United States v. Antonio R. Sedillo

496 F.2d 151, 1974 U.S. App. LEXIS 9041

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 23, 1974
• Docket: 73-2215
• Status: Published

Opinions

SNEED, Circuit Judge:

Appellant was walking up a freeway on-ramp when he was stopped by a police officer. In response to the officer’s request, appellant was unable to produce identification but did indicate his name was Tony Sedillo. The officer then noticed in appellant’s shirt pocket an envelope containing what appeared to be a Treasury check. The name “Mitsuri E. Nagaya” was clearly visible through the transparent window of the envelope. Without asking, the officer reached to pull the check from appellant’s pocket. Appellant explained at this time that he had found the check in the street. After removing the check- from Sedillo’s pocket and observing that it had been endorsed, the officer asked appellant to sign his name in a notebook. Based upon the similarity of handwriting, appellant was placed under arrest for forgery and given the Miranda warnings. Subsequent to the taking of a second handwriting exemplar, appellant gave a full confession.

Appellant first attacks the legality of the officer’s initial “seizure” of the envelope. It has long been settled, however, that objects falling within “the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence.” Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968). Although general exploratory searches are not to be permitted, the plain view doctrine is properly applied to situations in which a police officer is not searcing for evidence against the accused but nevertheless inadvertently comes across an incriminating object. See, e. g., Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Brown, 470 F.2d 1120 (9th Cir., 1972). This is just such a case. Under the circumstances, the officer had probable cause to seize the check. See United States v. Wheeler, 148 U.S.App.D.C. 204, 459 F.2d 1228 (1972). While we recognize that it may have been more polite for the officer to request permission to examine the check, the failure to do so does not raise the issue to a level of constitutional dimensions. Not every breach of etiquette poses a constitutional issue. Compare United States v. Fisch, 474 F.2d 1071 (9th Cir.), cert. denied 412 U.S. 921, 93 S.Ct. 2742, 37 L.Ed.2d 148 (1973).

Appellant also suggests that the two handwriting exemplars were illegally obtained. Since we view the initial “seizure” of the check as proper, we reject the argument that the exemplars are the fruit of prior lawlessness. Nor did the taking of the handwriting samples violate appellant’s rights under the Fourth or Fifth Amendments. See United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

Finally, appellant attacks the admissibility of his confession. Because we are holding that the officer acted properly in “seizing” the check, and because appellant was fully informed of his Miranda rights, we also reject this argument.

Affirmed.