delivered the opinion of the Court.
We granted certiorari in this case to consider whether the finding and taking of serial numbers from certain equipment during a search for narcotics, conducted pursuant to a valid warrant, was an unconstitutional search and seizure. On appeal from appellee’s conviction for receiving
The events leading to the arrest and prosecution of appellee began on the evening of June 18, 1974, at the residence in Carmody Hills which he shared with several people. A Prince George’s County police officer, acting as a “back-up,” accompanied federal agents to this residence, where the agents were to execute a valid search warrant for narcotics and narcotics paraphernalia. While the agents searched downstairs, the county officer searched appellee’s upstairs bedroom. He observed that “sitting on top of the drawer, the dressers, on the floors” were “[s]omewhere around twenty, twenty-five” items, consisting of “various t.v. sets, stereo equipment, speakers, one or two clock radios, camera and various items in the house.” The officer “looked over” these items and “jotted down the serial numbers of all of them.” Then, during “the last ten minutes [the officer] was in the bedroom,” the federal agents also searched the room. To cónduct their narcotics search, the agents “would ... have moved some of these items anyway.”
After a thorough search, the federal agents departed empty-handed, finding neither narcotics nor narcotics paraphernalia, while the police officer left with his list of serial numbers. Later that night, the officer checked the serial numbers against those stored in a national computer system which lists serial numbers of stolen equipment. One number matched, indicating that appellee possessed a Sony cassette tape recorder which had been stolen some 4V2 months earlier from an apartment in nearby Lanham. The officer then referred the matter to another division.
On the following day, one Prince George’s County police
Appellee was charged with burglary, housebreaking, grand larceny, and receiving stolen goods. Confronted during the trial by appellee’s objection to the introduction of the recorder into evidence, the court (Meloy, J.) ruled that appellee had consented to the seizure of the cassette recorder, and thus found it unnecessary to rule on the legality of the police conduct in copying the serial numbers. After the State abandoned the burglary and one of the receiving stolen goods counts, the jury convicted appellee of receiving stolen goods of the value of $100 or more, and the court sentenced him to a term of six years.
I
We begin by observing that both the State and appellee, correctly in our view, treat the taking of the serial numbers as a seizure within the meaning of the Fourth Amendment.
The issue in controversy here is whether the search for the serial numbers and their seizure were lawful. To prevent the issuance of general warrants, the Fourth Amendment requires that a warrant “particularly [describe] the place to be searched, and the persons or things to be seized.” The warrant which was issued here mentioned only narcotics and narcotics paraphernalia. Manifestly, then, the seizure of the serial numbers cannot be justified under the terms of the warrant.
Moreover, “searches conducted outside the judicial process, without prior approval by judge or magistrate, are
per se
unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.”
Katz v. United States, supra,
II
The State contends, first, that the seizure was valid under the “plain view” exception enunciated in the plurality opinion in
Coolidge v. New Hampshire, supra,
Appellee contends that neither the third nor fourth requirement imposed by
Coolidge
for application of the “plain view” exception has been met here. In our view, it is unnecessary to consider the “inadvertence” requirement, since, in any event, it was not “immediately apparent to the police that they [had] evidence before them.” This element, in essence, amounts to a requirement that police have probable cause to believe the evidence is incriminating before they seize it. As the court said in
United States v. Gray, supra,
In the context of another exception to the warrant requirement, the “hot pursuit” doctrine, the Supreme Court
“.. . There must, of course, be a nexus — automatically provided in the case of fruits, instrumentalities or contraband — between the item to be seized and criminal behavior. Thus in the case of ‘mere evidence,’ probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction.” Warden v. Hayden,387 U. S. 294 , 307,87 S. Ct. 1642 ,18 L.Ed.2d 782 (1967) (emphasis added).
This standard has also been used to determine whether probable cause existed to seize articles in plain view.
See, e.g., United States v. Golay, supra,
In
Hayden,
of course, the Court held that mere evidence, as well as fruits, instrumentalities, and contraband, may be seized under certain circumstances. Under the
Hayden
formulation, so long as police have probable cause to believe that what they see is contraband, or the fruit or instrumentality of some unspecified criminal activity, they may seize the object.
See, e.g., United States v. Golay, supra,
Whether we regard the cassette recorder as the “fruit of crime” or “mere evidence,” the record fails to support the State’s contention that the officer possessed probable cause to seize the serial numbers. In support of its claim, the State first urges that since drug users frequently deal in stolen goods to support their habit, the officer possessed probable cause to believe the equipment was stolen. This “nexus,” standing alone, is too remote in this case to establish probable cause. The cases upon which the State relies are all distinguishable. 1 In each instance, either the same or a similar kind of criminal conduct was involved. Although finding the articles named in the search warrant is not an essential element of the nexus argument, see, e.g., United States v. Golay, supra, we observe that here the agents and officer found neither the narcotics nor the paraphernalia named in the warrant.
