IL: “Immediately apparent” for plain view really means “probable cause”

By John Wesley Hall
Law Offices of John Wesley Hall
Jun 2, 2017

Product bar codes found in plain view in defendant’s car were seized with probable cause. Officers experienced in investigating retail theft from a Best Buy were investigating thefts that involved altered bar codes. “Immediately apparent” for plain view really means “probable cause,” and they had probable cause when they saw them. People v. Petty, 2017 IL App (1st) 150641, 2017 Ill. App. LEXIS 347 (May 30, 2017):

[*P31] A mere hunch is insufficient to support the seizure, but a police officer views the facts “through the lens of his police experience and expertise” and “may draw inferences based on his own experience in deciding whether probable cause exists.” Ornelas, 517 U.S. at 699-700. Bruni and his partner were experienced police officers on the tactical team investigating retail crimes. They had just interviewed the Best Buy store manager and viewed the surveillance video. The police officers could draw an inference from the totality of the information available to them that the UPC labels were related to the recent theft. The officers knew the credit card transaction was in Petty’s name and recognized Petty from the surveillance video in terms of his physical characteristics, his jacket, and the sling supporting his left arm. Also, the store manager had told the officers that storewide thefts had occurred involving falsified bar codes. UPC barcodes were the modus operandi in accomplishing the theft. So otherwise innocuous UPC labels were incriminating because the thefts that had occurred involved the scanning of UPC labels on checkout, establishing more than a mere suspicion.

[*P32] We find support in Brown, 460 U.S. at 741, where the United States Supreme Court discussed the concept of an object’s “immediately apparent” criminality, calling the phrase “very likely an unhappy choice of words.” Rather, “probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ [citation], that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required.” Id. at 742 (citing Brinegar v. United States, 338 U.S. 160, 176, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949)).