Criminal Procedure for the Criminal Justice Professional 11 th Edition

1. Criminal Procedure for the Criminal Justice Professional11th Edition John N. Ferdico Henry F. Fradella Christopher Totten The Plain View Doctrine Chapter 10 Prepared by Tony Wolusky

2. The Plain-View Doctrine—Harris v. United States (1968) • The plain view doctrine permits law enforcement officers to observe, search and/ or seize evidence without a warrant or other justification. • Plain view observation is not the same as a search.

3. The Plain-View Doctrine—Minnesota v. Dickerson (1993) • “if police are lawfully in a position from which they view an object, if its incriminating character is apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.”

4. 4th Amendment • Fourth Amendment still applies. However, if the plain view doctrine is found to apply, it will justify a warrantless seizure of an item belonging to an individual despite the apparent intrusion into that individual’s possessory interest.

5. Not a “Free-to-Look-Anywhere” Card • The doctrine has carefully prescribed requirements developed through court decisions over the years. • The officer must have a valid justification for a prior intrusion into a zone of privacy. • The incriminating character of the item to be seized or searched must be immediately apparent to the officer. • The discovery of the item of evidence by the officer need not be inadvertent.

6. Valid Justifications for Intrusions into a Zone of Privacy • A valid justification means that a law enforcement officer has made a legal encroachment into a constitutionally protected area or has otherwise legally invaded a person’s reasonable expectation of privacy.

7. Valid Justifications for Intrusions into a Zone of Privacy • Effecting a Lawful Arrest, Search Incident to Arrest, or Protective Sweep---evidence found during these activities may lawfully be seized by officers. • ---Chimel v. California, • ---Washington v. Chrisman, 1982 • ---United States v. Ford, 1995

8. Valid Justifications for Intrusions into a Zone of Privacy • Conducting a Valid “Stop and Frisk”---during a stop and frisk, the officer has the authority to seize readily visible objects. ---United States v. Ridge, 2003 ---Texas v. Brown, 1983 ---Michigan v. Long, 1983---If while conducting a legitimate Terry search of the interior of the automobile, the officer should…discover contraband other than weapons, he clearly cannot be required to ignore the contraband……..”

9. Valid Justifications for Intrusions into a Zone of Privacy • Making “Controlled Deliveries”---United States Government has the right to inspect all incoming packages from foreign sources. Likewise, common carriers have a common-law right to inspect packages they accept for shipment, based on their duty to refrain from carrying contraband. • Executing a Valid Search Warrant---during the execution of a valid warrant, police may seize items not specifically named in the warrant that are in plain view. ---Coolidge v. New Hampshire, 1971 ---United States v. Gamble, 2004

10. Valid Justifications for Intrusions into a Zone of Privacy • Hot Pursuit of a Fleeing Suspect---police may seize evidence they come across during a hot pursuit ---Coolidge v. New Hampshire, 1971 ---Warden v. Hayden, 1967 • Responding to Certain Emergencies---“a warrantless search must be “strictly circumscribed by the exigencies which justify its initiation.” (United States v. Gillenwater, 1989)

11. Valid Justifications for Intrusions into a Zone of Privacy • Consent Searches---once valid consent to enter the premises has been given, the police may seize any evidence in plain view that they have probable cause to believe is illegal. ---United States v. Garner, 2003 ---United States v. Santiago, 2005 • Vehicle Inventory Searches/VIN Searches---evidence may be seized during a valid inventory search of a vehicle. ---New York v. Class, 1986---police may inspect the vehicle identification number (VIN) of a car.

12. Probable Cause to Believe that the Observed Object is Incriminating in Character • This requirement means that before an item may be seized, the police must have probable causethat the item is incriminating in character and hence subject to seizure, without conducting some further search of the item. • Courts interpret the term immediately apparentbroadly to give officers a reasonable time within which to make the probable cause determination.

13. Mechanical or Electrical Aids and Plain View Searches and Seizures • Law enforcement officers may use mechanical or electrical devices, such as binoculars and flashlights, to assist in observing items of evidence, so long as they do not unreasonably intrude on someone’s reasonable expectation of privacy.

14. The Discovery of the Item of Evidence by an Officer Need Not Be Inadvertent • Plain view seizures need not be inadvertent. Even though a law enforcement officer is interested in an item of evidence and fully expects to find it in the course of a search, a plain view seizure of the item is not invalidated if the search is confined in its scope by the terms of a warrant or a valid exception to the warrant requirement.

15. Getting a Closer Look • An officer’s examination of an item of property will be a search rather than a plain view observation if the officer produces a new invasion of the property by taking action that exposes to view concealed portions of the premises or its contents and the officer’s action is unrelated to and unjustified by the objectives of his or her valid intrusion.

16. Extension of Plain View to Other Senses

17. "Plain Touch" or "Plain Feel" • If a law enforcement officer is lawfully in a position from which he or she feels an object, if the object’s incriminating character is immediately apparent, and if the officer has a lawful right of access to the object, the officer may seize it without a warrant under a doctrine analogous to plain view commonly referred to as the "plain touch" or "plain feel" doctrine.

18. “Plain Smell” and “Plain Hearing” • Lower courts have permitted seizures based on “plain smell” and “plain hearing” analogies to the plain view doctrine.