United States v. McLevain ( 2002 )

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with criminal activity, the item is not immediately
incriminating." United States. v. Byrd, 211 F.3d 1270, 2000
WL 491511, **3 (6th Cir. 2000) (unpublished opinion). 81,7('67$7(6&28572)$33($/6
Based on the Beal factors this Court has used before and this
statement in Byrd, we find the evidence against McLevain )257+(6,;7+&,5&8,7
was not "intrinsically incriminating, and it was not BBBBBBBBBBBBBBBBB
"immediately apparent" that the evidence provided probable
cause that it was contraband.
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The final aspect of the "plain view" doctrine requires that  1R
an officer have a lawful right of access to the object at issue. Y 
We said in Coolidge, "plain view alone is never enough to !

justify the warrantless seizure of evidence." 403 U.S. at 468. 52*(5 '$/( 0&/(9$,1 
As noted in Horton, this requirement of a lawful right of 'HIHQGDQW$SSHOODQW 
access means that generally an officer should get a warrant if 1
possible before he seizes an item in plain view. He cannot
seize absent exigent circumstances. If he could obtain a $SSHDOIURPWKH8QLWHG6WDWHV'LVWULFW&RXUW
warrant, then the he cannot use the "plain view" exception for IRUWKH:HVWHUQ'LVWULFWRI.HQWXFN\DW2ZHQVERUR
the evidence. 496 U.S. at 137, fn 7. 1R²-RVHSK+0F.LQOH\-U'LVWULFW-XGJH
Acquisito had before him the cut cigarette filter, the twist $UJXHG6HSWHPEHU
tie, and a spoon with residue on it, if not the prescription
bottle, when he field-tested the spoon. Before seizing the 'HFLGHGDQG)LOHG1RYHPEHU
spoon and testing it, he suspected the items were drug
paraphernalia. He should have sought a warrant at that time. %HIRUH0$57,1&KLHI&LUFXLW-XGJH0225(&LUFXLW
The evidence was not going anywhere. McLevain was in -XGJH:,6(0$16HQLRU'LVWULFW-XGJH
custody, and his girlfriend and two children were still in the
house. Acquisito should have taken his evidence of probable BBBBBBBBBBBBBBBBB
cause to a magistrate rather than attempting to seize it under
the "plain view" exception. Acquisito had no lawful right of &2816(/
access to the items. $5*8('7RQ\D65DJHU0F&2<:(67)5$1./,1
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:HVW0F&2<:(67)5$1./,1 %($//H[LQJWRQ experiences as law enforcement agents that led them to
.HQWXFN\IRU$SSHOODQW(UZLQ5REHUWV7HUU\0&XVKLQJ believe that the seemingly quotidian objects were actually
$66,67$1781,7('67$7(6$77251(<6/RXLVYLOOH drug paraphernalia. The connection between these items and
.HQWXFN\IRU$SSHOOHH illegal activities, however, is not enough to render these items
intrinsically incriminating. The connection is not enough to
BBBBBBBBBBBBBBBBB make their intrinsic nature such that their mere appearance
gives rise to an association with criminal activity.
23,1,21
BBBBBBBBBBBBBBBBB The final Beal factor examines whether "the executing
officers can at the timeRIGLVFRYHU\RIWKHREMHFWRQWKHIDFWV
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'DOH 0F/HYDLQ DSSHDOV his conviction and sentence for REMHFW
VLQFULPLQDWLQJQDWXUH´ 810 F.2d at 577 (emphasis in
violation of 21 U.S.C. §841(a)(1) on the grounds that (1)the original). In United States v. Szymkowiak, 727 F.2d 95, 95
district court erred in denying McLevain’s motion to (6th Cir. 1984), the United States had a warrant to search
suppress, (2)the district court erred in admitting several pieces Szymkowiak’s home for a television set and some jewelry,
of evidence of prior bad acts, (3)the communication between and the officers executing the warrant found and seized two
the court and jury outside defense counsel’s presence violated guns. The officers thought that the guns had been illegally
McLevain’s rights, and (4)the district court misapplied adjusted to rapidly fire. Id. The officers had to call an agent
Apprendi v. New Jersey, 530 U.S. 466 (2000), in sentencing. from the Bureau of Alcohol, Tobacco and Firearms to
%HFDXVH ZH ILQG WKDW WKH GLVWULFW FRXUW HUUHG LQ DGPLWWLQJ determine whether the guns were illegal. Id. at 96. We said,
HYLGHQFHWKDWVKRXOGKDYHEHHQVXSSUHVVHGZH5(9(56( "From the facts available to the executing officers in the case
, before us, they could not determine whether they had
discovered evidence of a criminal nature." Id. at 99.
