The appellant concedes, under Howe
v. State,
The stеreo tapes on the back floorboard and the sock filled with pennies lying on the front seat were in plain view, аnd were removed from the car after the suspects were taken into the jail, but without first obtaining a search warrant. Appellants contend this was error, under authority of cases such as Coolidge v. New Hampshire,
Accepting as true the evidence of the two arresting
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officers, they proceeded in a three-stаge investigation. In the first stage, noticing a car approaching them and "weaving,” they turned around, followed and stopped it to investigate the possibility that the operator was driving under the influence of drugs or liquor. This was a proper procedure. When the four occupants of the car opened the door, there was a strong smell of marijuаna and when they alighted there was a glassine bag of marijuana in plain view. Arresting the occupants and taking them to the station to be booked on charges of possession and driving under the influence of the drug were proper under thеse circumstances. See, generally, 10 ALR 3rd Anno. "Search of Vehicle — Traffic Violation,” pp. 314, 332 § 6[b];
Cunningham v. State,
The third stage addressеs itself to the seizure of stereo tapes and the sock containing pennies. The officers readily stated that аt the time they stopped the defendants they did not suspect them of burglary; nevertheless, these same officers had, earlier the same evening, investigated burglary from a trailer of guns, stereo tapes, and coins including a large collection of pennies. They picked up the stereo tapes and sock, both of which were in clearly visible view, аnd asked the defendants what was in the sock. One of them replied it contained pennies which he had received from his grandmother. The officers then visited the grandmother and ascertained that none of her coins were missing; they then took them to the owner of the trailer who identified them as his, whereupon the defendants were charged additionally with the burglary.
The "plain view” doctrine means exactly that. A substance within an opaque container is not in plain view, as, for еxample, the contents of a paper bag. See United States v. Shye, 473 F2d 1061. Occasionally the rule is slightly bent as in United Statеs v. Wheeler, 459 F2d 1228. There a motorist was arrested for a traffic violation and the car impounded. A brown envelope was in plain view, which, being opened, was found to contain heroin. "There was probable cause for this seizure in viеw of the circumstances present here including the size and color of the envelope, its apparent bulk, аnd location in the
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ashtray of the car, and as noted above, the officer’s experience in having found narcotics in this type envelope on prior occasions.” This decision, however, goes farther than the Georgiа rule, which is that the plain view doctrine is applicable only where it is apparent by what the officers can sеe without further investigation that what they have in front of them is evidence.
Cook v. State,
Herе the car was in police custody, the occupants had been removed, and the stereo tapes werе in plain view and must have been known to resemble the tapes missing as a result of the burglary they had just investigated. We are not informed when they first thought of them as "evidence” but do not hinge the decision on subjective reaction time. The coins were inside an opaque container. The officers correctly did not open the container; they inquired as to the contents and were informed that it was pennies. So far as the evidence shows they still did not open the sack but tоok it to the grandmother reputed to be the owner. The qualified seizure, if it may be called such, was reasonable under the circumstances; the full blown search on finding the story of acquisition untrue, and with knowledge of a theft of pennies that sаme night, rendered the subsequent conduct reasonable within Fourth Amendment standards.
The motion to suppress these articles was properly denied. The conviction is affirmed.
Judgment affirmed.