TERRY BRICE HORTON, PETITIONER V. STATE OF CALIFORNIA No. 88-7164 In The Supreme Court Of The United States October Term, 1989 On Writ Of Certiorari To The Court Of Appeal Of California For The Sixth Appellate District Brief For The United States As Amicus Curiae Supporting Respondent TABLE OF CONTENTS Question Presented Interest of the United States Statement Introduction and summary of argument Argument: The Fourth Amendment allows the police, acting on probable cause, to seize evidence that they find in plain view while lawfully executing a search warrant A. The inadvertence requirement does not provide added protection for Fourth Amendment values B. The inadvertence requirement would impose significant costs on legitimate law enforcement activities C. The inadvertence requirement is not needed to prevent subterfuge, warrantless, or general searches Conclusion QUESTION PRESENTED While executing a search warrant at petitioner's house, the police seized items found in plain view that they had probable cause to believe was evidence of a crime. The question presented is whether that seizure was prohibited by the Fourth Amendment because the police suspected that the items would be found in the house, but did not ask the judge to include those items in the search warrant. INTEREST OF THE UNITED STATES This case presents an issue raised but not resolved in Coolidge v. New Hampshire, 403 U.S. 443 (1971): whether the police may seize items found in plain view during the course of a search only if those items are discovered "inadvertently." Federal law enforcement agents execute many search warrants and often discover evidence in plain view. At times, those agents discover evidence that they suspected would be present but did not include in the application for the warrant. The resolution of the question presented in this case will determine whether federal agents may lawfully seize such evidence and whether it may be admitted into evidence in federal criminal proceedings. This case will also determine whether evidence seized in the course of state searches under similar circumstances may be used in federal prosecutions. STATEMENT 1. Erwin Wallaker was the treasurer of the San Jose Coin Club in California. In January 1985, the Coin Club held its annual coin show at the San Jose Convention Center. One of Wallaker's jobs was to collect the revenue generated at the show. On January 13, 1985, Wallaker left the convention center with about $10,000 in cash in one briefcase, coins worth $20,000 in another briefcase, and $1,200 in his wallet. Wallaker drove home at about 6:30 that night. J.A. 44. When Wallaker reached his home, he left his car in his driveway and walked into his garage where he was surprised by two men wearing masks. One man held a machine gun; the other carried a "stun gun." The man with the machine gun demanded money while the other man shot Wallaker with the stun gun. The robbers forced Wallaker to the floor and handcuffed him. J.A. 44. Wallaker tried to keep the two men talking because he noticed that the man with the machine gun had a southern accent that sounded familiar. The man with the stun gun took three rings from Wallaker's fingers, as well as his billfold and credit-card case. The man with the machine gun then asked Wallaker for the rest of his money. Wallaker pointed to a safe, and one of the assailants removed its contents -- several rings, uncut rubies, and a wristwatch. At one point, the man with the stun gun rubbed it against Wallaker's face. J.A. 44-45. The robbers then found Wallaker's car keys and went to his car. Wallaker made noises in an effort to attract help. One of the robbers then returned to the garage, hit Wallaker over the head, and dragged him back away from the garage door. Three neighbors soon responded to Wallaker's calls for help and called the police. The robbers were making their escape when the neighbors came to Wallaker's aid. J.A. 45. In the early morning after the robbery, Wallaker realized that he recognized the voice of the man with the southern accent as that of Terry Horton, a fellow coin collector. Wallaker had seen Horton at coin meetings over the years and had spoken with him about two dozen times. He had noticed that Horton attended the coin show on the day of the robbery. Wallaker promptly contacted the police and gave them that information. He then made a positive identification of Horton from a mug shot. Later, Lisa Miller -- one of the people who came to Wallaker's aid -- picked Horton from a photo array as the man she saw walking hurriedly from Wallaker's house. J.A. 46-47. On the basis of that evidence, the San Jose police decided to seek a warrant to search Horton's house. Sergeant Gary LaRault completed an affidavit in support of the warrant. The affidavit described the evidence against Horton. Sergeant LaRault also stated that his experience showed that "robbers take the property stolen from their victims to the robbers' place of residence." J.A. 2-3. Accordingly, Sergeant LaRault requested a warrant to search Horton's house for the property taken by Wallaker's robbers. J.A. 4. A municipal court judge issued the warrant authorizing the search of Horton's house for the proceeds of the robbery. J.A. 13-14. The San Jose police executed the search warrant on January 30, 1985. They found none of the property that had been stolen from Wallaker. In the course of the search for the stolen property, however, the police found in plain view the following evidence linking petitioner to the robbery: an Uzi machine gun, a blue-steel .38 caliber revolver, two stun guns, a set of handcuff keys, an advertisement for the San Jose Coin Club show, and some clothes. J.A. 19-24. Petitioner was arrested and charged with robbery, false imprisonment, possession of a concealable firearm by a convicted felon, and possession of an Uzi machine gun. J.A. 47. 