THE STATE OF TEXAS, PETITIONER V. CLIFFORD JAMES BROWN No. 81-419 In the Supreme Court of the United States October Term, 1982 On Writ of Certiorari to the Court of Criminal Appeals of Texas Brief for the United States as Amicus Curiae Supporting Petitioner TABLE OF CONTENTS Interest of the United States Statement Summary of argument Argument: The Fourth Amendment permits the warrantless seizure of property based upon probable cause to believe that the seized item contains narcotics, even if the narcotics themselves are not visible Conclusion QUESTION PRESENTED Whether the Fourth Amendment permits the warrantless seizure of a tied-off balloon observed by a police officer in plain view during a lawful stop of respondent's car, upon probable cause to believe that the balloon contains narcotics. INTEREST OF THE UNITED STATES This case presents an important question concerning the authority of law enforcement officers to seize items that they observe in plain view. Past decisions of this Court and the federal appellate courts have upheld the warrantless seizure of items that are observed in plain view, provided the officer has probable cause to believe that the item is contraband or evidence of a crime and that the officer is located where he has a right to be at the time the item is observed. The Court of Criminal Appeals of Texas has departed from the probable cause standard, holding instead that in order lawfully to seize an item in plain view without a warrant, the officer must "know that 'incriminatory evidence (is) before him * * * .'" J.A. 48 (emphasis supplied; citation omitted). In the course of lawful investigative and community caretaking activities federal agents frequently come upon items that they have probable cause to believe are contraband or fruits, instrumentalities, or evidence of a crime. Because certainty as to the incriminating nature of items discovered in this fashion is rarely possible until they are subjected to closer examination or analysis, effective enforcement of the federal criminal laws will be severely hampered unless agents are permitted to seize evidence discovered in plain view whenever they possess probable cause to do so. The holding of the court below represents a radical departure from settled Fourth Amendment doctrine, with great potential for unreasonable interference with federal law enforcement efforts. Accordingly, the United States has a substantial interest in the outcome of this case. STATEMENT An indictment returned in the 213th District Court, Tarrant County, Texas, charged respondent with possession of heroin in violation of state law. Prior to trial, respondent moved to suppress the heroin. Following an evidentiary hearing, the district court denied respondent's motion. Respondent then plead nolo contendere to the possession charge, reserving the right to appeal from the denial of the suppression motion, and was sentenced to four years' imprisonment. The Texas Court of Criminal Appeals reversed the conviction on the ground that the heroin had been illegally seized (J.A. 43-49). 1. The evidence at the suppression hearing showed that on the evening of June 18, 1979, Officer Harold Maples set up a routine driver's license checkpoint on East Allen Street in Fort Worth, Texas. He and his fellow officers stopped every car travelling on the road and inspected the license plate and inspection sticker of each car and the operator's license of each driver (J.A. 6-11). Sometime after 11:00 p.m., Officer Maples stopped a brown Buick driven by respondent. Respondent was alone in the car. In response to Officer Maples request that he produce his driver's license, respondent reached into his right pants pocket. When respondent kept his hand in his pocket for longer than reasonably necessary to retrieve a license, Maples shined a flashlight inside the car to see what respondent was doing. As respondent withdrew his hand from his pocket Officer Maples noticed that a green opaque balloon, knotted approximately one half inch from the tip, was caught between respondent's two middle fingers. The balloon fell from his hand to the side of his leg (J.A. 12-16). Respondent next opened the glove compartment to look for his license. Inside the lighted compartment, Officer Maples saw several small plastic vials, a lot of loose white powder, and a bag of party balloons. Respondent rummaged around the glove compartment and finally told Maples that he did not have a license (J.A. 16-18). The officer instructed respondent to get out and to step to the back of the car. As respondent walked to the rear of the car, Maples noticed the knotted balloon lying on the front seat. Officer Maples had participated in numerous narcotics arrests during his five and one half years of experience as a patrol officer, including several in which the contraband