State v. Wilmoth

Per Curiam.

In State v. Williams (1978), 55 Ohio St. 2d 82 [9 O.O.3d 81], this court held in its syllabus:

“1. In order for evidence to be seized under the plain view exception to the search warrant requirement it must be shown that (1) the initial intrusion which afforded the authorities the plain view was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent to the seizing authorities.

*119“2. Where a police officer, in the course of executing a search warrant, discovers automobile body parts not described in that warrant, and harbors no more than a generalized suspicion that such parts have been stolen, the incriminating nature of the parts cannot be said to be ‘immediately apparent,’ and the seizure of the parts will not be upheld under the plain view doctrine.”

The first paragraph of the syllabus in Williams restates the plain view test established by the United States Supreme Court in Coolidge v. New Hampshire (1971), 403 U.S. 443. The court below applied this three-part test to the instant facts and determined that the state failed to satisfy the second and third parts of the Coolidge test.

After noting that “every vehicle in the parking lot was systematically searched,” the Court of Appeals concluded that “[djiscovery of evidence through such purposeful scrutiny cannot be termed inadvertent, especially when evidence of theft was the very thing being searched for. Although the vehicles themselves were in plain view, the specific evidence relied upon by the police in seizing the vehicles was not. It would be stretching the meaning of ‘plain view’ to say that items which could only be seen by opening the doors and crawling underneath the cars was [sic] in plain view.”

The state would have us take an expansive approach to the plain view doctrine in disregard of the admonition in Coolidge, at page 466, that “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.” The fact that the police brought along an expert at least suggests that they intended a search more extensive than that authorized by the warrant. The expert was obviously not needed to inventory items clearly identified in the warrant. See Note, Criminal Procedure — “Inadvertence”; The Increasingly Vestigial Prong of the Plain View Doctrine, 10 Memp. St. L. Rev. 399, 408, at fn. 52 (“* * * to bring in ‘trained eyes’ for essentially no purpose other than to identify incriminating evidence circumvents the law and reinstates a general search warrant”).

United States v. Hare (C.A. 6, 1979), 589 F. 2d 1291, upon which appellant relies, is distinguishable from the case at bar because the disputed evidence of narcotics in Hare was seized in connection with a search conducted pursuant to a warrant issued to uncover illegal firearms. In the instant case, however, the evidence at issue “was the very thing being searched for.” Moreover, in Hare the court acknowledged a certain illogic in its position, which illogic underpins appellant’s argument herein. The Hare court candidly stated, at page 1295, that “it may seem illogical to hold that police who lawfully enter premises and discover evidence which is not described in their warrant, in the course of a properly limited search, may not seize it if they knew they would find it before entering, but may seize it if they only thought they might find it, or if they discover it unexpectedly.”

“Illogical” or not, appellant argues for the exceedingly broad, and for that reason questionable, definition of inadvertence enunciated in Hare. According to this test, anything that the police might discover while conducting *120a search would be encountered inadvertently so long as the police did not have knowledge prior to the search of what they would find. Presumably then, a warrant would not be required whenever the level of suspicion falls short of actual knowledge, the evidence is visible to the naked eye, and the initial entry is lawful. This strained interpretation ignores the cautionary language of Coolidge and transforms a properly authorized and specific search warrant into an admission ticket that provides entry for the purpose of conducting a general search.

Paragraph two of the syllabus in Williams held that a “generalized suspicion” will not support a warrantless seizure under the plain view doctrine. In the case at bar, however, the police had nothing more to go on than a generalized suspicion. In its extensive recitation of the instant facts, appellant, unlike the court below, neglects to mention that “[t]he dashboard VIN’s and license plates on both vehilcles [sic], which were in plain view, were checked out by computer and both came back as non-stolen.” Nevertheless, the search continued, with expert assistance, until it became “immediately apparent” (in the eyes of the expert) that the evidence was incriminating. The state simply overlooks the implications of the expert’s presence at the scene. This expert, in Williams terms, was “generalized suspicion” personified. The Court of Appeals in reviewing the record recognized as much and ruled accordingly.

In Williams, “we decline[d] to contort the plain view doctrine so as to justify the seizure * * * under review, since we would thus be allowing this narrow exception to the warrant requirement to swallow the rule.” Id. at page 86. We are equally disinclined to contort the plain view doctrine in the case at bar and therefore affirm the judgment below.

Judgment affirmed.

Celebrezze, C.J., W. Brown, Sweeney and C. Brown, JJ., concur. Locher, Holmes and Krupansky, JJ., dissent.