Relying on the Supreme Court's decision in
Coolidge, plaintiff argues that, irrespective of what the law may be today, the Troopers' plain view seizure was clearly unconstitutional under the law as it existed in February 1988. Justice Stewart's plurality opinion in
Coolidge did indeed state that inadvertent discovery is a prerequisite to the application of the plain view doctrine. However, the portion of Justice Stewart's opinion that grafted an inadvertence requirement onto the plain view doctrine was joined by only three other members of the Court. Justice Harlan concurred in the judgment but declined to acknowledge the inadvertence requirement, and the remaining four justices expressly disagreed with Justice Stewart on this issue. After
Coolidge but before the February 1988 search of 38 Tarborton Road, the Supreme Court issued
Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). In that case, Justice White's concurrence expressly questioned whether inadvertence was integral to the plain view doctrine: “This ‘requirement’ of the plain-view doctrine has never been accepted by a judgment supported by a majority of this Court.”
Hicks, 480 U.S. at 330, 107 S.Ct. at 1155 (White, J., concurring). We therefore cannot say that inadvertence was a clearly established element of the plain view doctrine when the Troopers seized the wood stove and the milk cans on February 20, 1988. This conclusion is buttressed by the fact that when the Court expressly foreclosed an inadvertence requirement in
Horton, it did so without overruling
Coolidge.