with criminal activity, the item is not immediatelyincriminating." United States. v. Byrd, 211 F.3d 1270, 2000WL 491511, **3 (6th Cir. 2000) (unpublished opinion).Based on the Beal factors this Court has used before and thisstatement in Byrd, we find the evidence against McLevainwas not "intrinsically incriminating, and it was not"immediately apparent" that the evidence provided probablecause that it was contraband.

E.

The final aspect of the "plain view" doctrine requires that

an officer have a lawful right of access to the object at issue.We said in Coolidge, "plain view alone is never enough to

justify the warrantless seizure of evidence." 403 U.S. at 468.As noted in Horton, this requirement of a lawful right of

access means that generally an officer should get a warrant ifpossible before he seizes an item in plain view. He cannotseize absent exigent circumstances. If he could obtain awarrant, then the he cannot use the "plain view" exception forthe evidence. 496 U.S. at 137, fn 7. 

Acquisito had before him the cut cigarette filter, the twist

tie, and a spoon with residue on it, if not the prescriptionbottle, when he field-tested the spoon. Before seizing thespoon and testing it, he suspected the items were drugparaphernalia. He should have sought a warrant at that time.The evidence was not going anywhere. McLevain was incustody, and his girlfriend and two children were still in thehouse. Acquisito should have taken his evidence of probablecause to a magistrate rather than attempting to seize it underthe "plain view" exception. Acquisito had no lawful right ofaccess to the items.












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$) %,&7 (() his conviction and sentence forviolation of 21 U.S.C. §841(a)(1) on the grounds that (1)thedistrict court erred in denying McLevain’s motion tosuppress, (2)the district court erred in admitting several piecesof evidence of prior bad acts, (3)the communication betweenthe court and jury outside defense counsel’s presence violatedMcLevain’s rights, and (4)the district court misappliedApprendi v. New Jersey, 530 U.S. 466 (2000), in sentencing.8,-  + 

 
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On December 28, 1999, Gary Cauley failed to return from

work release at the Daviess County Detention Center inDaviess County, Kentucky. Based on information from aconfidential informant, the Daviess County Jailer HaroldTaylor sought a search warrant for Roger Dale McLevain’s

house at 8865 Sacra Drive, Maceo, Kentucky, in the earlyafternoon of December 29. McLevain is the defendant nowbefore us. 

The affidavit supporting the search warrant suggested a

connection between McLevain and Cauley’s girlfriend, Lydia

Bell. The informant told the police that Bell had been stayingat McLevain’s residence, and she had been picked up from

there by a friend on the night Cauley escaped. She went toCauley’s mother’s house, where she received a call from

Cauley at the Detention Center. Bell then borrowed Cauley’s

		 

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experiences as law enforcement believe that the seemingly quotiddrug paraphernalia. The connectioillegal activities, however, is not enintrinsically incriminating. The comake their intrinsic nature such thgives rise to an association with cr

The final Beal factor examine

officers can at the time+,7


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(6th Cir. 1984), the United StateSzymkowiak’s home for a televisand the officers executing the warguns. The officers thought that thadjusted to rapidly fire. Id. The ofrom the Bureau of Alcohol, Tdetermine whether the guns were i"From the facts available to the exebefore us, they could not detediscovered evidence of a crim

Similarly, from the facts availMcLevain’s home, at the time of determine if they had seen evidenc


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item appears suspicious to an officis required to establish probable c
 	

			

or a bottle that makes it immediately apparent that those itemsare contraband. In McLernon, a room was searched pursuantto a cocaine conspiracy, and agents seized a note pad andcalendar from a desk, under the "plain view" exception. 746F.2d at 1104. We said, in that case, these items "were hardly‘intrinsically’ incriminating. Indeed such items are found in

plain view of virtually every desk across this country. We donot, and cannot, subscribe to a rule of law which allowsofficers of the state to seize an item as evidence merely

because it is in ‘plain view.’" Id. at 1125 (emphasis in

original). We found that the agents could not haveimmediately perceived those items as incriminating; "the

agents' ‘immediate’ perceptions produced only visual imagesof two ‘intrinsically innocent’ items." Id. Similarly, the

items found in McLevain’s home might be found under beds,in sinks, and on mantels in many homes, and not exclusivelythose where methamphetamine is being used. While the cutcigarette filter and the prescription bottle with fluid in it mightbe out of the ordinary, the police are not authorized to seizeodd items. We do not care what the explanation is for theitems, but we care that there may be some other explanationfor the items. Defense counsel pointed out at oral argumentthat sometimes smokers who do not want filters in theircigarettes remove them. The "plain view" exceptionauthorizes seizure of only those items that "immediatelyapp[ear]" to be contraband.