2. On September 23, 1985, the trial court heard evidence on petitioner's motion to suppress the evidence found in his house. Sergeant LaRault, who executed the warrant to search petitioner's house, testified at the hearing. He stated that, in accordance with the warrant, he "was looking for items that were taken from Mr. Wallaker during the robbery." J.A. 28. He added that he was also interested in "items that would connect the person at the home to associate with the robbery, things used in the robbery to obtain the property, weapons mentioned in the police reports, the clothing described by the witnesses." J.A. 28. The trial court denied petitioner's request to suppress the evidence seized from his house. A jury later found petitioner guilty on all charges. Petitioner was sentenced to a prison term of eight years and eight months. 3. The California Court of Appeals affirmed petitioner's convictions, rejecting petitioner's claim that the evidence from his home was seized in violation of the Fourth Amendment. J.A. 43-77. Petitioner had argued that the seizure of the evidence could not be justified under the "plain view" doctrine because the officer's discovery of the items was not "inadvertent." J.A. 52. Relying on North v. Superior Court, 8 Cal. 3d 301, 502 P.2d 1305, 104 Cal. Rptr. 833 (1972), the court of appeal held that there is no "'inadvertence' requirement in California." J.A. 53. In North, the Supreme Court of California had rejected Justice Stewart's view in Coolidge v. New Hampshire, 403 U.S. 443 (1971), that the "plain view" doctrine applies only to evidence that is discovered "inadvertently." Accordingly, the court of appeal concluded that "'(t)he fact that the officer had foreknowledge of the presence of the evidence in (petitioner's house) is of no constitutional significance.'" J.A. 53 (citation omitted). /1/ The Supreme Court of California denied petitioner's request for review. J.A. 78. INTRODUCTION AND SUMMARY OF ARGUMENT The suggestion that the Fourth Amendment imposes an "inadvertence" requirement for seizures of items found in plain view stems from a three-page segment of Justice Stewart's opinion in Coolidge v. New Hampshire, 403 U.S. 443 (1971). Justice Stewart wrote in Coolidge that the "discovery of evidence in plain view must be inadvertent" in order to justify its seizure. 403 U.S. at 469. The "inadvertence" requirement, he explained, provides that "where the police know in advance the location of the evidence and intend to seize it," they must obtain a warrant that authorizes them to search for and seize that evidence. 403 U.S. at 470. /2/ Justice Stewart explained that when the police know of the existence of incriminating items in advance and intend to seize them, it imposes "no inconvenience whatever, or at least none which is constitutionally cognizable" to require that the police obtain a warrant to seize those items. 403 U.S. at 470. Not to include those items in the warrant that authorizes the entry, he stated, would violate the Warrant Clause of the Fourth Amendment, which requires that warrants particularly describe the things to be seized. Justice Stewart's analysis did not rest entirely on the Warrant Clause, however. He explained that even when the initial intrusion is justified by one of the exceptions to the warrant requirement, such as hot pursuit or search incident to arrest, the plain view seizure of items that the police knew in advance they would find "would fly in the face of the basic rule that no amount of probable cause can justify a warrantless seizure." 403 U.S. at 471. Justice Stewart recognized an exception to his "inadvertence requirement" for "contraband or stolen goods or objects dangerous in themselves," 403 U.S. at 471, 472, although he did not explain the analytical basis for that exception. /3/ That part of Justice Stewart's opinion in Coolidge did not command a majority of the Court. Four Members of the Court forcefully disagreed with Justice Stewart, see 403 U.S. at 508-510 (Black, J.); id. at 516-517 (White, J.), and Justice Harlan expressly limited his concurrence in Justice Stewart's opinion to portions other than Part II-C, which contained the discussion of the inadvertence requirement, see id. at 491. /4/ In his dissent, Justice Black argued that the Warrant Clause, on which Justice Stewart principally based the inadvertence requirement, has no role to play in limiting probable cause seizures of items seen in plain view at the time of an arrest. 403 U.S. at 505-510. Moreover, Justice Black observed that Justice Stewart's approach seemed to reject the reasonableness requirement of the Fourth Amendment in favor of an unwarranted per se rule that "if the police could have obtained a warrant and did not, the seizure, no matter how reasonable, is void." 403 U.S. at 509. Justice White made a broader attack on the inadvertence requirement, not limiting his dissent to seizures made at the time of an arrest. He began his analysis by stating that, in his view, the warrantless seizure of evidence seen during an otherwise lawful search "is not itself an invasion either of personal privacy or of property rights beyond that already authorized by law. Only the possessory interest of a defendant in his effects is implicated." 