E.D.Wis.: Box of ammunition was plain view of contents; use of a stepladder did not exceed consent

Defendant’s roommate consented to an entry by officer to look around for the defendant who was alleged to be an unregistered sex offender. The officer looked in a grey bag that was suppressed. As to a shelf, however, the court declines to find getting a stepladder to look on the shelf was an unreasonable search. Add to that the roommate’s getting the stepladder. The box of ammunition proclaimed its contents, and it was validly seized under plain view. United States v. Tolbert, 2012 U.S. Dist. LEXIS 14287 (E.D. Wis. February 7, 2012):

It is true that, ordinarily, the police must obtain a warrant before opening a closed container because, by concealing the contents from plain view, the possessor creates a reasonable expectation of privacy. United States v. Banks, 514 F.3d 769, 773 (8th Cir. 2008). “However, like objects that sit out in the open, the contents of some containers are treated similarly to objects in plain view.” Id. Courts have held that containers which permit one to infer their contents based on their outward appearance are not entitled to full Fourth Amendment protection. Id. (citing Arkansas v. Sanders, 442 U.S. 753, 764-65 n.13 (1979) (“Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.”), overruled on other grounds by California v. Acevedo, 500 U.S. 565 (1991)); United States v. Meada, 408 F.3d 14, 23 (1st Cir. 2005) (collecting cases holding that containers which betray their contents are treated as being in plain view); United States v. Miller, 929 F.2d 364, 364-65 (8th Cir. 1991) (holding that no warrant was required to search a bag whose size and shape suggested it contained a gun). Individuals possess a lesser expectation of privacy in the contents of such containers when the container is observed from a lawful vantage point. Banks, 514 F.3d at 774.

In the present case, the boxes Decker saw proclaimed their contents — Remington ammunition. While it might be theoretically possible that the boxes contained something else, there is certainly a reasonable likelihood that they contained bullets. Because ammunition, possessed by a felon, is evidence of a crime, Decker lawfully seized these boxes. See Banks, 514 F.3d at 775-76.

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Second, even if Decker used a stool to observe and photograph the ammunition, I cannot conclude that this exceeded the scope of Warren’s consent. While a person’s failure to object should not be construed as expanding the scope of consent, the court may properly consider silence in understanding what it is she allowed the police to do. Thus, while I agree with the magistrate judge that Warren’s acquiescence to Decker’s looking through the gray bag cannot bring that search within the ambit of her consent, her apparent agreement in Decker’s use of a stool to photograph the bedroom is something else. Indeed, it appears that Warren may have fetched the stool for Decker, which suggests that she did not see this as outside the scope of what she agreed he could do.