Over the course of the last decade, I've published in excess of 700 articles in the areas of personal injury, criminal defense, workers' compensation and insurance disputes, generally. If you can't find what you're looking for, feel free to contact me to discuss the details of your case and learn how I can help.

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

The U.S. Supreme Court 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, the prosecutor cannot use the property so taken in evidence against an accused in a criminal case. A court sitting in Baltimore, Maryland and hearing a criminal case certainly must follow the U.S Supreme Court’s decisions on plain view, although a Maryland court is free to determine that Maryland’s constitution provides greater protections.

Baltimore Police Do Not Need A Warrant If The Object Is In Plain View

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. A competent Baltimore criminal defense lawyer must be familiar with 4th Amendment law and plain view concepts. If evidence is not seized in accord with a suspect’s constitutional rights, the State cannot use it against that defendant at their trial.

The Fourth Amendment is the great ally of a criminal defense lawyer and the absolute right of the defendant in any Baltimore criminal proceeding. The exceptions to the search and seizure rules are the best friend of the prosecutor. Baltimore 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:

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

  • The police officers have a valid, lawful reason to be in 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.

If The Object Is In Plain View, Baltimore Police May Seize It

It is not the seizure of the evidence that presents the problem to the typical Baltimore criminal defendant, but rather, the introduction of the evidence at trial. Perhaps the textbook example of plain view in operation is a situation in which Baltimore City Police 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. If, on the other hand, even though the evidence is in police custody, it was taken in violation of a recognized constitutional right – and the Fourth Amendment is the foremost- a defense lawyer may be able to keep it out of evidence. As Attorney Eric T. Kirk will tell you.

Plain View and the Baltimore Police Department
FULL TRANSCRIPT: Fourth amendment law provides that any search that is conducted without the benefit of a warrant is presumptively unconstitutional and therefore illegal – unless an exception to the warrant requirement applies. Now, evidence that is seized in violation of the constitution may not be used to trial to obtain the conviction of a defendant. A concept that is sometimes viewed as being an exception to the warrant requirement is that of plain view. This isn’t so much an exception to the warrant requirement as it is a doctrine that allows police officers to seize items of an incriminating nature that they perceive -in plain view. In order for this exception to apply, three requirements must be met. The seizing officer must be in a lawful position when he or she makes his or her observations of the contraband or item of evidence. The item of evidence or contraband’s nature must be immediately apparent as such. The courts often say that the officer must then there have probable cause to believe that the item is in fact contraband or the evidence of crime. Finally, the item must indeed be in plain view. No further searching is allowed under this legal principle.

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

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