Full opinion text
LEVENTHAL, Circuit Judge: On June 28, 1974, defendant Robert J. Scios was indicted for unlawful interception of wire communications and related offenses. By order of May 20, 1975, the district court suppressed the testimony of a potential witness, Thomas Massa, Jr., on the ground that. Massa’s testimony was the product of an illegal search. The govemment appealed that order, and on Aug. 23, 1976, a panel of this court reversed the district court order on the ground that the “taint” attaching to Massa’s testimony by virtue of the illegal search had been “attenuated” sufficiently to permit introduction of the testimony at defendant Scios’s trial. We have reheard the case en banc and concluded that the challenged testimony must be excluded as tainted by the illegal search. I. FACTUAL BACKGROUND On Sept. 29, 1972, telephone linemen came upon electronic devices attached to the telephone lines of a pharmacy in Washington, D. C., known as Your Pharmacy Service. The FBI began an investigation, which led eventually to the defendant Scios, a licensed private investigator. A warrant for his arrest was issued on Feb. 15, 1974. The prosecuting attorney concluded that there was no basis for application for a search warrant, and no search warrant was sought. FBI agents proceeded to Scios’s residence in New York City and arrested him there. After Scios had been physically taken into custody and a gun had been removed from his desk, one of the agents looked around the room “for nothing in particular.” His attention focused upon a credenza, located three or four feet in back of defendant’s desk. On top of the credenza were about 60 file folders, in wire racks, labeled with various projects Scios had worked on in his capacity as a private investigator. Defendant’s access to the credenza was, according to FBI testimony, blocked by the presence of an FBI agent between defendant and the credenza. The trial court found that the credenza was beyond the area of defendant’s immediate control. At this point one of the agents went to the credenza and removed a file folder labeled “Your Pharmacy Service” — the name of the pharmacy upon whose telephone lines the electronic devices had been found. The government contended that the label on this folder was in plain view of the agents. The court found as a fact to the contrary; rather, the agent had “bent over, read through the folders, and fingered them so that their labels could be read.” The folder was found to contain various papers, including a credit card charge slip with Scios’s name on it from a motel in Washington, D. C., and an itemized bill from the same motel, indicating “Mr. Massa” had registered for the room. These items bore the date July 26, 1972, which established a likely temporal link to the period of the wiretapping. Using the motel’s record of telephone calls made from the room, the F.B.I. was able to locate in New York City the potential witness— Thomas Massa, Jr. A subpoena was issued commanding Massa to appear before a grand jury in the District of Columbia. Massa was initially reluctant to speak to the prosecutor in Washington, but on the advice of his family he appeared, on May 5,1974, in the prosécutor’s office. Massa was told that preparations were being made to grant him immunity from prosecution for matters to which his grand jury testimony might relate. In his first appearance before the grand jury, before immunity had been granted, Massa refused to testify, asserting his privilege against self-incrimination. On May 8,1974, the District Judge issued an order directing Massa to testify — conferring appropriate immunity. Massa was again taken before the grand jury and again refused to testify, but then reluctantly acquiesced after Judge Hart’s order was read to him. The indictment of Scios followed. II. PROCEEDINGS IN THE DISTRICT COURT In October, 1974, defendant Scios moved the district court to suppress as evidence the file folder and its contents, as well as all evidence derived therefrom. He moved, in addition, to suppress all oral statements made by him at the time of arrest, and any evidence derived therefrom. On Dec. 10, 1974, the court granted these suppression motions. Its order was based on two alternative grounds. It ruled, first, that the affidavit in support of the warrant for Scios’s arrest had failed to establish probable cause to believe that Scios had commit-, ted a crime; consequently, the challenged evidence was suppressed as the product of an illegal arrest. The court then assumed, arguendo, that the arrest had been lawful, and went on to hold that the seizure of the file folder was nevertheless illegal since the folder was not seized in a search incident to arrest as permitted under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), nor was it in plain view. Neither defendant’s motions to suppress nor the government’s responses to these motions mentioned the testimony of the witness Massa. On April 23, 1975, long after the period for appeal of the foregoing order had elapsed, the government moved the court for a determination of whether Massa’s testimony was admissible at trial. The government argued that the taint attaching to Massa’s testimony by virtue of the illegal seizure of the folder had been attenuated by intervening events, contending particularly that there was attenuation in Massa’s ultimate “act of volition” in deciding to testify. On May 20, 1974, the district court ruled that the taint had not been sufficiently attenuated to permit introduction of Massa’s testimony. III. QUESTIONS PRESENTED The district court’s December 10, 1974, order holding the seizure was illegal was not appealed. On this appeal, from the April 23, 1975, order, suppressing Massa’s testimony, the government does not contest the district court’s ruling that the seizure was a violation of the fourth amendment. It argues a claim of attenuation — that the taint attributable to the illegal seizure of the defendant’s file folder has been sufficiently dissipated to permit introduction of the testimony of Thomas Massa, Jr., at trial. The exclusionary rule was established in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The purpose of the rule is to safeguard fourth amendment rights. United States v. Calandra, 414 U.S. 338, 347-48, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). The rule bars the introduction at trial not only of evidence seized in violation of the fourth amendment, but also of evidence obtained as an indirect result of the illegal seizure — the fruit of the poisoned tree. