A search warrant is an order signed by a judge authorizing law enforcement to search a specific place for objects and materials pertaining to a crime. Under the Fourth Amendment to the United States Constitution you are protected from unreasonable searches and seizures by the government.

However, the Fourth Amendment is not a guaranteed protection against all searches and seizures, rather it is a protection against searches and seizures that are deemed unreasonable under the law.

Whether or not a particular type of search is considered reasonable in the eyes of the law varies due to various factors, such as the location of the search or whether a public safety issue is involved.

The Supreme Court has stated that searches and seizures inside a home without a warrant are presumptively unreasonable. However, there are exceptions to the general rule that a warrantless search is unlawful, including if the items are in plain view.

What is the Plain View Doctrine?

As noted above, the plain view doctrine is an exception to the general rule that a warrantless search and seizure is unlawful. The plain view doctrine allows law enforcement to search and seize property without obtaining a search warrant based on evidence of criminal activity, because that property is out in the “plain view” of the officers.

In essence, the plain view doctrine allows police officers to seize, without a warrant, evidence and contraband that are found in plain view during a lawful observation. In fact, the plain view doctrine is often used at airports by TSA agents during their screening of persons and property.

Is the Plain View Doctrine the Same as Probable Cause?

In short, no. The plain view doctrine is limited by the probable cause requirement. Probable cause refers to law enforcement needing a legal reason to conduct a search, seize property, or arrest someone.

The legal reason of probable cause is based on a reasonable belief that a crime has occurred or is occurring.  Thus, in order for an officer to seize an item, the police officer must have probable cause to believe the item is evidence of a crime or is contraband.

However with the plain view doctrine, an object can be seized without a warrant, so long as the object is in plain view of the police officer. For example, an officer can seize a firearm or drugs that they see on the passenger seat of a car that they stopped for a minor traffic violation. However according to a Supreme Court decision, the police may not move objects to get a better view.

For example, evidence in a container cannot possibly be identified by plain observation or touch and therefore should not be seized unless it is listed in a warrant, or the person gives the officer permission to search the container. In summation, an officer must both see the item in plain view AND have probable cause to believe that it is connected with criminal activities in order to seize it.

What are the Required Elements of the Plain View Doctrine?

In order for a police officer to search and/or seize property that is in plain view, the officer must meet three requirements established by the Supreme Court:

  1. The officer must be lawfully present at the place where the evidence can be plainly viewed (in a house this means the officer entered with a warrant, exigency, or consent of the homeowner);

  2. The officer must observe the item in plain view; and

  3. The incriminating character of the property must be immediately apparent.

For example, there was a case where officers with an unrelated arrest warrant went to a man’s house that was suspected of an armed robbery and arrested him on his front porch. Then the officers went into the man’s home and found evidence related to the armed robbery.

Although one of the police officers observed the evidence of the armed robbery in plain view, the police officers were found to be not lawfully present in the home, as they had no reason for entering the man’s home with the arrest being completed on the front porch. Thus, evidence of the armed robbery that was observed in plain view was inadmissible as evidence for the armed robbery charge.

Is the Plain View Doctrine the Same as Plain Smell or Plain Feel?

The plain smell or plain feel doctrines are analogous to the plain view doctrine. Although it depends on the jurisdiction you are in, some jurisdictions have held that law enforcement may search without a warrant if they smell evidence of a crime.

However, other courts have decided that smelling an odor does not establish enough probable cause to permit an officer to conduct an otherwise illegal search. Further, the plain feel doctrine applies in pat-down searches when an officer by the plain feel of the outside of clothes reasonable believes an item in the person’s pocket to be contraband or evidence of a crime.

Should I Contact an Attorney about the Plain View Doctrine?

As can be seen, search and seizure law can be quite complicated. Thus, if you are being faced with criminal charges involving the plain view doctrine or an improper search and seizure, you should absolutely consult with a licensed and experienced criminal defense attorney.

A criminal defense attorney can investigate the circumstances surrounding your arrest and the search and seizure of your property, and represent you in court if necessary.