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

2. 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 Items that are within the sight of an officer who is legally in a place from which the view is made, and who had no prior knowledge that the items were present, may properly be seized without a warrant— as long as the items are immediately recognizable as subject to seizure. Requirements of the Plain View Doctrine –1 -Awareness of the Item through the Use of Sight

3. Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  The Plain View Doctrine – 2 - The Officer Must Be Legally in the Place from Which the Item Is Seen Search warrant Hot pursuit Valid consent Valid arrest

4. Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  The Plain View Doctrine – 3 - The Item Must Be Immediately Apparent as Subject to Seizure The “immediately apparent” requirement of the plain view doctrine must be based on probable cause, not on any lesser degree of certainty such as reasonable suspicion. Although items must be immediately recognizable as subject to seizure if they are to fall under the plain view doctrine, it is not necessary that there be certain knowledge that incriminating evidence is involved. Probable cause is sufficient to justify seizure. Also, the use of a flashlight by an officer to look into the inside of a car at night does not constitute a search under the Fourth Amendment.

5. 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

6. 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 –The Fourth Amendment does not prohibit the warrantless seizure of evidence in plain view, even though the discovery of the evidence was not inadvertent. Horton v. California (1990)

7. 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 The use of a beeper to monitor the whereabouts of a person traveling in a car on public highways does not turn the surveillance into a search. Such monitoring falls under the plain view doctrine and therefore does not require a warrant. United States v. Knotts (1983)

8. 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 The plain view doctrine can be applied to cases in which the officer has made “a prior valid intrusion into a constitutionally protected area” (meaning when the officer is inside an enclosed space, such as a house or an apartment); the term open view applies to instances when the officer is out in open space (such as on the streets) but sees an item within an enclosed area. State v. Stachler (1977) – Comparison Between Plain View and Plain Touch Minnesota v. Dickerson (1993) Terry v. Ohio (1968)

9. 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 Touch Although the evidence in this case was not admissible because the officer went beyond what is allowable in frisk cases, the Court said that officers may detect the presence of contraband through the sense of touch and confiscate it if probable cause exists. Minnesota v. Dickerson (1993)

10. 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 Items in open fields are not protected by the Fourth Amendment guarantee against unreasonable searches and seizures, so they can be seized by an officer without a warrant or probable cause. Areas Not Included in Open Fields Curtilage – Residential yards, fenced areas, apartment houses, barns and other outbuildings, garages

11. 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

12. 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 The constitutional protection against unreasonable search and seizure is not violated by the naked-eye aerial observation by the police of a suspect’s backyard, which is admittedly a part of the curtilage. California v. Ciraolo (1986) Evidence obtained by the police in a helicopter flight at a 400-foot altitude is admissible because such flights are allowed by FAA regulations and so the homeowner would have no reasonable expectation of privacy from such flights. Florida v. Riley (1989)

13. 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 A place that is posted with a “no trespassing” sign, has a locked gate, and is located more than a mile from the owner’s house has no reasonable expectation of privacy and is considered an open field, unprotected by the Fourth Amendment. Oliver v. United States (1984)

14. 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 The use of a beeper to monitor the whereabouts of a person traveling in a car on public highways does not turn the surveillance into a search. Such monitoring falls under the plain view doctrine and therefore does not require a warrant. United States v. Knotts (1983) The warrantless monitoring of a beeper after the device has been unwittingly taken into a private residence violates the Fourth Amendment rights of the residents and others. United States v. Karo (1984)

15. 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

16. 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

17. 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

18. 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

19. 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 “Searches made at the border pursuant to the long- standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.” United States v. Ramsey (1977)

20. Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  Border Searches – The Forced Temporary Detention of Aliens Believed to Be Illegal An immigration officer may, for purposes of questioning, detain against his or her will an individual reasonably believed to be an alien. Au Yi Lau v. United States Immigration and Naturalization Service (1971)

21. Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches  Border Searches – Factory surveys of Aliens Factory surveys in which INS officials pay surprise visits to factories and ask employees questions to determine if they are in this country legally do not constitute a Fourth Amendment seizure, so no specific, objective basis for suspecting the worker of being an illegal alien need be shown. Immigration and Naturalization Service v. Delgado (1984)