480 U. S. 321
March 3, 1987
Police entered an apartment after a bullet was shot through its floor into the apartment below. During the search of the apartment for guns, an officer saw some stereo equipment that appeared to be stolen. He moved one piece slightly in order to read the serial number – and it turned out that the equipment was indeed stolen. Hicks moved to suppress the stereo evidence on the grounds that it had been searched without probable cause.
Scalia wrote for a 6-3 majority which agreed that the evidence must be suppressed. He first made clear that touching and moving objects constituted a “search” for Fourth Amendment purposes. Previous cases suggested that potential evidence of a crime separate from the one being investigated could be searched if it was in plain view. Whether probable cause was necessary to search objects in plain view was an open question, and Scalia answered in the affirmative, desiring a bright line rule and a means of curbing excessive police snooping. Arizona had (rather stupidly) conceded that it lacked probable cause, and so Scalia held the search unconstitutional. White offered a brief concurrence, which stated that evidence searched under the plain view rule need not be discovered inadvertently.
Powell and O’Connor filed dissents, both of which were joined by the other and by Chief Justice Rehnquist. Powell found the majority opinion’s definition of a search to be impractical and myopic. “Under the Court’s decision, if one watch is lying face up and the other lying face down, reading the serial number on one of the watches would not be a search.” O’Connor felt that touching the stereo was less a “search” than a “cursory examination,” and that the balancing of interests served by the Fourth Amendment should weigh against suppression. She also felt that the Court could simply hold that probable cause existed, even if Arizona said it did not.
I will admit that in my lifetime I have sometimes ridiculed O’Connor for her distaste of bright lines, but this is one of those cases that shows the wisdom of that propensity. Scalia’s rigid formalism just seems wrong given the facts of the case. Also, can I mention again how much I hate the exclusionary rule? It boggles the mind that the Court cares less about an owner getting back his stolen property than it does about a police officer touching an object for a few seconds. “It is not good to show partiality to the guilty by perverting the justice due to the innocent” – Proverbs 18:5