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). An exception to this “tainted fruit” doctrine has been established for the case where the connection between the illegal seizure and the subsequent discovery of the challenged evidence has “become so attenuated as to dissipate the taint,” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). It is related to the rule, plainly not available to the government here, that permits the introduction of evidence to which the government was led by means independent of the illegal search or seizure. In certain circumstances, the attenuation doctrine has been applied where the witness who has been located as the result of an illegal search or seizure has voluntarily decided to testify. See Wong Sun v. United States, 371 U.S. at 491, 83 S.Ct. 407. The principle underlying this application of the attenuation doctrine has not been articulated with clarity. It is probably an adaptation, with adjustment, of the general legal conception that sees the link of causation broken when an intervening cause is independent. Turning to the case before us, we examine first the claim that the taint of the illegal seizure was attenuated by a voluntary decision to testify; and next, the claim of attenuation of the taint by the complexity of intervening factors. A. Voluntariness: In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Court excluded the incriminating statements of defendant Toy, made shortly after his illegal arrest, while handcuffed and surrounded by federal narcotics agents. The Court said it was unreasonable to judge that his response to the police interrogation “was sufficiently an act of free will to purge the primary taint” of an illegal arrest, 371 U.S. at 486, 83 S.Ct. at 416. The statement of Wong Sun, a co-defendant, was, by contrast, deemed admissible.' Wong Sun had also been arrested without probable cause. His statement, however, was not made immediately after arrest; rather, he was released in his own recognizance and returned voluntarily several days later to make the statement. Id. at 491, 83 S.Ct. 407. The Supreme Court found that “the connection between the arrest and the statement had ‘become so attenuated as to dissipate the taint.’ . .” Id. at 491, 83 S.Ct. at 419, quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). It seems clear from Wong Sun that for an act of free will to operate as a dissipation of . taint, it must occur in circumstances devoid of coercion. The principle was further developed in Smith and Bowden v. United States, 117 U.S.App.D.C. 1, 324 F.2d 879 (1963), decided shortly after Wong Sun. This court excluded a statement made by a defendant during unnecessarily long post-arrest detention, and tangible evidence taken from him at that time. But it admitted the testimony of an eyewitness to a murder who had been located as a result of a statement made by a defendant. The eyewitness initially provided no incriminating evidence. After considering the matter for a period of time, during which he “kept thinking about the dead man . .,” Record at 629, he decided to testify against defendant.- In support of the distinction thus made, Judge (now Chief Justice) Burger stressed the element of volition and other aspects of human behavior that contribute to its indeterminacy: [A] witness is not an inanimate object which like contraband narcotics, a pistol or stolen goods, “speak for themselves.” The proffer of a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personalty whose attributes of will, perception, memory and volition interact to determine what testimony he will give. The uniqueness of this human 117 U.S.App.D.C. at 3-4 & n. 2, 324 F.2d at 881-82 & n. 2. The concept of “reflection” as the key element of admissibility in Smith and Bow-den was emphasized in Smith and Anderson v. United States, 120 U.S.App.D.C. 160, 344 F.2d 545 (1965). However, for purposes of this case, we need not pursue the question when or in what circumstances voluntary testimony will be admissible. In the present case, it is plain that Massa’s giving of testimony — before the grand jury, and presumably at the trial — is purely and simply a product of coercion. Massa’s decision to testify is not a matter of choice, or free will, but made solely to avoid being jailed for contempt. His decision to testify in such circumstances can hardly be what Judge Burger had in mind in Smith and Bowden when he spoke of the “human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.” 117 U.S.App.D.C. at 3, 324 F.2d at 881. B. Claim of attenuation of the taint by intervening factors: The government also argues there are numerous “intervening factors” between the illegal seizure of the file folder and Massa’s testimony making the chain from the illegal seizure of the file folder to the testimony of Massa “so complicated, remote, and indirect” as to dissipate the connection. The claim, in substance, is that there was no direct link between the file folder and Massa, because the file document that showed Massa’s name in the record of the motel room paid by defendant did not establish his identity. That only appeared when the police checked the motel’s telephone records. We must begin with the illegal search. At the arrest for the offense of tapping the line of Your Pharmacy Service, the agent unlawfully riffled through defendant’s file folders and removed his file for Your Pharmacy Service. The agents tracked the Massa lead found in that file. They did not pursue a trail independent of the illegal search (see note 9). The location of Massa was not the product of an improbable, unforeseeable coincidence. It was good police work, but a straightforward exploration of the leads in the Pharmacy file. The fact that the exploration took some time, although a material consideration, does not of itself demonstrate that the exclusionary rule is inapplicable. “The road . may be long, but it is straight.” ****** We add to the opinion that had been written for this case a reference to United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978), which in our view is not only congruent with but affirmatively supports our reasoning and result. In Ceccolini, a police officer (Biro), op duty at school crossings, was taking a break in defendant’s flower shop, when he noticed an envelope, with money sticking out, on the cash register behind the counter. He examined the contents of the envelope, found policy slips, and questioned a shop employee (Ms. Hennessey) who told him that the envelope belonged to defendant, and that he had instructed her to give it to someone. Some four months later, the FBI interviewed her at her home in the presence of her family, and said the government would appreciate any information regarding defendant’s activities that she had acquired in the shop. She told the FBI agent she was studying police science in college and would be willing to help, and she then related the events that had occurred when the police officer was at the shop- A month later she testified to the same effect before the grand jury, thus contradicting the grand jury testimony given by defendant, who was indicted for perjury. The Supreme Court held that the testimony of employee Hennessey was admissible at defendant’s trial. Justice Rehnqui'st, for the Court, found that the taint of the illegal search by the officer had been sufficiently attenuated to permit introduction of the testimony. The Court rejected the notion that the exclusionary rule was subject to a per se exception that rendered all live witness testimony admissible, regardless of whether obtained as a consequence of illegality. Instead, the particular features of a case must be examined to balance the benefits ■ of the exclusionary rule, with its deterrent purpose, against the