Plain View Doctrine (Update)

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Under the plain view doctrine of coolidge v. new hampshire (1971), certain items found in a lawful search may be seized without a search warrant though they were not among the items that were legitimate objectives of the search. Though this issue also arises in other contexts, it most frequently comes into play when police, executing a search warrant naming certain things to be seized, find and immediately seize other items unnamed in the warrant.

The Supreme Court in Coolidge declined to hold that in such circumstances the police must always seek another warrant, reasoning that such a procedure "would often be a needless inconvenience, and sometimes dangerous—to the evidence or to the police themselves." At the same time, the Court was not prepared to uphold warrantless seizures made either without probable cause or as a consequence of an earlier circumvention of the warrant requirement, as where the police intended from the very beginning to seize the unnamed objects. Consequently, the Coolidge plurality concluded that a warrantless seizure was permissible only if three requirements were met: (1) there must have been a prior valid intrusion into the place where the seized evidence was found; (2) the discovery of the seized items must have been "inadvertent"; and (3) it must have been "immediately apparent" that the seized items were evidence of crime.

theCoolidge plurality did not explain what it meant by "inadvertent." It did not state explicitly what degree of expectation would make the subsequent discovery of an item other than inadvertent. Most lower courts took the inadvertent-discovery limitation to mean that a discovery is inadvertent, without regard to the hopes or expectations of the police, if there were not sufficient grounds to get a search warrant for that item. Moreover, for probable cause to nullify an inadvertent claim those grounds must have been in the hands of the police at a time when it would have been feasible to obtain a warrant, for otherwise the police cannot be faulted for failing to obtain a warrant also naming the seized item.

Even so interpreted, the inadvertent-discovery limitation is unsound. It is a limitation on seizure, not search, and thus protects possessory interests only, not privacy interests. Yet, one consequence of the inadvertence requirement is that lawfully discovered items seized on probable cause may be excluded merely because the officer, out of an abundance of caution, failed to seek a magistrate's approval for a more intrusive search through the premises for those items. If, as the Court declared in hoffa v. united states (1966), "the police are not required to guess at their peril the precise moment at which they have probable cause," this result is not a desirable one. Such a result will no longer obtain, for in Horton v. California (1990) the Court rejected the inadvertent-discovery limitation on the plain view doctrine.

The "immediately apparent" limitation does not require the police to be certain of the incriminating character of the seized object; probable cause will suffice. But when must this probable cause become apparent? Assume a case in which police executing a search warrant for stolen stereo equipment see in the searched premises a television set. They turn the television set around to expose its serial number, and then determine that the number matches that of a set recently reported stolen. Many courts interpreted Coolidge to mean that such movement of the television set, though not authorized by the warrant, was nonetheless a lawful search if undertaken upon reasonable suspicion that the set was stolen. The appealing rationale of these cases was that the slight movement of the object to examine its exterior was such a minimal intrusion upon fourth amendment interests as to not require full probable cause.

Though these decisions arguably found support in the Supreme Court's decision in United States v. Place (1983), holding that personal effects in transit such as luggage could be briefly detained for investigation upon mere reasonable suspicion, the Court in Arizona v. Hicks (1987) held that Coolidge 's "immediately apparent" requirement means full probable cause must exist before the television set is even moved. The Court in Hicks reasoned that such movement was part of "a dwelling-place search," for which full probable cause had always been required, and distinguished such cases as Place on the ground that the "special operational necessities" existing there were not present. Hicks made the plain view doctrine of the Coolidge plurality a doctrine endorsed by a majority of the Justices, and Hicks held that the doctrine may not be invoked when the police have less than probable cause to believe that an item should be seized as evidence of crime.

Wayne R. La Fave

(see also: Search and Seizure; Unreasonable Search; Warrantless Searches.)


La Fave, Wayne R. 1987 Search and Seizure: A Treatise on the Fourth Amendment, 2nd ed. St. Paul, Minn.: West Publishing Co.

Moylan, Charles E. 1975 The Plain View Doctrine: Unexpected Child of the Great Search Incident Geography Battle. Mercer Law Review 26:1047–1101.