was found in a balloon. In the year immediately preceding the stop of respondent, Officer Maples had made an arrest in which he recovered eight or nine multi-colored balloons containing narcotics. Based upon his experience and conversations with fellow officers, the officer believed that the balloon on the car seat contained narcotics (J.A. 14-15, 18, 21-22). Officer Maples reached in through the open window and retrieved it. The bulging portion felt as if it contained a powdery substance. Officer Maples silently displayed the balloon to another officer upon the scene. The fellow officer acknowledged that he "understood the situation" (J.A. 18-22, 25, 28). Officer Maples advised respondent that he was under arrest. Maples called for a tow truck and took an inventory of the passenger compartment of the car. He seized the balloon and vials from the glove compartment, a large bottle of milk sugar from the back floorboard, and several baggies containing a green leafy substance that looked like marijuana. The powder contained in the knotted balloon was subsequently analyzed and determined to be heroin (J.A. 19-23, 32, 36). 2. At the close of the evidentiary hearing the district court denied respondent's motion to suppress the evidence seized from the car (J.A. 41-42). Respondent was convicted on his ensuing plea of nolo contendere, but the Court of Criminal Appeals of Texas reversed. Purporting to follow Coolidge v. New Hampshire, 403 U.S. 443, 468 (1971), the court held that the seizure of the knotted balloon was not authorized by the plain view exception to the warrant requirement (J.A. 48; footnote and citation omitted): For the plain view doctrine to apply, not only must the officer be legitimately in a position to view the object, but it must be immediately apparent to the police that they have evidence before them. This "immediately apparent" aspect is central to the plain view exception and is here relied on by (respondent) * * * . In this case then, Officer Maples had to know that "incriminatory evidence was before him when he seized the balloon." DeLao v. State, 550 S.W.2d 289, 291 (Tex. Crim. App. 1977). Because it was impossible to be certain from its outward appearance that the seized balloon contained contraband, the Court of Criminal Appeals held that the warrantless seizure of the balloon was impermissible. Petitioner sought leave to file a motion for rehearing, but this application was denied with three judges dissenting (J.A. 50-54, 55). Speaking for the dissenters, Judge McCormick wrote that the "judicial inquiry (should focus) upon the State's ability to prove the officer has probable cause to associate the party balloon with criminal activity. * * * The issue turns on whether an officer, relying on years of practical experience and knowledge commonly accepted, has probable cause to seize the balloon in plain view" (J.A. 51; footnotes omitted; emphasis in the original). Judge McCormick concluded that the record supported a finding of probable cause, noting that balloons are "commonly associated with the distribution, packaging, and transportation of controlled substances -- usually heroin" (J.A. 53). He distinguished respondent's tied-off balloon from other items the majority had treated as analogous (J.A. 52-53): Photographic negatives can and do represent such diverse subject matters that they cannot warrant a "man of reasonable caution" to believe they contain any contraband. Similarly, translucent vials which commonly contain legally obtained prescriptions render the presence of contraband vague and uncertain. The officer knows the vials contain drugs or even narcotics for that is their purported use. However, without other supporting facts, it is this inherent use that prevents the "man of reasonable caution" from having probable cause to believe the presence of contraband. By contrast, Judge McCormick concluded that here "the incriminating nature of the balloon was immediately apparent" to Officer Maples in light of "his specific knowledge and prior experience with the drug culture," and that the seizure was accordingly lawful (J.A. 54). SUMMARY OF ARGUMENT The only issue presented for review in this case is whether, as the Texas Court of Criminal Appeals held, the Fourth Amendment precludes seizure of an item observed in plain view by law enforcement officials, based upon probable cause to believe that it contains contraband or evidence of crime, simply because the officer cannot be certain at the time of the seizure as to the actual identity of the contents seized. The decision of the Texas court is not merely inconsistent with the directly relevant decisions of this Court and of other courts that have considered this issue, it shreds the fabric of applicable general Fourth Amendment principles, producing an anomalous result that threatens wholly unjustified injury to law enforcement efforts. In the specific context of this case, for instance, the court's holding that probable cause is insufficient to support a seizure effectively requires police to allow a container that more probably than not contains contraband drugs to be returned into the community. 