costs. In his summarizing paragraph Justice Rehnquist states: Viewing this case in the light of the principles just discussed, we hold that the Court of Appeals erred in holding that the degree of attenuation was not sufficient to dissipate the connection between the illegality and the testimony. The evidence indicates overwhelmingly that the testimony given by the witness was an act of her own free will in no way coerced or even induced by official authority as a result of Biro’s discovery of the policy slips. Nor were the slips themselves used in questioning Hennessey. Substantial periods of time elapsed between the time of the illegal search and the initial contact with the witness, on the one hand, and between the latter and the testimony at trial on the other. While the particular knowledge to which Hennessey testified at trial can be logically traced back to Biro’s discovery of the policy slips, both the identity of Hennessey and her relationship with the respondent was well known to those investigating the case. There is, in addition, not the slightest evidence to suggest that Biro entered the shop or picked up the envelope with the intent of finding tangible evidence bearing on an illicit gambling operation, much less any suggestion that he entered the shop and searched with the intent of finding a willing and knowledgeable witness to testify against respondent. Application of the exclusionary rule in' this situation could not have the slightest deterrent effect on the behavior of an officer such as Biro. The cost of permanently silencing Hennessey is too great for an even-handed system of law enforcement to bear in order to secure such a speculative and very likely negligible deterrent effect. 435 U.S. at 279, 98 S,Ct. at 1062. The case at bar stands in marked contrast to Ceccolini on these critical factors: (1) In Ceccolini, Hennessey’s testimony “was an act of her own free will in no way coerced or even induced by official authority.” In contrast, Massa initially refused to consult with the authorities, and agreed to confer and to testify only in response to pressure by the prosecutor, including the threat of a contempt citation. (2) Massa’s existence as a potential witness was entirely unknown to the authorities before they searched Scios’s files. (3) The search of Scios’s files was to gain evidence, the FBI having come to the scene to arrest Scios for illegal wiretapping. Excluding the fruit of that illegal search cannot be dismissed as of “negligible deterrent effect.” * * * * # * We conclude, in sum, that the taint of the illegal search and seizure of the folder was not dissipated by the fact that police investigation of the leads in the folder was required in order to locate Massa, or that Massa decided to testify under the constraint of a court order. We therefore affirm the order of the district court suppressing his testimony. So ordered. . Defendant was indicted under 18 U.S.C. § 2511(l)(a) (unlawful interception of wire communications); 18 U.S.C. § 2511(l)(c) and (d) (disclosure and use of such unlawfully intercepted communications); and 18 U.S.C. § 2512(l)(a) (interstate transportation of wire communication interception devices). . In an opinion and order, issued Dec. 10, 1974, the district court held the search was illegal and suppressed “tangible evidence” and “oral statements” that derived from the search. The government did not appeal that order. On April 23, 1975, the government moved the district court to “elaborate” on its earlier order. In response, the court on May 20, 1975, issued the order from which the government now appeals, ruling that Massa’s testimony was inadmissible as the product of an illegal search. Defendant has taken the position that the second order of the district court was merely a clarification of the first — i. e., that Massa’s testimony was ruled inadmissible on Dec. 10, 1974 —and that therefore the government’s present appeal is barred by expiration of the 30-day period for taking an appeal, 18 U.S.C. § 3731. This issue was decided adversely to the defendant in the opinion and order issued by a panel of this court on Aug. 23, 1976. The panel held that the “oral statements” suppressed by the order of Dec. 10, 1974 were, like the “tangible evidence,” evidence that had already been obtained and that was admissible on its own, such as anything Scios may have said at the time of arrest. We adopt the reasoning of the panel on this point, and its decision that the order of Dec. 10 did not, therefore, determine the admissibility of Massa’s testimony. . U. S. v. Scios, No. 75-1619 (D.C. Cir. Aug. 23, 1976). . Memorandum Opinion of District Court (filed Dec. 10, 1974), reproduced in Appellant’s Br. at 34, 53. . Memorandum Opinion of District Court (filed Dec. 10, 1974), reproduced in Appellant’s Br. at 34, 54. . There was some initial confusion between Thomas Massa, Sr. and Thomas Massa, Jr., both of whom resided at the New York City address to which the FBI had been led. . In this motion the government took the position that the admissibility of Massa’s testimony had not been determined by the court’s earlier order — a view disputed by defendant. . The position injected by Judge MacKinnon’s opinion, that there was no violation of the fourth amendment, is in our view without merit. See note 15 infra. . Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). There is no serious assertion by the government in the case before us that Massa would have been identified as a potential witness without the aid of the leads provided by the contents of the file folder. . Where the person who made the statement is the one against whom it is sought to be used, see, e. g., Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 9 L.Ed.2d-441 (1963), it can be argued that, by volunteering the statement after careful consideration, he has waived his objection to the illegal search or seizure. This is illustrated here by the circumstance that when initially located Holman [the eyewitness] gave no information adverse to appellants; only after reflection and the interaction of these faculties of human personality did Holman eventually relate to the jury the events of the night of the killing. These factors in part account for the rule allowing a party to cross-examine his own witness on a claim of surprise and ultimately to impeach his own witness. process distinguishes the evidentiary character of a witness from the relative immutability of inanimate evidence. . Brief and Appendix for Appellant at 16. . United States v. Alston, 311 F.Supp. 296, 299 (D.D.C.1970) (restating the holding of Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939)). . United States v. Tane, 329 F.2d 848, 853 (2d Cir. 1964). See also United States v. Karathanos, 531 F.2d 26, 32-35 (2d Cir. 1976). United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978), discussed more fully below, is not to the contrary. The Court there indicated, inter alia, that the period of time that has elapsed between the time of the illegal search and the discovery of a witness, or his testimony at trial, is one of several factors to be considered in determining whether the taint occasioned by the illegality has been attenuated. Id. at 279, 98 S.Ct. 1054. Here the elapsed time was, admittedly, not insignificant. But it is far outweighed by the other considerations set forth in Ceccolini. See pp.