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Plain View Doctrine

Jack Ryan

The plain view doctrine is an exception to the warrant requirement which allows officers to seize items which they observe and immediately recognize as evidence or contraband while they are lawfully present in an area protected by the 4th Amendment. The foundation case providing the elements of a plain view seizure as related to the plain view doctrine is Horton v. California. In Horton, a police officer had probable cause to believe that evidence of a robbery existed at a house. While the officer had probable cause to believe the proceeds of the robbery as well as the weapons used in the robbery would be found in the house to be searched, the magistrate issued a search warrant for only the proceeds. Upon executing the search warrant, the officers discovered the weapons in “plain view” and immediately recognized the weapons as evidence of the robbery.

Horton, argued that since the police knew about the weapons prior to the search, the weapons should not be admitted under plain view because their discovery was not “inadvertent.” The Supreme Court used the Horton case to eliminate any requirement that the discovery be inadvertent. The Court pointed out that one must distinguish a plain observation (which may provide probable cause) from a plain view doctrine seizure as an exception to the warrant requirement. In its conclusion the Court held that a plain view doctrine seizure has three elements. First, the officer must already be lawfully present in an area protected by the 4th Amendment, second, the item must be out in plain view, and third, the officer must immediately recognize the item as evidence or contraband without making a further intrusion.

What constitutes a further intrusion was explained in Arizona v. Hicks. In Hicks, police responded to a shooting where a man in a first floor apartment had been injured by a bullet fired through the floor of Hicks’ apartment above. The officers entered Hicks’ apartment based upon exigent circumstances and seized three guns and a ski mask. During the search, one of the officers noticed some expensive stereo equipment in this apartment. The officer moved the stereo equipment in order to obtain serial numbers. Upon running a check on the serial numbers the officer discovered that a turntable had been taken in a robbery. On appeal to the Supreme Court, the officer argued that the stolen turntable had been in plain view. The Court concluded that the officer did not have probable cause to believe that the turntable was evidence or contraband until he made a further intrusion by moving the items to obtain the numbers. The movement was a further search unrelated to the original exigent circumstance of looking for guns and evidence of the shooting.

Thus, the significant elements in any plain view doctrine seizure are: (1) the officer must already have lawful presence in an area protected by the 4th Amendment. In a house, that would mean that the officer must have entered with a warrant, exigency or consent. (2) The officer must observe an item in plain view. (3) The officer must immediately recognize the item as evidence or contraband without making a further intrusion. It should be recognized that officers routinely make plain view observations, but that does not necessarily mean that the item may be seized unless the officer has met the elements above.

A case from Ohio points out that lawful presence in an area protected by the 4th Amendment is essential to the plain view doctrine. In Ohio v. Cooper, police investigating a robbery developed Cooper as a suspect. Knowing that Cooper had an outstanding arrest warrant on an unrelated matter, the police went to Cooper’s house and knocked on the door. Cooper answered the door and either stepped onto the porch or stood in the doorway leading to the porch as police informed him that they had a warrant for him and suspected him of the robbery. The officers handcuffed Cooper and then brought him inside the house and had him sit on a couch. One of the officers observed a blue jacket that he believed to be the same jacket worn by the robber in a videotape of the robbery. The jacket was seized in plain view. Cooper challenged the use of the jacket as evidence by arguing that the police, who apprehended him on his porch or in his doorway, did not have lawful presence in his home.

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In analyzing the case, the court noted that the officers provided no justification for entering the home other than reporting that they entered the home to effectuate the arrest. The court observed that the arrest had already been accomplished on the porch and therefore it was unnecessary to enter the home to effectuate the arrest. The court concluded that the officers were not “lawfully present” inside the home when the plain view observation was made and thus, the jacket was inadmissible. The court also rejected the prosecution’s use of a subsequent consent search to save the jacket. The court concluded that the consent was tainted by the unlawful entry.

The court also examined the admissibility of a statement made by Cooper during his arrest. While in the home, Cooper was told a second time that he was a suspect in a robbery to which he responded that it was only a theft and not a robbery and that he only had a BB gun. Although the officers had not expressly questioned Cooper, the court concluded that the detective’s statement to Cooper regarding the fact that he was a suspect in the robbery (on two occasions during the arrest), constituted the “functional equivalent of interrogation” which was recognized in Rhode Island v. Innis. The functional equivalent of interrogation is conduct or words by an officer, which the officer knows or should know is likely to produce an incriminating response. After concluding that Cooper was the subject of interrogation, while in the custody of 9 police officers that were in the house, the court suppressed the statements since Cooper had not been Mirandized.

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