M.D.Ala.: Unmarked pill bottle with apparent crack in it was in plain view during protective sweep after arrest in house

Officers came in defendant’s house with an arrest warrant for cocaine delivery. During a protective sweep, an unmarked pill bottle was seen and picked up. It was immediately apparent to the officers that the contents was likely crack cocaine and not simple medication. Thus, the warrantless seizure was valid under plain view. United States v. Benson, 2018 U.S. Dist. LEXIS 138823 (M.D. Ala. July 16, 2018):

In this case, the task force was at defendant’s residence for the purpose of executing an arrest warrant for distribution of crack cocaine. After defendant’s arrest, and as Scott was leaving the living room to begin performing a protective search — which defendant does not contest he was permitted to do — Scott saw the unlabeled amber pill bottle on the carpet in front of the couch. Scott testified that the pill bottle, which he said he could see into, was distinctive because it was “full of a white [—] what appeared to be rock-like substance [—] that [he] would associate with being crack cocaine.” Scott further testified that the white rock was “squared-off” or “rocked up,” as opposed to “rounded off” like a pill or vitamin. Scott has been investigating narcotics cases for 20 years and has seen crack cocaine before; he explained that it is common for people who distribute a substance like crack cocaine to store it in pill bottles. According to Scott, such a pill bottle can be “neon sign” to law enforcement. The court finds this testimony credible. See United States v. Ramirez-Chilel, 289 F.3d 744 (11th Cir. 2002).

While “the association between illegal activity and a pill bottle merely observed generally depends on something more than the presence of a pill bottle alone,” see Mason v. City of Warren Police Dept., 2011 WL 5025841, at *6 (E. D. Mich. 2011), the government has met the applicable standard. The officers were required only to have probable cause to associate the object with criminal activity. See Texas v. Brown, 460 U.S. 730, 741-2, 103 S. Ct. 1535, 1543, 75 L. Ed. 2d 502 (1983). “[P]robable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949).” Id. at 741. As the Supreme Court has observed, “[t]he process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” Id.

In this case, the court is satisfied that the incriminating nature of the contents of the bottle was immediately apparent, and that Scott had probable cause based on his training and experience and the facts known to him — including the fact that the bottle was unlabeled, that the substance inside was white and appeared “squared-off,” and that defendant had recently sold crack cocaine to a confidential informant — to believe that the bottle contained contraband — i.e., crack cocaine. …

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