William H. Rehnquist: We'll hear argument next in No. 88-7164, Terry Brice Horton v. California. Ms. Drous, you may proceed whenever you're ready.
Juliana Drous: Mr. Chief Justice, and may it please the Court: The issue before you today is may the police officers seize an object not listed on a warrant when it is in play view. And I would start with when a seizure is made without inadvertence it is not made pursuant to a search. Excuse me, it is not a plain-view seizure. It is made, in fact, pursuant to a search. So, we really don't even have a plain-view seizure here. There is... and the facts in this case are, the police officers procured a search warrant. When they did so, they carelessly forgot to include all the items for which they intended to seize. When they entered the premises, they searched for the items irregardless of the fact that they were not listed in the warrant and, in fact, found the items that they were looking for, except for the items in fact listed on the warrant. In order to find that inadvertence is not required in this situation, this Court would have to overrule Marron v. U.S. The facts there are indistinguishable from the facts here. In that case, the police officers entered a business establishment with a warrant. When they... this was in prohibition times. One of the items listed on the warrant was liquor. When they went in the closet in which they believed the liquor might be, they found ledgers and bills. That court, seeing the issue which... as simple as it actually is... said that the ledger and bills were in fact not seized... not listed in the warrant and, therefore, not subject to seizure. What the Attorney General of California asks this Court to do is to create a new exception to the warrant requirement. The carelessness exception, the... Oh, my goodness, I forgot to get the warrant... particularly describing the items to be seized. What that would do, it would nullify the particularity requirement of the warrant clause of the Fourth Amendment. The Fourth Amendment is too important to allow that to happen.
Sandra Day O'Connor: Now, what if the officers in obtaining and seeking a search warrant lack probable cause to list some items on the search warrant and the affidavit and, therefore, they don't. Now they go into the premises because they do list those for which they have probable cause. They go in and they see the items. They were aware of those items but knew they didn't have probable cause. Are those found now in plain view?
Juliana Drous: No, Your Honor.
Sandra Day O'Connor: No?
Juliana Drous: Not if the police officers intended to search. The purpose of the warrant requirement... there would be no... police officers are required when they ask for a search warrant to particularly describe the items for which they intend to search. At that point, it's up to the magistrate to make the decision. If the police officers have no probable cause to search, they have no business searching for those items.
Sandra Day O'Connor: Well, I have put to you the possibility that there may be several items, some of which they have probable cause to get a warrant to search, and some they don't. They know they don't have probable cause for everything so they don't list everything. But when they go to the house, they find it.
Juliana Drous: Your Honor, if they find those items because they searched for those items, the seizure would be invalid.
Sandra Day O'Connor: No, they find it because it's in plain view when they enter pursuant to a valid search warrant for other items.
Juliana Drous: If they find the items in plain view and the seizure is inadvertent, yes, they may seize those items.
Sandra Day O'Connor: But they knew they were there, likely to be there, but they lacked probable cause to include them in the warrant requirement.
Juliana Drous: The fact that you... that you look at, I believe, is... for inadvertence, is whether or not the police officers were in fact searching for them. If they were searching for the items listed on the warrant and came upon the items... the other items that they knew might be there, that's not a violation.
Antonin Scalia: How do you... how do you instruct these police officers when you send them out? Let's... let's... you know, they... they know the thing's "a", are there, and... and they have probable cause so that's in the warrant. Thing "b" they suspect may be there. So, when I send them out with their warrant, what do I tell them? Don't... don't look for "b" whatever you do. How can you... can you erase from your mind the notion that "b" may be there? I mean, this is a weird rule you're proposing for... for... the police have to act in some realistic fashion. How can they possibly act that way?
Juliana Drous: There's a difference in saying, we believe that "b" might be there, but don't look for it. There's a difference in that and saying, well, the warrant doesn't authorize the search, but look for it anyway. Of course... and I understand what you're saying--
Antonin Scalia: I mean, you--
Juliana Drous: --and you're quite right--
Antonin Scalia: --you can tell them, don't look in any place where "a" wouldn't be just because you think that "b" might be there. You can tell them that.
