Texas v. Brown

Justice Stevens,

with whom Justice Brennan and Justice Marshall join, concurring in the judgment.

The Texas Court of Criminal Appeals held that the war-rantless seizure of respondent’s balloon could not be justified under the plain-view doctrine because incriminating evidence was not immediately apparent. This Court reverses, holding that even though the contents of the balloon were not visible to the officer, incriminating evidence was immediately apparent because he had probable cause to believe the balloon contained an illicit substance. I agree with the Court that contraband need not be visible in order for a plain-view seizure to be justified. I therefore concur in the conclusion that the Texas Court interpreted the Fourth Amendment more strictly than is required.

The plurality’s explanation of our disposition of this case is, however, incomplete. It gives inadequate consideration to our cases holding that a closed container may not be opened without a warrant, even when the container is in plain view and the officer has probable cause to believe contraband is concealed within. United States v. Chadwick, 433 U. S. 1 (1977); Arkansas v. Sanders, 442 U. S. 753 (1979); United States v. Ross, 456 U. S. 798, 811-812 (1982). Final determination of whether the trial court properly denied the suppression motion requires a more complete understanding of the plain-view doctrine, as well as the answer to a factual inquiry that remains open to the state court on remand.

Although our Fourth Amendment cases sometimes refer indiscriminately to searches and seizures, there are important differences between the two that are relevant to the plain-view doctrine. The Amendment protects two different interests of the citizen — the interest in retaining possession of property and the interest in maintaining personal privacy. A seizure threatens the former, a search the latter. As a matter of timing, a seizure is usually preceded by a search, *748but when a container is involved the converse is often true. Significantly, the two protected interests are not always present to the same extent; for example, the seizure of a locked suitcase does not necessarily compromise the secrecy of its contents, and the search of a stopped vehicle does not necessarily deprive its owner of possession.

An object may be considered to be “in plain view” if it can be seized without compromising any interest in privacy. Since seizure of such an object threatens only the interest in possession, circumstances diminishing that interest may justify exceptions to the Fourth Amendment’s usual requirements. Thus, if an item has been abandoned, neither Fourth Amendment interest is implicated, and neither probable cause nor a warrant is necessary to justify seizure. See, e. g., Abel v. United States, 362 U. S. 217, 241 (1960); cf. United States v. Lisk, 522 F. 2d 228, 230 (CA71975). And if an officer has probable cause to believe that a publicly situated item is associated with criminal activity, the interest in possession is outweighed by the risk that such an item might disappear or be put to its intended use before a warrant could be obtained. The officer may therefore seize it without a warrant. See G. M. Leasing Corp. v. United States, 429 U. S. 338, 354 (1975); Payton v. New York, 445 U. S. 573, 587 (1980). The “plain view” exception to the warrant requirement is easy to understand and to apply in cases in which no search is made and no intrusion on privacy occurs.

The Court’s more difficult plain-view cases, however, have regularly arisen in two contexts that link the seizure with a prior or subsequent search. The first is the situation in which an officer who is executing a valid search for one item seizes a different item. The Court has been sensitive to the danger inherent in such a situation that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will. That danger is averted by strict attention to two of the core requirements of plain view: seizing the item must entail no significant additional invasion of privacy, and *749at the time of seizure the officer must have probable cause to connect the item with criminal behavior. See United States v. Lefkowitz, 285 U. S. 452, 465 (1932); cf. Coolidge v. New Hampshire, 403 U. S. 443, 465-466 (1971).

The second familiar context is the situation in which an officer comes upon a container in plain view and wants both to seize it and to examine its contents. In recent years, the Court has spoken at some length about the latter act, e. g., Ross, supra; Chadwick, supra; Sanders, supra, emphasizing the Fourth Amendment privacy values implicated whenever a container is opened. In this case, however, both the search of a container (the balloon) and the antecedent seizure are open to challenge.1 In that regard, it more closely resembles Coolidge, supra.2 All of these cases, however, demonstrate that the constitutionality of a container search is not automatically determined by the constitutionality of the prior seizure. See Chadwick, 433 U. S., at 13-14, n. 8; Sanders, 442 U. S., at 761-762. Separate inquiries are necessary, taking into account the separate interests at stake.

