United States v. Mitchell Rothberg , 460 F.2d 223 ( 1972 )

MULLIGAN, Circuit Judge

(concurring) :

I concur in the opinion of Judge Hays who determined that there was a consent to the search of the basement. However, I believe that there is an additional justification for the seizure of the material in the basement irrespective of consent. As this court has held in United States v. Titus, 445 F.2d 577 (2d Cir.), cert. denied, 404 U.S. 957, 92 S.Ct. 323, 30 L.Ed.2d 274 (1971) officers may seize anything in plain view “while they were where they had a right to be.” United States v. Titus, supra, 445 F.2d at 579. In my view, the officers were rightfully in the basement. They had observed the Ford Transit which was driven by Wilson pull up to the Roth-berg residence; packages were seen being removed from the vehicle to the house; they observed Wilson drive the van away and park it in a parking lot where it could have been stolen, its contents pilfered or where a confederate of Wilson might have driven it off. Before entering the Rothberg residence the police further knew that two other vehicles which had been observed there that day, had been seized and searched and both were found to have contained hashish. The trial court credited the testimony of Officer Canavan and Defendant Wilson that the agents asked for the keys to the Ford Transit; that Wilson first told them that the keys were in his jacket in the bedroom and then admitted that the jacket was in the basement. Hence the agents had a legitimate, reasonable ground for going into the basement. They were not conducting a general or exploratory search, they were not rummaging; they had an extraneous valid reason for being present and when they got into the basement the contraband material was in plain view. In view of all of the circumstances the interest of the police in the keys to the Ford Transit was valid; they were where they had a right to be.