On December 28, 1999, Gary Cauley failed to return from Similarly, from the facts available to the officers in
work release at the Daviess County Detention Center in McLevain’s home, at the time of discovery, they could not
Daviess County, Kentucky. Based on information from a determine if they had seen evidence of criminal activity.
confidential informant, the Daviess County Jailer Harold
Taylor sought a search warrant for Roger Dale McLevain’s ,QDYHU\UHFHQWFDVHIURPWKLV&RXUWZHKHOG³when an
house at 8865 Sacra Drive, Maceo, Kentucky, in the early item appears suspicious to an officer but further investigation
afternoon of December 29. McLevain is the defendant now is required to establish probable cause as to its association
before us.
The affidavit supporting the search warrant suggested a 
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connection between McLevain and Cauley’s girlfriend, Lydia DULVH XSRQ YLHZLQJ WKH REMHFW RU PD\ DULVH ODWHU 7KH &RXUW RI $SSHDOV
Bell. The informant told the police that Bell had been staying IRU WKH )LUVW &LUFXLW IRU H[DPSOH VD\V SUREDEOH FDXVH PD\ DULVH LQ OLJKW
at McLevain’s residence, and she had been picked up from RI RWKHU REMHFWV ODWHU GLVFRYHUHG 8QLWHG 6WDWHV Y -RKQVWRQ  )G
   7KH &RXUW RI $SSHDOV IRU WKH 7HQWK &LUFXLW KRZHYHU
there by a friend on the night Cauley escaped. She went to VDLG YHU\ UHFHQWO\ ³XSRQ YLHZLQJ WKH REMHFW WKH RIILFHU PXVW DW WKDW
Cauley’s mother’s house, where she received a call from PRPHQW KDYH SUREDEOH FDXVH WR EHOLHYH WKH REMHFW WR EH FRQWUDEDQG RU
Cauley at the Detention Center. Bell then borrowed Cauley’s HYLGHQFH RI LOOHJDO DFWLYLW\´ 8QLWHG 6WDWHV Y 7XFNHU  :/

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or a bottle that makes it immediately apparent that those items mother’s car and returned it about an hour and a half later.
are contraband. In McLernon, a room was searched pursuant The affidavit contained no information as to McLevain
to a cocaine conspiracy, and agents seized a note pad and himself, but Cauley and McLevain were known to be friends.
calendar from a desk, under the "plain view" exception. 746 On the basis of this information, Taylor sought a search
F.2d at 1104. We said, in that case, these items "were hardly warrant for McLevain’s house. $ VWDWH FRXUW MXGJH
‘intrinsically’ incriminating. Indeed such items are found in GHWHUPLQHG WKDW 7D\ORU KDG SUREDEOH FDXVH WR EHOLHYH WKDW
plain view of virtually every desk across this country. We do &DXOH\FRXOGEHDW0F/HYDLQ¶VUHVLGHQFHDQGKHLVVXHGWKH
not, and cannot, subscribe to a rule of law which allows ZDUUDQWWRVHDUFKWKHUHVLGHQFH7KHZDUUDQWGHVFULEHGWKH
officers of the state to seize an item as evidence merely UHVLGHQFHWREHVHDUFKHGLQFOXGLQJWKHGHWDFKHGJDUDJHDQG
because it is in ‘plain view.’" Id. at 1125 (emphasis in WKH RXWEXLOGLQJ DQG QDPHG &DXOH\ DQG 0F/HYDLQ WR EH
original). We found that the agents could not have VHL]HG It has never been explained why McLevain was
immediately perceived those items as incriminating; "the included.