---of - U.S.App.D.C., pp. 962-963 of 590 F.2d infra. Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), cited by Judge Wilkey, is not in point. Johnson was arrested without a warrant, and detained under a magistrate’s commitment. While under detention he was identified in a lineup. He argued that the lineup identification was a forbidden fruit of an arrest that violated his fourth amendment rights. The Court held (p. 365, 92 S.Ct. p. 1626): “At the time of the lineup, the detention of the appellant was under the authority of this commitment. Consequently, the lineup was conducted not by ‘exploitation’ of the challenged arrest but ‘by means sufficiently distinguishable to be purged of the primary taint.’ ” The premise underlying Johnson is the historic doctrine that the victim of an illegal arrest cannot on that ground attack a subsequent detention or other processes of criminal justice. See Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); E. C. Fisher, Laws of Arrest (1976) §§ 181, 182. Obviously, if the victim of an illegal arrest were released, he could be rearrested and committed by a magistrate upon a finding of probable cause, and would not thereafter be immune from any criminal proceeding. A lineup identification may be compelled as a corollary of a current detention by the magistrate, which stands on ground that is independent of the arrest (valid or invalid), and may not properly be considered the fruit of the earlier (allegedly invalid) arrest. As to the present case, there is no historic rule like that which establishes the magistrate’s commitment as resting on an independent cause. The court order compelling testimony from Massa is necessarily rooted in the discovery of Massa through an illegal search. . Accordingly, we shall not respond to the discourse in Judge Wilkey’s dissent supplying us with a discussion of the virtues of such an exception. The case reports are already too long, and our time too short, for our ruminations on an issue so recently and squarely addressed and resolved. . Two dissenting opinions argue that the seizure of the file folder was permissible under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), or under the plain view doctrine. Plain View Doctrine The folder was not in plain view. Agent Swayze testified that after he had conducted a search for weapons, and after Scios had been arrested, “I started to read up the various files that were in these little wire stands.” (Swayze Tr. 18.) It had previously been testified that these were on a “counter top” (referred to by others as a credenza). “There were about 60 or 70 files in these two or three wire stands and these files were stacked one right behind the other.” (Swayze Tr. 18.) He testified that he “did not thumb through the files” and did not “leaf through them.” (Swayze Tr. 19.) He acknowledged that the particular file was not “sticking out” and that it was “somewhere in the middle of the stack of files with about “ten, fifteen ... in front of this particular file.” (Swayze Tr. 21.) When he saw the “Your Pharmacy” file, he pulled it out and said to agent Breen, “Isn’t this the company involved in this thing?” (Swayze Tr. 21.) The trial judge summarized the testimony of Mr. Scios that Swayze “thumbed through the file folders.” The trial judge did not credit the testimony of agent Swayze that he did not finger through the files. In a memorandum opinion rejecting the applicability of the plain view doctrine, the trial judge ruled: “The court heard conflicting testimony concerning seizure of the file folder. In resolving this conflict the court concludes that the discovery of the file folder was not inadvertent; rather, the agent bent over, read through the folders, and fingered them so that their labels could be read.” (Emphasis added.) Chimel Doctrine In Chimel, the Court limited the area of permissible warrantless search to the area of “immediate control” of the person arrested. In formulating this rule, the Court observed that it certainly precludes the search of another room, as beyond the area of immediate control. From this, Judge MacKinnon seems to argue that Chimel blesses a warrantless search that is made within the same room. The fallacy is evident. Judge MacKinnon also urges that the search was legitimated by the fact that Mr. Scios may have had access to the file folder at certain times prior to the search. In attempting to demonstrate such access, he purports to reconstruct facts that were not genuinely explored at trial. More importantly, such prior access, if it existed, is in any event immaterial, under the holding and rationale of Chimel, as a justification for search. The trial judge found: “In this case, even if the FBI version is believed, the defendant was seated at his desk and had been disarmed. There were three FBI agents in the room, including one who blocked defendant’s immediate control . . . The findings are incontrovertible, and they establish the inapplicability of the doctrine under which Chimel authorizes certain searches. That it was not possible for defendant to snatch and destroy the folder appears from agent Swayze’s undisputed testimony that he was physically blocking defendant’s access. Mr. Scios, who did not know what his visitors wanted, invited them into his office “to discuss whatever it was we were there to talk about” (Swayze Tr. 11.) When Mr. Scios entered the office, he “sat down at his desk”; agent Swayze positioned himself “between the desk and the wall” facing Scios; the counter top was behind the agent, and “yes, I was physically blocking . . . Mr. Scios’ access to those files.” (Swayze Tr. 15.) Then agent Breen notified Mr. Scios of the arrest warrant and advised him of his rights; the agents searched for weapons; and agent Swayze, having established that there were no weapons in the desk drawer, turned around and saw the files. While agent Breen was explaining the arrest mechanics to Mr. Scios, agent Swayze “casually looked about the room” and “started to read up the various files that were in these little wire stands.” (Swayze Tr. 18.) Agent Swayze’s blocking of the files was not a mere “momentary presence” at the time of seizure (Judge Robb’s phrase). It identified the relative positions of the persons during the full episode of arrest, notification of rights, and search for weapons as well as the subsequent search and seizure.
