accurate in detecting stolen property than simple police recollection of the evidence.... Given the prevalence of mass produced goods in our national economy, a serial number is often the only sure method of detecting stolen property. The balance of governmental and private interests strongly supports the view accepted by a majority of courts that a standard of reasonable suspicion meets the requirements of the Fourth Amendment.

Unfortunately, in its desire to establish a "bright-line" test, the Court has taken a step that ignores a substantial body of precedent and that places serious roadblocks to reasonable law enforcement practices. Indeed, in this case no warrant to search the stereo equipment for its serial number could have been obtained by the officers based on reasonable suspicion alone, and in the Court's view the officers may not even move the stereo turntable to examine its serial number. The theoretical advantages of the "search is a search" approach adopted by the Court today are simply too remote to justify the tangible and severe damage it inflicts on legitimate and effective law enforcement....

... I respectfully dissent.