N.D.Ga.: The contents of a notebook are not in “plain view” in a consent drug search

When defendant consented to a search for drugs, packaged money fell within plain view, but a spiral notebook does not. United States v. Jaimez, 2013 U.S. Dist. LEXIS 187277 (N.D. Ga. May 21, 2013):

A federal court in New York applied the Hicks principle to a case quite similar to the one here. U.S. v. Silva, 714 F. Supp. 693, 696 (S.D.N.Y. 1989). In Silva, a court found that the incriminating nature of the contents of a notebook was not apparent until law enforcement officers opened the notebooks and inspected their contents. Silva, 714 F. Supp. at 696 (citing Hicks, 480 U.S. 325-26). “Any act on the part of an agent beyond merely viewing what is already exposed would clearly constitute a search.” Id. at 696. As probable cause to open the notebook did not exist, the seizure of the notebook was improper. Silva, 714 F. Supp. at 696. The instant case is no different.

Jaimez has moved to suppress the collection of spiral-bound notebooks seized from his home during a search for drugs or weapons. However, the incriminating nature of the notebooks was not apparent until Deputy Pope opened and searched their contents — a search that lacked probable cause. Each of these notebooks bore normal, nondescript covers, (see Apr. 15 Hrg. Exs. 55-60), and the government put forth no testimony upon which the Court can conclude that the contents of any of the notebooks were visible. Thus, like the notebooks in Silva, the notebooks here “had no markings on the cover[s] and nothing to suggest [their] contents.” Silva, 714 F. Supp. at 696. At first glance, the notebooks appear to be the type of books used for school, business or personal writing. One might likely conclude that the notebooks belonged to Jaimez’s school-aged children. Thus, the incriminating nature of these notebooks was not immediately apparent for purposes of the plain view doctrine. Accordingly, by opening and perusing the notebooks, Deputy Pope engaged in an additional search requiring probable cause. Id.; Hicks, 480 U.S. at 326; see also Garcia, 496 F.3d at 510-511.

In a case such as this one, “an officer may not inspect a book or document beyond reading what is plainly visible unless he or she has probable cause to proceed with the search, independent of the justification for the initial intrusion.” Silva, 714 F. Supp. at 696 (citing Hicks, 480 U.S. at 325)). The evidence before the Court shows that Deputy Pope only had probable cause to believe the notebooks were owe-me lists when he began flipping through their pages. Deputy Pope’s conduct and testimony shows that he in fact did not assess the incriminating nature of the notebooks until he opened them.