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How Does the Plain View Theory Allow The Police To Take My Property?

The Supreme Count has repeatedly told us that any search conducted without the protections of a warrant [i.e. the finding of probable cause by a judicial officer] is presumptively unreasonable and therefore illegal. If Property is taken during a warrantless search, the State must show that an exception to the warrant requirement applies. If the State cannot make such a demonstration, they cannot use the property so taken in evidence.

The idea that objects in “plain view” are subject to immediate seizure is not really an exception to the warrant requirement.

Rather, the constitutional underpinning is that one does not have a reasonable expectation of privacy in items that are already exposed to the public, and in any event, does not have a reasonable expectation of privacy in contraband. No searches are authorized by the plain view concept, only seizures.

Police officers can take, and prosecutors can later use as evidence, items taken from a defendant or his or her vicinity in plain view when:

  • The police officers have a valid, lawful reason to be at the position from which they make their observations. If a search is already underway, pursuant to warrant, or a recognized exception, the intrusion on an individual’s privacy has been authorized or is already constitutionally reasonable. view
  • The object seized is in plain view. An officer is not entitled to conduct a search, or do additional rummaging, to bring something into his or her plain view. It must be in that position without assistance.
  • The officer has probable cause to believe the item to be evidence of crime, or contraband. It may be immediately apparent that some items, perhaps CDS or paraphernalia, are contraband. However, it might not be immediately apparent that a closed laptop may have illegal images.

Perhaps the textbook example of plain view in operation is a situation in which officers have obtained a warrant to search a residence for guns. In the course of executing that warrant, they see a quantity of narcotics on the kitchen table. The officers are not required to obtain a separate warrant for the seizure of the narcotics. The contraband in plain view is subject to seizure.  The same rationale applies in a roadside encounter. If the stop itself is valid, and an officer outside a car observes an item of contraband inside the car, that is subject to seizure, and use at trial to convict.

The application of these principles to a given set of facts can be a complex and arduous task.  In the appropriate circumstances, a skilled defense attorney may be able to keep the state from using such evidence in court.

I invite all potential clients to participate in a no-cost analysis and strategy conference. Contact me today to arrange a time to meet. 410 591 2835, or simply complete the form at the bottom of the page.

 

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