CA8: A mere hunch possession of something might be criminal was not “immediately apparent” for plain view

Alleged plain view of glass vials on defendant’s couch wasn’t a legitimate plain view because the alleged incriminating nature of the objects wasn’t immediately apparent. It was maybe a hunch and not obvious at all. Grant of suppression motion affirmed. United States v. Arredondo, 2021 U.S. App. LEXIS 13736 (8th Cir. May 10, 2021):

While we have reservations about the government’s claim that the officers were lawfully present upstairs, the exigent circumstances and community caretaker function having dissipated and the issue of consent being questionable, it is unnecessary to resolve this issue because the plain view exception does not apply. The plain view exception authorizes an officer to seize an object without a warrant if (1) the officer lawfully arrived at the location from which he or she views the object, (2) the object’s “incriminating character” is “immediately apparent,” and (3) “the officer has a lawful right of access to the object itself.” United States v. Lewis, 864 F.3d 937, 943 (8th Cir. 2017) (citation omitted). Here, even assuming the first and third prongs are satisfied, the second prong is not because the record does not establish the “incriminating character” of the vials was “immediately apparent.”

For an item’s “incriminating character” to be “immediately apparent,” the officer must have probable cause to associate it with criminal activity. Id. at 944. Deputy Fenton possessed no such probable cause. When he came upon small glass containers that looked similar to containers that hold common household items, such as contact lenses, essential oils, or medications for insulin or fertility, there was no basis to immediately suspect contraband. Whether the vials contained contraband was even less immediately apparent here, as they were observed on a dark couch in a poorly lit room in a residence where Deputy Fenton knew one of the occupants was a paramedic. While Deputy Fenton believed that the vials laying on the couch “seem[ed] a little odd,” something seeming “a little odd” is usually a hunch and not probable cause. And although the officers witnessed strange behavior from Dane, David, and Ashley, the presence of bottles and cans strewn about the basement floor and upstairs living room gave the officers reason to believe that the three individuals inside the house were drunk, which is not itself unlawful. When Deputy Fenton picked up the vials, held them higher to get a better view, and turned them to read the labels, he had no idea of the contents. At that moment, the vials had been searched and seized, before Deputy Fenton had probable cause to believe they were an illegally possessed controlled substance. See Arizona v. Hicks, 480 U.S. 321, 323-26, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987) (moving components of two stereos in order to read the stereos’ serial numbers was a search and the plain view of the stereos without serial numbers did not supply probable cause to believe they were contraband, even though the expensive stereos “seemed out of place in the squalid and otherwise ill-appointed” apartment).

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