403 U.S. at 515. Justice White noted that under Justice Stewart's approach a warrantless seizure of property seen during a valid warrant-authorized search is lawful if the discovery of the evidence is inadvertent. Justice White questioned why the case should be different when the discovery of the evidence is anticipated. If police believe they have probable cause to seize particular evidence, he explained, they "could have no possible motive" for including certain items and omitting others, with the hope of seizing the second group of items under the plain -- view doctrine. Only a misjudgment by the police of the probable cause for the second group of items, or oversight on their part, would explain the failure to include those items in the warrant application. And to suppress evidence because of that kind of misjudgment or oversight, Justice White concluded, would be "a punitive and extravagant application of the exclusionary rule." 403 U.S. at 517. Justice White further noted that "the inadvertence rule is unnecessary to further any Fourth Amendment ends and will accomplish nothing." 403 U.S. at 517. Police with a warrant to search for a particular item may search only where they can reasonably expect to find that item, and they must terminate the search once the item is found. Thus, Justice White explained, the inadvertence rule "will in no way reduce the number of places into which they may lawfully look." Ibid. Instead of promoting the goals of the Fourth Amendment, Justice White concluded, the inadvertence requirement "will merely attach undue consequences to what will most often be an unintended mistake or a misapprehension of some of this Court's probable-cause decisions, a failing which, I am afraid, we all have." 403 U.S. at 518. /5/ Since the decision in Coolidge, many courts have accepted the inadvertence requirement as law. See, e.g., Terry v. State, 271 Ark. 715, 610 S.W.2d 272 (Ct. App. 1981); State v. Galloway, 232 Kan. 87, 652 P.2d 673 (1982). Other courts, however, have ruled that the Fourth Amendment contains no such requirement. See, e.g., North v. Superior Court, supra; State v. Romero, 660 P.2d 715 (Utah 1983). And many of the courts that have adopted an inadvertence requirement have narrowly construed it, finding that particular discoveries were "inadvertent" and thus lawful. See, e.g., United States v. $10,000 in U.S. Currency, 780 F.2d 213, 219 (2d Cir. 1986) (seizure of money at premises was proper even though there was pre-existing probable cause, because police "in good faith failed to mention (the money) in the warrant"); United States v. Wright, 641 F.2d 602, 605 (8th cir. 1981) (discovery of gun during execution of warrant for drugs deemed inadvertent even though "the officers probably expected to find a firearm * * * and in fact might have been able to obtain a search warrant for a firearm"). Thus, contrary to the implication in petitioner's brief (Br. 8-9, 13), Justice Stewart's opinion in Coolidge is not settled law. Rather, it is simply "the point of reference for further discussion of the issue." Texas v. Brown, 460 U.S. 730, 737 (1983) (plurality opinion). This case brings squarely before the Court the question whether the inadvertence requirement is needed to comply with "(t)he fundamental command of the Fourth Amendment * * * that searches and seizures be reasonable." New Jersey v. T.L.O., 469 U.S. 325, 340 (1985). To answer that question, the Court should weigh any benefits of that requirement against its costs to "legitimate governmental interests." United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985) (quoting United States v. Villamonte-Marquez, 462 U.S. 579, 588 (1983)). We agree with the position articulated by Justice White in the Coolidge case: the inadvertence requirement does little or nothing to promote Fourth Amendment values, and it imposes significant costs on legitimate law enforcement efforts. In circumstances where an officer conducting a valid warrant-authorized search effects a plain-view seizure, no Fourth Amendment value is infringed; the search may not extend beyond that authorized by the warrant, and the seizure must be based on probable cause. The scope of the search therefore cannot be broadened by the omission from the warrant of evidence the police expect to find. The inadvertence requirement would impose several costs on efficient law enforcement. It would require the police either (1) to seek an additional warrant to seize items found during a search when the police find items they anticipated finding, or (2) to include in the warrant application any items they expect to find during the search. If they follow the latter course, the police will have an obligation to include in the warrant application all items that they have probable cause to connect to the crime and to believe will be on the premises. In light of the uncertainties unavoidably surrounding the concept of probable cause, complying with that requirement will not be easy. The police will have to guess what a court would later find to constitute probable cause, with suppression as the penalty for guessing wrong. Contrary to the suggestion of some courts, the inadvertence requirement is not justified by the need to avoid "subterfuge searches." To begin with, officers with probable cause to search for particular items (who are the only ones affected by the inadvertence requirement) will have no reason to conduct "subterfuge searches," instead of simply including the items in question in the warrant application. In any event, if subterfuge searches are a problem, the issue should be addressed directly, rather than through the creation of a doctrine that may discourage some subterfuge searches, but also affects many searches, such as the one here, that have no element of subterfuge. The inadvertence requirement is, in sum, not justified by the language of the Fourth Amendment or any policy underlying it; it should not be engrafted onto Fourth Amendment analysis. ARGUMENT THE FOURTH AMENDMENT ALLOWS THE POLICE, ACTING ON PROBABLE CAUSE, TO SEIZE EVIDENCE THAT THEY FIND IN PLAIN VIEW WHILE LAWFULLY EXECUTING A SEARCH WARRANT A. The Inadvertence Requirement Does Not Provide Added Protection For Fourth Amendment Values 1. This Court has consistently