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Carson v. Commonwealth5/14/1991
t moment concealing some illegal substance. That an item may have multiple usages, one conceivably unlawful, does not establish probable cause to seize the item as contraband when it is found alone, in the absence of other incriminating circumstances.
Neither United States v. Poulos, 895 F.2d 1113 (6th Cir. 1990), nor United States v. Truitt, 521 F.2d 1174 (6th Cir. 1975), is precedent justifying the warrantless seizure of a shortened straw. In those cases, law enforcement officers seized gun silencer components and a sawed-off shotgun, neither of which is an intrinsically lawful or innocent object. A straw, even if shortened, is an intrinsically lawful or innocent object. Although the length of a straw may cause a law enforcement officer to be suspicious of its purpose or use, suspicion is not probable cause and does not justify a seizure of an object found in plain view. Hicks, 480 U.S. at 326. In focusing upon what it believes to be the rarity of the "opportunities of the lawful use of [the shortened] straw," the majority loses sight of the "probable cause" analysis of Brown. To elevate the officer's suspicion of the balloon's contents to probable cause to believe the balloon contained cocaine, the Court in Brown relied upon the vials, white powder, and open bag of balloons that the officer observed in the glove compartment contemporaneously with his observation of the knotted balloon on the seat of the automobile. 460 U.S. at 742-43. Absent corroborating or independent evidence that some crime has been committed or is being committed, an otherwise lawful object, which a police officer suspiciously believes may be used for illegal purposes, by itself does not give rise to the conclusion that the object is evidence of a crime.
Childers may have had a suspicion that the straw was the type of device "that people used to ingest cocaine." However, his suspicion could not overcome the numerous possibilities for legitimate use, such as use by a former smoker to substitute for cigarettes. It was not until Childers seized the straw and examined it that he realized it contained a powder residue. Because Childers had no basis to seize the straw, the resulting discovery of cocaine residue and other contraband should have been suppressed as fruit of the poisonous tree. Wong Son v. United States, 371 U.S. 471, 485 (1963). Furthermore, the subsequent detention and arrest were unlawful.
For these reasons, I would suppress the evidence and reverse the convictions.
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