Plain View Doctrine

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the fourth amendment protects persons and their effects against unreasonable searches and seizures. However, articles exposed to the plain view of others are subject to a warrantless seizure on probable cause, for no search is involved and hence no invasion of privacy results. (Plain view differs from abandonment. Exposure of an article to plain view may result from carelessness; abandonment signifies a deliberate relinquishment of the right of ownership. In either case, there is no constitutionally protected interest in the privacy of the article.)

Three conditions must be met for a plain view seizure to be constitutional, according to the decision in coolidge v. new hampshire (1971). First, the officer who sees the article must have a legal right to be where he is. Second, discovery of the article by the police must be "inadvertent," not a result of prior information that would have enabled the police to obtain a warrant beforehand. (This requirement is relaxed in a search incident to arrest, where a seizure made within the limited scope of the authorized search is lawful even if the finding of the evidence was anticipated.) Finally, the incriminating nature of the evidence must be "immediately apparent," so that no additional intrusion on privacy is necessary in order to establish that fact. (The term "immediately apparent" was modified in Brown v. Texas (1983) to mean probable cause; certainty is not required.)

An emergency "hot pursuit" of a suspect into private premises, as in warden v. hayden (1967), provides the widest latitude for a plain view seizure; the search for the suspect and his weapons is permitted to extend throughout the entire place until he is apprehended. Barring emergencies, however, a plain view of the interior of a house, obtained through a window or open door, does not permit a warrantless entry of premises any more than does testimony of the senses (say, the odor of marijuana) that criminal activity is afoot. In searches of buildings, therefore, the plain view serves to authorize a seizure only when a lawful search is already in progress when the view is obtained. A different standard applies to automobiles: a plain view of evidence in an automobile on the road not only permits seizure of the evidence but also may provide probable cause for a warrantless search of the entire vehicle. Since Brown, even a closed container may be seized under the plain view doctrine if the contents can be reliably inferred from its outside appearance—for example, a tied balloon of a type commonly used to carry narcotics.

Jacob W. Landynski


La Fave, Wayne R. 1978 Search and Seizure: A Treatise on the Fourth Amendment. Vol. 2:589–595, 601–605. St. Paul, Minn.: West Publishing Co.

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