Plain View Doctrine Attorneys

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 When are Search Warrants Used?

A search warrant is an edict signed by a judge permitting 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 shielded from unreasonable searches and seizures by the government.

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

Whether a particular search is considered reasonable changes due to the search site or whether a public safety problem is involved.

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

What is the Plain View Doctrine?

The plain view doctrine is an exception to the general rule that a warrantless search and seizure is illegal. The plain view doctrine permits law enforcement to search and seize property without getting a search warrant established on proof of criminal activity because that property is out in the “plain view” of the officers.

The plain view doctrine permits police officers to seize, without a warrant, evidence and contraband that are discovered in plain view during a legal observation. TSA agents often use the plain view doctrine at airports during their screening of persons and property.

Is the Plain View Doctrine the Same as Probable Cause?

No. The probable cause requirement limits the plain view doctrine. Probable cause refers to law enforcement requiring a legal basis to conduct a search, seize property, or arrest someone.

Probable cause is based on a valid assumption that a crime has happened or is happening. Therefore, for an officer to take an item, the police officer must have probable cause to think the item is evidence of a crime.

However, with the plain view doctrine, an item can be taken without a warrant, so long as the item is in plain view of the police officer. For instance, an officer can take a gun or drugs they see on the passenger seat of a car that they stopped for a petty traffic violation. However, the police may not move objects to get a better view.

For instance, a container’s evidence cannot be pinpointed by plain observation or touch. It, therefore, should not be seized unless it is listed in a warrant or the person gives the officer permission to search the container. An officer must see the item in plain view and have probable cause to think it is associated with criminal activities to take it.

What are the Required Elements of the Plain View Doctrine?

For a police officer to search or seize property that is in plain view, the officer must meet three prerequisites specified by the Supreme Court:

  1. The officer must be legally present at the place where the evidence can be plainly viewed (in a house, this means the officer entered with a warrant, necessity, or consent of the homeowner);
  2. The officer must see the item in plain view; and
  3. The incriminating nature of the property must be instantly apparent.

For example, officers with an unrelated arrest warrant go to a man’s house suspected of an armed robbery and arrest him on his front porch. Then the officers entered 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 not lawfully present in the home. They had no reason for entering the man’s house with the arrest being conducted on the front porch. Therefore, evidence of the armed robbery observed in plain view was inadmissible 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 similar to the plain view doctrine. Although it depends on your jurisdiction, some jurisdictions have held that law enforcement may search without a warrant if they smell evidence of a crime.

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

What Are the Limitations of the Plain View Doctrine?

To legally take the item, the officer must have probable cause to think the item is evidence of a crime or is contraband. The police may not move objects to get a better view, and they may not be in a place unlawfully.

This doctrine only eliminates the warrant requirement, not the probable cause requirement. Investigators usually must get a court-issued warrant before seizing property by showing enough evidence to a judge to meet the probable cause requirement. Detectives must still have the proof needed to complete the probable cause requirement when utilizing the plain view doctrine. They are only excused from obtaining a warrant by a judge.

The doctrine only allows the seizure of contraband or evidence. It does not authorize a different search or further investigation. Accordingly, if detectives do not have enough proof to meet the probable cause requirement, they may not even execute a moderately non-intrusive investigation to get probable cause. This is the requirement that the object’s incriminating character must be immediately apparent.

In Arizona v. Hicks, police officers were investigating a shooting in an apartment and inferred that a record player was stolen. The officers could not see the serial number on the bottom of the record player, so they picked the player up and verified that it matched the serial number of a record player declared stolen.

However, the Supreme Court ruled that picking up the record player formed an additional search because the serial number was not in direct view. The plain view doctrine didn’t apply, and the officers required a warrant. Evidence of the stolen record player could not be used against the defendant due to the exclusionary rule, the cure available when evidence is acquired in breach of the Fourth Amendment. The object’s incriminating character must be “immediately apparent.”

The officer must be legally present where they see the object. For instance, an officer may not enter the suspect’s house without a warrant and depend on the plain view doctrine. Yet, if an officer is inside a suspect’s house under an unrelated warrant, he may depend on the plain view doctrine, subject to the doctrine’s other conditions.

Should I Contact an Attorney about the Plain View Doctrine?

As can be seen, search and seizure law can be pretty complex. Thus, if you face criminal charges involving the plain view doctrine or an improper search and seizure, you should consult with a licensed and experienced criminal defense attorney.

A criminal defense attorney can analyze the circumstances encompassing your arrest and the search and seizure of your property and represent you in court proceedings if necessary.

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