(dissenting). I agree with the unanimous decision of the court of appeals in this case that the tape must be suppressed. The tape was taken in violation of the defendant's constitutional rights under the fourth amendment. Accordingly, I dissent.
As the court of appeals forthrightly stated, this suppression case is very difficult because the illegally seized tape contains the defendant's voice confessing to the heinous crimes so graphically expounded upon in the majority opinion.
The law is clear, however, that an illegal search and seizure cannot be justified on the basis of the information the law enforcement officers discover during that search. The fourth amendment does not allow for hindsight. The law enforcement officers' knowledge before the search and seizure takes place, not after, determines the validity of the search and seizure.
Furthermore, a court cannot validate an illegal, unconstitutional search just because the illegal evidence tends to prove a defendant is guilty of a horrible crime. "Bad men, like good men, are entitled to be tried and sentenced in accordance with law . . ..'' Green v. United States, 365 U.S. 301, 309-10 (1961) (Black, J. dissenting).
These principles are so much a part of fourth amendment jurisprudence that restating them should *147not be necessary. But judges need to keep fourth amendment principles firmly in mind as they grapple with the multitude of anomalous judge-made rules that have evolved from the words of the fourth amendment.1 As the country celebrates the bicentennial of the ratification of the Bill of Rights in 1991, judges, lawyers and the public must keep sight of, and continually remind each other of, the fundamental precepts of our civil liberties.
The majority opinion justifies law enforcement officers' listening to the tape recording on three separate, independent grounds: (1) the automobile inventory exception to the warrant requirement; (2) the inevitable discovery rule; and (3) the defendant's having no legitimate expectation of privacy in the tape. If any one of these grounds were sound, it alone would justify an affirmance of the convictions. The state was aware of each of these grounds but did not argue any of them in this court. Why not? Because, in my opinion and apparently in the state's opinion, none of them is cogent. Combining the three grounds does not strengthen any of them. To paraphrase Justice Robert Hansen, zero plus zero plus zero equal zero.2
HH
The majority's first justification for the search of the tape is the automobile inventory exception to the *148warrant requirement. The circuit court justified the search on this ground. The state apparently did not make this argument in the circuit court. The state expressly refused to adopt this rationale on appeal in the court of appeals.3
Listening to the tape does not fit within the automobile inventory exception to the warrant requirement. First, the record is clear that the law enforcement officers were conducting not an inventory search but a search for specific items named in the search warrant. The tape was in the car's tape player; it was not part of the clutter that had to be moved to find the specified items.
Second, no justification exists for the officers' listening to the tape even in conducting a valid inventory. None of the valid objectives of an inventory search requires the police to play a tape as part of an inventory search.4
The United States Supreme Court in South Dakota v. Opperman, 428 U.S. 364, 369 (1976), and the majority opinion suggest that an inventory of an impounded vehicle is a "caretaking procedure" to protect the car owner from loss, the police or other custodian from liability, and the police from potential danger. The circuit court's and this court's conclusion that the law enforcement officers listened to the tape in order to describe the tape *149with particularity to fulfill the objectives of inventory searches is contradicted by the fact that the officer inventoried the tape as "Item 39 AS — One unmarked cassette tape." The officers could have used this same general description without listening to the tape.5
The fifth circuit comí of appeals characterized as "at the least, disingenuous," the federal government's contention that a tape was played as part of an inventory. United States v. Turk, 526 F.2d 654, 666 (5th Cir. 1976).
Third and finally, even if the police were conducting an inventory search in this case, the state has never asserted or proved, as the United States Supreme Court cases require, that the tape was seized or played pursuant to standardized department procedures governing inventory searches.6 The circuit court recognized that no *150well established policy of the police department had been proved but concluded that this factor was irrelevant because the inventory search in this case was conducted under exigent circumstances which the circuit court did not describe.
II
The majority's second justification for the search relies on the doctrine of inevitable discovery. The circuit court rejected the state's argument on inevitable discovery, and the state did not pursue this argument on appeal in the court of appeals. See State v. Weber, No. 90-0181-CR unpublished slip op. at 5, n.l.