The State also argues that the large quantity of equipment observed in appellee’s bedroom created probable cause. In our view, however, the record justifies no more than a mere suspicion that any of the goods were stolen. It is important to recognize that although the officer observed a total of 20 to 25 items, they were of many varieties: “various t.v. sets, stereo equipment, speakers, one or two clock radios, camera and various items in the house.”
Cf. Comi v. State,
Other courts, on facts which parallel those found here, have held the seizure of serial numbers to be invalid.
United States v. Clark, supra,
We hold that seizure of the serial number was not justified under the plain view doctrine.
Ill
The State argues that even if the officer lacked probable cause to believe the equipment was stolen, the seizure of the serial number was justified under another exception to the general rule proscribing warrantless searches. The State premises this contention on the ground that the Fourth Amendment prohibits “unreasonable” searches and seizures. Stressing that the officer’s action neither deprived appellee of possession of the equipment nor required that it be moved
The State’s argument, however, misconceives
Terry’s
narrow scope. In
Terry,
and in its companion case,
Sibron v. New York,
“... [t]he search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception — the protection of the officer by disarming a potentially dangerous man.” Id. at 65 (emphasis added).
The narrow exception established in
Terry
and
Sibron
may have been expanded somewhat by
Adams v. Williams,
Each case must be decided on its own facts,
Terry v. Ohio, supra,
IV
The State contends that yet a third exception to the general rule prohibiting warrantless searches is applicable here. It posits that even if seizure of the serial numbers was unlawful, appellee consented to the seizure of the recorder itself on the second day. Initially, we observe that the State bears the burden of proving that:
“.. . consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances ... .” Schneckloth v. Bustamonte,412 U. S. 218 , 248-49,93 S. Ct. 2041 ,36 L.Ed.2d 854 (1973).
Bumper v. North Carolina,
We think the State has failed to prove that appellee voluntarily consented to the second search. We are mindful, in this regard, of the Supreme Court’s admonition:
“. . . In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” Schneckloth v. Bustamonte, supra,412 U. S. at 229 .
The State has suggested several factors which, it argues, demonstrate that appellee voluntarily consented. At no time prior to seizure of the recorder itself was appellee in custody, although Miranda warnings had been issued. Moreover, appellee was in his own home and some of his housemates, including his landlord, were present. Appellee informed the officer that the recorder was in his bedroom and led him there.
As we see it, however, the circumstances surrounding the seizure demonstrate that appellee’s consent was obtained by coercion. Three officers — two detectives and their sergeant — arrived at his home. The housemates permitted the officers to walk upstairs, and since the others seemed already to have acquiesced to the officers’ request to search the house, appellee apparently reasoned that he had no alternative but to consent. The detective then “advised [appellee] of his constitutional rights.” Conspicuously absent from the warnings was any reference to defendant’s right not to consent to the search. Concededly,
Schneckloth
does make it clear that although defendant’s “knowledge of a
Next, the police explained their presence by referring to the search conducted by the uniformed officer on the prior evening. Nothing in the record indicates that appellee knew or assumed the search and seizure of the serial numbers to be unlawful. We can only conclude, therefore, that he premised his consent on the assumption that the officer had acted lawfully and within the scope of the warrant. From this premise, appellee could reasonably have understood that the police were continuing to act under the authority granted by the search warrant. The detective’s polite but firm request that appellee “relinquish” the cassette recorder may well have buttressed the view in appellee’s mind that his only alternatives were either to surrender the equipment cooperatively or to have it taken by force. Implicit, moreover, in the visit by the three officers was the indication that they intended to seize the recorder. Under the circumstances here, “such a police request could be construed as a demand.”
People v. Huffman,
“When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent.” Bumper v. North Carolina, supra,391 U. S. at 550 (emphasis added).
Accord, Whitman v. State, supra,
The illegality of a prior seizure, of course, does not automatically render evidence obtained by a subsequent
As we indicated earlier, account must be taken of subtle police conduct. Here, as in
People v. Superior Court of Marin County,
Since we have concluded that appellee’s consent was involuntarily given, we need not reach his second argument that possession of the cassette recorder by the police was, in any event, tainted by the illegal seizure of its serial number.
See generally Brown v. Illinois,
V
What we have already said disposes, in large part, of the State’s final contention. In its brief, the State suggested that instead of merely reversing-the conviction, the Court of Special Appeals should also have remanded the case for a new trial. The State premised its contention on the bald assertion that it could “quite possibl[y]” establish an independent source for the same information which we have here found to be inadmissible. So too, asserted the State, it is “possible” that the State “might be able” to adduce new evidence on the consent issue. At oral argument, however, the State conceded that it possessed neither an independent source nor additional evidence. Accordingly, we shall not remand for a new trial.
Cf. Johnson v. State,
Judgment of the Court of Special Appeals affirmed; costs to be paid by Prince George’s County.
Notes
. Payne v. United States,
. The State’s reliance on United States v. Powers,
Moreover, United States v. Golay,