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with criminal activity, the item is not immediately
incriminating." United States. v. Byrd, 211 F.3d 1270, 2000
WL 491511, **3 (6th Cir. 2000) (unpublished opinion).
Based on the Beal factors this Court has used before and this
statement in Byrd, we find the evidence against McLevain
was not "intrinsically incriminating, and it was not
"immediately apparent" that the evidence provided probable
cause that it was contraband.
E.
The final aspect of the "plain view" doctrine requires that
an officer have a lawful right of access to the object at issue.
We said in Coolidge, "plain view alone is never enough to
justify the warrantless seizure of evidence." 403 U.S. at 468.
As noted in Horton, this requirement of a lawful right of
access means that generally an officer should get a warrant if
possible before he seizes an item in plain view. He cannot
seize absent exigent circumstances. If he could obtain a
warrant, then the he cannot use the "plain view" exception for
the evidence. 496 U.S. at 137, fn 7.
Acquisito had before him the cut cigarette filter, the twist
tie, and a spoon with residue on it, if not the prescription
bottle, when he field-tested the spoon. Before seizing the
spoon and testing it, he suspected the items were drug
paraphernalia. He should have sought a warrant at that time.
The evidence was not going anywhere. McLevain was in
custody, and his girlfriend and two children were still in the
house. Acquisito should have taken his evidence of probable
cause to a magistrate rather than attempting to seize it under
the "plain view" exception. Acquisito had no lawful right of
access to the items.
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'DOH 0F/HYDLQ DSSHDOV his conviction and sentence for
violation of 21 U.S.C. §841(a)(1) on the grounds that (1)the
district court erred in denying McLevain’s motion to
suppress, (2)the district court erred in admitting several pieces
of evidence of prior bad acts, (3)the communication between
the court and jury outside defense counsel’s presence violated
McLevain’s rights, and (4)the district court misapplied
Apprendi v. New Jersey, 530 U.S. 466 (2000), in sentencing.
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On December 28, 1999, Gary Cauley failed to return from
work release at the Daviess County Detention Center in
Daviess County, Kentucky. Based on information from a
confidential informant, the Daviess County Jailer Harold
Taylor sought a search warrant for Roger Dale McLevain’s
house at 8865 Sacra Drive, Maceo, Kentucky, in the early
afternoon of December 29. McLevain is the defendant now
before us.
The affidavit supporting the search warrant suggested a
connection between McLevain and Cauley’s girlfriend, Lydia
Bell. The informant told the police that Bell had been staying
at McLevain’s residence, and she had been picked up from
there by a friend on the night Cauley escaped. She went to
Cauley’s mother’s house, where she received a call from
Cauley at the Detention Center. Bell then borrowed Cauley’s
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experiences as law enforcement agents that led them to
believe that the seemingly quotidian objects were actually
drug paraphernalia. The connection between these items and
illegal activities, however, is not enough to render these items
intrinsically incriminating. The connection is not enough to
make their intrinsic nature such that their mere appearance
gives rise to an association with criminal activity.
The final Beal factor examines whether "the executing
officers can at the timeRIGLVFRYHU\RIWKHREMHFWRQWKHIDFWV
WKHQ DYDLODEOH WR WKHP GHWHUPLQH SUREDEOH FDXVH RI WKH
REMHFW VLQFULPLQDWLQJQDWXUH´ 810 F.2d at 577 (emphasis in
original). In United States v. Szymkowiak, 727 F.2d 95, 95
(6th Cir. 1984), the United States had a warrant to search
Szymkowiak’s home for a television set and some jewelry,
and the officers executing the warrant found and seized two
guns. The officers thought that the guns had been illegally
adjusted to rapidly fire. Id. The officers had to call an agent
from the Bureau of Alcohol, Tobacco and Firearms to
determine whether the guns were illegal. Id. at 96. We said,
"From the facts available to the executing officers in the case
before us, they could not determine whether they had
discovered evidence of a criminal nature." Id. at 99.
Similarly, from the facts available to the officers in
McLevain’s home, at the time of discovery, they could not
determine if they had seen evidence of criminal activity.
