dissenting.
I respectfully dissent from that portion of the majority’s opinion declaring the tape to have been illegally seized.
While appreciating the intent of the majority to preserve the right to privacy, I believe that under the totality of the circumstances of this case, the seizure of the tape depicting the 49-year-old appellant committing fellatio upon his 13-year-old victim was not unreasonable. The seizure clearly fell within the warrants authorization to seize “obscene, erotic and pornographic material which is ... evidence relating to the commission of a crime pertaining to aiding the commission of ... second degree sexual offense and ... the possession with intent to exhibit obscene material.” Furthermore, even if the seizure of the tape had not fallen within the scope of the warrant, as there was probable cause to believe that the seized tape was evidence of a crime, the tape could have been validly seized without a warrant.
Search Warrant
While I am sensitive to protected rights and liberties under the First, Fourth, and Fourteenth Amendments to the Federal Constitution, I believe the construction placed on the language of the search warrant by the majority to be far too narrow. The only tape that was introduced into evidence — and consequently, the only one that should have concerned the majority — was labeled “Jon18 and I, Bobby14 *271and I.” 1 That tape depicted the very type of conduct and activity described in the search warrant. Moreover, it was the type of material which could have been prepared and possessed by the appellant with an intent to exhibit in violation of Article 27, Section 418.2 I believe the trial court properly denied appellant’s motion to suppress the pornographic material prepared by the appellant and found in his possession.
In fact, the appellant made no argument either below or on appeal that the tape did not depict the very conduct that was the subject of the search warrant. The theory of defense was that as one could not determine the pornographic nature of the film from the mere labeling of the tape cassettes (“M & I”; “Jon and I, Bobby and I”), the tape was illegally seized by the police at the point of its removal from the dresser drawer. The appellant did not venture to argue that the tapes were illegally seized after viewing. That unique argument belongs to the majority.
The majority declared that although “the police had the right to pick up the tape cassettes and look at them to determine what they were ... viewing the tapes on appellant’s television screen ... was a separate invasion of appellant’s right of privacy in the tapes.” I totally reject such theory.
If the police had initial valid authorization to search and seize pornographic material relating to evidence of a second degree sexual assault, they most certainly had the right to meaningfully view the video tape that they in good faith reasonably believed depicted illicit conduct — even in the absence of the appellant’s consent. The mere ability to *272“pick up the tape cassettes and look at them to determine what they were” — as allowed by the majority — is a very hollow, meaningless privilege.
On the contrary, up to this point at least, Maryland law has always permitted officers executing a valid search warrant to inspect containers which could contain contraband in order to assess the nature of the contents and determine if a seizure is required. Davis v. State, 32 Md.App. 318, 326, 360 A.2d 467, cert. denied, 278 Md. 720 (1976) (permissible for officer searching for pistol to open a briefcase); Andresen v. State, 24 Md.App. 128, 178-180, 331 A.2d 78 (1975), aff'd sub nom. Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976) (permissible for officer searching for evidence of criminal fraud and false pretenses to open suspect’s office file folder and seize selected documents).
The U.S. Supreme Court recently decided a case that is similar both factually and legally to the present matter. In United States v. Jacobsen, — U.S. —, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), the Court held that police officers validly on a premises did not need a search warrant before testing a suspected substance to determine whether it was contraband. Addressing the issue of privacy, the Court ruled that chemical testing was a permissible, de minimis intrusion which did not compromise the defendant’s expectations of privacy.
Although the material in the case sub judice was contained on a tape, obscenity is beyond the pale of First Amendment protection. Marques v. State, 267 Md. 542, 298 A.2d 408 (1973). As with Jacobsen, the only right at issue is that of privacy under the Fourth Amendment through the Fourteenth. As in Jacobsen, I believe the intrusion of privacy in order to view the tape was de minimis.
Warrantless Seizure
The trial court found that:
*273[T]he defendant voluntarily and with full knowledge of his rights consented to the insertion of the video tape labeled “M & I” into the video tape recorder. Upon the activation of that device with the tape so inserted, subject matter of a clearly pornographic nature was displayed. Clearly, this procedure constituted a valid consent search. The seizure of the tape inserted was therefore proper.
An issue remains, however, with respect to the validity of the seizure of the remaining video tapes. After viewing the video tape marked “M & I”, Tfc. Haas examined the other video tapes found in the same drawer and noted that at least some of them were similarly labeled, and selected one marked “Jon and I, Bob and I” for insertion in the device. In light of the subject matter previously displayed upon the insertion of a similarly labeled video tape found in the same drawer, the Court finds that this action did not constitute an unreasonable intrusion upon the rights of the Defendant.