1. In Payton v. New York, 445 U.S. 573, 586-587 (1980), the Court made clear that probable cause is a sufficient level of suspicion to support a plain view seizure. And in Colorado v. Bannister, 449 U.S. 1 (1980), the Court upheld a plain view seizure on facts similar in material respects to those present here. Moreover, this Court's decisions requiring warrants for certain searches of movable containers, United States v. Chadwick, 433 U.S. 1 (1977), and Arkansas v. Sanders, 442 U.S. 753 (1979), make clear that seizure of an item observed in plain view or in a public place based upon probable cause is permissible. Indeed, any workable view of the warrant requirement presupposes that a warrantless probable cause seizure is permitted while a warrant is sought. A seizure is similarly permissible when the search is one for which no warrant is required. The plain view doctrine simply recognizes that the privacy protection function of the Fourth Amendment has no application to seizures of items found in plain view or in a public place. Such seizures are in this respect to be distinguished from searches, which do implicate Fourth Amendment privacy concerns. G.M. Leasing Corp. v. United States, 429 U.S. 338, 351, 354 (1977). Because a seizure implicates only property interests any injury to which can be fully remedied in a post-seizure judicial proceeding, the reasonableness criterion of the Fourth Amendment is fully satisfied by the simple requirement that a seizure be supported by probable cause. 2. The decision of the court below rests entirely upon an elementary misinterpretation of language pulled out of context from the plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443, 466-467 (1971), which indicates that the plain view doctrine applies only to seizures of items the evidentiary value of which is immediately apparent to police. But even a casual reading of the language in question reveals that Justice Stewart did not mean that certainty or any species of super-probable cause is required to validate a plain view seizure. Rather, the plurality opinion simply reflects the concern that the plain view doctrine not be enlisted as a pretext for conducting unauthorized searches of items that are in plain view but not themselves suspicious. In short, as the courts of appeals have uniformly agreed, the requirement noted in Coolidge is simply that the probable cause upon which a seizure rests must be apparent to the officer upon a casual inspection of the item not entailing any additional search. The plain view seizure in this case was clearly proper. Officer Maples was entitled to be where he was when he observed the balloon in plain view. There is no dispute that he had probable cause to seize the balloon. Accordingly, he acted properly in doing so. ARGUMENT THE FOURTH AMENDMENT PERMITS THE WARRANTLESS SEIZURE OF PROPERTY BASED UPON PROBABLE CAUSE TO BELIEVE THAT THE SEIZED ITEM CONTAINS NARCOTICS EVEN IF THE NARCOTICS THEMSELVES ARE NOT VISIBLE The only issue presented in this case is whether the Fourth Amendment requires that a standard h.gher than or different from probable cause be satisfied to justify the arrantless seizure of an item that falls into plain view during the course of a lawful stop of an automobile or other lawful police activity. here is no claim here that the fixed-point roadblock stop of respondent's automobile was unlawful. Nor would such a claim have merit. See Delaware v. Prouse, 440 U.S. 648, 663 (1979). Consequently, Officer Maples had a right to be standing next to respondent's car as he was when he first saw the knotted balloon. And it is uncontroverted that the discovery of the balloon was inadvertent (compare Coolidge v. New Hampshire, 403 U.S. 443, 469-473 (1971) (opinion of Stewart J.)), and that the balloon was plainly visible to the officer from his lawful vantage point. Furthermore, no question of the validity of any search is presented here. Officer Maples was not searching the automobile when he saw the balloon (see Ker v. California, 374 U.S. 23, 43 (1963) (opinion of Clark, J.)), and the respondent has not challenged the authority of the state to empty the balloon and assay its contents following its seizure. /1/ Indeed, the Texas court did not condemn the "search" of the balloon; rather, it deemed the seizure unlawful ab initio. But the Fourth Amendment does not require certainty to justify seizures, whether warrantless or otherwise; rather, probable cause is the governing standard. The Texas court