Juliana Drous: --That's right.
Antonin Scalia: But how can you tell them, while you're looking for "a", for pete's sake, don't think "b"? That's totally unrealistic. And yet... and yet you say that if they're thinking "b" while they're looking for "a", it's bad.
Juliana Drous: If their intention in going into that residence is to find "b", that's a violation. If--
Antonin Scalia: I don't know. Their intention is to execute the warrant which let's them look for "a".
Juliana Drous: --That's correct.
Antonin Scalia: They also know that "b" might be there.
Juliana Drous: If they happen upon "b", it's a valid seizure.
Antonin Scalia: Well,--
Juliana Drous: In this... in this case--
Antonin Scalia: --Happen upon it. I--
Juliana Drous: --we have... we have the testimony of the police officer that in... in fact, when they entered the residence they intended to search for items not listed on the warrant. What would be the reason for getting a warrant if the police officer... what would be the reason for police officers to particularly describe all the items to be seized if they could search for items not listed on the warrant?
Antonin Scalia: --The basic reason, I think, is to... is to describe the scope of the search. If... you know, if... if... if you're looking for an elephant, you can't look in drawers. So where's there an elephant on the search warrant, searching through drawers is beyond the proper scope of the search. Isn't that a good enough reason?
Juliana Drous: There's also the possessory interest which the Fourth Amendment protects, as this Court has recognized in a number of cases. You... Your Honor, you yourself in Hicks v. Arizona stated that the seizure and search... that one interest of the Fourth Amendment is not more important than the other. In Place... U.S. v. Place, this Court stated that warrantless seizures are per se unreasonable. As a matter of fact, in Coolidge itself Justice Stewart stated that even if the finding of contraband, stolen goods, or things dangerous in themselves are found without inadvertence, they may be seized. And that is implicitly a recognition that in those three items there is no possessory interest. You have no possessory interest in--
Byron R. White: But nevertheless... nevertheless, officers cannot search even for contraband if... which is not listed on the... on the... on the warrant. They have to be... in order to seize them as a... as a... as a plain view seizure, they have to be in a place where they're legally entitled to be.
Juliana Drous: --That's correct.
Byron R. White: They cannot... they cannot just search generally for things... for... outside the area where the items they're supposed to find and are listed might be.
Juliana Drous: That's correct, Your Honor. In order to enter the home, even if it's to search for contraband or stolen items, the warrant must be obtained to get into the home because that's the privacy interest. There's a whole separate possessory interest which is also protected.
Byron R. White: Well, is there any indication in this case that when the officers made this... seized these articles that are at issue that they were not in a place where they were not entitled to be? Were they... were they in a place where they were entitled to be when they made this seizure?
Juliana Drous: Your Honor, to answer that, the Attorney General in his brief argues against listing.
Byron R. White: Well, this--
Juliana Drous: I am... I am answering your question.
Byron R. White: --Well, how... you're going to answer it, are you?
Juliana Drous: Yes, I promise I will.
Byron R. White: Like yes or no or--
Juliana Drous: It's not a yes or no. What it is is... whenever police officers, as the Attorney General concedes in his brief, the more items that the police officers intend to search for, the broader the search. It's going to have to be. The more police officers you bring in, the more invasion on the privacy. We really don't know in this case if in fact the search was broadened because the police officers were looking for all of these other items that were not listed in the warrant. You cannot say that on the facts that we have.
Byron R. White: --Well, you can't say that they were... that they exceeded the scope of the search either.
Juliana Drous: That's correct.
Byron R. White: Well--
Juliana Drous: You can come to neither conclusion.
William H. Rehnquist: --Well, but the... the trial court denied the motion to suppress and the court of appeals... the court of appeals affirmed. Don't we have to assume that they must have had some facts in mind when they made those rulings?