agents' ‘immediate’ perceptions produced only visual images
of two ‘intrinsically innocent’ items." Id. Similarly, the Taylor sought assistance from the Daviess County Sheriff’s
items found in McLevain’s home might be found under beds, Department. That department was aware that McLevain had
in sinks, and on mantels in many homes, and not exclusively a criminal record with a narcotics offense. Officers of both
those where methamphetamine is being used. While the cut the Daviess County Detention Center and the Daviess County
cigarette filter and the prescription bottle with fluid in it might Sheriff’s Department executed the warrant at McLevain’s
be out of the ordinary, the police are not authorized to seize home at about 2:00 p.m. on December 29. Law enforcement
odd items. We do not care what the explanation is for the officers surrounded the home and forcibly entered through
items, but we care that there may be some other explanation both the front and the back doors. The officers at the front
for the items. Defense counsel pointed out at oral argument door immediately seized McLevain in the hallway and gained
that sometimes smokers who do not want filters in their control over his girlfriend and two children in the front room.
cigarettes remove them. The "plain view" exception The officers then began searching for Cauley. Narcotics
authorizes seizure of only those items that "immediately Detective Jim Acquisito went into the master bedroom, from
app[ear]" to be contraband. where McLevain had just emerged, and looked under the bed
for Cauley. Acquisito saw there a twist tie and a cut cigarette
In one sense, the facts of this case are similar to those of filter. He suspected these items to be drug paraphernalia. He
Texas v. Brown. In that case, an officer made a "plain view" informed his supervisor and took photographs of this
seizure of narcotics at a routine driver’s license checkpoint. evidence, although he left it undisturbed.
Id. at 730. In asking for the driver’s license, the officer saw
an opaque party balloon, tied at the end, drop from Brown’s Later in the search for Cauley, who was never found at
hand. Id. The officer knew from his experiences in previous McLevain’s home, another officer drew Acquisito’s attention
narcotics arrests and from conversations with other officers to a spoon with residue on a tackle box in a sink in the garage.
that balloons tied as Brown’s was were often used to carry Acquisito conducted a field test on the residue, and he found
narcotics. Id. at 742-743. In this case, Detective Acquisito it to be residue of methamphetamine. At about the same time,
also testified that from his experiences as a narcotics officer Acquisito noticed on the mantel of the fireplace in the garage
he suspected that the twist tie, cigarette filter, spoon, and a prescription bottle, with no label, filled with a clear liquid
prescription bottle with liquid were being used with that looked like water. Acquisito identified these four items
methamphetamine. In both cases, it was the officers’s as drug paraphernalia, and he used them to establish probable
 8QLWHG6WDWHVY0F/HYDLQ 1R 1R 8QLWHG6WDWHVY0F/HYDLQ 
cause in seeking a second warrant. Upon returning with the IDFWRUVRIIHUDFRQWH[WZLWKLQZKLFKWRHYDOXDWHWKHVHDUFKDQG
second warrant, the officers discovered, concealed inside a VHL]XUHRIWKHIRXULWHPVLQ0F/HYDLQ¶VKRXVH
kerosene heater in the garage, approximately eighty-five
grams of methamphetamine; $5,710 in cash; and various %HIRUHWXUQLQJWRWKHIDFWVRIVLPLODUFDVHVDQGWKHIDFWVDW
plastic bags, syringes, twist ties, and electronic scales. These KDQGZHVKRXOGDOVRQRWHWKDWWKH6XSUHPH&RXUWGRHVQRW
items formed the basis for the charges against McLevain. UHTXLUH WKDW RIILFHUV NQRZ WKDW HYLGHQFH LV FRQWUDEDQG
,QVWHDG  ³Srobable cause is a flexible, common-sense
McLevain filed a motion to suppress, objecting to the plain standard. It merely requires that the facts available to the
view discovery of the evidence in the first search. He argued officer would ‘warrant a man of reasonable caution in the
that none of the first four pieces of evidence was immediately belief’ that certain items may be contraband or stolen property
incriminating. He also argued that the discovery took the or useful as evidence of a crime." Texas v. Brown, 460 U.S.
