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UNITED STATES v. MESSINO

January 3, 1995

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER RICHARD MESSINO, CLEMENT A. MESSINO, et al., Defendants.



The opinion of the court was delivered by: JAMES H. ALESIA

 Before the court are two pretrial motions to suppress evidence. The court has previously described the indictment in this case. See United States v. Messino, 852 F. Supp. 652, 653-54 (N.D. Ill 1994); see also 1994 WL 583110 (N.D. Ill. Oct. 21, 1994); 855 F. Supp. 973 (N.D. Ill. 1994); 855 F. Supp. 955 (N.D. Ill. 1994); 852 F. Supp. 657 (N.D. Ill. 1994); 842 F. Supp. 1107 (N.D. Ill. 1994). The court therefore will proceed directly to disposition of the motions. *fn1"

 I. DEFENDANT CHRISTOPHER RICHARD MESSINO'S MOTION TO SUPPRESS

 Defendant Christopher Richard Messino has moved to suppress various items seized from his Blue Island, Illinois, home during execution of four warrants of seizure and monition in the course of a civil forfeiture prosecution. The government's theory of the legality of the contested seizures is the plain view doctrine. The court therefore held a hearing to air the facts surrounding the seizures. The following discussion constitutes the court's findings of fact and conclusions of law from the credible evidence of record on the motion.

 A. Background Law

 The Fourth Amendment to the United States Constitution provides:

 
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, and supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 The prohibition against unreasonable searches and seizures has been read such that as a general rule any search or seizure without a warrant is unreasonable. "Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967) (footnote omitted). The consequences of a search or seizure being in violation of the Fourth Amendment is generally suppression of the evidence from introduction in the prosecution's case-in-chief. United States v. Burns, 37 F.3d 276, 278-79 (7th Cir. 1994). *fn2"

 One of the exceptions to the warrant requirement is where an officer sees an item from a lawful vantage point with lawful access to the item, and it is immediately apparent to the officer that the item is contraband or incriminating evidence -- the plain view doctrine. Horton v. United States, 496 U.S. 128, 134-36, 110 S. Ct. 2301, 2306-07, 110 L. Ed. 2d 112 (1990); United States v. Wilson, 2 F.3d 226, 232 (7th Cir. 1993), cert. denied, 128 L. Ed. 2d 341, 114 S. Ct. 1615 (1994). If the officer has probable cause to believe an item in his plain view is contraband or incriminating evidence, the officer may seize it without a warrant. Arizona v. Hicks, 480 U.S. 321, 326-27, 107 S. Ct. 1149, 1153-54, 94 L. Ed. 2d 347 (1987).

 The plain view doctrine is properly thought of as an exception applicable to the seizure following the officer's "plain viewing." The viewing is not considered a Fourth Amendment "search" in the first place. Horton, 496 U.S. at 133-34, 110 S. Ct. at 2306; Hicks, 480 U.S. at 324-25, 107 S. Ct. at 1152. It is the post-viewing seizure that needs the plain view doctrine to rescue it from the warrant requirement. Nonetheless, the issue may arise -- as it does in this case -- whether the officers have crossed the line from a plain view examination into a Fourth Amendment search. Arizona v. Hicks makes that much clear by holding that an officer's moving of stereo equipment (rather than merely inspecting without touching), constituted a Fourth Amendment search. Hicks, 480 U.S. at 324-25, 107 S. Ct. at 1152.

 One aspect of the immediate apparency requirement is crucial to the court's analysis here, so is worth noting up front. As a general matter, "Fourth Amendment analysis is objective, not subjective." United States v. McCarty, 862 F.2d 143, 148 (7th Cir. 1988) (citing Scott v. United States, 436 U.S. 128, 137-38, 98 S. Ct. 1717, 1723-24, 56 L. Ed. 2d 168 (1978)). Accordingly, the inquiry into the "reasonableness of a particular police activity" is "purely objective." United States v. Trigg, 878 F.2d 1037, 1040 (7th Cir. 1989). See generally WAYNE R. LAFAVE, SEARCH AND SEIZURE ยง 3.2(b) (2d ed. 1987). The court finds no controlling precedent as to the objectivity of the immediate apparency requirement itself, but controlling cases discussing the objectivity of the Fourth Amendment reasonableness inquiry in general are read naturally to apply to this particular aspect of Fourth Amendment jurisprudence. See cases cited supra. Furthermore, the Supreme Court's rejection of the inadvertency requirement for a plain view seizure in Horton v. California can be read as a rejection of subjective inquiry as an element of plain view analysis in general. One of the Horton Court's reasons for holding that a plain view seizure need not be inadvertent was that "evenhanded law enforcement is best achieved by the application of objective standards of conduct rather than standards that depend upon the subjective state of mind of the officer." Horton, 496 U.S. at 138, 110 S. Ct. at 2308-09.