Juliana Drous: Well, Your Honor, the initial motion made after the preliminary hearing was granted by the magistrate prior to binding Mr. Horton over for trial... the district attorney then filed the motion in the superior court to reinstate the evidence which was granted. The court of appeals in California summarily dismissed the argument saying that North v. California does not follow the inadvertence requirement.
William H. Rehnquist: Well, but that's all within a framework of people... of the officer being lawfully in the place... having a lawful right to be in the place where he was and seeing... seeing something that was subject to seizure.
Juliana Drous: Well, Your Honor, in this case the facts don't support the conclusion that the officers were simply in a place where they had a right to be and saw.
William H. Rehnquist: They were-- --But--
Juliana Drous: --looking for these things.
William H. Rehnquist: --Well, but certainly the California Court of Appeals, the California Trial Court, the Supreme Court of California in deciding the North cases know this debate about... you know, is inadvertence a requirement. Their findings, it seems to me, have to be looked at in the framework of... of that kind of debate in our Court. They're not saying that the police can just go and seize anywhere. They're talking about a place where the police have a lawful right to be.
Juliana Drous: That's correct.
Thurgood Marshall: Don't you marvel at the fact that after all of these cases and all this publicity these thugs always leave stuff in plain view?
Juliana Drous: Yes, Your Honor. It amazes me how often police enter a home and find all the drawers open, all the doors open, and the boxes within the doors and drawers open. It happens all the time, but that's--
Thurgood Marshall: That's the way it is.
Juliana Drous: --That's the way it is.
Antonin Scalia: Ms. Drous, could you tell me why... why... why would we... we don't have an inadvertence requirement for dispensing with a seizure warrant elsewhere, do we? I mean, if the police suspect, have probable cause to believe that somebody will be walking down the street with contraband, with illegal drugs or something of that sort, do--
Juliana Drous: That's correct.
Antonin Scalia: --Must they go get a seizure warrant before they can come up and even though they lay in wait fully expecting him to come, do they have to get a seizure warrant?
Juliana Drous: You mean when an individual is walking down the street?
Antonin Scalia: Yes. They... they... they have very reliable information from an informant that he'll be walking down the street with cocaine. They lay and wait for him and see the cocaine, go over and seize it. Is that... is that unlawful?
Juliana Drous: If... if the police at that point have probable cause for an arrest, the police officer may arrest the person without a warrant--
Antonin Scalia: Right.
Juliana Drous: --and the search of the person would then be pursuant to that arrest.
Antonin Scalia: But... even though they had full knowledge and could have gotten a warrant for the seizure you don't require advertence in that... inadvertence in that situation, do you?
Juliana Drous: Well, because there you have an exigent circumstance. You have... you have the legitimate exception to the warrant of a search pursuant to an arrest.
Antonin Scalia: It isn't an exigent circumstance because they could have gotten a warrant. Almost by definition an exigent circumstance means you have no time to get a warrant. Here they knew he was going to be there with cocaine but they didn't get a warrant.
Juliana Drous: On the... on the street?
Antonin Scalia: Yeah. See, I can't see why you need an inadvertent requirement in the context in this case and don't require it on the street.
Juliana Drous: Because there you have the difference of the rules relating to an arrest. And in... in that case, if you have probable cause to make the arrest on the street... if you do not go into the home, you do not need a warrant.
Sandra Day O'Connor: But once you have a warrant to enter the home and your concern is with the possessory interest, why isn't that met if the officers have probable cause to seize the items?
Juliana Drous: This Court has consistently held that probable cause alone will not support a warrantless search and seizure.
Sandra Day O'Connor: It's not warrantless. They have a warrant to enter the home. So, there is no additional burden on the privacy interest at stake. What you're concerned about is the possessory interest in these other items. And why isn't that met by the probable cause that the officers had?
Juliana Drous: What you have there, however, is a warrantless seizure, and warrantless seizures are not allowed.
Anthony M. Kennedy: Well, that... that's not correct. Warrantless seizures are allowed of objects within the possession and the control of the arrestee, which is the way I understand United States v. Marron. You said we're going to have to overrule that case. The... the objects there were admissible into evidence and they were not described in the warrant.