officers beyond the scope of a search for an escapee. The 730, 742 (1983) (citing Carroll v. United States, 267 U.S.
district court denied this motion. 132, 162 (1925)).
,, We begin with the first of the Beal factors. No nexus
between the object seized and the items in the search warrant
:HUHYLHZDGLVWULFWFRXUW¶VOHJDOFRQFOXVLRQVZLWKUHVSHFW exists in our case. Cauley was the subject of the search.
WR D PRWLRQ WR VXSSUHVV GH QRYR  6HH 8QLWHG 6WDWHV Y McLevain was an afterthought that has never been explained.
&UR]LHU)GWK&LU$GLVWULFWFRXUW¶V The warrant had nothing to do with drug paraphernalia.
ILQGLQJVRIIDFWZLOOEHXSKHOGXQOHVVFOHDUO\HUURQHRXV,G
The second factor is whether the "intrinsic nature" of the
$ items gives probable cause to believe it is contraband, such as
marijuana or cocaine on a table in plain view. The case of
7KH)RXUWK$PHQGPHQWRIWKH8QLWHG6WDWHV&RQVWLWXWLRQ Arizona v. Hicks, 480 U.S. 321 (1987), is instructive. In that
SURWHFWV FLWL]HQV IURP XQUHDVRQDEOH VHDUFKHV DQG VHL]XUHV case, the police entered an apartment to search for a shooter.
*HQHUDOO\ D ZDUUDQW EDVHG RQ LQIRUPDWLRQ HVWDEOLVKLQJ While they were there, an officer saw stereo equipment that
SUREDEOHFDXVHLVUHTXLUHGWRVHDUFKDSHUVRQRUDSODFHDQGWR he thought was incongruous in the otherwise poorly furnished
VHL]HHYLGHQFHIRXQGWKHUH7KHZDUUDQWUHTXLUHPHQWH[LVWV apartment. Id. at 323. The officer suspected the stereo was
WR PHDVXUH WKH SUREDEOH FDXVH DVVHUWHG DQG WR HQVXUH WKDW stolen, so he moved the equipment in order to read the serial
³WKRVHVHDUFKHVGHHPHGQHFHVVDU\DUHDVOLPLWHGDVSRVVLEOH numbers. Id. The Supreme Court found that "taking action,
+HUHWKHVSHFLILFHYLOLVWKHµJHQHUDOZDUUDQW¶DEKRUUHGE\WKH unrelated to the objectives of the authorized intrusion, which
FRORQLVWV´&RROLGJHY1HZ+DPSVKLUH86 exposed to view concealed portions of the apartment or its
 contents, did produce a new invasion of respondent's privacy
7KHUHH[LVWVHYHUDOH[FHSWLRQVWRWKHZDUUDQWUHTXLUHPHQW unjustified by the exigent circumstance that validated the
EXWDWLVVXHLQWKHFDVHEHIRUHXVLVWKH³SODLQYLHZ´H[FHSWLRQ entry." Id. at 325. There was nothing about the "intrinsic
WRWKHZDUUDQWUHTXLUHPHQW,Q&RROLGJH86DWWKH nature" of the stereo equipment that proclaimed it as
6XSUHPH &RXUW KHOG WKDW ³XQGHU FHUWDLQ FLUFXPVWDQFHV WKH contraband.
