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Major Lesson Plan - Doctrine Seizure

Jack Ryan

Target Audience: Law Enforcement personnel who may be faced with the task of plain view doctrine seizure

Objective: Provide officers with essential knowledge of the law relating to plain view

Format: Roll-call/ supervisory training.

Time: Five to ten minutes, but this may be expanded where agency resources allow.

Materials: Law Enforcement Risk Management Legal Update and any agency policy relating to plain view doctrine.

Note: Officers should be encouraged to read the article in this update on “plain view” either before or after this roll-call training.

Hypothetical:

A police officer was assigned to walk a foot patrol. As he was walking down the sidewalk he observed a potted marijuana plant sitting on the sidewalk. The officer then looked to his left and inside an automobile parked at the curb he observed a second potted marijuana plant. The officer then looked to his right and observed a third potted marijuana plant on the enclosed balcony of a second floor apartment. Which, if any, of these plants may be seized under the plain view doctrine?

The sidewalk: The sidewalk is not an area which is protected by the Fourth Amendment, thus there is no need for an exception to the warrant (which only protects areas where there is an expectation of privacy) requirement in order to seize this plant which would not fall within the protections of the Fourth Amendment.

The automobile: The “plain view” doctrine requires that the officer be “lawfully present” in an area protected by the Fourth Amendment. The officer in this case does not have lawful presence inside the automobile, thus the plain view doctrine will not justify the seizure of this plant. The officer may use his observation of the plant to establish probable cause to believe the auto contains contraband and then seize the plant under the “motor vehicle” exception to the warrant requirement.

The balcony: The balcony is no different from a home; there are only three ways in (to gain lawful presence): Consent, warrant or exigency. The officer’s observation does provide the probable cause necessary to obtain a search warrant, but as with any other residence entry, probable cause without a warrant exigency or consent will not justify an entry.

It is important to recognize that officers cannot make any “further intrusion” beyond their lawful intrusion, to recognize the item as evidence or to seize the item. In Arizona v. Hicks, officers who had responded to a shots fired call lawfully entered an apartment. While present, the officers observed electronics equipment which appeared out of place. One of the officers moved a VCR in order to locate its serial number. A subsequent check of the serial number revealed that the VCR was stolen. The United States Supreme Court held that the officer’s slight movement of the VCR in order to obtain its serial number amounted to an unjustified “further intrusion” and as such invalidated the plain view doctrine seizure.


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