Juliana Drous: Well, Your Honor, that's the second portion of United States v. Marron, which has... is... is no longer the rule. That has been overruled by... excuse me... in... in Marron the first part of the case they... this Court--
Anthony M. Kennedy: If... if it's within control according to the Chimel doctrine, it would have been admissible, would it not?
Juliana Drous: --Correct. And it clearly wasn't in that case. In that... that was during the time when the police officers were allowed to search--
Anthony M. Kennedy: But--
Juliana Drous: --the entire premises on... from which the person was arrested.
Anthony M. Kennedy: --Yes, but... but you-- --Well, are you-- --say that it must be within the specifications of the warrant to be seized and I've just given you one example where that is not so.
Juliana Drous: However, in this... in this case Mr. Horton was not present and none of the items were sized from his person--
William H. Rehnquist: Well, Ms.--
Juliana Drous: --You always... police officers are always allowed to search a person pursuant to a lawful arrest.
William H. Rehnquist: --Ms. Drous, are you suggesting that if a police officer is walking through a public park and sees a piece of property that he thinks is either contraband or there is probable cause to believe is evidence in making a case against him, he needs to get a warrant to... to seize that?
Juliana Drous: Excuse me? If... if... if the officer is--
William H. Rehnquist: If he's walking through a--
Juliana Drous: --walking in a public park--
William H. Rehnquist: --Yes.
Juliana Drous: --and it's in plain view?
William H. Rehnquist: Yes.
Juliana Drous: No, he does not need a warrant in that case. And in that--
William H. Rehnquist: Well, why... why should it be any... he's lawfully in the public park, he's seizing a piece of property which he has probable cause to seize. Why should it be any different? He's lawfully inside the home and he sees a piece of property that there's probable cause to seize?
Juliana Drous: --There the police have... have made no illegal seizure... no illegal search. In this case--
William H. Rehnquist: Well, what... what's illegal about this search?
Juliana Drous: --The police officers... let's go back to the beginning. The police officers got a warrant. They carelessly, as stated in the Attorney General's brief, forgot to particularly list the items to be seized. They entered the home irregardless of that fact with the intention--
William H. Rehnquist: Why... why don't you say regardless rather than irregardless?
Juliana Drous: --I'm sorry. They entered the home in spite of the fact that it was not at... with the intention to search for these items even though they were not listed in the warrant. The actions of the police officer were illegal. They were not conducting a legal search at that point.
William H. Rehnquist: Well, why does that make it illegal, unless they intended to search in places where they were not otherwise authorized to be by the warrant?
Juliana Drous: We don't know if in fact... that their search for these items not listed in the warrant broadened the search.
William H. Rehnquist: Well, but you moved to suppress. Isn't... isn't the burden on you to show that the search was illegal or the seizure was illegal?
Juliana Drous: Not when there's a warrantless seizure.
William H. Rehnquist: You mean you can come into court and say, I move to suppress and it's up to the government to show why the evidence is admissible?
Juliana Drous: That's correct, Your Honor. At least in California. I have not practiced in other states. But in California if there is a warrantless seizure, a warrantless search, the burden is on the prosecution to show that in fact the search and seizure were illegal.
William H. Rehnquist: Well, and... and here the trial court in the California... the court of appeals were satisfied the state had met that burden.
Juliana Drous: That's correct.
William H. Rehnquist: They must have thought the search was alright.
Juliana Drous: That's correct. They did. They... they--
William H. Rehnquist: Well, then you say it's illegal, but you're fighting the factual determinations of the lower court.
Juliana Drous: --Well, that's a legal determination also. It's a combination. The courts have consistently held that the police have no discretion to decide what is to be taken, and abandoning the inadvertence requirement gives police officers this discretion. There will be no need for them to request permission from a magistrate to search for each item for which they intend to search. This will this nullify the warrant clause particularity requirement.
Antonin Scalia: Ms. Drous, have we... have we ever... have we ever held that... that the Constitution requires a warrant for a seizure without a... without a search?
