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.