recognized that "the principal object of the Fourth Amendment is the protection of privacy rather than property." Warden v. Hayden, 387 U.S. 294, 304 (1967). And the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court, 407 U.S. 297, 313 (1972). See also Welsh v. Wisconsin, 466 U.S. 740, 748 (1984). The requirement of a search warrant, issued by a detached magistrate after a finding of probable cause, adequately protects a person's legitimate privacy interest in his home. The warrant ensures that a judicial officer has examined the evidence and found the existence of probable cause. In addition, the warrant limits the scope of the search; the police may search only in those places where the items listed in the warrant may reasonably be found. Finally, law enforcement officers must end their search when they have found and seized the items enumerated in the warrant. See United States v. Ross, 456 U.S. 798, 820-821 (1982); Coolidge v. New Hampshire, 403 U.S. at 517 (White, J., dissenting); 2 W. LaFave, Search and Seizure Section 4.10(d), at 329-330 (2d ed. 1987). In this case, there is no dispute that the police were properly executing a valid search warrant when they found the evidence of petitioner's crime. They were therefore lawfully entitled to be where they were when they saw the evidence in plain view. Consequently, petitioner's privacy interests were not compromised by the fact that the seized evidence was not listed in the search warrant. See W. LaFave, supra, Section 4.11, at 353. In seeking to justify the inadvertence requirement, petitioner focuses not on the Fourth Amendment's prohibition against unreasonable searches, but on its prohibition against unreasonable seizures. But like Justice Stewart's opinion in Coolidge, 403 U.S. at 471, petitioner's analysis (Pet. 7-8) is based on what we submit is a faulty premise -- that seizures are presumptively unreasonable if not made pursuant to a warrant. Although the Court has never expressly so held, we believe that the analysis in many of the Court's decisions leads to the conclusion that a Fourth Amendment seizure, as distinguished from a search, ordinarily does not require a warrant. Instead, a seizure is valid as long as it is supported by probable cause, and as long as the seizure can be made without the need for an unauthorized intrusion. /6/ See Payton v. New York, 445 U.S. 573, 586-587 (1980) (it is well settled that "objects such as weapons or contraband found in a public place may be seized by the police without a warrant. The 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."); G. M. Leasing Corp. v. United States, 429 U.S. 338, 354 (1977); see also United States v. Jacobsen, 466 U.S. 109, 121-122 (1984) ("it is well settled that it is constitutionally reasonable for law enforcement officer to seize 'effects' that cannot support a justifiable expectation of privacy without a warrant, based on probable cause to believe they contain contraband"); Illinois v. Andreas, 463 U.S. 765, 771 (1983) (seizure authorized if officer has some prior Fourth Amendment justification for presence and "has probable cause to suspect that the item is connected with criminal activity"); Texas v. Brown, 460 U.S. at 738-739 (plurality opinion) (in light of competing interests, "our decisions have come to reflect the rule that if, while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object, they may seize it immediately"); id. at 748 (Stevens, J., concurring in judgment). These decisions establish that as long as the police are authorized to be in the place where they see particular items in plain view, they may seize those items if they have probable cause to believe the items are evidence of a crime. This Court has applied that principle to a boat seized on public waters, United States v. Lee, 274 U.S. 559, 562 (1927), a car found on a public street, Cooper v. California, 386 U.S. 58, 61-61 (1967), and items found in a private place where a third party has given consent to search, Frazier v. Cupp, 394 U.S. 731, 740 (1969). The fact that the police are conducting a search when they make their plain-view observations does not alter the analysis. The officers' "viewing of the object in the course of a lawful search is as legitimate as it would have been in a public place * * *." Arizona v. Hicks, 480 U.S. 321, 327 (1987). /7/ The inadvertence requirement is sometimes said to protect a person's possessory interest in items by requiring a judicial officer, rather than the police, to make the finding of probable cause before such items are seized. But the inadvertence requirement does not serve that function well. This point can be illustrated by the following example. Suppose the police have probable cause to believe that a murder weapon is in the suspect's house, but they also expect to find a mask there that was worn by the murderer. Under petitioner's view of the inadvertence rule, the police would be required to ask the magistrate to issue a warrant allowing them to search for and seize both the weapon and the mask. If the magistrate found probable cause to believe both that the mask was evidence of a crime and that it would be found at the house, the magistrate would issue a warrant listing both items. If the police then found the mask during their search, they could lawfully seize it. Suppose that the magistrate found probable cause to search only for the weapon, either because the magistrate did not believe the mask would be found in the house or because he did not believe the mask was evidence of the crime. The magistrate's decision to limit the warrant, we submit, would provide little or no protection to the suspect. If, during the course of the authorized search for the weapon, the police found the mask, they could still seize the mask under the plain