Appeal from (1) an order of the United States District Court for the Southern District of New York, Broderick, J., suppressing evidence seized by United States Postal Inspectors during an authorized search of appellees' residence and (2) an order, following reargument, adhering to the original suppression order. Reversed.
Before Van Graafeiland, Newman and Kearse, Circuit Judges.
This is an appeal from (1) an order of the United States District Court for the Southern District of New York suppressing evidence seized by United States Postal Inspectors during an authorized search of appellees' residence and (2) an order, following reargument, adhering to the original suppression order.
On June 12, 1978, James Boyle, a United States Postal Inspector, was informed by security personnel at Saks Fifth Avenue that several employees were believed to be stealing merchandise and sending it home through the mail. Appellee Vincent Liberti was one of those under suspicion. An employee in the Saks mailing room told Boyle that he had mailed "several parcels" to the Liberti residence during the preceding year. He could, however, fix no specific dates for the mailings and had no knowledge as to the contents of the packages. Other employees stated that parcels "may have been mailed" to the Liberti address but did not say how many.
Following Boyle's entry on the scene, two packages addressed to the Liberti home were identified as they passed through the mail room, one on June 23 and the other on June 29. The contents of the first box were unknown; the second contained Estee Lauder cosmetic gift boxes. Postal authorities were unable to determine whether the first box was delivered, because their attempt to put a stop on it was unsuccessful. They did ascertain, however, that the second box was delivered to the Liberti residence.
Prior to applying for a search warrant, Boyle conferred with an Assistant United States Attorney, who advised him, correctly, we believe, that probable cause for the issuance of a warrant existed only as to the June 29 box. Accordingly, Boyle's application was directed to the June 29 mailing. In his affidavit, Boyle stated that for the preceding several weeks he had been investigating possible mail fraud violations at Saks; that during this time a Saks security employee had observed brown cardboard boxes being prepared for mailing; that these were addressed by hand and lacked the customary invoices and mailing documents; that several of these boxes had been opened and were found to contain clothes, cosmetics, and other Saks merchandise. The affidavit stated further that a brown cardboard box addressed to Mrs. Liberti was delivered to her on June 29; that the contents had been examined prior to mailing and consisted of Estee Lauder gift boxes belonging to Saks. The warrant issued by a United States magistrate authorized the search of the Liberti premises and the seizure of "one (1) brown cardboard box addressed to Mrs. Barbara Liberti, containing Estee Lauder cosmetic gift boxes, which are believed to constitute evidence of violation of Title 18, United States Code, Section 1341."
The warrant was executed on July 10, 1978, by three postal inspectors, who were accompanied by the security operations manager of Saks, a Mr. Burger. Although Boyle did not know what property would be found in the Liberti residence, he "believed" or "assumed" that Saks merchandise other than that contained in the June 29 mailing might be found. He instructed the inspector in charge of the search that he could seize any items belonging to Saks that were not properly in the residence until he found the goods covered by the warrant, at which time the search was to cease.*fn1 Mr. Burger was along to identify Saks merchandise.
The inspectors were admitted by Mrs. Liberti, who was given a copy of the warrant and told that the inspectors were looking for the brown box containing Estee Lauder cosmetics. At first, Mrs. Liberti denied having the cosmetics, but, after being told that the search would have to be made, she went to a hall closet, opened the door, and said "this is all I have" or "this is all there is." Inside the closet, in plain view on both the shelf and the floor, were stacked boxes of cosmetics, which Mr. Burger believed were Saks items. These were seized by the inspectors. The brown box was not in the closet.*fn2
Mrs. Liberti was then asked if there was a basement, and she opened the basement door and turned on the cellar light for two of the inspectors. As the inspectors descended into the basement, they saw in plain view under the open stairway a quantity of boxes and shopping bags containing additional cosmetics. When Mr. Burger indicated his belief that this was also Saks merchandise, it too was seized. After the inspectors discovered this merchandise, Mrs. Liberti stated again that "that is all there is, there is no more."*fn3 The entire search lasted about one hour and was conducted in a polite and gentlemanly manner.
Because the merchandise seized by the inspectors was not in the brown box, it may not all have been delivered in the June 29 mailing. The Government argued nonetheless that seizure was justified because the inspectors were lawfully on appellees' premises to search for the brown cardboard box and its contents and the items seized were in plain view of the inspectors during their search. The district court, relying mainly on Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), held that the plain view doctrine did not apply, because the inspectors' discovery of the seized items was not inadvertent but was instead "anticipated." The court refused, however, to order the seized merchandise returned to appellees, stating that the evidence tended to show that it "may have been the fruit of an illegal scheme."
Although the portion of Justice Stewart's opinion in Coolidge v. New Hampshire, supra, that added the concept of inadvertence to the traditional doctrine of "plain view" was concurred in by only three justices, most courts have accepted it as the law of the land. See, e. g., United States v. Berenguer, 562 F.2d 206, 210 (2d Cir. 1977); United States v. Griffith, 537 F.2d 900, 903 (7th Cir. 1976); United States v. Cushnie, 488 F.2d 81, 82 (5th Cir. 1973), cert. denied, 419 U.S. 968, 95 S. Ct. 233, 42 L. Ed. 2d 184 (1974); United States v. Gray, 484 F.2d 352, 355 n.7 (6th Cir. 1973); but see United States v. Bradshaw, 490 F.2d 1097, 1101 n.3 (4th Cir. 1974). There has not, however, been a unanimity of opinion as to what this portion of Coolidge really stands for. See United States v. Santana, 485 F.2d 365, 369 n.8 (2d Cir. 1973), cert. denied, 415 U.S. 931, 94 S. Ct. 1444, 39 L. Ed. 2d 490 (1974).
For example, Justice Stewart carefully pointed out that Coolidge did not involve contraband or stolen goods. 403 U.S. at 472, 91 S. Ct. 2022. He stated that "to extend the scope of (a lawful) intrusion to the seizure of objects not contraband nor stolen nor dangerous in themselves which the police know in advance they will find in plain view and intend to seize, would fly in the face of the basic rule that no amount of probable cause can justify a warrantless seizure." Id. at 471, 91 S. Ct. at 2041. Justice White, who dissented, recognized that the Court was making a distinction between plain evidence and contraband. Referring to Justice Stewart's opinion, he said, "apparently contraband, stolen, or dangerous materials may be seized when discovered in the course of an otherwise authorized search even if the discovery is fully anticipated and ...