,QDYHU\UHFHQWFDVHIURPWKLV&RXUWZHKHOG³when an
item appears suspicious to an officer but further investigation
is required to establish probable cause as to its association

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or a bottle that makes it immediately apparent that those items
are contraband. In McLernon, a room was searched pursuant
to a cocaine conspiracy, and agents seized a note pad and
calendar from a desk, under the "plain view" exception. 746
F.2d at 1104. We said, in that case, these items "were hardly
‘intrinsically’ incriminating. Indeed such items are found in
plain view of virtually every desk across this country. We do
not, and cannot, subscribe to a rule of law which allows
officers of the state to seize an item as evidence merely
because it is in ‘plain view.’" Id. at 1125 (emphasis in
original). We found that the agents could not have
immediately perceived those items as incriminating; "the
agents' ‘immediate’ perceptions produced only visual images
of two ‘intrinsically innocent’ items." Id. Similarly, the
items found in McLevain’s home might be found under beds,
in sinks, and on mantels in many homes, and not exclusively
those where methamphetamine is being used. While the cut
cigarette filter and the prescription bottle with fluid in it might
be out of the ordinary, the police are not authorized to seize
odd items. We do not care what the explanation is for the
items, but we care that there may be some other explanation
for the items. Defense counsel pointed out at oral argument
that sometimes smokers who do not want filters in their
cigarettes remove them. The "plain view" exception
authorizes seizure of only those items that "immediately
app[ear]" to be contraband.
In one sense, the facts of this case are similar to those of
Texas v. Brown. In that case, an officer made a "plain view"
seizure of narcotics at a routine driver’s license checkpoint.
Id. at 730. In asking for the driver’s license, the officer saw
an opaque party balloon, tied at the end, drop from Brown’s
hand. Id. The officer knew from his experiences in previous
narcotics arrests and from conversations with other officers
that balloons tied as Brown’s was were often used to carry
narcotics. Id. at 742-743. In this case, Detective Acquisito
also testified that from his experiences as a narcotics officer
he suspected that the twist tie, cigarette filter, spoon, and
prescription bottle with liquid were being used with
methamphetamine. In both cases, it was the officers’s
1R 8QLWHG6WDWHVY0F/HYDLQ
mother’s car and returned it about an hour and a half later.
The affidavit contained no information as to McLevain
himself, but Cauley and McLevain were known to be friends.
On the basis of this information, Taylor sought a search
warrant for McLevain’s house. $ VWDWH FRXUW MXGJH
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VHL]HG It has never been explained why McLevain was
included.
Taylor sought assistance from the Daviess County Sheriff’s
Department. That department was aware that McLevain had
a criminal record with a narcotics offense. Officers of both
the Daviess County Detention Center and the Daviess County
Sheriff’s Department executed the warrant at McLevain’s
home at about 2:00 p.m. on December 29. Law enforcement
officers surrounded the home and forcibly entered through
both the front and the back doors. The officers at the front
door immediately seized McLevain in the hallway and gained
control over his girlfriend and two children in the front room.
The officers then began searching for Cauley. Narcotics
Detective Jim Acquisito went into the master bedroom, from
where McLevain had just emerged, and looked under the bed
for Cauley. Acquisito saw there a twist tie and a cut cigarette
filter. He suspected these items to be drug paraphernalia. He
informed his supervisor and took photographs of this
evidence, although he left it undisturbed.
Later in the search for Cauley, who was never found at
McLevain’s home, another officer drew Acquisito’s attention
to a spoon with residue on a tackle box in a sink in the garage.
Acquisito conducted a field test on the residue, and he found
it to be residue of methamphetamine. At about the same time,
Acquisito noticed on the mantel of the fireplace in the garage
a prescription bottle, with no label, filled with a clear liquid
that looked like water. Acquisito identified these four items
as drug paraphernalia, and he used them to establish probable

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cause in seeking a second warrant. Upon returning with the
second warrant, the officers discovered, concealed inside a
kerosene heater in the garage, approximately eighty-five
grams of methamphetamine; $5,710 in cash; and various
plastic bags, syringes, twist ties, and electronic scales. These
items formed the basis for the charges against McLevain.
McLevain filed a motion to suppress, objecting to the plain
view discovery of the evidence in the first search. He argued
that none of the first four pieces of evidence was immediately
incriminating. He also argued that the discovery took the
officers beyond the scope of a search for an escapee. The
district court denied this motion.