The record refutes the majority's conclusion that the police would have independently discovered the tape. The defendant's wife did not mention the tape to the police until Captain Moore-who, of course, had already heard the tape-questioned her about it. The majority opinion concedes that prior to listening to the tape the police had no idea that the tape could be evidence. Majority op. at 140. Under these circumstances, the majority opinion's assertion, at 141, that Captain Moore's pointed questioning of the defendant's wife about the tape was not tainted with his knowledge of its contents is implausible.
III
The majority opinion's third and final justification is that the defendant had no legitimate expectation of *151privacy in regard to the tape and therefore no constitutional violation occurred.
The law is clear that an individual has a reasonable expectation of privacy in items in his or her car. This expectation of privacy may be diminished due to the mobility of an automobile7 and pervasive governmental regulation of automobiles8 and may be lost if the individual exposes items in a car to public view.9 While the tape itself may have been visible to someone looking into the car, its contents were not audible. To determine the contents of the tape, the police had to play the tape. Because the defendant did not expose the contents of the tape to the public, I conclude that the defendant had a reasonable expectation of privacy in the contents of the tape.10
Judges are under oath to support the Constitution of the United States, even when the Constitution appears to protect the most repugnant of criminals. I join the court of appeals in concluding that the search was illegal. For the reasons set forth, I dissent. The case should be remanded for a new trial.
California v. Acevedo, — U.S. —, 111 S. Ct. 1982, 114 L.Ed. 2d 619 (1991) (Scalia, J., concurring).
Mentek v. State, 71 Wis. 2d 799, 809, 238 N.W.2d 752 (1976).
Commentary critical of courts for lack of candor about the law and the facts is growing. See, e.g., Kircher, Judicial Candor: Do As We Say, Not As We Do, 73 Marq. L. Rev. 421 (1990); D'Amato, Aspects of Deconstruction: Refuting Indeterminacy with the Bold Thought, 85 Nw. U.L. Rev. 113 (1990).
According to the state's brief in the court of appeals:
"The defendant has raised serious questions about whether the plain view doctrine or the inventory rationale can legitimately be invoked to justify the playing of the tape. It is not necessary to resolve those questions, however, because the state does not intend on this appeal to attempt to justify the playing of the tape under either of those two theories." State's Brief, Court of Appeals, pp. 2-3.
See 3 LaFave, Search and Seizure, sec. 7.4(a), p. 116 (2d ed. 1987).
A general description of items was used a number of times in the "inventory" in this case. The officers listed several items very generally: "Item 48 AS — Numerous pornographic magazines"; "Item 49 AS — Numerous pornographic magazines"; "Item 50 AS — Numerous pornographic magazines and one blue paper with 'list of items.' One Marquip pay stub."
Florida v. Wells, — U.S. —, 110 S. Ct. 1632 (1990) (absent any policy of the Highway Patrol about opening a closed container, opening container during inventory search violated fourth amendment); Colorado v. Bertine, 479 U.S. 367 (1987) (opening closed container found in vehicle during inventory search constitutional because policy mandated opening container); Illinois v. Lafayette, 462 U.S. 640 (1983) (police may search personal effects of person under arrest as part of routine administrative procedure); South Dakota v. Opperman, 428 U.S. 364 (1976) (police may search vehicle impounded for parking violations pursuant to routine inventory procedures); State v. Axelson, 149 Wis. 2d 339, 347, 441 N.W.2d 259 (Ct. App. 1989) (inventories pursuant to standard police procedures are reasonable); 3 LaFave, Search and Seizure, sec. 7.4(a), p. 110 (2d ed. *1501987) ("Inventories should not be upheld under Opperman unless the government shows that there exists an established reasonable procedure for safeguarding impounded vehicles and their contents and that the challenged police activity was essentially in conformance with that procedure").
California v. Carney, 471 U.S. 386, 390-91 (1985).
South Dakota v. Opperman, 428 U.S. 364, 368 (1976).
Coolidge v. New Hampshire, 403 U.S. 443 (1971). See 3 LaFave, Search and Seizure, sec. 7.5, p. 125 (2d ed. 1987).
Moreover, police may seize only objects in plain view in an automobile when it is "immediately apparent to the police that they have evidence before them." Coolidge, 403 U.S. at 466. As the majority acknowledges, the police did not have probable cause to listen to the tape.