MacKINNON, Circuit Judge, dissenting: Scios, a private investigator who was known to the FBI to be a “wiretapper and bugger,” resided in Staten Island, New York. He was hired by the owners of “Your Pharmacy, Inc.” located in the District of Columbia, to discover the source of some losses the drugstore was suffering. Some time later he was arrested in New York on a warrant issued in the District of Columbia for alleged wire tapping in connection with the “Pharmacy” investigation. At the time of the arrest the possibility of obtaining a search warrant was discussed between the FBI agents and the U.S. Attorney in New York, but they decided that they were not possessed of sufficient facts to justify the issuance of such warrant. When Scios was eventually arrested in his home, in a small office to which, at his suggestion, he led the agents (Tr. Ill, 12-13, 45-46), a file entitled “Your Pharmacy Service” was seized which contained incriminating evidence. One document obtained from this file was used by the FBI to track down a material witness, one Massa, who apparently is able to inculpate Scios in the crimes with which he is charged. However, the trial court granted Scios’ motion to suppress the testimony of said Massa on the ground that his testimony was directly attributable to the information contained in the file folder which the court found to have been obtained by the arresting agents as the result of an unlawful seizure. The Government by this appeal seeks to reverse the suppression order on the ground that the “taint” on the testimony of Massa has been sufficiently attenuated to avoid its rejection on the ground that it was the fruit of an unlawful seizure, see Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In my view, we need not reach the attenuation argument because the testimony of record clearly indicates that the so-called search and seizure which accompanied the exercise of the arrest warrant at Scios’ home was reasonable and conformed to the Fourth Amendment, and to the decisions of the Supreme Court thereon, particularly its landmark decision in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) and the “plain view” doctrine, e. g., Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). I. SEARCHES AUTHORIZED BY CHIMEL The attenuation argument presupposes that the initial search and seizure of the “Your Pharmacy” file was illegal under Chimel, a recent decision which established the permissible scope of certain searches incident to arrest. This presupposition has caused me to review Chimel and its progeny as well as the testimony in the suppression hearing in the District Court. Such inquiry has convinced me that the parties and the trial court are misreading Chimel and the “plain view” doctrine, and that the facts of this case indicate the search and seizure of the file in question conformed to the applicable principles laid down by the Supreme Court. The controlling language of Chimel states: When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area “within his immediate control” — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs —or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The “adherence to judicial processes” mandated by the Fourth Amendment requires no less. 395 U.S. at 762-63, 89 S.Ct. at 2040 (emphasis added, footnote omitted). Several observations should be made from the foregoing language. First, while it does refer to searches to protect the arresting officers, it is not limited to protective or security searches. It likewise authorizes certain searches for evidence that can be concealed or destroyed. Actually, protective searches may be more expansive. Second, it merely states that searches within the stated limits are “reasonable” and does not state that under certain different conditions more extensive or different searches might not also be reasonable. Third, it authorizes a “search of the person arrested.” Fourth, it authorizes a search of “the area into which an arrestee might reach in order to grab a weapon or evidentiary items . . . ,” i. e., “the area ‘within his immediate control’ . . . from within which he might gain possession of a weapon or destructible evidence.” (Emphasis added.) Fifth, the basis for authorizing the foregoing routine searches, i. e., security of the officers and preservation of destructible evidence, does not authorize “routinely searching any room other than that in which an arrest occurs . . . Sixth, that the routine search of the room “in which an arrest occurs,” to the extent that such search may have been authorized by Chimel, is a limited search which does not constitute authority “for searching through all the desk drawers, or other closed or concealed areas in that room itself.” It is not necessary here to determine the full extent of the search thus authorized because the instant search was not that extensive. Seventh, even more extended searches could be made in accordance with “well recognized exceptions.” Thus, Chimel indicates that the controlling principle to be applied in determining their validity is still the reasonableness of the search. Chimel clearly recognizes the right to search for evidence. See, e. g., United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); United States v. Collins, 532 F.2d 79 (8th Cir.), cert. denied, 429 U.S. 836, 97 S.Ct. 104, 50 L.Ed.2d 102 (1976); United States v. Carter, 173 U.S.App.D.C. 54, 522 F.2d 666 (1975); United States v. Battle, 166 U.S.App.D.C. 396, 510 F.2d 776 (1975). In recognizing the validity of intrusions to discover evidence, the decision appears to decide that the areas which may be searched for weapons and for destructible evidence are virtually coextensive with each other. Yet, in my view, the parties and the court have given too short shrift to the permissible evidentiary search in evaluating the legality of the seizure of the “Your Pharmacy” file. It also appears that adequate consideration was not given to the fact that Chimel explicitly recognizes that “a room in which an arrest occurs” may “routinely” be subject to a search, to the extent that it is “within his [the arrestee’s] immediate control,” if the officers involved exercise restraint and do not go “through all the desk drawers or other closed or concealed areas in that room itself.” (Emphasis added.) The majority gives crabbed recognition, ante n.15, to the “ample justification” that the Chimel Court finds for the limited searching of the area “within [the arrestee’s] immediate control” in the “room in which an arrest occurs.” Chimel authorizes a search incident to an arrest of “the area within [the arrestee’s] reach . . . .” 395 U.S. at 766, 89 S.Ct. at 2042. Elsewhere the Court describes it as the area from which the [arrestee] might have obtained either a weapon or something that could be used as evidence against him. 395 U.S. at 768, 89 S.Ct. at 2043 (emphasis added). There is no requirement in Chimel or any other case that the Government must prove as a prerequisite to a valid search, as the majority argues, that the presence of the accused created a “danger” that he would “snatch and destroy” the evidence or that the agent seized the evidence under threat of its immediate destruction. It is sufficient that the “evidence” was situated within an area which would permit the accused so to act if he were of a mind to do so. Cf. Maj. op. n.15. And the arm’s length search that is authorized is not strictly limited to absolutely no more than the seated or stationary reach of the person being arrested — the majority misread the record when it construes the search as being limited to that point in time during which Scios was seated or stationary. Any reasonable interpretation of Chimel would include in the