view doctrine, at least in most cases. If the basis for the magistrate's judgment was that the mask was not likely to be found in the house, the discovery of the mask would obviously supersede that judgment. And even if the basis for the magistrate's judgment was that the mask was not shown to be evidence of the crime, the police could still seize the mask if events during the search gave the police additional information that buttressed the probable cause tying the mask to the crime. If, for example, the mask were discovered in close proximity to weapons used in the crime, the showing of probable cause might be sufficient to justify the seizure of the mask in spite of the magistrate's refusal to authorize its seizure based on the evidence presented prior to the search. Even if the circumstances leading to the discovery of the mask do not strengthen the connection between the mask and the crime, the police still may be authorized to seize the mask. If we are correct that seizures ordinarily may be conducted on probable cause without the need for a warrant, the police would not be barred from seizing the mask because of the magistrate's determination that probable cause was lacking; the police could simply seize the mask because they disagreed with the magistrate with regard to the existence of probable cause. If a reviewing court later decided that the police were right and the magistrate was wrong about the existence of probable cause, the reviewing court would hold the evidence admissible, since the court's decision would establish that the probable-cause seizure was lawful. If the Court concludes that a seizure ordinarily requires a warrant, the police will not be allowed to disregard the magistrate's determination that there is no probable cause to seize the mask. In that setting, the subject of the search could benefit from the inadvertence requirement, because the magistrate's probable-cause determination will restrain the ability of the police to conduct a seizure. But the cases in which that benefit is felt will be sufficiently rare that the protection provided by the inadvertence requirement will be quite limited. To return to the hypothetical case discussed above, the police will be foreclosed from seizing the mask only if (1) they believe they have probable cause to connect the mask to the crime and to expect that the mask will be found on the premises (and therefore conclude that they are required by the inadvertence rule to ask the magistrate to issue a warrant for the mask as well as the murder weapon); (2) the magistrate agrees with the police with respect to the murder weapon, but disagrees that there is probable cause to connect the mask to the crime and refuses to authorize its seizure for that reason; (3) the mask is found in plain view in the course of the search; and (4) the police learn nothing in the course of the search that buttresses the inference that the mask is connected to the crime. Obviously, the class of cases fitting this pattern will not be large. In particular, where the police conclude that they are compelled by the existence of probable cause to request authorization to seize a particular item that they would not otherwise have included in the warrant application, their judgment as to the existence of probable cause for that item is likely to be conservative; it is unlikely in that setting that the magistrate will conclude that there is no probable cause to seize the item. Thus, even if the inadvertence requirement induced the police in every case to include in their warrant applications everything they expected to find during the course of a warrant-authorized search, it would have little effect in protecting possessory interests in property that the police find in plain view. Even though the inadvertence requirement will seldom affect the outcome of a search, it still might have value if it responded to a serious Fourth Amendment problem. But the inadvertence requirement does not address any recognized law enforcement abuse. It is, rather, a solution in search of a problem. As Justice White pointed out in his dissenting opinion in Coolidge, 403 U.S. at 517, police who have probable cause to search for two items can have no possible motive for deliberately including one but not the other in the warrant application. Police are not likely to omit an item from a warrant application so that they can seize it under the plain view doctrine rather than under authority of the warrant. Rather, when the police wish to seize a particular item but omit it from their warrant application, the omission is most often the result of an oversight or an underestimate of the degree of probable cause. In neither event is the target of the search likely to be prejudiced by the omission of the item in question, since the scope of the authorized search is not enlarged, and it is unlikely that a seizure will take place that could not otherwise have occurred. 