Juliana Drous: Yes.
Antonin Scalia: I know we have... we have for an arrest and we have for a search and seizure, but... but what... what case says it just... just--
Juliana Drous: In United States--
Antonin Scalia: --Where there's probable cause, I mean. Where there's probable cause.
Juliana Drous: --In United States v. Place, the language is that a warrantless seizure is per se unreasonable. This Court cannot forget that there is also a possessory interest. It is true that this Court has said that the privacy interest is more important, but there still remains the possessory interest which should be protected.
Antonin Scalia: So, it... so, it follows then... I'm... I'm... I don't know what the answer is. If... if the police have very reliable information that a stolen car is going to be at a particular location, they cannot just go to that location seeing the stolen car, seize it. They... they would have to get a... get a seizure warrant.
Juliana Drous: Your Honor--
Antonin Scalia: There's no search involved. It's just a seizure.
Juliana Drous: --Your Honor, in that case it would depend where the car was to be located. It would also depend--
Antonin Scalia: It's going to be on the street.
Juliana Drous: --Not... not in the driveway of a home?
Antonin Scalia: No. Just on the street.
Juliana Drous: On the street, because of the movability of automobiles, I think that that search... that seizure would always be upheld. In each of the cases that you bring there's... there is an exigency there.
Antonin Scalia: It's not an exigency that... of the sort that prevents a warrant from being obtained. They... they knew the car was going to be there in plenty of time to get a warrant. See, I... I suspect you don't need a warrant in that situation and... and I think our law may not require anything other than probable cause when there is to be a seizure though not a search. At... at least, I don't know a case that contradicts that.
Juliana Drous: In the case of automobiles, that's correct. And if you say a stolen automobile, there you have no possessory interest. A person has no possessory interest in a stolen object.
John Paul Stevens: Well, take Justice Scalia's example but make it lawn furniture in the back yard or in plain... in plain view of somebody's front lawn some furniture, and an officer has probable cause to believe it's stolen, as in this case. Do you think the officer could go on without a warrant and just--
Juliana Drous: Your Honor, again, in that--
John Paul Stevens: --help himself to that furniture?
Juliana Drous: --I'm sorry. Again, in that situation, there is no possessory interest in stolen objects. So there's no interest to protect there whatsoever.
John Paul Stevens: Well, there's... there's probable cause to believe there's no interest to protect, but it hasn't been resolved by any judicial authority that that's the fact. You... you agree with Justice Scalia? You just walk on the premises and help yourself to--
Juliana Drous: No, I do not. Not in the lawn furniture example on somebody's front lawn. I believe that a warrant would be required in that situation. Absolutely. On the front lawn.
Byron R. White: --Well, one of the items that... that was listed in the warrant was some Halloween masks, weren't they?
Juliana Drous: That's correct. Which were not found.
Byron R. White: They were not found. But where would you... there's no indication, is there, that any of the items that were seized here were found in a place that you wouldn't look for a... where you wouldn't look for a Halloween mask, like on a shelf or in a... you'd look almost anywhere for a Halloween mask until you found one, wouldn't you?
Juliana Drous: That's correct. And the items that they were... that were in fact listed on the warrant were small rings. But, again, as I stated earlier, you cannot be sure. When police officers go in with the intention to search for items, a longer list of items than what... than what is on the warrant--
Byron R. White: Well, you don't suggest they--
Juliana Drous: --you do not know.
Byron R. White: --You don't suggest that they didn't search for the Halloween mask, do you?
Juliana Drous: Oh, no. They probably did search for the Halloween mask.
Byron R. White: Well?
Juliana Drous: In fact, the police officer stated as such.
Byron R. White: Well and they... and I suppose they would look on shelves and anywhere a Halloween mask might be.
Juliana Drous: That's correct. But the Halloween masks were not listed in the search warrant. Your Honor, what we... what you're creating here if... if there's no inadvertence requirement, it allows carelessness in obtaining a warrant. It's a carelessness exception to the warrant requirement.
