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Vassar v. State10/29/2004
ery likely an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary for an application of the 'plain view' doctrine." Texas v. Brown, 460 U.S. 730, 741, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). "' he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.'" Id. at 741-42 ( quoting Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)) (emphasis in original). The Tenth Circuit Court of Appeals has stated the requirement as follows: "' he officer['s] discovery of the object must so galvanize knowledge that can be said, at that very moment or soon thereafter, to have probable cause to believe the object to be contraband or evidence.'" United States v. Naugle, 997 F.2d 819, 823 (10th Cir.), cert. denied, 510 U.S. 997 (1993) ( quoting United States v. Rutkowski, 877 F.2d 139, 142 (1st Cir. 1989)). However, 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"... 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, non-technical" probability that incriminating evidence is involved is all that is required.
Brown, 460 U.S. at 742 ( quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). See also Naugle, 997 F.2d at 823.
In the instant case, the district court found that Trooper Guenther was a credible witness, which finding the appellant does not question on appeal. Trooper Guenther observed a small wooden box "propped up" amongst other belongings behind the driver's seat of the appellant's vehicle. Emblazoned in gold on the top of the wooden box was what Trooper Guenther "immediately" recognized as an "exact replica" of a marijuana leaf. A photograph of the image clearly lends objective support to Trooper Guenther's assessment. Likewise, Trooper Guenther deduced from his knowledge, training, and experience as a law enforcement officer that the wooden box was a "stash box" or container used to store illegal controlled substances such as marijuana. Trooper Guenther testified that he had seen many kinds of stash boxes, having seized between fifty and seventy-five of them. Some of these boxes had pictures such as a marijuana leaf on them and a marijuana leaf on a wooden boX was, according to Trooper Guenther, "commonly associated" with such a stash box. The wooden box's incriminating character was therefore immediately apparent and Trooper Guenther had probable cause to seize the wooden box.
For the same reasons, we also find that Trooper Guenther had probable cause to search the wooden stash box. The "seizure" of a container pursuant to the plain view doctrine "does not compromise the interest in preserving the privacy of its contents because it may only be opened pursuant to either a search warrant... or one of the well-delineated exceptions to the warrant requirement." Horton v. California, 496 U.S. 128, 141 n.11, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). However, where the contents of a seized container are a foregone conclusion, this prohibition against warrantless searches of containers under the plain view doctrine does not apply. We have held that when a container is "'not closed,' or 'transparent,' or when its 'distinctive configuration... proclaims its contents,
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