 To say that the inquiry is objective, however, is not to say that the seizing officer's subjective perceptions may not ever be an input into the objective inquiry. As the Seventh Circuit stated in assessing the Fourth Amendment legality of an automobile stop, "[a] police officer's motive for arresting and subjective belief at the time of the arrest that he lacks probable cause may be relevant in determining what facts the officer actually did know at the time of the arrest, and may tip the scale toward finding that the officer lacked probable cause." McCarthy, 862 F.2d at 148 n.3; accord United States v. Gray, 659 F.2d 1296, 1301 n.8 (5th Cir. 1981) ("In a close case, the denial by those officials that probable cause existed may well tip the balance toward a finding of no probable cause.") (cited in McCarthy, 862 F.2d at 148 n.3). The inclusion of a subjective inquiry, however, seems reserved for such a "close case," as the Seventh Circuit has noted with less than enthusiasm the possibility of such a subjective inquiry. See United States v. Hope, 906 F.2d 254, 258 (7th Cir. 1990) ("The officer's subjective reasons, or 'motive', for stopping the defendant are relevant, if at all, only in establishing what facts the officer actually had knowledge of at the time of the arrest." (emphasis added)), cert. denied, 499 U.S. 983, 111 S. Ct. 1640, 113 L. Ed. 2d 735 (1991).

 Finally worth noting is the placing of the burden of proof. Plain view is thought of as an exception to the warrant requirement. See Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 2038, 29 L. Ed. 2d 564 (1971) (Stewart, J., plurality); Willis, 37 F.3d at 316. Consequently, it is the government's burden to show that the seizures claimed to be justified under plain view fit into the exception. See United States v. Longmire, 761 F.2d 411, 417 (7th Cir. 1985) ("Those seeking to invoke an exception to the warrant requirement bear the burden of establishing that the circumstances required dispensing with that requirement."); see also United States v. Jones, 518 F.2d 384, 390-91 (7th Cir.) (Swygert, J., dissenting) ("The Government failed to meet its burden of proof on the plain view issue. . . . It has failed to prove all the essential elements of this exception."), cert. denied, 423 U.S. 997, 96 S. Ct. 426, 46 L. Ed. 2d 371 (1975). The government must make the showing by a preponderance of the evidence. *fn3"

 B. Lawful Vantage Point and Lawful Access

 The government's claim of lawful vantage point rests on warrants executed at Christopher Richard Messino's Blue Island home. The situation has been complicated because there is no dispute that one of the four warrants violates the principle of United States v. James Daniel Good Real Property, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993), which held that seizure of real property, pursuant to civil forfeiture, after a mere ex parte hearing violates due process. One of the four warrants is for the seizure of the real property. The other three warrants, however, are for personalty, and so Good is not implicated for those warrants. See Good, 114 S. Ct. at 500. Furthermore, defendant Christopher Richard Messino has not attacked the validity of the three personalty warrants. As the court has previously held, therefore, the three personalty warrants gave the seizing officers a lawful vantage point. *fn4" Inside the house lawfully, the seizing officers furthermore had lawful access to seized items seen in plain view, leaving only the issue of immediate apparency.

 C. Immediate Apparency

 The sole witness at the hearing was Kevin L. Phillips, Special Agent with the Criminal Investigation Division of the Internal Revenue Service, who was the team leader for the approximately eight other agents conducting the seizure at the Messino house. (Report of Proceedings ("Tr.") 11, 15) The warrants were executed on September 13, 1991. Special Agent Phillips had been investigating tax and narcotics allegations against Christopher Richard Messino since 1988 or 1989. (Tr. 23.) The court found Special Agent Phillips' testimony generally credible.

 1. Government Exhibit 1: The Rolodex

 Special Agent Phillips seized a Rolodex from atop Christopher Richard Messino's desk. On direct examination Special Agent Phillips testified that he seized the Rolodex because "Mr. Messino was being investigated for income tax crimes as well as narcotics violations. So the Rolodex was taken because it had financial leads in it that related to the income tax investigation, as well as possible leads for the narcotics investigation." (Tr. 14.)

 Special Agent Phillips had been investigating Christopher Richard Messino for approximately two years at the time of the seizures. He had read the affidavit of Special Agent Michael Priess, also of the Criminal Investigation Division of the Internal Revenue Service, cataloguing in detail the government's basis for alleging probable cause that Christopher Richard Messino's property was "guilty" in a civil forfeiture sense. This affidavit extensively discussed Christopher Richard Messino's suspected large-scale narcotics trafficking. Special Agent Phillips knew he was executing civil forfeiture warrants, which must have been preceded by a judicial probable cause finding. In a Rolodex, of course, a person normally keeps oft-used names, addresses and phone numbers. A narcotics dealer's oft-used names, addresses and phone numbers are likely to be incriminating evidence. And the fact that an item is a Rolodex is easily determined from a quick glance at the item. Therefore, based on facts known to Special Agent Phillips, he had probable cause to believe the Rolodex, which was in his plain view, was incriminating evidence.

 There are perhaps indications that, subjectively, Special Agent Phillips was not in a proper plain view frame of mind:

 
Q: When you looked at that Rolodex, you didn't see anything immediately incriminating about it, did you?
 
A: No.
 
Q: You picked it up, did you not?
 
A: Yes.
 
Q: You ...

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