accordingly applied the wrong standard to the facts of this case. 1. The decision of the Texas court represents a sharp break with past decisions of this Court. The Court stated in Payton v. New York, 445 U.S. 573, 587 (1980) (emphasis added), "(t)he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." Recently, in Colorado v. Bannister, 449 U.S. 1 (1980), the Court upheld a warrantless seizure on facts very similar to those of the instant case. In Bannister, a police officer stopped a speeding automobile. While talking to the occupants of the car, the officer observed in plain view chrome lug nuts in an open glove compartment and two lug wrenches on the floor of the back seat. 449 U.S.at 2. Because the occupants fit the description of individuals reported to have stolen motor vehicle parts, the officer seized the items. This Court held that "if there was probable cause 'that the contents of the automobile offend against the law,' Carroll (v. United States, 267 U.S. 132, 159 (1925)), the warrantless seizure was permissible,' 449 U.S.at 3 (footnote omitted). The Court explained the rationale for permitting such warrantless seizures (449 U.S.at 3 n.2): Another factor that contributes to the justification for the absence of a warrant in such a situation is that "the circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable." Chambers (v. Maroney, 399 U.S. 42, 50-51 (1970)). See also Cardwell v. Lewis, 417 U.S. 583, 595 (1974). This factor applies with particular force in this case. As the reason for the stop was wholly unconnected with the reason for the subsequent seizure, it would be especially unreasonable to require a detour to a magistrate before the unanticipated evidence could be lawfully seized. After reviewing the evidence, the Court determined that the seizure was supported by probable cause and hence was lawful. 449 U.S.at 4. Colorado v. Bannister should control the instant case. Like the officer in Bannister, Officer Maples' approach to the side of respondent's car was entirely legitimate; the stop was not a pretext to look for narcotics. Moreover, neither officer undertook a search; the balloon, like the lug nuts, was in plain view. Also, both officers had probable cause to believe that the items before them were evidence of a crime, yet neither officer could be certain that such was the case. Indeed, probable cause was arguably stronger in the instant case than in Bannister. Lug nuts and wrenches are not suspicious in and of themselves, and innocent people commonly possess them. On the other hand, a knotted, bulging, uninflated balloon is almost always connected with narcotics. To be sure, individuals may innocently possess inflated balloons or untied, uninflated balloons; when filled with air or water, a balloon is a common toy. But otherwise balloons are rarely used as repositories for anything except narcotics. Further, the probable cause in the instant case was enhanced by Officer Maples' observation of the powder, vials, and bag of balloons in requires that a standard higher than or different from probable cause be satisfied to justify the warrantless seizure of an item that falls into propbably contained an illegal drug. See United States v. Cortez, 449 U.S. 411, 418 (1981). Indeed, it has long been settled that the kind of lawful police activity. There is no claim here that the fixed-point to justify a probable cause seizure. Brinegar v. United States, 338 U.S. 160, 173-176 (1949). In addition to Colorado v. Bannister, the Court has upheld other warrantless seizures based on probable cause. For instance, in Warden v. Hayden, 387 U.S. 294 (1967), the officers were searching a house in hot pursuit of a robber when they discovered some clothing of "the type the fleeing man was said to have worn,' Id. at 298. The officers were permitted to seize the clothing without a warrant because they "could reasonably believe that the items would aid in the identification of the culprit." Id. at 307. Warden v. Hayden thus established that even "mere evidence" may be seized without a warrant upon probable cause. In United States v. Chadwick, 433 U.S. 1, 3 (1977), the Court recognized that the Fourth Amendment was not offended by the warrantless seizure of a footlocker when the agents had probable cause to believe that it contained contraband. Nevertheless, the Court invalidated the subsequent warrantless search of the lawfully seized footlocker, because the Fourth Amendment recognizes a difference between seizures and searches. See also Arkansas v. Sanders, 442 U.S. 753, 761-762 (1979). The Fourth Amendment principally protects legitimate privacy interests. See Rakas v. Illinois, 439 U.S. 128, 152-153 (1978) (Powell, J., concurring). It is ordinarily the search rather than the seizure that intrudes upon that protected interest, and accordingly the