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Criminal Procedure • Exclusionary Rule
CRIMPRO#018
Legal Definition
Police officers can make a warrantless seizure when they (1) are legitimately present on the premises; (2) identify evidence, instrumentalities, or contraband; (3) see such evidence in plain view; and (4) have probable cause to believe it is evidence.
Plain English Explanation
If a suspect leaves incriminating evidence in a place where it can be seen by members of the public, then there's nothing preventing a police officer from seizing that incriminating evidence when they see it. In other words, if a criminal leaves a crack pipe sitting on the dashboard of their car, then it is within plain view of anyone who may be walking by. It would be silly if a cop saw a crack pipe sitting on a dashboard of a car and had to first go get a warrant in order to seize something that is so obviously illegal. There are a few key factors to applying the plain view exception:
(1) The police officer must have a right to be wherever they were when they made the discovery or saw the evidence. For example, if the car with the crack pipe is parked on a public street, then the police officer has every right to be in a position to see inside of the car. In contrast, if the car was parked inside of a private shed of private property, then the police officer has no right to have been there, unless they had a warrant that allowed them to.
(2) The officer must have an awareness of what the object is, even if that awareness is based on their experience and wouldn't be obvious to a normal citizen. For example, a police officer may recognize small, knotted balloons in the backseat of a car to be heroin, whereas a regular citizen may not recognize them to be anything more than garbage.
(3) The object that is identified must be in plain view, meaning it is readily and clearly visible to the officer without having to move anything or physically touch the object.
(4) Finally, the officer must have probable cause, based on the circumstances and their understanding of what they are looking at, to believe it is evidence of a crime.
If these elements exist, an officer is justified in seizing the property without first obtaining a warrant.
(1) The police officer must have a right to be wherever they were when they made the discovery or saw the evidence. For example, if the car with the crack pipe is parked on a public street, then the police officer has every right to be in a position to see inside of the car. In contrast, if the car was parked inside of a private shed of private property, then the police officer has no right to have been there, unless they had a warrant that allowed them to.
(2) The officer must have an awareness of what the object is, even if that awareness is based on their experience and wouldn't be obvious to a normal citizen. For example, a police officer may recognize small, knotted balloons in the backseat of a car to be heroin, whereas a regular citizen may not recognize them to be anything more than garbage.
(3) The object that is identified must be in plain view, meaning it is readily and clearly visible to the officer without having to move anything or physically touch the object.
(4) Finally, the officer must have probable cause, based on the circumstances and their understanding of what they are looking at, to believe it is evidence of a crime.
If these elements exist, an officer is justified in seizing the property without first obtaining a warrant.
Hypothetical
Hypo 1: Bob is a felon. Officer is investigating local crimes and decides to speak with Bob. Officer drives to Bob's rundown apartment located in a high-crime part of the city. Officer knocks on Bob's door. Bob opens the door but refuses to let Officer in. While Officer is speaking to Bob, he notices a plastic gun case on Bob's bookshelf. Officer recognizes the case because it is the same kind that Officer uses. As a felon, Bob isn't allowed to own a gun. Officer enters Bob's apartment and seizes the gun case against Bob's wishes. Result: Officer's warrantless seizure of Bob's gun case is valid under the plain view exception, because Officer was in a place he was allowed to be when he identified the object and had probable cause to believe it was evidence of a crime. Note: This doesn't necessarily mean officer has the right to open the gun case. He may still need a warrant for that. However, he is allowed to, at minimum, seize the contraband so that it may be secured and dealt with later.
Hypo 2: Officer works in Art Town. There was a recent high-profile theft of an extremely ornate, extremely rare glass egg from an art show. One day, Officer is called to investigate a robbery at Bob's apartment. Officer arrives and Bob lets him in to do his investigation and take Bob's statement. While there, Officer sees an extremely ornate glass egg sitting next to a ski mask. Officer recognizes it from the photos he has seen of the stolen egg and seizes it. Result: Same as Hypo 1, Officer had every right to be where he was, and while he was there he identified contraband that was so clearly evidence of a crime that Officer didn't need to first get a warrant to seize it.
Hypo 3: Officer is called to investigate robbery at Bob's apartment. Officer arrives and Bob lets him in to do his investigation and take Bob's statement. While there in Bob's extremely dirty, extremely rundown apartment, Officer notices a brand new pair of high-end stereo speakers on Bob's shelf. These types of speakers are highly sought by criminals and are worth thousands of dollars. Officer, suspicious of Bob owning such expensive speakers, decides to note their serial number to check and see if they are stolen. He walks to the shelf, tilts back the speakers, and notes the serial number located on a sticker stuck to the bottom of each speaker. Result: Officer has performed an illegal warrantless search of Bob's property. Just because Bob appears too impoverished to afford such speakers, and just because such speakers seem out of place in Bob's apartment, and even though the Officer's intuition may be correct in believing they are stolen, doesn't mean that Officer has the right to handle or examine Bob's property without first getting a warrant. If the serial number were in a place that could have been noted without touching them, it would have been okay under plain view, but it wasn't. The serial was concealed and Officer's suspicions are more prejudicial than probable cause.
Hypo 2: Officer works in Art Town. There was a recent high-profile theft of an extremely ornate, extremely rare glass egg from an art show. One day, Officer is called to investigate a robbery at Bob's apartment. Officer arrives and Bob lets him in to do his investigation and take Bob's statement. While there, Officer sees an extremely ornate glass egg sitting next to a ski mask. Officer recognizes it from the photos he has seen of the stolen egg and seizes it. Result: Same as Hypo 1, Officer had every right to be where he was, and while he was there he identified contraband that was so clearly evidence of a crime that Officer didn't need to first get a warrant to seize it.
Hypo 3: Officer is called to investigate robbery at Bob's apartment. Officer arrives and Bob lets him in to do his investigation and take Bob's statement. While there in Bob's extremely dirty, extremely rundown apartment, Officer notices a brand new pair of high-end stereo speakers on Bob's shelf. These types of speakers are highly sought by criminals and are worth thousands of dollars. Officer, suspicious of Bob owning such expensive speakers, decides to note their serial number to check and see if they are stolen. He walks to the shelf, tilts back the speakers, and notes the serial number located on a sticker stuck to the bottom of each speaker. Result: Officer has performed an illegal warrantless search of Bob's property. Just because Bob appears too impoverished to afford such speakers, and just because such speakers seem out of place in Bob's apartment, and even though the Officer's intuition may be correct in believing they are stolen, doesn't mean that Officer has the right to handle or examine Bob's property without first getting a warrant. If the serial number were in a place that could have been noted without touching them, it would have been okay under plain view, but it wasn't. The serial was concealed and Officer's suspicions are more prejudicial than probable cause.
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