criminal procedure for the criminal justice professional 10th edition

1. Criminal Procedure for the Criminal Justice Professional 10th Edition John N. Ferdico Henry F. Fradella Christopher Totten

3. The Plain-View Doctrine—Harris v. United States (1968) The plain view doctrine permits law enforcement officers to observe, search and/ or seize evidence without a warrant or other justification. Plain view observation is not the same as a search.

4. Requirements of the Plain View Doctrine

5. Not a “Free-to-Look-Anywhere” Card The doctrine has carefully prescribed requirements developed through court decisions over the years. The officer must have a valid justification for a prior intrusion into a zone of privacy. The incriminating character of the item to be seized or searched must be immediately apparent to the officer. The discovery of the item of evidence by the officer need not be inadvertent.

6. Valid Justifications for Intrusions into a Zone of Privacy A valid justification means that a law enforcement officer has made a legal encroachment into a constitutionally protected area or has otherwise legally invaded a person’s reasonable expectation of privacy. Examples: making a valid arrest, search-incident-to-arrest, or protective sweep; conducting a valid “stop-and-frisk”; executing a valid search warrant; making “controlled deliveries”; hot pursuit of fleeing suspects; responding to certain emergencies; consent searches; vehicle inventory and VIN searches

7. Probable Cause to Believe that the Observed Object is Incriminating in Character This requirement means that before an item may be seized, the police must have probable cause that the item is incriminating in character and hence subject to seizure, without conducting some further search of the item. Courts interpret the term immediately apparent broadly to give officers a reasonable time within which to make the probable cause determination.

8. The Discovery of the Item of Evidence by an Officer Need Not Be Inadvertent Plain view seizures need not be inadvertent. Even though a law enforcement officer is interested in an item of evidence and fully expects to find it in the course of a search, a plain view seizure of the item is not invalidated if the search is confined in its scope by the terms of a warrant or a valid exception to the warrant requirement.

9. Mechanical or Electrical Aids and Plain View Searches and Seizures Law enforcement officers may use mechanical or electrical devices, such as binoculars and flashlights, to assist in observing items of evidence, so long as they do not unreasonably intrude on someone’s reasonable expectation of privacy.

10. Getting a Closer Look An officer’s examination of an item of property will be a search rather than a plain view observation if the officer produces a new invasion of the property by taking action that exposes to view concealed portions of the premises or its contents and the officer’s action is unrelated to and unjustified by the objectives of his or her valid intrusion.

11. Extension of Plain View to Other Senses

12. "Plain Touch" or "Plain Feel" If a law enforcement officer is lawfully in a position from which he or she feels an object, if the object’s incriminating character is immediately apparent, and if the officer has a lawful right of access to the object, the officer may seize it without a warrant under a doctrine analogous to plain view commonly referred to as the "plain touch" or "plain feel" doctrine.

13. “Plain Smell” and “Plain Hearing” Lower courts have permitted seizures based on “plain smell” and “plain hearing” analogies to the plain view doctrine.