dissenting:
In this case, the State contends the warrantless seizure of the engine was justified by the plain view doctrine. In view of the record in this case, I do not find the requirements for invoking the doctrine satisfied and therefore I dissent.
In Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022, the United States Supreme Court stated that under certain circumstances the warrantless seizure of an item that comes within plain view during an otherwise lawful search of a private area may be reasonable under the fourth amendment. One such circumstance cited in Justice Stewart’s opinion in Coolidge is “the situation in which the police have a warrant to search a given area for specific objects, and in the course of the search come across some other article of incriminating character.” 403 U.S. at 465, 29 L. Ed. 2d at 582, 91 S. Ct. at 2037.
Recently, in Horton v. California (1990), 496 U.S. 128, 110 L. Ed. 2d 112, 110 S. Ct. 2301, the Court clarified the requirements for application of the plain view doctrine. In Horton, the police obtained a warrant which authorized them to search the defendant’s residence for the proceeds of an armed robbery. However, the affidavit for the search warrant referred to police reports that described the weapons used in the armed robbery as well as the proceeds. In conducting the search, the investigating officer discovered the weapons in plain view and seized them. In affirming the trial court’s denial of defendant’s motion to suppress, the Court held that inadvertent discovery of the evidence is not a necessary condition for a plain view seizure. In the course of its discussion, the majority stated: “It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plain view, its incriminating character must also be ‘immediately apparent.’ [Citations.] *** Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.” Horton v. California (1990), 496 U.S. 128, 136-37, 110 L. Ed. 2d 112, 123, 110 S. Ct. 2301, 2308.
In Arizona v. Hicks (1987), 480 U.S. 321, 94 L. Ed. 2d 347, 107 S. Ct. 1149, bullets were fired through an apartment floor. When the police arrived, they entered the apartment and seized three weapons. One officer noticed expensive stereo equipment, which he suspected was stolen. He moved some of the stereo components, including a turntable, in order to read and record the serial numbers on the equipment. The officer called his headquarters and was advised that the turntable had been reported stolen. He immediately seized the turntable. The State attempted to justify the officer’s actions under the plain view doctrine. The Supreme Court affirmed the trial court’s suppression of the evidence finding that moving and turning the equipment constituted a search requiring probable cause. The Court further held that probable cause is required to invoke the plain view doctrine. The Court stated, “A dwelling-place search, no less than a dwelling-place seizure, requires probable cause, and there is no reason in theory or practicality why application of the plain-view doctrine would supplant that requirement.” Arizona v. Hicks (1987), 480 U.S. 321, 328, 94 L. Ed. 2d 347, 356, 107 S. Ct. 1149, 1154.
In the instant case, the police had a warrant to search the defendant’s “premises” and automobile. They were authorized by the warrant to seize a Panasonic VCR bearing a specified serial number and Pioneer stereo speakers. They located a Panasonic VCR in the living room. However, the serial number on the VCR had been “scraped off.” The police continued the search for the speakers and for any additional Panasonic VCRs. During this search, Detective Rod Huber noticed the engine in the unattached garage. Officer Cervantez testified that when he first saw the engine, he could only determine that it was blue. He did not know the make or displacement of the engine. He testified that one of the other officers identified it as a Ford. The officers believed the engine was one which had been reported stolen. The police seized the engine along with other items.
There was nothing unique about this blue engine in and of itself which would make its incriminating character immediately apparent. In fact the record indicates the officers allowed a citizen to come to the house to look at the engine to determine if it was the same engine the citizen had reported stolen. This demonstrates that it was not immediately apparent to the officers that the engine was stolen. The majority’s opinion gives no analysis of whether the immediately apparent condition for invoking the plain view doctrine was satisfied. The majority simply states: “The blue Ford motor was plainly visible in the garage and was inadvertently discovered. One officer recognized the motor as matching the description of a 460-cubic-inch blue Ford motor that had been stolen. The seizure of the motor was proper.” 205 111. App. 3d at 448.
In addition, the record is unclear as to how the officers determined the displacement of the engine. The majority states that “the police saw a blue Ford motor which, upon closer examination, matched the description of a motor reported stolen ***.” (205 Ill. App. 3d at 449.) If they moved or turned the engine in making their “closer examination,” that constitutes a search under Hicks requiring probable cause. The State in its brief simply states that the officers “reasonably believed” the engine was stolen. However, probable cause is required in order to search or seize an item under the plain view doctrine.
I find the majority’s attempt to distinguish People v. Harmon (1980), 90 Ill. App. 3d 753, 413 N.E.2d 467, unpersuasive. The majority’s analysis confuses the issue of whether the officers were lawfully looking in a place large enough to hold the VCR or speakers with the issue of whether it was immediately apparent that the engine was contraband. The result in Harmon is consistent with Horton and Hicks. The majority in Harmon found that it was not apparent that the CB radio did not belong to the defendant. The rules pronounced in Horton and Hicks applied to the facts in Harmon would result in the same outcome. In fact, the result is consistent with Coolidge, which predates Harmon and upon which Horton and Hicks are based.
In sum, the seizure of the engine cannot be justified by reliance on the plain view doctrine and I would affirm.