SROLFHPD\VHL]HHYLGHQFHLQSODLQYLHZZLWKRXWDZDUUDQW´ McLevain claims that there is nothing about the intrinsic
7KLVKROGLQJZDVFRQVLVWHQWZLWKHarris v. United States, 331 nature of a twist tie, a cigarette filter, a spoon with residue,
U.S. 145, 155 (1947)ZKLFKKHOG³If entry upon the premises
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ZDUUDQWZDVH[HFXWHG7KXVKHGLGQRWVKRUWFXWWKHV\VWHP be authorized and the search which follows be valid, there is
EXWKHGLGFXWWKHFRUQHU&LWLQJWR6DQFKH]WKLV&RXUWKDV nothing in the Fourth Amendment which inhibits the seizure
VDLG³,QWKLVFLUFXLWDIHGHUDODJHQWPD\µWDJDORQJ¶RQDVWDWH by law-enforcement agents of government property the
VHDUFKZLWKRXWWDLQWLQJHYLGHQFHRIIHGHUDOFULPHVXQFRYHUHG possession of which is a crime, even though the officers are
LQWKHSURFHVVLIKHKDVQRSUREDEOHFDXVHWRVHDUFKZKLFK not aware that such property is on the premises when the
ZRXOG DOORZ KLP WR REWDLQ D VHSDUDWH IHGHUDO ZDUUDQW´ search is initiated."
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2QFHZHKDYHHVWDEOLVKHGWKDWWKHRIILFHUVZHUHODZIXOO\ 6XSUHPH&RXUWZHQWRQWRVD\KRZHYHU³WKHH[WHQVLRQRIWKH
SUHVHQWWKHQH[WSURQJRIWKH³SODLQYLHZ´GRFWULQHUHTXLUHV RULJLQDOMXVWLILFDWLRQLVOHJLWLPDWHRQO\ZKHUHLWLVLPPHGLDWHO\
WKDW WKH FULPLQDOLW\ RI WKH DUWLFOHV EHIRUH WKH RIILFHUV EH DSSDUHQWWRWKHSROLFHWKDWWKH\KDYHHYLGHQFHEHIRUHWKHP
³LPPHGLDWHO\DSSDUHQW´&RROLGJH86DWThis WKHSODLQYLHZGRFWULQHPD\QRWEHXVHGWRH[WHQGDJHQHUDO
requirement, we found in United States v. McLernon, 746 H[SORUDWRU\VHDUFKIURPRQHREMHFWWRDQRWKHUXQWLOVRPHWKLQJ
F.2d 1098, 1125 (6th Cir. 1984), limits the use of the "plain LQFULPLQDWLQJ DW ODVW HPHUJHV´  ,G  7KXV FDPH WKH ³SODLQ
view" exception in two important ways. Requiring that YLHZ´H[FHSWLRQWRWKHZDUUDQWUHTXLUHPHQW UHTXLULQJWKDW
evidence be "immediate" and "apparent" constrains the RIILFHUVEHOHJDOO\SUHVHQWDQGVHHVRPHWKLQJWKDWLPPHGLDWHO\
expansion of the limited search authorized by the warrant into DSSHDUVWREHHYLGHQFH
a generalized search, and it prevents officers from having an
opportunity to create a reason to expand the search. Id. 7KH³SODLQYLHZ´WHVWZDVUHILQHGLQ+RUWRQY&DOLIRUQLD
496 U.S. 128, 137 (1990),ZKHQWKH6XSUHPH&RXUWFODULILHG
7KLV &RXUW KDV ORQJ GHOLEHUDWHG ZKDW ³LPPHGLDWHO\ WKDW³SODLQYLHZ´UHTXLUHVIRXUIDFWRUV,QDGGLWLRQWRWKHWZR
DSSDUHQW´PHDQV:HVXPPDUL]HGWKHIDFWRUVXVHGLQPDQ\ DERYHWKHLWHPVHL]HGPXVWDFWXDOO\EHLQSODLQYLHZDQGWKH
RIRXUSULRUFDVHVLQ United States v. Beal, 810 F.2d 574, 576 RIILFHU³must also have a lawful right of access to the object
-577 (6th Cir. 1987)  :H IRXQG WKDW ZKLOH QRQH RI WKHVH itself." Id. Here Horton cites to Coolidge: "‘7KLVLVVLPSO\