Furthermore, at the hearing the Defendant failed to present any evidence tending to establish that any of the items seized contained matter not within the terms of the warrant. Accordingly, the Court will deny the request to suppress this evidence.
I firmly believe that in addition to the obscene material falling within the scope of the warrant, the seizure was authorized under the post-intrusive plain view doctrine as probable cause clearly existed subsequent to the consensual showing of “M & I” to believe that the tape in question with age notations, contained evidence of a crime.
The “plain view” exception to the warrant requirement was first clearly enunciated in Coolidge v. New Hampshire, 403 U.S. 443, at 466, 29 L.Ed.2d 564, at 583:
What the “plain view” cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The *274doctrine serves to supplement the prior justification— whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. 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.
As observed in Gilbert and Moylan, Maryland Criminal Law: Practice and Procedure 391 (1983):
§ 34.5. Elements of the Plain View Doctrine.
In a well-crafted opinion for the Court, Justice Stewart set out clearly the elements that are required to legitimate a warrantless seizure under the Plain View Doctrine:
(1) a prior valid intrusion;
(2) the inadvertent spotting of something in plain view; and
(3) probable cause to believe that the thing spotted is evidence of crime.
Obviously, the State police validly intruded into the constitutionally protected area under color of a search warrant. Thus, the first requirement was satisfied.
The second requirement may also be summarily disposed of as satisfied. The police, because of the subject matter being sought, had a right to search the drawer of the appellant’s dresser. As pointed out by the Supreme Court in Harris v. U.S., 331 U.S. 145 at 152, 67 S.Ct. 1098 at 1102, 91 L.Ed. 1399, “The same meticulous investigation which would be appropriate in a search for two small cancelled checks could not be considered reasonable where agents are seeking a stolen automobile or an illegal still”. When Tfc. Haas inadvertently came across the tapes in opening the dresser drawer, the second requirement was satisfied.
Regarding the third requirement, I believe it is appropriate to recount what we had stated in Dixon v. State, 23 *275Md.App. 19, at 31, 327 A.2d 516 (1974). Speaking on behalf of the Court, Judge Moylan observed:
It is beyond cavil that a prior valid intrusion will not in and of itself justify an indiscriminate seizure of all items that happen to be visually in plain view, but that probable cause must exist to believe that the items ultimately seized are, indeed, contraband or other evidence of crime.
Also cited with approval in Dixon, supra, at 33, 327 A.2d 516, is the following statement from Shipman v. State, 291 Ala. 484, 282 So.2d 700, at 704:
For an item in plain view to be validly seized, the officer must possess some judgment at the time that the object to be seized is contraband and that judgment must be grounded upon probable cause.
Thus, the third requirement is simply that the searching officer, before seizing an item in plain view, have probable cause that it is evidence of a crime. I would have held that the police, through Tfc. Haas, had probable cause to believe that the tapes were evidence of a crime for the following reasons:
Tfc. Haas testified that before searching the dresser drawer, he had searched the adjacent closet. In the closet, he said, was a video camera aimed at the bed. The victim had informed Trooper Haas (as reported in the affidavit portion of the search warrant) that the appellant had pushed him down on the bed in the appellant’s bedroom and performed fellatio upon him. When the trooper opened the dresser drawer, he found video tapes. On the boxes containing the tapes were the names of individuals followed by “and I.” As previously pointed out, the ages of the individuals were also noted above their names. Two of the names that Tfc. Haas said he could remember were names of males. Trooper Haas, the investigating officer, was well acquainted with the nature of the charges and crimes that allegedly had been committed by the appellant. Certainly, Trooper Haas could have drawn the inference that the tapes contained scenes of the Appellant and others in sexual encounters, and in view of the victims’ representations that *276he had previously interviewed, that the sexual encounters involved illegal acts. In fact, the trooper stated, when asked what he thought upon coming across the tapes, that he believed in light of the materials thus far seen, and because of the victims’ statements to him, that the tapes contained evidence of illegal sexual activity.
In summary, I would have affirmed the trial courts’ denial of appellant’s motion to suppress on the following grounds:
1. That the language of the search warrant authorized the seizure of the tapes as viewed by the executing authorities.
.2. That the search of the dresser drawer, and the material on the tapes themselves, was proper in light of the subject matter of the warrant, and the intensiveness required for the items sought.
3. That the viewing of “M and I”, which triggered probable cause to believe the tape cassette labeled “Jon (18) and I, Bobby (14) and I”, contained evidence of a crime, had been consented to by the appellant.
4. That the search and seizure of the tapes complied with the plain-view exception to the warrant requirement.
. The numerical references appeared on the labels above the names of Jon and Bobby.
. Article 27, Section 418 provides, in pertinent part, "Any person who knowingly prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor.” (Emphasis added).