SEARCHES UNDER THE PLAIN VIEW DOCTRINE
Requirements for the Plain View Doctrine
The "plain view" doctrine constitutes an exception to the warrant requirement for a search but does not eliminate the requirement of probable cause. An object subject to police seizure may present itself during a search for some different object, a stop and frisk, a routine traffic stop, hot pursuit, or at any other time where a law enforcement officer lawfully observes evidence indicative of criminality.
The usual legal standards for a valid plain view seizure as described in Coolidge v. New Hampshire, 403 U.S. 443 (1971), required that the police officer observe the seizable evidence from a position the officer had a lawful right to occupy, that the officer's discovery was unexpected or inadvertent, and that the incriminating nature of the evidence be clearly apparent to the officer. The above final requirement merely restates the necessity of probable cause to seize the evidence. Under Coolidge, if the officer expected to find a particular item of evidence at a particular place, the "discovery" of the evidence could not be sustained under the plain view doctrine due to the absence of inadvertent discovery.
Inadvertent Discovery
Following Coolidge, police officers were permitted to seize evidence if they were lawfully on the premises and discovered evidence which had not been anticipated but which was clearly indicative of crime . The reality, of course, was that officers legitimately on the premises would pretend to inadvertently discover evidence which they may have expected to discover on the premises but for which they lacked probable cause. The fact that probable cause did not exist for the expected objects meant that the affidavit could not have mentioned such evidence and the warrant would not included a description of the evidence.
Criticism of the inadvertent discovery requirement and the passage of time caused the Supreme Court to reexamine the legal elements of the plain view doctrine in Horton v. California, 496 U.S. 128 (1990). Police expected to find both proceeds of a robbery and a handgun but the warrant, as issued, covered the proceeds of the robbery but not the weapon. The search revealed a handgun but no evidence of the robbery proceeds. The Supreme Court held that even if the discovery of the handgun was expected and not inadvertent, the evidence was properly seizable. In effect, the Court deleted the original plain view requirement of inadvertent discovery.
Officer Needs to be Lawfully Present
Following Horton the requirements for the use of the plain view doctrine dictate that the officer was lawfully on the premises, that probable cause for seizure be clearly apparent, and the officer have a lawful method of gaining access to the seizable property.
The evidence must be in plain view and not where the officer must minutely examine the evidence to determine whether the property is indicative of criminality. If the officer needs to move the property to find a serial number and needs to make a radio inquiry concerning whether the property was stolen, such conduct constitutes a separate search and cannot comport with the plain view doctrine. See Arizona v. Hicks, 480 U.S. 321 (1987).
While the evidence must be in plain view, the officer remains free to lawfully take a position which permits the best vantage point. For example, in California v. Ciraolo, 476 U.S. 207 (1986), following reports from neighbors that defendant was cultivating marijuana in his backyard, police boarded an aircraft to search the yard from a lawful altitude. Officers observed marijuana growing inside defendant's yard behind a privacy fence. While officers expected to find marijuana growing in the backyard plot and while the discovery was not inadvertent, the Court upheld the search even though Ciraolo was decided four years prior to Horton. So long as the place or position which the officer takes is a lawful one, the observations made can properly be the basis for the use of the plain view doctrine.
Inadvertent Discovery under the Plain View Doctrine
COOLIDGE v. NEW HAMPSHIRE, Supreme Court of the United States (1971), 403 U.S. 443, 91 S.Ct. 2022
FACTS:
Following the murder of 14-year-old Pamela Mason, the investigation focused on defendant Coolidge since he had been away from his home on the night when Pamela Mason, disappeared. Police requested that Coolidge take a polygraph examination which was to be administered out of town at Concord. While Coolidge was undergoing the lie detector examination, other police visited his marital home and requested that his wife show them any guns which Coolidge owned. In a spirit of cooperation, Mrs. Coolidge gave the officers some clothing which she believed he wore on the evening in question.
Several weeks passed before police believed that they possessed sufficient evidence for the arrest of defendant Coolidge and for a warrant-based search of his automobile. The automobile had been parked in plain view in front of the Coolidge residence and was unlikely to move once Coolidge had been arrested. Police seized the automobile and towed it to the police station where it was eventually subjected to three searches. Police arrested Coolidge on the day the warrant was issued and seized his automobile pursuant to a search warrant issued by the Attorney General of New Hampshire.