permissible search area that area within which the arrestee could reach after taking one step, as most people do when they reach. As the record here indicates, “with a slight body movement” (Tr. Ill, 48). In light of the foregoing overview of the constitutionally permissible scope of warrantless searches incident to arrest on a warrant, we turn to the relevant facts as reported at the suppression hearing. The principal facts to be extracted from the testimony there received relate to the proximity of Scios to the “Your Pharmacy Service” file during the time he was in his office, as under some of the issues raised this geographical proximity is largely dis-positive of whether or not the file was “within [Scios’] immediate control” or his “reach” and thus legitimately searched by the police. There is unequivocal evidence in the record indicating that the file was indeed within Scios’ “immediate control” and at certain times within his “reach” and it was thus clearly erroneous for the trial court to find that the search extended beyond the limits permitted by Chimel. In this case, as a preliminary matter, it needs to be noted that there can be no legitimate question but that the file and its contents were destructible evidence. The statement by the trial court to the contrary — perhaps prompted by a confusion with contraband — is clearly erroneous. It is significant that the majority do not support the trial court on this point. This error alone is sufficient to reverse the trial court. Also, destructible evidence need not be destructible instantaneously. The destructibility of the “Pharmacy” file is apparent from a cursory examination of its contents. The file is Government Exhibit I. An examination discloses that it is a small light brown manila folder IIV2" X 9" with a tab 3%" long that protrudes /i6ths of an inch above the top edge at the left corner. It contained papers on which were printing, writing and typing. Included was a bill of the Royal Motel in Washington, D.C. This single bill constituted a major contribution of allegedly inculpating evidence. The remaining contents of the file consisted of six sheets of 9 X 11% papers, some with writing and some with typing, five scratch sheets, two used envelopes, two calling cards and one duplicate original of a dealer’s special use certificate issued by the Department of Motor Vehicles of the District of Columbia, and one ordinary street map of Washington, D.C. It is well settled that searches incident to an arrest can discover documents as well as other forms of evidence, United States v. Simpson, 453 F.2d 1028 (10th Cir.), cert. denied, 408 U.S. 925, 92 S.Ct. 2504, 33 L.Ed.2d 337 (1972); United States v. Kirschenblatt, 16 F.2d 202 (2d Cir. 1926), and the documents in question here, being easily destructible, were manifestly within the search authorized by Chimel, provided that they can legitimately be described as “within the area of the defendant’s immediate control,” or within his “reach,” or as having been within one of the exceptions (plain view) which the decision contemplated. The trial court found that the files in question were not within Scios’ “immediate control,” stating: In this case, even if the FBI version is believed, the defendant was seated at his desk and had been disarmed. There were three FBI agents in the room, including one who blocked defendant’s access to the credenza. The credenza was not within defendant’s immediate control, [ ] the agents testified they sought no other weapons, and the agents could not have been seeking to protect destructible evidence since there was none.[] . The Court in Chimel stated: There is no . . . justification . for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Id. [395 U.S.] at 763 [89 S.Ct. 2034], The court concludes that a search of the credenza or through the file folders would have exceeded the permissible scope under Chimel and any evidence found in such a search would have to be suppressed. Appellant’s Br., App. at 53 (emphasis added). This analysis proceeds from the premise that in this case the area “within defendant’s immediate control” is to be determined by what was within his “reach” solely at that moment in time when “the defendant was seated at his desk and had been disarmed,” and when “defendant’s access to the credenza” was blocked by one of the three FBI agents in the room. The statement that the agent blocked him may well be accurate, but in restricting its analysis to his permissible “reach” solely at that moment and to a limited view of the facts concerning “defendant’s access,” the court was applying an unduly restrictive reading of Chimel. Further, review of the record reveals that the uncontradicted testimony of all parties establishes the fact, completely ignored by the defendant and the trial court, that Scios passed within less than arm’s length reach of the file folder when he entered his office and seated himself at his desk (Tr. 1,17-18). The file was then within his “immediate control” and his proximity to it at that time alone justified its seizure, e. g., United States v. Mason, 173 U.S.App.D.C. 173, 523 F.2d 1122 (1975); United States v. Patterson, 447 F.2d 424 (10th Cir. 1971), cert. denied, 404 U.S. 1064, 92 S.Ct. 748, 30 L.Ed.2d 752 (1972); United States v. Wysocki, 457 F.2d 1155 (5th Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105 (1972), which followed shortly thereafter. See Maj. op. n.15. Scios also, on his own volition, and without being commanded to or hindered from doing so, got up and moved around the room after his arrest to go to the office door and to come back (Tr. 1,19). On these occasions, he walked through a passageway of only “about three feet” (Tr. I, 77) between the desk and the credenza upon which the “Pharmacy” file folder was located. Scios was not handcuffed when he first walked into his office (Tr. I, 17-18), when he subsequently “went to the office door” to let out a neighbor’s dog, or when he then “walked back around [his] desk and . sat down” (Tr. I, 19). During these three personal peregrinations past the credenza, Defendant’s Exhibits 3L and 3M show that the file folder was easily within his reach without need of even moving his hand appreciably away from his sides. Thus, on the occasion when he first entered the office, the “Your Pharmacy” file was clearly within his “reach” and also within “his immediate control,” and during the two subsequent trips he was in similar proximity to the place,where the file was originally situated. Scios’ testimony (Tr. I, 17-19) and his Exhibit 3L, prove that the file was within his reach and “immediate control” on each of those occasions. The agent was “fingering through those files” at this precise time (Tr. I, 17). Scios’ proximity to the file on those three occasions is all that is necessary to validate the instant search and seizure. The majority is thus in error when it characterizes Scios’ access on these three occasions as “prior access,” see ante, n.15 — it was access reasonably contemporaneous to the search. It is a completely incorrect application of Chimel to deny that the file was under his “immediate control,” or “within his reach” when