On petition for writ of certiorari to the United States Court of
Appeals for the Fourth Circuit.
The petition for writ of certiorari is denied.
Justice WHITE, with whom Justice BRENNAN joins, dissenting.
This case raises the question of how "plain" objects in "plain
view" must be in order to justify a warrantless search.
Page 454 U.S.
952 , 953
Specifically, it raises the question whether documents that must
be read before their incriminating nature becomes evident are in
plain view.
Petitioners are Mary Crouch and her son, Gary. On July 3, 1978,
Gary Crouch was released for a 3-day furlough from Goodman
Correctional Institute, where he was an inmate. Prior to his
release, agents of the Drug Enforcement Administration had received
information that indicated that Gary and Mary Crouch might be
engaged in the manufacture of methamphetamine. [
Footnote 1] On July 3, agents obtained a warrant
authorizing a search of the Crouch residence for "chemicals,
laboratory equipment, and other paraphernalia, which are used in
the illegal manufacture of methamphetamines in violation of 21
U.S.C. 841(a)(1)." The warrant was executed on the afternoon of
July 6.2 The officers found chemicals, laboratory equipment, and
empty gelatin capsules, but no methamphetamine. During the course
of the search, agents discovered, in a drawer of a desk, a bundle
of letters in open envelopes addressed to Gary at the state
penitentiary from Mary. The agents removed the letters, examined
their contents and found that they contained information concerning
the manufacture of methamphetamine. Subsequently, the agents found
another batch of letters, from Gary to Mary, in Mary's purse (the
purse does not seem to have been in her possession). These letters
contained additional incriminating evidence. Both sets of letters
were seized as evidence.
Page 454 U.S.
952 , 954
Petitioners unsuccessfully moved to suppress the letters at
trial. Both were convicted of attempting to manufacture
methamphetamine and of conspiring to manufacture and distribute
that substance.
Petitioners appealed the failure to suppress the letters to the
Court of Appeals for the Fourth Circuit. That court held the
seizure of the letters to have been proper under the plain-view
doctrine.
648 F.2d
932 ( 1981). It found that the agents acted within the scope of
the search warrant in removing the letters from the envelopes to
search for the chemicals and paraphernalia named in the warrant.
The writings were thereby exposed and, the court concluded, they
were "clearly and immediately incriminating." By this, however, the
court did not mean that it was not necessary to read the letters in
order to establish their incriminating nature. Rather, it held that
the "brief perusal" of an item does not render its incriminating
nature any the less immediately apparent . Id., at 933.
Although the Solicitor General argues in his response to the
petition for certiorari that the search/reading of the letters was
within the scope of the term "paraphernalia" as used in the
warrant, the Court of Appeals did not rely on this reasoning. I
find this argument sufficiently strained that I would not accept it
without further development in the lower courts. [
Footnote 3] Therefore, the case, as it comes
here, presents only
Page 454 U.S.
952 , 955
the question of whether a warrantless reading of documents is
permissible under the plain-view doctrine; this is the basis upon
which the Court of Appeals approved of the search.
Regardless of other disputes as to the scope of the plain-view
exception to the warrant requirement, see Coolidge v. New
Hampshire,
403 U.S.
443, 510, 2060 (1971) (WHITE, J., concurring and dissenting),
it is common ground that the doctrine may justify the search and
seizure of items only if the incriminating character of the items
is immediately apparent:
"Of course, the extension of the
original justification is legitimate only where it is immediately
apparent to the police that they have evidence before them; the
'plain view' doctrine may not be used to extend a general
exploratory search from one object to another until something
incriminating at last emerges." Id., at 466 (plurality
opinion).