At Coolidge's trial for murder, the court allowed the prosecution to introduce gun powder particles and other vacuum sweepings seized as the result of the search of the automobile. A jury returned a guilty verdict which was sustained by appeal throughout the New Hampshire court system. The Supreme Court of the United States granted certiorari to consider constitutional questions including the validity of the search of Coolidge's automobile.
PROCEDURAL QUESTION:
Where an automobile search must be justified by the "plain view doctrine," does the fact that a motor vehicle is parked in a driveway and, under the circumstances, unlikely to leave, permit the warrantless seizure and search of the vehicle?
HELD: No.
RATIONALE:
Mr. Justice STEWART delivered the opinion of the Court.
[The Court held that the warrant issued by the Attorney General as a Justice of the Peace was not issued by a `neutral and detached judicial official' and that the search could not properly be based on a warrant theory. The state attempted to justify the searches of the vehicle by the use of the "plain view doctrine."]
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[F]or the reasons that follow, we hold that the "plain view" exception to the warrant requirement is inapplicable to this case.
It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the "plain view" doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal.
An example of the applicability of the "plain view" doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character. [citations omitted.] Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus the police may inadvertently come across evidence while in "hot pursuit" of a fleeing suspect. Warden v. Hayden, supra; cf. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898. And an object that comes into view during a search incident to arrest that is Appropriately limited in scope under existing law may be seized without a warrant. Chimel v. California, 395 U.S., at 762-763, 89 S.Ct., at 2039-2040. Finally, the "plain view" doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently come across an incriminating object. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; [Other citations omitted.].
What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification - whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused - and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Cf. Stanley v. Georgia, supra, at 571-572, 89 S.Ct., at 1251 (Stewart, J., concurring in result).
The rationale for the "plain view" exception is evident if we keep in mind the two distinct constitutional protections served by the warrant requirement. First, the magistrate's scrutiny is intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity. [Citations omitted.] The second distinct objective is that those searches deemed necessary should be as limited as possible. Here, the specific evil is the "general warrant" abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings. See e.g., Boyd v. United States, 116 U.S., at 624-630, 6 S.Ct., at 528-532; [other citations omitted.] The warrant accomplishes this second objective by requiring a "particular description of the things to be seized."
The "plain view" doctrine is not in conflict with the first objective because plain view does not occur until a search is in progress. In each case, this initial intrusion is justified by a warrant or by an exception such as "hot pursuit" or search incident to a lawful arrest, or by an extraneous valid reason for the officer's presence. And, given the initial intrusion, the seizure of an object in plain view is consistent with the second objective, since it does not convert the search into a general or exploratory one. As against the minor peril to Fourth Amendment protections, there is a major gain in effective law enforcement. Where once an otherwise lawful search is in progress, the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous - to the evidence or to the police themselves - to require them to ignore it until they have obtained a warrant particularly describing it.
The limits on the doctrine are implicit in the statement of its rationale. The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount or probable cause can justify a warrantless search or seizure absent "exigent circumstances." Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure. Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; [Other citations omitted.].
The second limitation is that the discovery of evidence in plain view must be inadvertent. The rationale of the exception to the warrant requirement, as just stated, is that a plain-view seizure will not turn an initially valid (and therefore limited) search into a "general" one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as "per se unreasonable" in the absence of "exigent circumstances."
If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a violation of express constitutional requirement of "Warrants *** particularly describing *** [the] things to be seized." The initial intrusion may, of course, be legitimized not by a warrant but by one of the exceptions to the warrant requirement, such as hot pursuit or search incident to lawful arrest. But to extend the scope of such an intrusion to the seizure of objects - not contraband nor stolen nor dangerous in themselves - which the police know in advance they will find in plain view and intend to seize, would fly in the face of the basic rule that no amount of probable cause can justify a warrantless seizure.
In the light of what has been said, it is apparent that the "plain view" exception cannot justify the police seizure of the Pontiac car in this case. The police had ample opportunity to obtain a valid warrant; they knew the automobile's exact description and location well in advance; they intended to seize it when they came upon Coolidge's property. And this is not a case involving contraband or stolen goods or objects dangerous in themselves.
The seizure was therefore unconstitutional, and so was the subsequent search at the station house. Since evidence obtained in the course of the search was admitted at Coolidge's trial, the judgment must be reversed and the case remanded to the New Hampshire Supreme Court. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
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Judgment reversed and case remanded.
NOTES
1. The police in Coolidge operated in "good faith" that the warrant to search the car was valid since it had been issued according to New Hampshire law. Should the search of the automobile have been upheld if the officers were following the law and the Fourth Amendment as they understood it? Why or why not?