he walked past the credenza. That he thereafter seated himself behind the desk, with an agent between him and the credenza, does not invalidate the agent’s right to explore the files in open view on the credenza which had been within his reach on the three occasions referred to. We are not confronted here with the general exploratory search that Chimel forbids. We have specifically held that an object within three or four feet of a defendant was “within his immediate control” even when the defendant was handcuffed, United States v. Mason, supra. The distance between Scios and his files was less than that on the three occasions when he walked by the credenza and the file was just slightly beyond that when he was seated. When the arresting officer was actually interposed between Scios and the files, it would be reasonable to conclude that Scios would not actually exercise physical control over the documents. However, if the agents were not present, the proximity of the files though slightly beyond his stationary reach when seated, was so close that it could reasonably be said that they were within the area of his immediate control. See Defendant’s Exhibits 3L and 3M. Exhibit 3L is reproduced at this point as Figure 1. (In viewing it the distortions of perspective should be compensated for.) The trial court, however, entirely overlooked the fact that Scios was not always separated from his files by more than an arm’s reach of distance. The majority also fail to deal with the significance of Scios’ easy access to the file on the three occasions prior'to the seizure. In addition the. majority attempt to assert a requirement that it must have been possible for Scios to “snatch and destroy” the file when the agents seized it. See Maj. op. n.15. Moreover, Chimel does not impose any such requirement but is somewhat broader and covers evidence that is subject to “concealment or destruction.” 395 U.S. at 762-63, 89 S.Ct. 2034. The “concealment or destruction” that Chimel refers to is not confined to proof that the arrestee was capable of concealing and destroying the evidence in the presence of the arresting agents. In this respect and in others the majority misapply Chimel, Maj. op. n.15. Most egregiously the majority assert the logic that “it was not possible for defendant to snatch and destroy the folder [because Agent Swayze] was physically blocking defendant’s access [to the file].” Such contention fails fully to understand the “destruction” of evidence that Chimel seeks to guard against and the application of Chimel to this case. Chimel authorizes a search of the permissible area for “a weapon or evidentiary items . in order to prevent [their] concealment or destruction.” The “destruction” so referred to is not limited to a threat of present destruction while the agents are present. It also includes future destruction. Thus, as applied here, the fact that the agents may have been physically capable of temporarily preventing Scios from destroying the file, while all three of them were in the room, is not the sole opportunity for destruction that Chimel recognizes should be prevented. In addition Chimel intends to guard against the later destruction of the file that could easily occur if it were not seized when it was discovered. If the agents were prohibited from seizing the file when it was discovered the alternative would be to leave it in the office. Some might argue that some of the agents could stay there while others went for a search warrant, but if the business that authorized their entry was concluded and a search warrant was required before they could proceed further, strictly speaking they would have no further right to remain in the building after the arrest was made. They would thus be required to leave and find a magistrate to issue a search warrant. After they left, Scios’ partner, who could be reached by their shortwave radio (Tr. Ill, 26), or his “girlfriend” (Tr. I, 15), who was in the house, could destroy the file. Scios’ temporary inability to destroy or conceal the file while the agents were present does not deny the agents’ right to seize destructible evidence that could be subjected to future destruction or concealment. As we observed in United States v. Thweatt, 140 U.S.App.D.C. 120, 433 F.2d 1226 (1970): We might add that obviousness is a form of exigency in the sense that failure to act immediately when confronted with evidence in this manner may result in its disappearance. 140 U.S.App.D.C. at 125, 433 F.2d at 1231. In addition, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1940) and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) both recognize the exigency created when the opportunity to search is “fleeting” and the evidence “may never be found again if a warrant must be obtained.” 403 U.S. at 460, 91 S.Ct. at 2035. To the same effect, United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538 (1977) states: Such searches [pursuant to custodial arrests] may be conducted without a warrant and they may also be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence. (Emphasis added.) Quoted in United States v. Foster, Stafford & Prince, 190 U.S.App.D.C.-at-, 584 F.2d 997 at 1002 (1978). We have recognized that arresting agents who have no search warrant cannot lead arrestees from place to place inside houses and apartments and use his presence at each location to justify a search incident to the arrest, but when the arrestee on his own volition, or at his own request, moves around the scene of the arrest, he brings within his immediate control a wider area that may be subjected to a valid search. United States v. Mason, supra; United States v. Patterson, supra. Given the extremely small size of the room in which the defendant was arrested — “maybe eight by eight” (Tr. Ill, 13) — the defendant’s photographic Exhibits 3L and 3M show that one standing behind the center of Scios’ desk could touch opposing walls by merely taking one step in either direction (see reproduced Defendant’s Exhibit 3L). And because the agents in this case made no search beyond Scios’ reach or his immediate control, and even within that area made no attempt at a general search or even to “search through all the desk drawers or other closed or concealed areas in that room itself,” Chimel v. California, supra, 395 U.S. at 763, 89 S.Ct. at 2040, I find that the search was reasonable in scope and I cannot agree that it was unconstitutional. Thus the first ground upon which this search may be found to be valid is that the file, when Scios first entered the room, and shortly, thereafter on two occasions, was easily “within [his] reach” and within that area which could reasonably be said to be normally within the area of his “immediate control.” See Maj. op. n.15. ' Other circuits have not restricted searches to the wooden interpretation of Chimel asserted by the majority. After all, the Constitution permits “reasonable” searches. United States v. Patterson, supra, upheld the seizure of a “partially hidden [file] folder or envelope sitting on a shelf in a cabinet . . . four to six feet away from where [the arrestee] was standing at the time.” (Emphasis