2. Petitioner's proposed rule -- one that would prevent the police from seizing items without a warrant if they anticipated that they would find such items -- could actually lead to greater invasions of privacy. To comply with such a rule, the police could follow one of two courses of action. First, when they discover an item they expected to find but did not list, they could remain on the premises while one officer returned to the magistrate to obtain a new warrant. Such a procedure would require the officers to extend their stay on the premises and thus would result in an added invasion of privacy. See generally United States v. Place, 462 U.S. 696, 709 (1983) ("the brevity of the invasion of the individual's Fourth Amendment interests is an important factor"). Alternatively, the police could seek broad warrants that would list every item that they expect to find in the place to be searched. That course would avoid the risk that evidence would be suppressed if the defendant could later show that the police had probable cause to search for certain items but did not include them in the warrant application. That course, however, would call on the police to seek permission to search for any item for which they could conceivably have probable cause. The scope of the authorized search, and thus the degree of the intrusion into the subject's privacy, would be enlarged with every additional item listed in the warrant. In sum, it is far from clear that the inadvertence requirement would do anything to further privacy values protected by the Fourth Amendment, and in fact it might tend to produce the opposite effect. B. The Inadvertence Requirement Would Impose Significant Costs On Legitimate Law Enforcement Activities In his opinion in Coolidge, Justice Stewart concluded that there were no significant costs associated with an inadvertence requirement. See 403 U.S. at 470 ("(t)he requirement of a warrant to seize imposes no inconvenience whatsoever"). Experience, however, has shown that Justice Stewart was wrong. As Professor LaFave has observed, there are a variety of "costs inherent in the 'inadvertent discovery' limitation." LaFave, supra, at 353. In the first place, the criminal justice system would bear obvious costs if the police were required to return to a magistrate for a new warrant listing items that they find in plain view. As the Court observed in Arizona v. Hicks, there is both "the inconvenience and the risk -- to themselves or to the preservation of the evidence -- of going to obtain a warrant." 480 U.S. at 327. Those costs are, in general, sufficient to justify warrantless seizures of items found in plain view if there is probable cause to seize them. See pp. 14-15, supra. The burden of the inadvertence rule is not avoided even if the police initially list in the warrant application all items as to which they believe they have probable cause. The affiant seeking the warrant would be required to check with other officers involved in the investigation to ensure that every item that any member of the investigative team may expect to find on the premises is listed. Correspondingly, the magistrate would have to engage in the lengthy process of determining whether there is probable cause to search for all items that the police have brought to his attention. That task would be made especially difficult since the police would be ogliged to request search authorization even for items as to which they have only marginal probable cause to believe they will find on the premises. Perhaps the greatest cost of the inadvertence requirement results from the unavoidable difficulties in applying the concept of probable cause. The existence of probable cause is not an empirical and observable fact. It is a judgment about probabilities that the police (and the magistrate) must make in light of the historical facts. See generally Illinois v. Gates, 462 U.S. 213, 231 (1983) ("The process does not deal with hard certainties, but with probabilities."). Accordingly, the police cannot be expected to know with certainty whether they have probable cause to search for a particular item; or, put another way, they cannot be expected always to anticipate with accuracy how a judge will assess the matter at a subsequent suppression hearing. This Court has stated that "(t)he police are not required to guess at their peril the precise moment at which they have probable cause." Hoffa v. United States, 385 U.S. 293, 310 (1966). Petitioner's proposal, however, would create just such peril. If a careful and diligent policeman thought that he did not have probable cause to believe a particular item would be found on the premises, but a judge later disagreed, then under petitioner's proposed rule the evidence would be suppressed. In essence, the policeman's cautious approach to warrant-authorized searches would be penalized. /8/ Commentators have also observed that the inadvertence requirement creates "troublesome practical problems of proof at suppression hearings." LaFave, supra, at 353 (citation omitted). Those problems result from the fact that in order to satisfy the inadvertence requirement, the government must prove that at the time they applied for the warrant, the police did not have probable cause to search for a particular item that they later seized in plain view based on probable cause. The defendant, by contrast, is required to prove that the officers had ample probable cause to believe that incriminating evidence would be found; that claim may be awkwardly inconsistent with the claim that the government did not have probable cause to obtain a warrant in the first place. The effect of this odd allocation of burdens is not simply to discomfit counsel by forcing them to play unaccustomed roles in the litigation. It creates an incentive for the police to claim a lack of knowledge about important facts in order to downplay the extent of their confidence that they would find particular items of evidence in the searched premises. As Professor LaFave notes, "(s)uch a scenario" is not "any more likely to result in accurate factfinding than hearings under other rules which make it advantageous to the policeman to claim a lack of knowledge." LaFave, supra, at 354. At bottom, the inadvertence requirement would result in the declaration of police conduct as unlawful and the suppression of valuable evidence for no good reason. Of course, the costs might be viewed as justified if the inadvertence requirement significantly advanced Fourth Amendment values, but it does not have that effect. As we have explained, the inadvertence requirement does not protect privacy interests at all, and it protects