Search Warrant Exceptions: (3) Plain View
The third well established exception to the search warrant requirement of the 4th Amendment is typically referred to as the “plain view” exception. Plain view is what it sounds like: if contraband is in plain view, the police can likely lawfully seize it. The legal analysis under this exception has three prongs. First, was the officer lawfully in a position to make the observation? Second, does the officer have lawful authority to access the item? Third, is the item immediately recognizable as contraband?
Here’s a scenario: An officer stops a vehicle for speeding. As the officer approaches the vehicle, the officer sees a small bag of white powder sitting on the passenger seat. The officer reaches into the vehicle and seizes the bag. The bag contains cocaine.
A search and seizure has certainly occurred. Understanding that the police officer relied on the plain view exception to the search warrant requirement to seize the evidence, here is the legal analysis a defense attorney might employ:
The first opportunity to help the client might be to challenge the stop itself. If the defense can show the stop itself was unlawful, the recovered bag and its potential evidentiary value might be excluded as fruits of a bad search. If the officer didn’t have lawful authority to approach the vehicle in the first place, he wouldn’t have lawfully been in a position to see the baggie, and the evidence should be suppressed.
Second, the officer in this case likely has lawful authority to seize the item. Because there is a lesser expectation of privacy in a vehicle an officer can seize evidence without a warrant. Note that the plain view exception does not apply to private residences, unless the officer is otherwise lawfully inside the residence, but that doesn’t help the client here.
Finally, it might make sense to challenge whether the officer could have immediately recognized the baggie of powder as contraband. How did the officer know it was cocaine? When making the inference the officer is allowed to rely on his training and experience. Small details like the type of baggie, the appearance of the powder, or other unique circumstances can be used to help the officer conclude that there was probable cause to believe the bag contained cocaine. Importantly, poorly written police reports often fail to sufficiently articulate the basis on which the conclusion was drawn. In those cases, there might be room to argue that the officer acted merely on a hunch, which would be insufficient to support the seizure.
Ultimately, getting this evidence excluded looks unlikely, but it is important that your attorney turns over every stone, looking for the weaknesses in a case that improve a client’s position. Oftentimes, the search and seizure issues I am talking about in this series are threshold issues in criminal cases. Unlawful searches often result in the suppression of evidence and with less evidence, it is much harder for the State to prove their case beyond a reasonable doubt.