2. The objects must be clearly in sight for this exception to the warrant requirement to produce good evidence. In Arizona v. Hicks, 480 U.S. 321 (1987), the serial numbers of stolen equipment were not visible without moving the equipment. Moving the equipment to observe the numbers constituted a search for serial numbers for which probable cause did not exist.
3. The "plain view" doctrine has been applied to other senses. See United States v. Williams, 822 F.2d 1174 (D.C. Cir.)(1987), where the officer could "feel" that the contents of a bag contained smaller "baggie" type containers which the officer knew often contained narcotics. This could be called the "plain feel" doctrine. In a stop and frisk situation, the Court, in principle, approved the use of feeling the outer garments of a detainee to see whether an object is immediately recognizable by feel as contraband. Once the identity of the object is known by feel, it may be seized without a warrant. See Minnesota v. Dickerson, U.S. (1993).
For a case involving the "plain smell" corollary to the "plain view" doctrine, consider United States v. Johns, 569 U.S. 478 (1985), where a search of containers found in a truck was upheld on the basis that the odor of marijuana helped mature probable cause for the search. Significantly, where trained drug dogs make indications that containers hold illegal drugs, such conduct does not constitute a search since the dog sniffs the air around the container and does not actually search the container. United Statesv.Place, 562 U.S.696 (1983). However, consider whether a search has been conducted when a border patrol agent discovered marijuana in luggage at an airport by squeezing the sides of the luggage and smelling the odor of marijuana being expressed. Would this constitute a search? A petition for certiorari has been filed with the Supreme Court in Alvarez-Aguirre v. United States, 93-33 (July 1, 1993).
4. Generally, the "plain view" doctrine requires that the officer immediately know that the object of a plain view seizure is incriminating. In Texas v. Brown, 460 U.S. 730 (1983), an officer seized a long balloon which had been tied at the end in a manner indicative that it contained narcotics. The officer could not actually see the contents, but knew from experience what the balloon likely contained. In upholding the seizure under "plain view," the Brown Court slightly modified the requirement of immediately apparent criminal nature of the seized property to merely require the officer to have probable cause to believe that the item contains evidence of criminality.
5. Where police conduct an air craft flight within navigable airspace over the lands which contain evidence of criminality, anything which can be seen without optical enhancement which is indicative of criminality falls within the plain view doctrine exception to the warrant requirement. In California v. Ciraolo, 476 U.S. 227 (1986), police flew over Criaolo's marijuana crop with a fixed wing aircraft to mature evidence for a search warrant for the marijuana. Similarly, officers in Florida v. Riley, 488 U.S. 445 (1989), properly used a helicopter to observe marijuana growing in a greenhouse.
Inadvertence of Discovery No Longer Required for Plain View Doctrine
HORTON v. CALIFORNIA, Supreme Court of the United States (1990), 496 U.S. 128, 110 S.Ct. 2301
FACTS:
Petitioner Horton was convicted of armed robbery of the treasurer of the San Jose Coin Club. As the victim entered his garage, two masked men attacked him using an electrical "stun gun" which rendered the victim unable to resist. The criminals bound and handcuffed the victim while they carried on a conversation between themselves. The victim, Wallaker, recognized petitioner Horton's voice while another witness observed the robbers leaving the scene of the crime. Additional evidence disclosed that petitioner had attended a coin show where he became aware that Wallaker possessed a large quantity of cash and jewelry.
Following an investigation, police obtained a warrant to search Horton's residence for the proceeds of the robbery, including three specifically described rings. During the execution of the warrant, police seized an Uzi machine gun, a .38 caliber revolver, two "stun guns," a handcuff key, and several other items. The officer conducting the search admitted searching not only for the rings, but for other evidence connecting Horton to the crime. Some of the seized evidence was not discovered "inadvertently."
The trial court refused to suppress the evidence and a jury convicted Horton. The California Court of Appeals affirmed and the Supreme Court of California denied review.
The Supreme Court of the United States granted certiorari since the application of the plain view exception to the warrant requirement had been construed by the California courts in a different fashion from other courts.
PROCEDURAL QUESTION:
Is a warrantless search and seizure of evidence in plain view prohibited if the discovery of the evidence was not inadvertent?
HELD: No.
RATIONALE:
Justice STEVENS delivered the opinion of the Court.
In this case we revisit an issue that was considered, but not conclusively resolved, in Coolidge v. New Hampshire, 403 U.S. 443 (1971); Whether the warrantless seizure of evidence of crime in plain view is prohibited by the Fourth Amendment if the discovery of the evidence was not inadvertent. We conclude that even though inadvertence is a characteristic of most legitimate "plain view" seizures, it is not a necessary condition.