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7KLVKROGLQJZDVFRQVLVWHQWZLWKHarris v. United States, 331
U.S. 145, 155 (1947)ZKLFKKHOG³If entry upon the premises
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,QVWHDG ³Srobable 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." Texas v. Brown, 460 U.S.
730, 742 (1983) (citing Carroll v. United States, 267 U.S.
132, 162 (1925)).
We begin with the first of the Beal factors. No nexus
between the object seized and the items in the search warrant
exists in our case. Cauley was the subject of the search.
McLevain was an afterthought that has never been explained.
The warrant had nothing to do with drug paraphernalia.
The second factor is whether the "intrinsic nature" of the
items gives probable cause to believe it is contraband, such as
marijuana or cocaine on a table in plain view. The case of
Arizona v. Hicks, 480 U.S. 321 (1987), is instructive. In that
case, the police entered an apartment to search for a shooter.
While they were there, an officer saw stereo equipment that
he thought was incongruous in the otherwise poorly furnished
apartment. Id. at 323. The officer suspected the stereo was
stolen, so he moved the equipment in order to read the serial
numbers. Id. The Supreme Court found that "taking action,
unrelated to the objectives of the authorized intrusion, which
exposed to view concealed portions of the apartment or its
contents, did produce a new invasion of respondent's privacy
unjustified by the exigent circumstance that validated the
entry." Id. at 325. There was nothing about the "intrinsic
nature" of the stereo equipment that proclaimed it as
contraband.
McLevain claims that there is nothing about the intrinsic
nature of a twist tie, a cigarette filter, a spoon with residue,

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requirement, we found in United States v. McLernon, 746
F.2d 1098, 1125 (6th Cir. 1984), limits the use of the "plain
view" exception in two important ways. Requiring that
evidence be "immediate" and "apparent" constrains the
expansion of the limited search authorized by the warrant into
a generalized search, and it prevents officers from having an
opportunity to create a reason to expand the search. Id.
7KLV &RXUW KDV ORQJ GHOLEHUDWHG ZKDW ³LPPHGLDWHO\
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RIRXUSULRUFDVHVLQ United States v. Beal, 810 F.2d 574, 576
-577 (6th Cir. 1987) :H IRXQG WKDW ZKLOH QRQH RI WKHVH
IDFWRUVLVQHFHVVDU\WKH\DUHLQVWUXFWLYHDVWRZKDWWKLVFRXUW
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³LPPHGLDWHO\DSSDUHQW´,G7KHIDFWRUVLQFOXGH 1)"a nexus
between the seized object and the items particularized in the
search warrant," 2)"whether the ‘intrinsic nature’ or
appearance of the seized object gives probable cause to
believe that it is associated with criminal activity," and
3)whether "the executing officers can at the time of discovery
of the object on the facts then available to them determine
probable cause of the object's incriminating nature." Id.
(internal citations omitted) (emphasis in original). 7KHVH
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be authorized and the search which follows be valid, there is
nothing in the Fourth Amendment which inhibits the seizure
by law-enforcement agents of government property the
possession of which is a crime, even though the officers are
not aware that such property is on the premises when the
search is initiated."
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496 U.S. 128, 137 (1990),ZKHQWKH6XSUHPH&RXUWFODULILHG
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itself." Id. Here Horton cites to Coolidge: "‘7KLVLVVLPSO\
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McLevain complains that the search and seizure of the
evidence against him, as a basis for a second warrant, was
particularly egregious in light of the fact that the search was
for two full-grown men. While the Supreme Court held in
Harris, "7KHVDPHPHWLFXORXVLQYHVWLJDWLRQZKLFKZRXOGEH
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citations omitted), the Supreme Court said,
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Even if the warrant application was supported by more
than a ‘bare bones’ affidavit, a reviewing court may
properly conclude that, notwithstanding the deference
that magistrates deserve, the warrant was invalid because
the magistrate's probable-cause determination reflected
an improper analysis of the totality of the circumstances
or because the form of the warrant was improper in some
respect.
While granting due deference to the state court judge, we
question why McLevain was named for seizure in the
warrant. The United States offered no evidence of his having
played an active role in facilitating or effectuating Cauley’s
escape. Nevertheless, we find that the warrant was valid, and
the officers were lawfully present at McLevain’s house.
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