possessory interests, if at all, only to a very limited degree. For these reasons, therefore, we submit that the inadvertence requirement should be rejected. Its recognition is not compelled by the language of the Fourth Amendment; neither is it judicial creation justified by the policies advanced by the Fourth Amendment, inasmuch as its costs to law enforcement far exceed any benefits it may provide in protecting against unlawful police conduct. C. The Inadvertence Requirement Is Not Needed To Prevent Subterfuge, Warrantless, Or General Searches 1. Some courts have interpreted Justice Stewart's opinion in Coolidge as directed at preventing "subterfuge searches." See, e.g., State v. Kelsey, 592 S.W.2d 509, 513 (Mo. Ct. App. 1979). Those courts suggest that the inadvertence requirement was created to address cases like the following: the police want to search for evidence of crime A, but they do not have probable cause, so they obtain a warrant to search for evidence of unrelated crime B. In such a case, the warrant for evidence of crime B is simply a pretext and thus the police are not executing the warrant "in good faith." State v. Van Beek, 87 S.D. 598, 602, 212 N.W.2d 659, 662 (1974). Accord United States v. Tanquillo, 330 F. Supp. 871 (M.D. Fla. 1971). Courts embracing that justification for the inadvertence requirement hold that such "subterfuge searches" are unlawful under the Fourth Amendment. See, e.g., State v. Lair, 95 Wash. 2d 706, 630 P.2d 427, 434 (1981) ("If the search warrant for marijuana is merely a 'pretext' for a search for other drugs or even other kinds of objects, the search may be invalidated."). There is good reason to doubt that such so-called "subterfuge searches" are unreasonable. This Court has repeatedly held that objective rules govern the inquiry into the lawfulness of a search or seizure, and that an officer's subjective intent does not invalidate objectively reasonable police conduct. In Scott v. United States, supra, for example, the Court stated that searches are to be examined "under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved." 436 U.S. at 138. Accord United States v. Robinson, 414 U.S. 218 (1973) (motivation of officer who conducts a search incident to an arrest is irrelevant). That principle suggests that subterfuge searches are not proscribed by the Fourth Amendment as long as they are objectively reasonable. There is no need, however, to address the broad question of the validity of so-called "subterfuge searches" in order to reject the inadvertence requirement. In the first place, the inadvertence requirement would not prevent subterfuge searches of the type described above. If the police do not have probable cause to search for evidence of crime A, the inadvertence rule would not require them to refer to that evidence in the warrant application relating to crime B. And even if the inadvertence rule might in some instances discourage the use of subterfuge searches, it is much too crude a device to be effective in achieving that end. Besides discouraging some subterfuge searches, the inadvertence requirement would threaten many searches bearing none of the indicia of subterfuge, such as the search in this case. The officers in this case executed the search warrant in "good faith" in the sense that they were searching for evidence linking petitioner to the robbery, specifically the fruits of the crime. See J.A. 28. Thus, the searching officers were not engaged in a subterfuge search, purporting to be interested in investigating one crime or one type of evidence but in fact seeking to investigate another crime or obtain another type of evidence. Yet, as this case makes clear, the inadvertence requirement would cast doubt on the validity of searches that no court would characterize as the products of pretext or subterfuge. See LaFave, supra, at 356 ("good faith would not be absent merely because the police neglected to add other items to the search warrant for which probable cause existed"). Accordingly, if the Court is concerned with subterfuge searches, it should address that concern directly when the appropriate case arises. It should not, we believe, adopt a rule such as the inadvertence requirement, which does nothing to protect legitimate Fourth Amendment values and results in the unnecessary exclusion of probative criminal evidence. 2. Petitioner contends (Br. 11-13) that the decision below effectively reads the warrant requirement out of the Fourth Amendment. That is not so. The police were obliged to -- and did -- obtain a warrant to enter petitioner's house. They were authorized to search only in places where it was reasonable to believe that the items listed in the warrant might be located. And they were required to conclude their search once they found the items listed in the warrant. In short, the warrant authorized the entry into petitioner's house and defined the scope of the search. That result fully respects the language and purposes of the Warrant Clause. 3. Finally, petitioner maintains (Br. 12-13) that the inadvertence requirement is needed to avoid converting warrants for specific terms into general warrants. The plain-view doctrine, however, already takes that concern into account, without the need for the inadvertence rule. The danger that the police will use a warrant to rummage at will "is averted by strict attention to two of the core requirements of plain view: seizing the item must entail no significant additional invasion of privacy, and at the time of seizure the officer must have probable cause to connect the item with criminal behavior." Texas v. Brown, 460 U.S. at 748-749 (Stevens, J., concurring in judgment). Here, the police had probable cause to seize the evidence of petitioner's crime, and they found that evidence without invading petitioner's privacy beyond the extent authorized by the warrant. Accordingly, the seizure of evidence in this case did not violate the Fourth Amendment. CONCLUSION The judgment of the California Court of Appeal should be affirmed. