WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT,
PARISH OF ORLEANS
was the driver of a vehicle that was stopped because it had a
cracked windshield. Defendant was driving with a suspended
driver's license and a fraudulent license plate. In
addition, defendant admitted he had been smoking marijuana.
Before asking defendant to exit his vehicle, a detective
scanned the interior and noticed an orange prescription
bottle, with the name on the label peeled off, sitting in the
broken driver's side door handle. Defendant and his
passengers disclaimed ownership of the bottle.
exited the vehicle, was handcuffed and Mirandized,
and placed inside a police vehicle. The detective then
retrieved the pill bottle, opened it, and discovered five
Hydrocodone pills. Defendant was arrested and charged with
possession of a controlled dangerous substance, La.R.S.
40:967. He was also cited for several traffic violations.
moved to suppress the evidence on several grounds, including
that the pill bottle was not immediately apparent as
contraband to justify a warrantless search and seizure. The
district court denied the motion to suppress after conducting
a hearing and reviewing the detective's body camera
video. The court of appeal found the district court erred in
denying defendant's motion to suppress. State v.
Miguel, 18-0233 (La.App. 4 Cir. 4/26/18) (on reh'g)
(unpub'd). Relying on State v. Meichel, 290
So.2d 878 (La. 1974), the majority found the plain view
exception did not apply because the incriminating character
of the bottle was not immediately apparent. The court of
plain view doctrine renders a warrantless search reasonable:
(1) if the police officer is lawfully in the place from which
he views the object; (2) where the object's incriminating
character is immediately apparent; and (3) the officer has a
lawful right of access to the object. State v. Gray,
13-1326, p. 2 (La. 6/28/13), 122 So.3d 531, 533 (citing
Horton v. California, 496 U.S. 128, 110 S.Ct. 2301,
110 L.Ed.2d 112 (1990)). The only controversy in the present
case is whether the prescription bottle's incriminating
character was immediately apparent.
"immediately apparent" aspect of the plain view
exception is better stated as probable cause to believe the
item in question is or contains contraband, as clarified in
Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75
L.Ed.2d 502 (1983). In Brown, the United States
Supreme Court stated, "Decisions by this Court since
[Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct.
2022, 29 L.Ed.2d 564 (1971)] indicate that the use of the
phrase 'immediately apparent' was very likely an
unhappy choice of words, since it can be taken to imply that
an unduly high degree of certainty as to the incriminatory
character of evidence is necessary for an application of the
'plain view' doctrine." Id., 460 U.S.
741, 103 S.Ct. at 1543. In the present case, the court of
appeal similarly required an unduly high degree of
certainty-beyond probable cause-as to the incriminatory
character of the evidence.
probable cause in the context of the plain view exception,
the United States Supreme Court stated in Brown:
[P]robable cause is a flexible, common-sense standard. It
merely requires that the facts available to the officer would
"warrant a man of reasonable caution in the
belief," Carroll v. United States, 267 U.S.
132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), that
certain items may be contraband or stolen property or useful
as evidence of a crime; it does not demand any showing that
such a belief be correct or more likely true than false. A
"practical, nontechnical" probability that
incriminating evidence is involved is all that is required.
Brinegar v. United States, 338 U.S. 160, 176, 69
S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). Moreover, our
observation in United States v. Cortez, 449 U.S.
411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981),
regarding "particularized suspicion," is equally
applicable to the probable cause requirement:
"The process does not deal with hard certainties, but
with probabilities. Long before the law of probabilities was
articulated as such, practical people formulated certain
common-sense conclusions about human behavior; jurors as
factfinders are permitted to do the same-and so are law
enforcement officers. Finally, the evidence thus collected
must be seen and weighed not in terms of library analysis by
scholars, but as understood by those versed in the field of
Brown, 460 U.S. at 742, 103 S.Ct. at 1543.
oral argument, defendant contended that the fact that the
name was torn from the label alone was insufficient to give
the detective probable cause to believe the bottle contained
contraband. That circumstance did not appear in isolation,
however. The officer was also aware that defendant was
driving with a suspended driver's license, the vehicle
had a fraudulent license plate, defendant and his passengers
disclaimed ownership of the bottle, and defendant admitted he
recently smoked marijuana (while claiming he consumed it all
and thus implying none would be found in the vehicle). These
circumstances, in conjunction with the suspiciously torn
label, when weighed by an experienced law enforcement
officer, provided probable cause to believe the prescription
bottle contained contraband.
cites State v. Meichel, 290 So.2d 878 (La. 1974) as
being directly applicable and requiring suppression of the
evidence. In Meichel, a town marshal approached the
defendant's vehicle as he was having car trouble.
According to the marshal, he observed a pill bottle on the
passenger's seat. The bottle of pills in question was
labeled as being habit forming and that dispensing without a
prescription was prohibited. Two sheriff's deputies
subsequently arrived and searched the trunk, where they found
marijuana. The state argued that the plain view seizure of
the pills established probable cause for a search of the
automobile, but this court disagreed:
In the instant case the testimony of the officer making the
seizure is clearly to the effect that he did not know the
nature of the pills until after he had picked up the bottle
and examined it. He did not know at the time he saw the pills
that there was a probability that they were contraband and
probably evidence. This seizure does not fall within the
plain view exception to the warrant ...