warrant requirement is interposed to ensure that only justifiable searches are undertaken. Because the seizure of property from an open place upon probable cause does "not involve any invasion of privacy," and because any unjustified infringement upon property interests due to a seizure can be fully remedied by post-seizure proceedings, a warrantless probable cause seizure does not offend the Fourth Amendment. G.M. Leasing Corp. v. United States, 429 U.S. 338, 351, 354 (1977). Similarly, police may seize a person upon probable cause in a public place without a warrant (United States v. Watson, 423 U.S. 411 (1976)), although they must have a warrant to search for that person inside a home in the absence of exigent circumstances. Payton v. New York, supra, 445 U.S.at 590; Steagald v. United States, 451 U.S. 204, 221-222 (1981). The plain view doctrine is simply an acknowledgement of this distinction between searches and seizures. It authorizes the warrantless seizure of contraband or evidence upon probable cause when the legality of the means by which the object is discovered is not in question. The discovery may occur in one of two ways: the police may come upon it while lawfully searching for something else (see, e.g., Warden v. Hayden, supra), or the police may notice the evidence while not conducting a search at all, but instead in the course of some other legitimate activity (see, e.g., Colorado v. Bannister, supra; Harris v. United States, 390 U.S. 234 (1968) (registration card discovered while rolling up the windows of an impounded car)). A contemporaneous seizure is permitted because" it would be especially unreasonable to require a detour to a magistrate before the unanticipated evidence could be lawfully seized." Colorado v. Bannister, supra, 449 U.S.at 3 n.2. Consequently, a warrantless probable cause seizure of property in open view or in public is "presumptively reasonable" unless it is the fruit of an unlawful search. Payton v. New York, supra, 445 U.S.at 586-587. 2. a. The ruling of the court below that something more than probable cause is needed to support a seizure construes the Fourth Amendment to produce the entirely unreasonable result that police must allow a container that probably contains illicit drugs to be released into the community. This decision rests on a misinterpretation of language taken out of context from the plurality opinion in Coolidge v. New Hampshire, supra. Justice Stewart wrote (403 U.S.at 466; emphasis added): Of course, the extension of the original justification (for the search or other police presence) is legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Ignoring the second clause of the quoted sentence, the Texas court interpreted the highlighted text to require that the police officer must "know" that the item seized is incriminating. As the quoted language in its entirety makes clear, however, the plurality was simply expounding the prohibition against general searches by underscoring that police may not ignore the limitations of a warrant or other authority for their presence in a particular location or vantage point by examining every innocuous article in a location, hoping that closer inspection will disclose that it is related to some crime. If they do so, any discovery of incriminating evidence would raise a question of the lawfulness of the search that revealed the incriminating nature of the evidence, and not simply of the lawfulness of the seizure resting on probable cause obtained without a search. Thus, to guard against the conduct of exploratory searches in the guise of "plain view" seizures, the law requires that the suspicious nature of the object that falls into the plain view of the officer must be immediately apparent before it can be seized -- but this means nothing more than that the seizure must be based upon probable cause acquired without further search. Read in context, nothing in Coolidge supports application of a standard higher than probable cause to determine the lawfulness of a plain view seizure. The federal appellate courts have uniformly held that probable cause suffices to authorize a plain view seizure. See, e.g., United States v. Chesher, 678 F.2d 1353, 1357 (9th Cir. 1982): (W)e know of no authority suggesting that Coolidge requires that an object be conclusively incriminating. We agree with the Second Circuit that "under the plain view doctrine . . . the incriminating nature of an object is generally deemed 'immediately apparent' where police have probable cause to believe it is evidence of crime." United States v. Ochs, 595 F.2d 1247, 1258 (2d Cir. 1979). This is consistent with the rationale for allowing plain view seizures. If the benefit of permitting warrantless seizure in narrow circumstances is avoidance of the inconvenience of obtaining a warrant for inadvertently