added.) “Immediate control” and plain view were both relied upon. In United States v. Wysocki, supra, a suspicious closed box “six feet from Wysocki” (obviously out of a strict stationary arm’s reach) was opened by agents investigating a bank robbery believing it contained a gun. It did not contain any weapon but some stolen money orders from the bank robbery were discovered. This search incident to an arrest without a warrant, but upon probable cause, was held to be reasonable and the money orders to be admissible into evidence. Chimel was cited as authority, and without referring to it as such, plain view reasoning was also relied upon. Both of these decisions, among others, support the validity of the search and seizure of the “Your Pharmacy” file. II. THE PLAIN VIEW DOCTRINE A. Even assuming that the “Your Pharmacy” file was outside defendant’s “immediate control” or “reach,” so that its seizure would exceed the Chimel parameters, the particular search in question must still be deemed to be a “plain view” search and clearly reasonable under the Fifth Amendment. See, e. g., Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927). The Chimel doctrine has in no way restricted the permissibility or scope of plain view searches, Dorman v. United States, 140 U.S.App.D.C. 313, 322, 435 F.2d 385, 394 (1970) (en banc); United States v. Thweatt, supra, 140 U.S.App.D.C. at 123, 433 F.2d at 1229. Such searches are within the “well recognized exceptions” that Chimel refers to. The “Your Pharmacy” file must be held to have been within the “plain view” of the agent whose right to be where he was has not been questioned here. About sixty of Scios’ business files were out in open view on the top of the credenza, as shown by Defendant’s Exhibit 3L, in three wires racks each containing about 20 files. From an examination of Exhibit I it can be seen that the typewritten “Your Pharmacy Service” on the protruding index tab of Scios’ file is sufficiently large so that it can be read from a distance of six feet by a person with normal eyesight (Officer Swayze was, in fact, within 18 inches of the file when he was “guarding Scios.”) The files on top of the credenza were arranged three groups each containing about twenty file folders (Tr. Ill, 52 and see Defendant’s Exhibit 3L reproduced supra). All were in an upright position, and the file in question was about 10 or 15 files from the front (Tr. Ill, 21). It appears from very close examination of Defendant’s Exhibits 3L and 3M and Government Exhibit I, that the files’ tabs were staggered (Tr. Ill, 50) with the result (and no doubt the express purpose) that one tab would not obstruct the view of the tabs on the back files. The agent testified that he “looked down the line” of the name tabs and discovered the file (Tr. Ill, 19). The files were not in any way concealed or placed in a closed area, and they were open at the top. They were not in drawers. They were filed upright, each separated merely by a single piece of wire in the manner of phonograph record racks. All the files were visible, with the protruding topical, staggered tabs at belt-height, easy-to-read level (see Defendant’s Exhibit 3L). In those instances where from the initial view it is immediately apparent that the article constitutes relevant evidence in the case the courts hold that “no search” was indulged in and that the item is admissible. United States v. Copien, 541 F.2d 211, 214 (9th Cir. 1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 810, 50 L.Ed.2d 791 (1977); United States v. Wilson, 524 F.2d 595, 598 (8th Cir. 1975), cert. denied, 424 U.S. 945, 96 S.Ct. 1415, 47 L.Ed.2d 351 (1976); Blassingame v. Estelle, 508 F.2d 668, 669 (5th Cir. 1975); United States v. Conner, 478 F.2d 1320, 1323 (7th Cir. 1973); Grimes v. United States, 405 F.2d 477, 478 (5th Cir. 1968); United States v. Wright, 146 U.S.App.D.C. 126, 130, 449 F.2d 1355, 1359 (1971), cert. denied, 405 U.S. 947, 92 S.Ct. 986, 30 L.Ed.2d 817 (1972); United States v. Cisneros, 448 F.2d 298, 303 (9th Cir. 1971); Grimes v. United States, 405 F.2d 477, 478 (5th Cir. 1968); Coates v. United States, 134 U.S.App.D.C. 97, 99, 413 F.2d 371, 373 (1969); Creighton v. United States, 132 U.S.App.D.C. 115, 116, 406 F.2d 651, 652 (1968); Hiet v. United States, 125 U.S.App.D.C. 338, 339, 372 F.2d 911, 912 (1967); cf. Coolidge v. New Hampshire, supra. In other cases where the initial observance of the article or articles in plain view is sufficient to find probable cause to conclude that they constitute evidence, but their precise evidentiary value is not immediately apparent and further inspection is necessary, we have also held that a limited search or examination is permissible. If the closer examination is conducted in a reasonable manner and leads to the discovery of relevant evidence the “search” is valid under the Fourth Amendment. United States v. Mason, supra; United States v. Wysocki, supra; United States v. Patterson, supra; Dorman v. United States, 140 U.S.App.D.C. 313, 323, 435 F.2d 385, 395 (1970) (en banc); United States v. Thweatt, supra; Ellison v. United States, 93 U.S.App.D.C. 1, 3, 206 F.2d 476, 478 (1953) (small musical instrument box found to contain narcotics). These decisions apply a combination of Chimel and the plain view doctrine. B. What is required then is proof (1) that the agents had a right to be in the location where they were when they observed the article; (2) that the sighting of the object was inadvertent; and (3) that it was immediately apparent that probable cause existed to believe that the article constituted relevant evidence. I find that all three requirements were satisfied. There is no doubt that (1) is clearly satisfied. The agents had a right to be where they were to execute the warrant for arrest. Even using a flashlight to peer into obscure parts of an area does not defeat a “plain view” argument, e. g., United States v. Johnson, 506 F.2d 674 (8th Cir. 1974), cert. denied, 421 U.S. 917, 95 S.Ct. 1579, 43 L.Ed.2d 784 (1975); United States v. Wickizer, 465 F.2d 1154, 1157 (8th Cir. 1972) (concurring opinion of Judge Bright); Marshall v. United States, 422 F.2d 185 (5th Cir. 1970). There is thus no reason here to hold the search to be unconstitutional where, at the most, all that was done was to riffle the raised tabs of several files in plain view until the file marked “Your Pharmacy Service” was noted. As for (2), the trial court seems to have been misled in failing to apply the “plain view” doctrine by a belief that the discovery of the files was not “inadvertent” and thus could not pass constitutional muster under the rubric of a “plain view” search. It is unquestioned when law enforcement personnel know in advance that certain evidence exists in a particular location and they enter intending to seize it, but neglect to get a warrant and thereafter seek to rely on the plain view doctrine, that such search is unconstitutional. E. g., Coolidge v. New Hampshire, supra, 403 U.S. at 470, 91 S.Ct. 2022; United States v. Griffith, 537 F.2d 900 (7th Cir. 1976). In such circumstances the validity of the search is defeated because the discovery is not inadvertent. However, the