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Chapter 10

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Criminal Procedure for the
Criminal Justice Professional
11th Edition
John N. Ferdico
Henry F. Fradella
Christopher Totten
The Plain View Doctrine
Chapter 10
Prepared by Tony Wolusky
The Plain-View Doctrine—Harris v.
United States (1968)
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The plain view doctrine permits law
enforcement officers to observe, search and/
or seize evidence without a warrant or other
justification.
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Plain view observation is not the same as a search.
The Plain-View Doctrine—Minnesota v.
Dickerson (1993)
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“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.”
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4
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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.
Not a “Free-to-Look-Anywhere” Card
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The doctrine has carefully prescribed
requirements developed through court
decisions over the years.
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3.
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.
Valid Justifications for Intrusions into
a Zone of Privacy
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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.
Valid Justifications for Intrusions into
a Zone of Privacy
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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
Valid Justifications for Intrusions into
a Zone of Privacy
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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……..”
Valid Justifications for Intrusions into
a Zone of Privacy
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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
Valid Justifications for Intrusions into
a Zone of Privacy
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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)
Valid Justifications for Intrusions into
a Zone of Privacy
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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.
Probable Cause to Believe that the Observed
Object is Incriminating in Character
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This requirement means that before an item
may be seized, the police must have
probable cause that the item is incriminating
in character and hence subject to seizure,
without conducting some further search of the
item.
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Courts interpret the term immediately apparent broadly
to give officers a reasonable time within which to make
the probable cause determination.
Mechanical or Electrical Aids and Plain
View Searches and Seizures
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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.
The Discovery of the Item of Evidence by
an Officer Need Not Be Inadvertent
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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.
Getting a Closer Look
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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.
Extension of Plain View to
Other Senses
"Plain Touch" or "Plain Feel"
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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.
“Plain Smell” and “Plain Hearing”
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Lower courts have permitted seizures based
on “plain smell” and “plain hearing” analogies
to the plain view doctrine.
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