discovered evidence, Coolidge, 403 U.S.at 467-68, * * * it follows that an object's possible relevance as evidence need not be shown to any greater degree than would be sufficient to obtain a warrant were one sought. We hold that if facts sufficient to provide probable cause to believe an object is incriminating are immediately apparent to the officer, the third Coolidge requirement is met. Accord, United States v. Hillyard, 677 F.2d 1336, 1341-1342 (9th Cir. 1982); United States v. Strahan, 674 F.2d 96, 100 (1st Cir.), cert. denied, No. 81-6571 (June 1, 1982); United States v. Irizarry, 673 F.2d 554, 558 (1st Cir. 1982); United States v. Tolerton, 669 F.2d 652, 654 (10th Cir.), cert. denied, No. 81-6451 (Apr 26, 1982); United States v. Heldt, 668 F.2d 1238, 1267 (D.C. Cir. 1981); United States v. Sanders, 631 F.2d 1309, 1314-1315 (8th Cir. 1980), cert. denied, 449 U.S. 1127 (1981); United States v. Miller, 608 F.2d 1089, 1099 (5th Cir. 1979), cert. denied, 447 U.S. 926 (1980); United States v. Ochs, 595 F.2d 1247, 1258 (2d Cir. 1979) (collecting cases). See also, United States v. Scarfo, No. 81-2181 (3d Cir. July 22, 1982), slip op. 24 (Gibbons, J., dissenting); 2 W. LaFave, Search and Seizure Section 7.5(b), at 593-595 (1978). /2/ Indeed, not even the prior state decisions relied upon by the Texas court (J.A. 48) adopt a standard stricter than probable cause. For example, in Howard v. State, 599 S.W.2d 597 (Tex. Crim. App. 1979), the court invalidated a warrantless seizure because "at the moment that the (brown plastic medicine jar) came into 'plain view' Officer Holland had no basis for believing that its contents were inherently suspicious or that they were in fact contraband." Id. at 602. In overruling the State's motion for rehearing, the court further explained the basis for its decision: "Holland did not have probable cause to seize the bottle * * * ." Id. at 605. Likewise, in Nicholas v. State, 502 S.W.2d 169 (Tex. Crim. App. 1973), the court suppressed photographic negatives because "the officers had, prior to examining the negatives, neither knowledge nor mere suspicion of an offense related to the film." Id. at 172. Hence, neither of these cases at all supports the result reached by the Texas court in the instant case. Likewise, in the two other cases relied upon by the Texas court, plain view seizures were condemned because the State failed to prove that the items were suspicious to the officers observing them. First, in Duncan v. State, 549 S.W.2d 730 (Tex. Crim. App. 1977), the officer saw the defendant slip a plastic bag into his pocket, but the officer was unable to see what it contained. The court found a Fourth Amendment violation (id. at 732): In the instant case, the officer was legitimately in position to view any contraband; however, by his own testimony, he did not know what the plastic baggie contained and he expressed no suspicion as to what it might contain. Also, in DeLao v. State, 550 S.W.2D 289 (Tex. Crim. App. 1977), the defendant prevailed because the prosecution had not proved that an officer, who seized a red balloon, knew that heroin is commonly stored in balloons. Nor did it offer any evidence showing that balloons are frequently used in the narcotics trade. Instead, it asked the court to take notice of this fact, which the court refused to do. Id. at 291. b. In contrast to the above cases, the prosecution here provided ample evidence of probable cause. It showed that Officer Maples knew that narcotics are commonly stored in balloons and that he had participated in previous arrests in which such balloons were seized. Indeed, the significance of the ballon was so obvious that when Officer Maples silently showed the balloon to his colleague, he too instantly recognized its incriminating nature. Moreover, Officer Maples' suspicion was buttressed by the narcotic paraphernalia observed in the glove compartment. The totality of the circumstances supplied ample probable cause for the seizure of the balloon. Under the Fourth Amendment no more was needed to permit a prompt, warrantless seizure. In sum, the Fourth Amendment was not offended by the warrantless seizure of the knotted balloon from respondent's car. The seizure was not the fruit of a search because Officer Maples was lawfully standing next to respondent's car when he saw the balloon in plain view. Accordingly, respondent's legitimate privacy expectations have not been breached. Officer Maples had ample reason to believe that the balloon contained narcotics. He properly rested his conclusion on his past experience with narcotics traffickers and was not foreclosed from making reasonable inferences about the balloon merely because it was opaque. /3/ And insofar as the court below may have based its ruling on the lack of a warrant, that result cannot be squared with the