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 v. Byrd, 211 F.3d 1270, 2000WL 491511, **3 (6th Cir. 2000) (unpublished opinion).Based on theBealfactors this Court has used before and thisstatement inByrd, we find the evidence against McLevainwas not "intrinsically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 thatan officer have a lawful right of access to the object at issue.We said inCoolidge, "plain view alone is never enough tojustify the warrantless seizure of evidence." 403 U.S. at 468.As noted inHorton, this requirement of a lawful right ofaccess 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 twisttie, 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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-)+72-((+On December 28, 1999, Gary Cauley failed to return fromwork 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’shouse 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 aconnection between McLevain and Cauley’s girlfriend, LydiaBell. The informant told the police that Bell had been stayingat McLevain’s residence, and she had been picked up fromthere by a friend on the night Cauley escaped. She went toCauley’s mother’s house, where she received a call fromCauley at the Detention Center. Bell then borrowed Cauley’s			

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 WK &LU  HPSKDVLV DGGHGexperiences as law enforcement agents that led them tobelieve that the seemingly quotidian objects were actuallydrug paraphernalia. The connection between these items andillegal activities, however, is not enough to render these itemsintrinsically incriminating. The connection is not enough tomake their intrinsic nature such that their mere appearancegives rise to an association with criminal activity.The finalBealfactor examines whether "the executingofficers canat the time+,71
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-?810 F.2d at 577 (emphasis inoriginal). InUnited States v. Szymkowiak, 727 F.2d 95, 95(6th Cir. 1984), the United States had a warrant to searchSzymkowiak’s home for a television set and some jewelry,and the officers executing the warrant found and seized twoguns. The officers thought that the guns had been illegallyadjusted to rapidly fire.Id.The officers had to call an agentfrom the Bureau of Alcohol, Tobacco and Firearms todetermine whether the guns were illegal.Id.at 96. We said,"From the facts available to the executing officers in the casebefore us, they could not determine whether they haddiscovered evidence of a criminal nature."Id.at 99.Similarly, from the facts available to the officers inMcLevain’s home, at the time of discovery, they could notdetermine if they had seen evidence of criminal activity.71,
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			or a bottle that makes it immediately apparent that those itemsare contraband. InMcLernon, 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 inplain 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 evidencemerelybecause it is in‘plain view.’"Id.at 1125 (emphasis inoriginal).We found that the agents could not haveimmediately perceived those items as incriminating;"theagents'‘immediate’perceptions produced only visual imagesof two‘intrinsically innocent’items."Id.Similarly, theitems 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 ofTexas 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 Acquisitoalso 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			

	Amother’s car and returned it about an hour and a half later.The affidavit contained no information as to McLevainhimself, but Cauley and McLevain were known to be friends.On the basis of this information, Taylor sought a searchwarrant for McLevain’s house.# 

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 2C+It has never been explained why McLevain wasincluded.Taylor sought assistance from the Daviess County Sheriff’sDepartment. That department was aware that McLevain hada criminal record with a narcotics offense. Officers of boththe Daviess County Detention Center and the Daviess CountySheriff’s Department executed the warrant at McLevain’shome at about 2:00 p.m. on December 29. Law enforcementofficers surrounded the home and forcibly entered throughboth the front and the back doors. The officers at the frontdoor immediately seized McLevain in the hallway and gainedcontrol over his girlfriend and two children in the front room.The officers then began searching for Cauley. NarcoticsDetective Jim Acquisito went into the master bedroom, fromwhere McLevain had just emerged, and looked under the bedfor Cauley. Acquisito saw there a twist tie and a cut cigarettefilter. He suspected these items to be drug paraphernalia. Heinformed his supervisor and took photographs of thisevidence, although he left it undisturbed.Later in the search for Cauley, who was never found atMcLevain’s home, another officer drew Acquisito’s attentionto a spoon with residue on a tackle box in a sink in the garage.Acquisito conducted a field test on the residue, and he foundit to be residue of methamphetamine. At about the same time,Acquisito noticed on the mantel of the fireplace in the garagea prescription bottle, with no label, filled with a clear liquidthat looked like water. Acquisito identified these four itemsas drug paraphernalia, and he used them to establish probableD	

			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 plainview 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..7+
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	be authorized and the search which follows be valid, there isnothing in the Fourth Amendment which inhibits the seizureby law-enforcement agents of government property thepossession of which is a crime, even though the officers arenot aware that such property is on the premises when thesearch is initiated."#)
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