IDFWRUVLVQHFHVVDU\WKH\DUHLQVWUXFWLYHDVWRZKDWWKLVFRXUW DFRUROODU\RI WKH IDPLOLDUSULQFLSOHWKDWQRDPRXQWRI
KDVXVHGWRILQGWKDWWKHFULPLQDOLW\RIDSLHFHRIHYLGHQFHZDV SUREDEOH FDXVH FDQ MXVWLI\ D ZDUUDQWOHVV VHDUFK RU VHL]XUH
³LPPHGLDWHO\DSSDUHQW´,G7KHIDFWRUVLQFOXGH 1)"a nexus DEVHQW³H[LJHQWFLUFXPVWDQFHV´¶´,GDWIQ
between the seized object and the items particularized in the
search warrant," 2)"whether the ‘intrinsic nature’ or %
appearance of the seized object gives probable cause to
believe that it is associated with criminal activity," and :HQRZWXUQWRWKHDQDO\VLVRIWKHIRXUSURQJVRIWKH³SODLQ
3)whether "the executing officers can at the time of discovery YLHZ´H[FHSWLRQ:KLOHWKHUHZDVGLVSXWHDWWKHGLVWULFWFRXUW
of the object on the facts then available to them determine OHYHO DV WR ZKHWKHU RU QRW WKH LWHPV VHL]HG LQ 0F/HYDLQ¶V
probable cause of the object's incriminating nature." Id. KRPHZHUHDFWXDOO\LQSODLQYLHZWKHGLVWULFWFRXUWZHLJKHG
(internal citations omitted) (emphasis in original). 7KHVH
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WKHFUHGLELOLW\RIWKHWHVWLPRQ\DQGIRXQGWKDWWKH\ZHUH Even if the warrant application was supported by more
:HQHHGQRWIXUWKHUDGGUHVVWKLVLVVXH than a ‘bare bones’ affidavit, a reviewing court may
properly conclude that, notwithstanding the deference
McLevain complains that the search and seizure of the that magistrates deserve, the warrant was invalid because
evidence against him, as a basis for a second warrant, was the magistrate's probable-cause determination reflected
particularly egregious in light of the fact that the search was an improper analysis of the totality of the circumstances
for two full-grown men. While the Supreme Court held in or because the form of the warrant was improper in some
Harris, "7KHVDPHPHWLFXORXVLQYHVWLJDWLRQZKLFKZRXOGEH respect.
DSSURSULDWHLQDVHDUFKIRUWZRVPDOOFDQFHOHGFKHFNVFRXOG
QRW EH FRQVLGHUHG UHDVRQDEOH ZKHUH DJHQWV DUH VHHNLQJ D While granting due deference to the state court judge, we
VWROHQDXWRPRELOHRUDQLOOHJDOVWLOO´86DWWKH question why McLevain was named for seizure in the
LWHPVIRXQGLQWKLVFDVHZHUHXQGHUDEHGDQGLQWKHJDUDJH warrant. The United States offered no evidence of his having
ZKHUHDPDQFRXOGKLGH:KLOHDPDQFRXOGQRWSHUKDSVKLGH played an active role in facilitating or effectuating Cauley’s
LQ D VLQN RU RQ D PDQWHO WKH SODLQ YLHZ LV REMHFWLYHO\ escape. Nevertheless, we find that the warrant was valid, and
UHDVRQDEOH the officers were lawfully present at McLevain’s house.
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