Chapter Nine – Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches Rolando V. del Carmen

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  The Plain View Doctrine –Plain View Defined Harris v. United States (1968) –Requirements of the Plain View Doctrine –Awareness of the Item through the Use of Sight

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  The Plain View Doctrine – The Officer Must Be Legally in the Place from Which the Item Is Seen Search warrant Hot pursuit Valid consent Valid arrest

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  The Plain View Doctrine – The Item Must Be Immediately Apparent as Subject to Seizure Arizona v. Hicks (1987) Texas v. Brown (1983)

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  The Plain View Doctrine – Situations in Which the Plain View Doctrine Applies Arrest Hot pursuit Search incident to a valid arrest Out on patrol Car inventory search Investigation in a residence Entry into a home after obtaining valid consent

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  The Plain View Doctrine – Plain View: One of Many Justifications for Admission of Evidence in Court Inadvertence No Longer Required – Horton v. California (1990)

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  The Plain View Doctrine – Plain View and Open Spaces – Plain View and Motor Vehicles – Plain View and the Use of Mechanical Devices United States v. Knotts (1983)

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  The Plain View Doctrine – Comparison Between Plain View and Open Spaces State v. Stachler (1977) – Comparison Between Plain View and Plain Touch Minnesota v. Dickerson (1993) Terry v. Ohio (1968)

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  The Plain View Doctrine – Comparison Between Plain View and Plain Odor United States v. Johns (1985)

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  The Open Fields Doctrine – Open Fields Defined Hester v. United States (1924) – Areas Not Included in Open Fields Curtilage – Residential yards, fenced areas, apartment houses, barns and other outbuildings, garages

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  The Open Fields Doctrine – The Test to Determine Curtilage United States v. Dunn (1987) Four Factors – Proximity to the home – Is the area in an enclosure surrounding the home – Nature and uses of the area – Steps take to conceal the area from view

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  The Open Fields Doctrine – Aerial Surveillance of Curtilage California v. Ciraolo (1986) Florida v. Riley (1989)

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  The Open Fields Doctrine – Open Fields Despite a Locked Gate and a “No Trespassing” Sign Oliver v. United States (1984) – Open Fields and the Use of Sense- Enhancement Technology Kyllo v. United States (2001)

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  The Open Fields Doctrine – Open Fields and the Use of Electronic Beepers United States v. Knotts (1983) United States v. Karo (1984)

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  Comparison Between Open Fields and Plain View Open FieldsPlain View Seizable item is not in a house,Seizable item usually is in a dwelling or curtilagehouse, dwelling or curtilage Items hidden from view may be Only items not hidden from seized view may be seized Awareness of item may be throughAwareness of item is limited sight, hearing, smell touch or tastedto sense of sight Open spaceMay be in an enclosed or open space

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  Abandonment – Abandonment Defined – Factors That Determine When Items are Considered Abandoned Where the Property is Left – Open field or public place – Private premises – Is trash or garbage abandoned? – The intent to abandon the property

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  Abandonment – Abandonment of Motor Vehicles Four key factors – Flight from vehicle to avoid apprehension – Where and how long a vehicle is left unattended – The condition of the vehicle left unattended – Denial of ownership by person present

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  Comparison Between Abandonment and Plain View AbandonmentPlain View Owner or possessor has given upOwner or possessor has not possession of itemgiven up possession of item Seized item may be legal or illegal Seized item must be illegal Discovery of item may be throughDiscovery of item must be the sense of sight, touch, hearing, through the sense of sight smell,or taste

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  Border Searches – Fourth Amendment Rules Applied Differently in Immigration United States v. Ramsey (1977) – Roving Patrols Searching Vehicles Away from the Border Almeida-Sanchez v. United States (1973) United States v. Brignoni-Ponce (1975)

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  Border Searches – Stopping Vehicles at Fixed Checkpoints United States v. Martinez-Fuerte (1976) – Disassembling the Gas tank of a Motor Vehicle United States v. Rores-Montano (2004) – The Forced Temporary Detention of Aliens Believed to Be Illegal Au Yi Lau v. United States Immigration and Naturalization Service (1971)

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  Border Searches – Factory surveys of Aliens Immigration and Naturalization Service v. Delgado (1984) – The Detention of Alimentary Canal Smugglers United States v. Montoya de Hernandez (1985)