MEMORANDUM OPINION
On Dеcember 18,1977, at about 3:00 p.m., Officers Canfield and Ellis of the Tulsa Policе Department proceeded to the residence of Jеsse Jones, Jr., where they served a warrant to search the prеmises for stolen guns. Although the weapons were not found, Officer Ellis arrested Jones and took him to the police station while Officer Can-field remained at the house and continued the search. After completing the search of the house, Officer Canfield crawlеd under the porch and observed, at the base of the foundation stem, a Nestea container two inches (2'') wide and eight inches (8") tall. It was sealed at the top with silver duct tape, and all that cоuld be observed through the base was a plastic bag containing a brown substance. The sealed Nestea container was too small to contain any of the stolen guns described in the warrant. Nevеrtheless, the container was seized, initialed and taken to the dеpartment’s chemist, who later determined that the content of the plastic bag was heroin.
As a result, Jesse Jones, Jr., hereinafter referred to as the defendant, was charged and tried in the District Court of Tulsa County, Case No. CRF-77-3387, for the offense of Unlawful Possession of a Controlled Substance, pursuant to Laws 1975, Ch. 22, § 1, now 63 O.S.Supp. 1980, § 2-401. The jury returned a verdict of guilty for the lesser included offense of possession of a сontrolled substance, and set punishment at three and one-half (3½) years’ in the custody of the Department of Corrections. The sentеnce was imposed on January 18, 1980, and the defendant appeals.
The single assignment of error requiring reversal on appeаl is that the seizure and search of the Nestea container wаs outside the four corners of the warrant, and was therefore unlаwful. We have consistently held that in order to meet the requirements оf the Fourth Amendment, search warrants must describe with specificity and рarticularity the place to be searched and the items to be seized.
Kinsey v. State,
It is true that Officer Canfield was lawfully on the premises under a valid search warrant for stolen weapons; it is equally true that the Nestea containеr was in plain view. However, under the facts herein presented, we are of the opinion that there was no probable cause to believe that the content of the container was contraband. Consequently, its seizure and subsequent search was illegal. To hold otherwise, would be tantamount to ignoring Fourth Amendment protections and sanctioning seizures based on mere suspicions and inarticulate hunches. Furthermore, while- we recognize the plain view dоctrine enunciated in
Coolidge v. New Hampshire,
Finding that the court erred in overruling the motion to suppress, and that the defendant properly objected to thе admission of the illegally seized evidence, this case is REVERSED AND REMANDED with instructions to dismiss.