Sandra Day O'Connor: There would still be a desire on the part of the police, I suppose, to have a warrant that would properly enable them to describe the scope of their search. And so I would think it would be in their interest to describe still with particularity what it is they think they have probable cause to find.
Juliana Drous: However, in this case in the closing pages of the Attorney General's brief, he notes that the police officers relied on the fact that California does not follow the inadvertence requirement so they didn't think that it was necessary to bother going back and correcting the warrant before they entered the premises to conduct the search. There's a problem with that. There's a serious problem, and it starts with carelessness and then you have a deliberate bypass of the particularity requirements and the search and seizure law. There will be no effect to the particularity requirement if this sort of conduct is permitted. This case actually follows Leon. In Leon the... this Court held that a good faith search and seizure, the seizures that were obtained in a good faith search, will not be suppressed. There this Court stated, that the purpose of the exclusionary rule is not to deter magistrates. In this case there is no error by a magistrate. The error was simply that of the police officers. Furthermore, Leon also states that police officers may not rely on facially deficient warrants and describes a facially deficient warrant as one failing to particularly describe the items to be seized. That's exactly what we have here. If this Court is going to follow the language of Leon, this Court cannot uphold this search. Finally, the only effective available way to ensure that the warrant clause is taken seriously is to enforce it by suppressing evidence when it is thought... when the warrant clause is violated. Police should know that the warrant clause is not a mere technicality which can be avoided when inconvenient or carelessly forgotten.
William H. Rehnquist: Thank you, Ms. Drous. Mr. Kaye.
Martin S. Kaye: Mr. Chief Justice, and may it please the Court: I would like to begin by citing to the Court the Joint Appendix at page 29 where the officer who conducted this search is asked, "When you searched the residence of Mr. Horton were you looking for that jewelry, that stolen property? " "Yes, I was". "In the course of that search, did you come upon some weapons that you based... that you based your discussions with the victim on? " The scope of the search has never been challenged in this case. It was not challenged on appeal and it is not challenged in this Court. It is only the inadvertence requirement that is raised here. Second of all, I'd like to correct something that Justice White said.
Byron R. White: I... I meant to talk about the ring rather than the mask.
Martin S. Kaye: Yes. The--
Byron R. White: But the same... the same result would follow. You'd look for a ring almost everywhere.
Martin S. Kaye: --Precisely. Precisely. When you have something that small, obviously the scope of the search is going to be quite intense. And all those other items were listed in the affidavit through the police reports.
Byron R. White: Yes. Got it. Do we... do we have a case expressly which says that when you find what's in the warrant you have to leave, or is that so obvious that we haven't said it? I... I take it that if you stay after you find the listed items, then it can become a general search?
Martin S. Kaye: If you stay after you find--
Anthony M. Kennedy: Suppose you... the police stay on the premises after they've found all the listed items on--
Martin S. Kaye: --Yes.
Anthony M. Kennedy: --the warrant, I take... it take it then it's a general search.
Martin S. Kaye: That... we would concede that once the listed items are found the search much seize. There is no more authority despite what the affidavit shows.
Anthony M. Kennedy: And there was no contention that that happened here?
Martin S. Kaye: No. None.
Antonin Scalia: That... that principle would serve as a deterrent to just leaving things off the warrant. In other words, there... there is an incentive to list everything that you're interested in in the warrant because if you don't and you find all the other things before that one, you're going to have to leave the premises.
Martin S. Kaye: Precisely, Your Honor. There's an incentive to put everything in the warrant in order to make sure... ensure that the scope of the search--
Byron R. White: Well, you put everything in the warrant that you've got probable cause to--
Martin S. Kaye: --Well, certainly.
Byron R. White: --think is on the premises.