Since Coolidge, this Court has not had occasion to develop the
limits of the concept "immediately apparent." In the absence of
authoritative direction from this Court, a number of Courts of
Appeals have held that a plain-view seizure of certain documents is
permissible even though their incriminating nature is not apparent
absent some reading of their contents . United States v. Ochs,
595 F.2d
1247 (CA2 1979) (loansharking records contained on loose ledger
sheets and index cards); United States v. Pugh,
566 F.2d
626 (CA8 1977) (stationery containing drug weight and price
quotations, and a calendar book containing a log of drug
distributions); United States v. Gargotto,
476
F.2d 1009 (CA6 1973) (betting records); United States v.
Damitz,
495 F.2d
50 (CA9 1974) (notebook used for recording weights of marijuana
bricks); United States v. Smith,
462 F.2d
456 (CA8 1972)
Page 454 U.S.
952 , 956
(lease); United States v. Maude, 156 U.S.App.D.C. 378,
481 F.2d
1062 ( 1973) (identification cards). Although in each of these
cases the incriminating character of the evidence was a function of
the written message on the object, there are obvious differences in
the quality of the perusal required to perceive that character.
Some writings may be so obviously incriminating on their face that
even a casual glance would reveal this character; others may
require extensive reading. I do not believe that any of these cases
went as far as the lower court here: permitting perusal of personal
letters under the plain-view doctrine.
To extend, by means of the plain-view doctrine, a search
authorized by a warrant to the reading of personal papers not
included within the terms of that warrant raises extraordinarily
important questions. One of the historical purposes of the Fourth
Amendment was to bar the indiscriminate search/reading of personal
papers under the authority of general warrants. Marcus v. Search
Warrant,
367 U.S.
717, 724-729, 81 S. Ct. 1708, 1712-1714 (1961). To include
perusal of letters or documents enclosed in envelopes within the
plain-view exception to the warrant requirement may threaten to
expand the bounds of legitimate search warrants and legitimate
warrantless searches so far as to authorize in effect general
searches. Furthermore, petitioners strongly urge the analogy
between the facts of this case and those of Walter v. United
States,
447 U.S.
649 (1980). Walter held unconstitutional the unauthorized
viewing by the police of films properly in their possession.
Exposure of the contents of the film, which we held to require
previous judicial authorization despite the presence of probable
cause, is not very different from exposure of the written contents
of the letters here-an exposure not even supported by probable
cause. Cf. Stanley v. Georgia,
394 U.S.
557, 569, 1250 (1969) (Stewart, J., joined by BRENNAN and
WHITE, JJ., concurring in result).
At the very least, this case raises important questions that
should be settled, and I would grant the petition and set the case
for plenary consideration.
Footnotes
Footnote 1 The information
was to the effect that petitioners had ordered laboratory equipment
and precursor chemicals that could be used to manufacture
methamphetamine.
Footnote 2 On July 6, prior
to execution of the warrant the DEA agents submitted an addendum to
the affidavit in support of the search warrant. That addendum
contained information concerning the activities of petitioners
since July 3. These activities included visits to the public
library to consult chemical reference books and the photocopying of
some information from those books. The Federal Magistrate does not
seem to have taken any additional action in response to the
addendum.
Footnote 3 Petitioners argue
that the letters should be suppressed under Marron v. United
States,
275 U.S.
192 (1927), in which the Court held that a warrant authorizing
the seizure of " intoxicating liquors and articles for their
manufacture" did not authorize the seizure of ledgers and bills
found during the search. Id., at 193. The Solicitor General
responds that this case is distinguishable from Marron on the
ground that the term "paraphernalia," as used in the warrant here,
was correctly interpreted by the officers to include the formula
necessary to synthesize the drug from precursor chemicals. The
officers had reason to believe, and had informed the Magistrate,
that the petitioners had photocopied chemical information at the
library. The warrant, therefore, could reasonably be interpreted to
cover documents. Obviously, this argument relies on the relevance
of the July 6 addendum to the earlier affidavit. As the case comes
here, however, it is not clear what purpose this addendum was
designed to serve or whether it can even be relied upon to
interpret the scope of a warrant issued-and not subsequently
changed-prior to its submission to the Magistrate.
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