Arizona v. Hicks

The decision set a requirement that "probable cause" operates as a separate limitation on the application of the "plain view" doctrine. The "plain view" doctrine, which was established in Coolidge v. New Hampshire, allows police to seize incriminating evidence that is found during a warrantless search, if the material is in plain view. Arizona v. Hicks changed this significantly, by requiring the police to have "probable cause" to suspect criminal activity in order to be allowed to seize material in plain view. The ruling could be considered a victory for privacy advocates, and a loss for those who advocate stronger law enforcement.

On 18 April 1984, in Arizona, a bullet was fired through the floor of Hicks's apartment, injuring a man in the apartment below. Police officers entered Hicks's apartment to search for the gunman, for other victims, and for weapons. During the search, the police discovered a .25 caliber automatic pistol, a .45 caliber automatic, a .22 caliber sawed-off rifle, and a stocking-cap mask. The apartment was also littered with drug paraphernalia.

One of the police officers, Officer Nelson, noticed two sets of expensive stereo components, which seemed out of place in the otherwise squalid four-room apartment. Suspecting that they had been stolen, he read and recorded their serial numbers--moving some of them, including a turntable, to do so.

Nelson phoned in the numbers to the National Crime Information Center to check them against the center's computerized listing of stolen property. The listing confirmed his suspicion that the turntable had been taken during an armed robbery, and therefore Nelson seized it. Later, it was determined that some of the other stereo equipment had been stolen in the same armed robbery. A warrant was obtained and executed to seize that equipment as well.

Hicks was subsequently indicted for the robbery. However, the state trial court granted his motion to suppress the evidence that had been seized, and the Arizona Court of Appeals affirmed. The court of appeals based its decision on a statement in Mincey v. Arizona (1977), that a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation." The shooting was considered to be an exigency, or emergency, and therefore the police were justified in entering Hicks's apartment without a warrant.

However, police had not entered Hicks's apartment to look for stolen merchandise, and therefore the policeman had violated Hicks's Fourth Amendment rights when he obtained the serial numbers of the stereo equipment. Both courts rejected the state of Arizona's contention that the policeman's actions were justified under the "plain view" doctrine, which had been established in Coolidge v. New Hampshire. The Arizona Supreme Court denied review, and the state eventually petitioned the Supreme Court, which agreed to hear it. The case was argued on 8 December 1986 and decided on 3 March 1987. Two groups filed "friend of the court" briefs in the case: the American Civil Liberties Union Foundation urged that the lower courts' decisions should be affirmed, while Americans for Effective Law Enforcement urged reversal.

The state of Arizona argued that Officer Nelson's actions constituted neither a "search" nor a "seizure" within the meaning of the Fourth Amendment. The Court agreed with the state that the mere recording of the serial numbers did not constitute a seizure. However, moving of the equipment did constitute a "search" separate and apart from the search for the shooter, victims, and weapons that was the lawful objective of his entry into the apartment.

Responding to a question on cross-examination, Officer Nelson explained that his suspicion was "based on 12 years worth of police experience. I have worked in different burglary crimes throughout that period of time and . . . I'm just very familiar with people converting stolen stereos and TVs into their own use" (quoted in a footnote in Justice Powell's dissenting opinion). Nevertheless, the state conceded that Nelson had only a "reasonable suspicion," not "probable cause," to believe that the stereo equipment was stolen--and therefore the search was invalid.

The Court had not previously ruled on the question of whether probable cause is required in order to invoke the "plain view" doctrine. In its decision in this case, the Court ruled for the first time that probable cause is required. "To say otherwise would be to cut the `plain view' doctrine loose from its theoretical and practical moorings," asserted Justice Scalia, writing for the majority.

In a dissenting opinion, Justice Powell asked what the Court would have had Officer Nelson do in these circumstances. He asserted that the officers' suspicion that the stereo components were stolen was both reasonable and based on the facts of the case. "Indeed, the State was unwise to concede the absence of probable cause," he wrote.

For Powell, the distinction between "merely looking at" an object in plain view and "moving" or "disturbing" the object to investigate a reasonable suspicion was an arbitrary one. He cited a hypothetical example in which one possibly stolen watch was lying face up and another lying face down: reading the serial number on one would not constitute a search, but turning over the other to read its serial number would. "With all respect, this distinction between looking at a suspicious object in plain view and moving it even a few inches trivializes the Fourth Amendment," Powell wrote.

Justice O'Connor also dissented, arguing that Nelson's actions be upheld because they constituted a "cursory inspection" rather than a "full-blown search," and could therefore be justified by reasonable suspicion instead of probable cause. "The overwhelming majority of both state and federal courts have held that probable cause is not required for a minimal inspection of an item in plain view," she wrote. However, the majority opinion was that the Court was unwilling to create a subcategory of "cursory" searches under the Fourth Amendment, because nothing in the prior opinions of the Court would support such a distinction.