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General BRIAN J. MARTIN Assistant to the Solicitor General JANUARY 1990 /1/ The court of appeal also held that the police had probable cause to seize the evidence from petitioner's house. J.A. 53-54. Petitioner does not challenge that ruling in this Court. /2/ Although Justice Stewart did not expressly say so, the courts have generally concluded, and petitioner agrees (Br. 10), that the test for inadvertence should be probable cause, i.e., a seizure is not inadvertent if the police had probable cause to believe the items in question were subject to seizure and would be found on the premises in question. Any lower standard would lead to an absurd result: the police would be foreclosed from seizing items that they had not sought a warrant to seize, even though if they had sought a warrant, they would not have been able to obtain it for lack of probable cause. /3/ Justice Stewart may have regarded the inadvertence requirement as inapplicable to those items because of exigency (in the case of contraband and dangerous objects) and the reduced possessory interest of the subject of the search (in the case of contraband and stolen goods). /4/ Justice Harlan did not explain the precise grounds for his concurrence in the judgment. His concurrence in Part II-D of Justice Stewart's opinion (but not the other portions of Part II) may reflect the view that the seizure of Coolidge's car, which was parked in his driveway, involved an intrusion onto a portion of Coolidge's property that was not justified by the officers' presence in Coolidge's house to arrest him, and therefore the seizure of the car was not justified under the plain view doctrine, the rules applicable to car searches, or the principles governing searches incident to arrests. Portions of Part II-D of Justice Stewart's opinion, in which Justice Harlan joined, are consistent with that view of the case. See 403 U.S. at 478, 484. /5/ Justice White illustrated his point with a telling hypothetical case. He posited a warrant-authorized search for a rifle, during the course of which the police discovered two photographs of the murder victim. He further posited that the police anticipated that they would find one of the photographs, but not the other. He then argued that the seizure of the two photographs implicated Fourth Amendment interests in exactly the same way: the seizure deprived the owner of possession of both photographs based on the police judgment that they had probable cause to seize them. There is no justification under the policies of the Fourth Amendment, he argued, to suppress the photograph that the police had expected to find, but not the other. /6/ The distinction the Court has drawn between searches and seizures responds to the different interests the two procedures affect. A search involves an interference with a person's legitimate expectations of privacy. Because "the ruptured privacy of the victims' homes and effects cannot be restored," Linkletter v. Walker, 381 U.S. 618, 637 (1965), law enforcement officers are generally required to secure a warrant before they may conduct a search. A seizure, by contrast, represents only an interference with an individual's possessory interest in property. See Illinois v. Andreas, 463 U.S. 765, 771 (1983) ("once police are lawfully in a position to observe an item first-hand, its owner's privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy"). The consequences of an erroneous seizure -- deprivation of possession of the property -- are not nearly as severe as the consequences of an erroneous search, and they are remediable by ordering restoration of unlawfully seized property to the owner. See Fed. R. Crim. P. 41. /7/ To be sure, the Court has on occasion stated that the Fourth Amendment ordinarily requires a warrant to support a seizure as well as a search. See, e.g., United States v. Place, 462 U.S. 696, 701 (1983). While there appears to be some tension between the language in cases such as Place and the language in the cases cited in the text, the "general rule" that the Court identified in Place, is, at minimum, subject to exceptions based on "recognized exception(s) to the warrant requirement," ibid., which include cases in which evidence is observed in plain view during a warrant-authorized search. /8/ The test for probable cause is ordinarily characterized as an objective one, because "(w)hether a Fourth Amendment violation has occurred 'turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time.'" Maryland v. Macon, 472 U.S. 463, 470 (1985) (quoting Scott v. United States, 436 U.S. 128, 136 (1978)). Even if the court adopted a "subjective probable cause" test for the inadvertence requirement, so that evidence would be suppressed only if the searching officers subjectively believed that they had probable cause to search for certain items that were not named in the warrant, the standard would pose serious difficulties. First, in a case involving several officers, it would raise a question of which officer's subjective beliefs should be consulted. Second, it would likely give rise to litigation over the bona fides of the officer's testimony as to his beliefs, as well as challenges to the reasonableness of those beliefs. Third, it would still penalize the cautious officer who, while believing that he had probable cause to search for particular items, decided not to request authorization to search for those items because he regarded the likelihood that those items would be found on the premises to present a close question.