If a movable container is in plain view, seizure does not implicate any privacy interests. Therefore, if there is probable cause to believe it contains contraband, the owner’s posses-sory interest in the container must yield to society’s interest in making sure that the contraband does not vanish during *750the time it would take to obtain a warrant. The item may be seized temporarily. It does not follow, however, that the container may be opened on the spot. Once the container is in custody, there is no risk that evidence will be destroyed. Some inconvenience to the officer is entailed by requiring him to obtain a warrant before opening the container, but that alone does not excuse the duty to go before a neutral magistrate. Johnson v. United States, 333 U. S. 10, 15 (1948); McDonald v. United States, 335 U. S. 451, 455 (1948). As Justice Powell emphasizes, ante, at 744-745, the Warrant Clause embodies our government’s historical commitment to bear the burden of inconvenience. Exigent circumstances must be shown before the Constitution will entrust an individual’s privacy to the judgment of a single police officer.

In this case, I have no doubt concerning the propriety of the officer’s warrantless seizure of the balloon. For the reasons stated by Justices Powell and Rehnquist, I agree that the police officer invaded no privacy interest in order to see the balloon, and that when he saw it he had probable cause to believe it contained drugs. But before the balloon’s contents could be used as evidence against the respondent, the State also had to justify opening it without a warrant.3 I can perceive two potential justifications. First, it is entirely possible that what the officer saw in the car’s glove compartment, coupled with his observation of respondent and the contents of his pockets, provided probable cause to believe that contraband was located somewhere in the car — and not merely in the one balloon at issue. If so, then under United States v. Ross, 456 U. S. 798 (1982), which was not decided until after the Texas Court of Criminal Appeals reviewed this case, it was permissible to examine the contents of any container in the car, including this balloon.

Alternatively, the balloon could be one of those rare single-purpose containers which “by their very nature cannot sup*751port any reasonable expectation of privacy because their contents can be inferred from their outward appearance.” Sanders, swpra, at 764-765, n. 13. Whereas a suitcase or a paper bag may contain an almost infinite variety of items, a balloon of this kind might be used only to transport drugs. Viewing it where he did could have given the officer a degree of certainty that is equivalent to the plain view of the heroin itself. If that be true, I would conclude that the plain-view doctrine supports the search as well as the seizure even though the contents of the balloon were not actually visible to the officer.4

This reasoning leads me to the conclusion that the Fourth Amendment would not require exclusion of the balloon’s contents in this case if, but only if, there was probable cause to search the entire vehicle or there was virtual certainty that the balloon contained a controlled substance.5 Neither of these fact-bound inquiries was made by the Texas courts, and neither should be made by this Court in the first instance. Moreover, it may be that on remand the Texas Court of Criminal Appeals will find those inquiries unnecessary because the respondent may have waived his right to demand them. See n. 3, supra. I therefore concur in the judgment.

In defending the Texas Court of Criminal Appeals’ judgment before this Court, the respondent did not rely upon a challenge to the search of the balloon. I nevertheless believe it is necessary to elaborate upon the distinction between the balloon’s search and its seizure in this case in order to clarify what the Court does and does not hold today. Moreover, it is not clear to me whether, as a matter of Texas law, the respondent would still be permitted to present an argument that the evidence should be suppressed because it was obtained after a search of the balloon. See n. 3, infra.

Although Coolidge is not always thought of as a container case, the Court was required to confront New Hampshire’s separate attempts to justify both its warrantless seizure of a container, an immobilized automobile, see 403 U. S., at 464-473, and its subsequent warrantless searches of the container’s interior, see id., at 458-464.

Arguably, as a matter of Texas law the respondent has waived his right to demand such a justification. That is, of course, an issue for the Texas courts.

Conversely, the fact that an object is visible does not automatically mean that it is in plain view in the sense that no invasion of privacy is required to seize it. This case does not require elaboration of what the Fourth Amendment demands before an officer may seize a visible item that he could not reach without, for example, entering a private home or destroying a valuable container. See Taylor v. United States, 286 U. S. 1, 5 (1932).

Sometimes there can be greater certainty about the identity of a substance within a container than about the identity of a substance that is actually visible. One might actually see a white powder without realizing that it is heroin, but be virtually certain a balloon contains such a substance in a particular context. It seems to me that in evaluating whether a person’s privacy interests are infringed, “virtual certainty” is a more meaningful indicator than visibility.