Plain view is nothing more than right to be, right to see.\u00a0 That’s the simplicity of it: right to be, right to see, hear and smell. So basically, the idea here is that if you are lawfully present, there is no search under the Fourth Amendment if you are simply using your God-given senses,<\/p>\n
If you are lawfully in somebody’s home, for instance, investigating a domestic violence and you’re looking around the home, plain view can apply.\u00a0 Let’s say that the husband is a suspected drug dealer, and you are lawfully present.\u00a0 In your mind you\u2019re thinking, \u201cWell, since I’m here, let me see if I can find some plain view evidence.\u201d<\/p>\n
And you look over and you see drugs behind a book in the bookcase.\u00a0 There\u2019s a little cellophane package, sticking out a little bit.\u00a0 He tried to hide it before you guys came in and didn’t do a good job. That’s plain view.\u00a0 That’s plain view, because you have a right to be where you are, you\u2019re using your God-given senses and the evidence is immediately apparent.<\/p>\n
There\u2019s another thing that courts will throw in there.\u00a0 They’ll say that not only do you have to be lawfully present, but the evidence also must be immediately apparent as evidence or contraband and so forth.\u00a0 All that means is that you look at it and you instantly know what it is.\u00a0 You know it’s evidence.\u00a0 You don’t look at it and think, \u201cWait, what am I seeing here?\u201d\u00a0 Immediately apparent, basically means that you have probable cause<\/a> without manipulation.\u00a0 So, if you manipulate something that’s not plain view,<\/p>\n Let me give you an example.\u00a0 You’re in a home and you see a very expensive stereo that you believe is stolen.\u00a0 You move the stereo out from the wall to see the serial number so you can check with Dispatch to see if that’s part of a stolen property report.\u00a0 That’s not plain to you because you manipulated the item<\/a>.<\/p>\n Now, let’s add one more fact here. Before we go, don’t forget about the seizing of the item. Plain view does not necessarily allow you to seize it.\u00a0 You can only seize the item, if seizing it would not cause a constitutionally prohibited intrusion.<\/p>\n For example, you’re walking by an apartment, and you look in the window, and see drugs in plain view on the kitchen table.\u00a0 That doesn’t mean that you get to go into the apartment to seize it.\u00a0 Seeing it is one thing, seizing it is another.<\/p>\n So, for plain view, seizure requires lawful access.\u00a0 For example, you’re in a home for domestic violence and you’re doing a protective sweep<\/a>.\u00a0 You walk by a room; you look in there and you see drugs on top of the bed.\u00a0 You could go in there and seize the drugs because you’re already in the home.<\/p>\n But you couldn’t do the same thing if you saw drugs through the window of an apartment. \u00a0 You need lawful access.\u00a0 Now, if the guy is in the bathroom, and he comes out and sees you looking into his apartment, then he knows the jig is up.\u00a0 He grabs the drugs and starts going towards the bathroom to flush them away.\u00a0 Well, if you enter at that point, it would likely be valid under imminent destruction of evidence.<\/p>\n There it is.\u00a0 Plain view is right to be, right to see, hear and smell.\u00a0 If you want to seize it, you must have lawful access.\u00a0 There you go. I hope it helps.\u00a0 Stay safe out there!<\/p>\nDoes plain view let you seize the item?<\/h2>\n
Related from Blue to Gold<\/h2>\n