Via immediate review certificate, defendant has appealed from the denial of his motion to suppress. This motion is aimed at a coin collection which was in defendant’s possession during his efforts to make a sale to a coin collector when seized by police. Both the seizure and arrest were based upon a repоrt made to the authorities by a well-meaning citizen whose suspicions were aroused by his observations. The seizure and accompanying arrest were made without warrants аnd without knowledge at that time that the collection had been stolen from an Alabama numismatist. Following a detainer at headquarters until an inventory of the seized currency could be completed, defendant and the other individual were released. After the next day’s teletype inquiry developed the information as to the collection hаving been purloined, defendant was again taken into custody and subsequently indicted for receiving stolen property.
The facts adduced upon the suppression hearing аre as follows: Upon entering his Rome business establishment Sproull Dempsey observed defendant removing a suitcase from the trunk of an automobile *713 parked near the rear entrance of his office building. Shortly thereafter, Dempsey had occasion to enter another office in that building and noticed that defendant, another man, and Dempsey’s brother, Dwyatt, were in apparent discussion. At that time, the suitcase which Sproull had previously observed was open and a coin collection revealed therein. Upon inquiring, Sproull was informed the collection belonged to defendant. Sproull then left to fulfill a business engagement. On his return, Sproull again encountered the trio behind the locked door of the sales office. On this third occasion, Sproull became "excited” because "the money was spread out all over the table, and in the floor.” (T. 6). Although his question as to ownership of the money was again affirmatively answered by defendant, stating that it was not "hot” or stolen (T. 6, 11, 12), Sproull’s anxiety was not alleviated. "I thought it was something the officers should look into, and I went to police headquarters,” which was next door across a lane. There he told police that a "gentleman had a large amount of money” in his office; and that he (Sproull) was " 'suspicious’ and wanted the police to investigate.” (T. 15). Two policemen, Officer Williams and Detective Smith, accompanied Sproull to the latter’s business premises. At this point the evidence becomes somewhat in conflict.
Dwyatt Dempsey testified defendant had previously known of his being a сoin collector and had called him for an appointment. After defendant and the other man had displayed the collection and he had declined to buy, he and defendant had walked down a hallway toward the rear entrance of the building while the other person remained behind. He further stated that Sproull and the police came through the back door whereupon they went into the sales office; that the other person went into an adjoining office and closed the door; that the coins had been replaced in containers and could not be seen; that the police asked to see the coins; that either the police or defendant had then oрened the containers, but that he (Dwyatt) could not remember by whom they were opened.
Detective Smith testified that upon entering the building Dwyatt Dempsey stood about four feet in front of him while defendant and his companion appeared *714 approximately 25 feet down the hallway; that these latter two then entered the sales office аnd closed the door; that Sproull knocked on the door and defendant opened it; that as he entered the sales office he saw the other man go into an adjacent room and close the door; that upon asking this individual to join him, this was done; that the coin collection was in plain view when he entered the office; that he asked who owned the coins but received no immediate reply; that finally defendant said the coins belonged to a friend; and that he then escorted defendant, the other man, аnd the coins to the station house.
Officer Williams also testified that the coins were in plain view and that upon asking to whom the coins belonged no immediate response was forthcoming. He added that an examination revealed "some of the writing on the rolled pennies ... had been rubbed out with a red or black marking pencil” and this brought "a little morе suspicion” that something was amiss. (T. 49). Held:
1. We first note that, contrary to defendant’s contention, defendant cannot complain of the presence of the police on the Dempsey premises. Since the Fourth Amendment protects persons, not places, Katz v. United States,
2. Of course, this is not to say that defendant has no standing to challenge the seizure of the coins.
1
Charged
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with an offense the essential element of which is possession, defendant has automatic standing in this regard. Jones v. United States,
3. We also observe that the evidence sufficiently supports the conclusion that the collection was in plain view when thе officers entered the sales office. Thus the trial judge, as the motion to suppress fact-finder, was authorized to resolve the conflict in the testimony and determine that thе collection was in fact in plain view. Code Ann. § 27-313 (b);
Harris v. State,
A police officer may seize what is in plain sight if, as here, he is in a place where he is constitutionally entitled to be. Ker v. California,
4. But it must be
immediately apparent
to the investigating officer that the property tо be seized is contraband." 'The "plain view” doctrine is applicable only where it is immediately apparent to the police that they have evidence before them; the "plain view” doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emergеs.’ Coolidge v. New Hampshire,
5. Therefore, the question for decision in the case at bar is whether it was immediately apparent to the police that the coin collection was stolen property. Our conclusion is that it was not what might be called "an implicating incriminating item.” See
Zimmerman v. State,
Nor do we think that, under the totality of the
*716
circumstances, the police had probable cause to believe that a crime was being committed in their presence. See in this connection
Anderson v. State,
The case of
Brooks v. State,
6. "Under a warrantless search and seizure the burden of proving that the search and seizure were lawful is upon the state. [Cits.].”
Merritt v. State,
Judgment reversed.
Notes
"Standing” on account of an interest in the property searched and "standing” on account of an interest in the property seized are distinct and separate issues.