Fourth Amendment; it would have been a needless and unreasonable inconvenience to require other police officers to guard the accessible contraband while Officer Maples secured a warrant authorizing seizure of the balloon. /4/ CONCLUSION The judgment of the Court of Criminal Appeals of Texas should be reversed. Respectfully submitted. REX E. LEE Solicitor General D. LOWELL JENSEN Assistant Attorney General ANDREW L. FREY Deputy Solicitor General JOSHUA I. SCHWARTZ Assistant to the Solicitor General PATTY MERKAMP STEMLER Attorney Attorney August 1982 /1/ So far as we are aware, the record does not reveal where and when the balloon was opened, although it appears that Officer Maples did not do so on the spot (J.A. 30). Even assuming that the balloon was subsequently opened without a warrant, any search entailed is justifiable on several rationales. Examination of the contents of the balloon falls within the automobile exception to the warrant requirement. See United States v. Ross, No. 80-2209 (June 1, 1982). Once Officer Maples saw the knotted balloon on the seat and the vials, powder and package of balloons in the glove compartment, probable cause focused on the car itself. From the evidence before him, Officer Maples could reasonably conclude that the car was being used as a packaging site for narcotics. Thus, without a warrant, police were permitted to search the automobile, seize any incriminating evidence, and open for further examination any container, including the knotted balloon, that was reasonably suspected of containing evidence or contraband. Id. at 19-25. The fact that the "search" of the balloon may not have been conducted at the scene of the auto search is, of course, of no moment. Chambers v. Maroney, 399 U.S. 42, 51-52 (1970). Alternatively, irrespective of its setting in an automobile, a knotted balloon containing a powdery substance may be searched without a warrant because it is rarely associated with anything other than narcotics. Like a gun case or a kit of burglar tools, a knotted, bulging balloon "by (its) very nature cannot support any reasonable expectation of privacy because (its) contents can be inferred." Arkansas v. Sanders, 442 U.S. 753, 764-765 n.13 (1979). Finally, if the balloon was opened at the arrest scene, the search is justifiable as a contemporaneous incident of the arrest. New York v. Belton, 453 U.S. 454 (1981). /2/ Because probable cause arose prior to the time Officer Maples touched the balloon, this case does not require the Court to decide the extent to which police may examine any item found in plain view in order to determine whether it is incriminating. Compare, e.g., United States v. Crouch, 648 F.2d 932 (4th Cir.), cert. denied, No. 81-5009 (Oct. 19, 1981), with United States v. Scios, 590 F.2d 956, 963 n.15 (D.C. Cir. 1978). In addition, because the discovery of the balloon was inadvertent, there is no need to consider the soundness of the suggestion of the Coolidge plurality that inadvertent discovery of an item is required for a valid plain view seizure (a suggestion that may in any event be limited to seizures made during the execution of a search warrant naming items other that that seized). /3/ Indeed, even if the balloon had been transparent, Officer Maples could not conclusively ascertain that it contained heroin without opening it and testing the contents. Almost any article will require further examination before its evidentiary value may be definitely established. The Court of Criminal Appeals' decision accordingly threatens the viability of the plain view doctrine itself. /4/ Of course such detention of the balloon pending resort to a magistrate could be deemed a seizure as well. The implication of the Court of Criminal Appeals' decision is accordingly that no action could be taken to secure the balloon. We note that the seizure of respondent's balloon in this case may also be justified as incident to respondent's arrest. New York v. Belton, supra. Because probable cause to arrest respondent on a driving charge, as well as on the drug charge, arose prior to the seizure of the balloon, it is immaterial that the formal arrest followed the seizure. Rawlings v. Kentucky, 448 U.S. 98, 110-111 (1980). This alternative justification for the seizure simply illustrates the anomalous nature of the ruling below. Similarly, because respondent was the sole occupant of the car and had been lawfully arrested, some seizure of the car and its contents, including the balloon, was undoubtedly a reasonable exercise of community caretaking responsibilities. Cady v. Dombrowski, 413 U.S. 433, 443-448 (1973); cf. South Dakota v. Opperman, 428 U.S. 364, 367-372 (1976). Accordingly, the effect of the decision below is to attribute constitutional significance to the fact that the balloon and automobile were seized separately.