In one sense, the facts of this case are similar to those of

Texas v. Brown. In that case, an officer made a "plain view"seizure of narcotics at a routine driver’s license checkpoint.Id. at 730. In asking for the driver’s license, the officer sawan opaque party balloon, tied at the end, drop from Brown’shand. Id. The officer knew from his experiences in previousnarcotics arrests and from conversations with other officersthat balloons tied as Brown’s was were often used to carrynarcotics. Id. at 742-743. In this case, Detective Acquisito

also testified that from his experiences as a narcotics officerhe suspected that the twist tie, cigarette filter, spoon, andprescription bottle with liquid were being used withmethamphetamine. In both cases, it was the officers’s

		 mother’s car and returned it abou

The affidavit contained no infohimself, but Cauley and McLevain On the basis of this informationwarrant for McLevain’s house+
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2-)+ + *+ -C+ It has never been explaincluded. Taylor sought assistance from thDepartment. That department was a criminal record with a narcotics the Daviess County Detention CenSheriff’s Department executed thhome at about 2:00 p.m. on Decemofficers surrounded the home and both the front and the back doorsdoor immediately seized McLevain control over his girlfriend and two The officers then began searchinDetective Jim Acquisito went into where McLevain had just emergedfor Cauley. Acquisito saw there a filter. He suspected these items to informed his supervisor and toevidence, although he left it undis

Later in the search for Cauley, 

McLevain’s home, another officer to a spoon with residue on a tackle  Acquisito conducted a field test on it to be residue of methamphetaminAcquisito noticed on the mantel of a prescription bottle, with no labethat looked like water. Acquisito as drug paraphernalia, and he used 
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cause in seeking a second warrant. Upon returning with thesecond warrant, the officers discovered, concealed inside akerosene heater in the garage, approximately eighty-fivegrams of methamphetamine; $5,710 in cash; and variousplastic bags, syringes, twist ties, and electronic scales. Theseitems formed the basis for the charges against McLevain.

McLevain filed a motion to suppress, objecting to the plain

view discovery of the evidence in the first search. He arguedthat none of the first four pieces of evidence was immediatelyincriminating. He also argued that the discovery took theofficers beyond the scope of a search for an escapee. Thedistrict court denied this motion.





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We begin with the first of the 

between the object seized and the iexists in our case. Cauley was tMcLevain was an afterthought that The warrant had nothing to do wit

The second factor is whether th

items gives probable cause to beliemarijuana or cocaine on a table in Arizona v. Hicks, 480 U.S. 321 (19case, the police entered an apartmeWhile they were there, an officer he thought was incongruous in the oapartment. Id. at 323. The office

stolen, so he moved the equipmennumbers. Id. The Supreme Court 

unrelated to the objectives of the aexposed to view concealed portiocontents, did produce a new invasiunjustified by the exigent circumentry." Id. at 325. There was nonature" of the stereo equipmencontraband. 

McLevain claims that there is n

nature of a twist tie, a cigarette fil
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requirement, we found in United States v. McLernon, 746F.2d 1098, 1125 (6th Cir. 1984), limits the use of the "plainview" exception in two important ways. Requiring thatevidence be "immediate" and "apparent" constrains theexpansion of the limited search authorized by the warrant intoa generalized search, and it prevents officers from having anopportunity to create a reason to expand the search. Id.

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appearance of the seized object gives probable cause tobelieve that it is associated with criminal activity," and3)whether "the executing officers can at the time of discoveryof the object on the facts then available to them determineprobable cause of the object's incriminating nature." Id.(internal citations omitted) (emphasis in original). 

		 be authorized and the search which nothing in the Fourth Amendment by law-enforcement agents of gpossession of which is a crime, evnot aware that such property is osearch is initiated." 

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evidence against him, as a basis for a second warrant, wasparticularly egregious in light of the fact that the search wasfor two full-grown men. While the Supreme Court held inHarris, "**
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Even if the warrant application than a ‘bare bones’ affidavit, properly conclude that, notwiththat magistrates deserve, the warthe magistrate's probable-cause an improper analysis of the totalor because the form of the warrarespect.

While granting due deference to question why McLevain was nwarrant. The United States offered played an active role in facilitatinescape. Nevertheless, we find that the officers were lawfully present 

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