Martin S. Kaye: Sure, I'm assuming probable cause. To ensure that the scope of the search will be to the greatest extent possible. The purpose of the inadvertence requirement as announced in Coolidge was to enforce two distinct purposes of the warrant clause. To eliminate altogether searches without probable cause and to limit the scope of searches deemed necessary to the smallest extent possible. Neither of those purposes was violated in this case. The police obtained a valid warrant for three rings, particularly described rings. They confined the scope of their search to the area and time authorized by the warrant. They had a lawful basis to be where they could see the other property. There was no general search in this case. In fact, I would point out to the Court that the facts show that there were a number of other firearms that were found in the premises that were not seized because they did not fit the description in the affidavit. I think it's useful to examine Coolidge in its historical context. At the time of Coolidge the Court was deeply divided over two issues, the broad scope of searches incident to arrest and the allowance of searches... of arrests in the home without a warrant. Hence, the basis for... hence, the basis for the citation to Trupiano in Coolidge. Neither of those concerns are present anymore. In Chimel v. California the scope of searches was limited to a small extent to the reaching area of the defendant, and in Payton v. New York, the Court required a warrant for an arrest in a home. Therefore, there is no danger of the police planning to arrest someone, waiting until he goes into his home, and then permitting them to make a very broad search without any warrant whatsoever. In our view, the probable cause requirement protects Petitioner's interest in the possession of these items. Unlike an unlawful search, the rupture of privacy cannot be repaired. But property can be restored to the victim. If the police are required to return for a warrant, Petitioner's interest in possession would still be interfered with to the same degree. Stationing an officer to guard the property from loss or destruction while the warrant is sought means that Petitioner would still be deprived of possession or use of that item. And, in fact, if stationing an officer there is required in order to guard, then the privacy intrusion would be extended. It seems an odd way to protect the Petitioner's rights to extend the intrusion on his privacy. In Texas v. Brown, the Court indicated some concern with a pretext search. If that is the case, the Court ought to meet it squarely rather than through use of the inadvertence requirement. The Coolidge requirement does not apply to contraband, stolen property or items dangerous in themselves. Therefore, many pretext searches are not even included in the requirement. Second of all, if inadvertence is to mean the lack of probable cause, then an officer who obtains a warrant to search for evidence of crime "a" purely as a pretext to look for evidence of crime "b", would not be deterred because if there was no probable cause for the evidence of crime "b", the seizure would be inadvertent.
Anthony M. Kennedy: Well, is it permissible to search... execute a search warrant for crime "a" if there is probable cause for that if your real intent is to search for evidence of crime... is to... is to look for evidence of crime "b" that might be in plain view?
Martin S. Kaye: Well, the Court has never... has never discussed that--
Anthony M. Kennedy: Well, you seem to be conceding it. That's a problem.
Martin S. Kaye: --No, I'm not conceding it. To the contrary. In Scott v. United States, the Court indicated that the officers underlying intent and motivation is irrelevant to the ascertainment of whether there was a Fourth Amendment violation. That is to be measured by the objective conduct and if... the conduct in that case would be objectively reasonable because they would have had a search warrant in the first place. The inadvertence requirement sweeps too broadly. It would include searches as the present case in which there is no hint of pretext. Here the police revealed all the information they had to the magistrate.
William H. Rehnquist: You've used the term Mr. Kaye. How would you define pretext?
Martin S. Kaye: The lower courts generally agree that a pretext situation is where you are obtaining permission to search or arrest for one crime when the underlying motivation is to look for evidence of a second crime.
William H. Rehnquist: Well, you say underlying motivation. That means that they're not really interested at all in the first crime or that there are two motivations?
Martin S. Kaye: Well, that's not clear. If they're not interested at all in the first crime, then that's a different situation, granted. But that's a very difficult thing to decide.
William H. Rehnquist: Well, I would think it would be very difficult. Do you question officers about their underlying intent and their secondary intent and that--
Martin S. Kaye: Precisely. It's... the Court would get into the thicket. As it put... put it in Leon, the Court is not inclined to get into an expedition into the minds of police officers. The Court viewed it as a grave and fruitless misallocation of resources. And the Court... if there was more than one motivation, then the Court would be having to determine which one was the dominant motivation. The courts are simply not equipped to make such determinations. The inadvertence rule punishes the police for oversight or miscalculation of probable cause. The error in this case is benign. It's not deliberate, it's not pretextual. The Court has said that the police do not have to guess at their peril the precise moment when probable cause exists. The inadvertence rule places the police in just such peril. In this case, the police were properly on the premises and they had probable cause for their seizure. We would submit that under those circumstances there simply is no basis to suppress the evidence.
