Leadership Institute Branch Legal Training Section Search & Seizure Plain View Roll Call Training

Objective At the end of this review, the viewer will be able to: Describe the three elements of Plain View RCT

Plain View The Plain View doctrine is an often used – and sometimes misunderstood – concept. RCT

Plain View The general rule under the Fourth Amendment is that any search without a warrant into an area where an individual has a reasonable expectation of privacy will be presumed to be an unreasonable search. However … RCT

Reasonable Expectation of Privacy Where does an individual have that reasonable expectation of privacy? It is mostly common sense – homes, vehicles (to an extent), personal belongings and communications, etc. RCT

Although plain “view” implies that this doctrine only applies to something observed by sight, case law supports the idea that one’s other senses may be used as well – as such we have plain feel or touch, plain hearing and plain smell. RCT

Three Elements Plain View requires three elements: 1.Officer must be lawfully present to see (or perceive) the contraband (illegal items) or evidence 2.Incriminating nature of evidence must be “immediately apparent” 3.In order to seize, officer must have a lawful right of access to where the evidence is located RCT

First Element The first element of plain view emphasizes that the officers must be in a lawful location when they observe the evidence or contraband. RCT

For example … An officer might be lawfully standing on the front porch, doing a knock and talk. When the door is opened, the officer sees contraband through the open door. Note: that does not mean, however, that the officer is automatically able to enter and seize it. RCT

Second Element The evidence or contraband must be “immediately apparent” as such. This does not require an absolute certainty. However, the more effort required for an officer to realize the item is evidence or contraband, the less likely it is that the Court will agree that it was “immediately apparent.” RCT

For example … If the officer has to physically manipulate the item in a pocket, by squeezing it between fingers) or pick it up and sniff it, it is more likely the Court would decide that it was not “immediately apparent.” RCT

Exigency The intrusion into a place where the contraband may be observed or seized may be supported by exigent circumstances, such as an articulable and legitimate concern of destruction of evidence, danger to life, need to render medical aid, hot pursuit, etc. Officer’s actual intent is irrelevant, in other words, the Court does not care what the officer is thinking, only about what the officer does. RCT

For Example …. An officer may have reason to suspect that drugs will be found in a particular location (subjective intent). The officer may approach the house and make contact in a lawful manner, such as a knock-and- talk, to determine if they are able to observe the evidence during that time. RCT

However … The law enforcement officers must not have created the exigency! In the Sixth Circuit, “some showing of deliberate conduct on the part of the police evincing an effort intentionally to avoid the warrant requirement” may cause the Court to question it. RCT

During a warrant execution Even when an officer is searching an area pursuant to a warrant, plain view is a valuable tool. For example, if during a search for drugs, an officer comes across something not listed on the warrant, but is immediately recognizable as contraband, the item may properly be seized. RCT

For example, if officers are searching the home of a convicted felon for drugs, and spot a firearm, the firearm may be seized. Because a convicted felon may not possess a firearm, the item is immediately recognizable as a contraband item. RCT

Third Element The third element for Plain View is that the item to be seized must be accessible to the officer, in a place where the officer is lawfully permitted to be. RCT

For example, if an officer spots a marijuana plant located inside a home, from a legal vantage point outside, and clearly recognizes that it is, in fact, a marijuana plant, they have met two of the three prongs. However, this does not mean they may immediately enter and seize the plant. RCT

Curtilage The protected area will extend, as well, to the area immediately outside the structure of a home – in effect, the yard. That area is called the curtilage and it enjoys the same protections as the home itself. RCT

Instead, officers will need to either get a search warrant, enter under consent or enter under an exigency, such as a reasonable and articulable fear that the evidence will be destroyed. Just the presence of the plant is not enough to argue that it may be destroyed, if, for example, the residents do not realize the plant has been spotted. RCT

Summary In this brief roll call training, we have discussed the three critical elements of plain view. 1.The officer is in a place where they are lawfully permitted to be 2.The officer immediately recognizes the items as contraband or evidence 3.If they wish to seize the item, the item is in a place the officer is lawfully permitted to be. RCT

Questions? If you have any questions concerning this presentation, please feel free to contact the Legal Training Section in one of the following ways: Website: Phone: RCT

Case References Coolidge v. New Hampshire, 403 U.S. 443 (1971) Horton v. California, 496 U.S. 128 (1990) Texas v. Brown, 460 U.S. 730 (1983). Brigham City, Utah v. Stuart, 547 U.S. 398 (2006) United States v. Chambers, 395 F.3d 563 (6th Cir. 2005) Ewolski v. City of Brunswick, 287 F.3d 492 (6th Cir. 2002). Michigan v. Fisher, 130 S.Ct. 546 (2009) U.S. v. Santana, 427 U.S. 38 (1976) Hunt v. Com., 304 S.W.3d 15 (Ky. 2009) Chavies v. Com., 354 S.W.3d 103 (Ky. 2011) RCT