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The criteria the generally guide "plain view" seizures were set forth in Coolidge v. New Hampshire, 403 U.S. 443 (1971). The Court held that the seizure of two automobiles parked in plain view on the defendant's driveway in the course of arresting the defendant violate the Fourth Amendment. Accordingly, particles of gun powder that had been subsequently found in vacuum sweepings from one of the cars could not be introduced in evidence against the defendant. The State endeavored to justify the seizure of the automobiles, and their subsequent search at the police station, on four different grounds, including the "plain view" doctrine. The scope of that doctrine as it had developed in earlier cases was fairly summarized in these three paragraphs from Justice Stewart's opinion:
"It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the `plain view' doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal.
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Justice Stewart then described the two limitations on the doctrine that he found implicit in its rationale: First, "that plain view alone is never enough to justify the warrantless seizure of evidence, id., at 468; and second, "that the discovery of evidence in plain view must be inadvertent." Id., at 469.
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It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plain view, its incriminating character must also be "immediately apparent." Id., at 466; see also Arizona v. Hicks, 480 U.S., at 326-327. Thus, in Coolidge, the cars were obviously in plain view, but their probative value remained uncertain until after the interiors were swept and examined microscopically. Second, not only must the officer be lawfully located in a place from which the object can be plainly see, but he or she must also have a lawful right of access to the object itself. As the Solicitor General has suggested, Justice Harlan's vote on Coolidge may have rested on the fact that the seizure of the cars was accomplished by means of a warrantless trespass on the defendant's property. In all events, we are satisfied that the absence of inadvertence was not essential to the Court's rejection of the State's "plain view" argument in Coolidge.
I
Justice Stewart concluded that the inadvertence requirement was necessary to avoid a violation of the express constitutional requirement that a valid warrant must particularly describe the things to be seized. He explained:
"The rationale of the exception to the warrant requirement, as just stated, is that a plain-view seizure will not turn an initially valid (and therefore limited search in a `general' one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as `per se unreasonable' in the absence of `exigent circumstances.'"
"If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intent to seize it, then there is a violation of the express constitutional requirement of `Warrants . . . particularly describing . . . [the] things to be seized.'" 403 U.S., at 469-471."
We find two flaws in this reasoning. First, evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer. The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement.
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Second, the suggestion that the inadvertence requirement is necessary to prevent the police from conducting general searches, or from converting specific warrants into general warrant, is not persuasive because that interest is already served by the requirements that no warrant issue unless it "particularly describ[es] the place to be searched and the persons or things to be seized," see Maryland v. Garrison, 480 U.S. 79, 84 (1987); Steele v. United States No. 1, 267 U.S. 498, 503 (1925), and that a warrantless search be circumscribed by the exigencies which justify its initiation. See, e.g. Maryland v. Buie, 494 U.S. (1990) (slip op. at 8-9); Mincey v. Arizona, 437 U.S. 385, 393 (1978). Scrupulous adherence to these requirements serves the interests in limiting the area and duration of the search that the inadvertence requirement inadequately protects. Once those commands have been satisfied and the officer has a lawful right of access, however, no additional Fourth Amendment interest is furthered by requiring that the discovery of evidence be inadvertent.
[Affirmed.]
Notes
1. While inadvertence is no longer a necessary requirement of the "plain view" doctrine, police are not permitted to rearrange the premises to observe objects which are not fully in view. In Arizona v. Hicks, 480 U.S. 321 (1987), police were lawfully on the premises following reports of a shooting. One of the officers noticed some stereo components which looked out of place in such a squalid apartment and concluded that the components might have been stolen. He moved the equipment to observe the serial numbers and recorded them. The equipment proved stolen, but the Court concluded that the warrant which had been issued on the basis of the serial numbers had been improperly obtained due to the officer's improper search for the serial numbers.
2. The basic concept of the "plain view" doctrine is that there is not a search in the traditional sense. The officer merely lawfully occupies a position from which he/she develops probable cause to seize property. The property is immediately seizable since it would be unreasonable to expect or require an officer to leave and obtain a warrant.
3. Consider whether marijuana would be seizable under the following circumstances. An officer responding to a domestic disturbance in a back yard observes what appears to be marijuana growing in greenhouse attached to the next home. May the officer break into the greenhouse and seize the offending plants without a warrant where the officer has probable cause? Does the fact that the plants are in plain view help?