Thurgood Marshall: --Not that it matters, but what was the value of those rings?
Martin S. Kaye: What was the value?
Thurgood Marshall: Yeah.
Martin S. Kaye: I don't know if the record reveals. In terms of monetary value?
Thurgood Marshall: Was he ever tried for possession of them?
Martin S. Kaye: No. He was not tried for possession of stolen property. The rings were never found.
Thurgood Marshall: So, nothing was done about the warrant? The property that the warrant covered, nothing has been done about it at all?
Martin S. Kaye: Well, it was never discovered during the search.
William H. Rehnquist: Thank you, Mr. Kaye. Ms. Drous, do you have rebuttal? You have four minutes remaining.
Juliana Drous: Thank you. First of all, Mr. Kaye starts reading from the record at page 29. However, immediately before that, on page 27, the question, "When you went to that residence, what were you looking for? " Answer, "I was looking for items that were from Mr. Wallaker during the robbery itself. " "I was looking for items that would connect the person at the home to associate with the robbery, things used in the robbery to obtain the property, weapons, so forth, clothing. " Clearly, we are not talking about here about going into police intentions. We are going into what the police actually did, the conduct of the police. In this case it is very easy to ascertain in that the police themselves testified as to what they did, that when they went in, they searched for these other items. Second of all, regarding the suggestion that the remedy here of allowing the police to secure the premises while the... while they would go and get the proper corrected warrant, that would not be a remedy in this case. Segura... when you look at the facts in Segura in which this Court allowed the securing of private premises in order to obtain a warrant, that is... also, they don't say... I don't believe the words were ever used, but in fact, it's good faith. And that case the... it was at a late hour, a magistrate was not available to obtain a warrant. The implication is that the police were worried about losing the evidence and that fairly somewhat quick action had to be taken so they went and secured the premises and then got a warrant. That is good faith. Again, when you come to this case, there is no good faith. What there is is police negligence, police carelessness, and police officers should not be allowed to an... extend an intrusion which was the result of their own mistake, their own carelessness, their own deliberate disregard of the warrant requirement of the Fourth Amendment. Secondly, although we do not have the facts in this case, it is correct that the inadvertence requirement covers two situations. One where there is a warrant and items are seized that are not listed in the warrant and, second, where there is an arrest. The difference between Payton... Payton would not cover the situation because in Payton you have an arrest warrant allowing the entry into the home. What Coolidge talks about... I'm sorry, there's no... what Payton says is that you cannot enter a home without an arrest warrant. The situation that--
William H. Rehnquist: Yeah, and you can't search within the home with an arrest warrant.
Juliana Drous: --That--
William H. Rehnquist: You can find the defendant and that's it, isn't it?
Juliana Drous: --Absolutely. That's... that's Payton. However, there is nothing in Payton to protect individuals from police officers obtaining an arrest warrant in order... allowing them to go into the home to arrest the individual and waiting for an opportune time when they have a feeling that evidence might be there. And that's where inadvertence is still necessary. In that situation, in order to protect Fourth Amendment rights. In this case, we do not have a simple oversight or miscalculation of probable cause by the police. What we have is out and out forgetfulness, carelessness in not listing... that... that is the only explanation. In fact, that's the explanation given in the court as to why the items were not listed on the warrant, were not... why the affidavit did not request that the court include those items in the warrant. And what you do have here... in fact, you do have a general search if a general search is defined as going in and searching for everything that the police want to look for, and that is not allowed by the Fourth Amendment. The inadvertence requirement is necessary to protect Fourth Amendment rights. I would submit it.
William H. Rehnquist: Thank you, Ms. Drous. The case is submitted.