From the December 2009 Idaho Observer:

The Plain View Exception- Criminal Law Part VI

The Founding Fathers meant to protect Americans from arbitrary, general searches which plagued the English through something called a Writ of Assistance; this writ allowed an officer to search however he wished to find evidence of British tax law violations. The Fourth Amendment to the United States Constitution was to protect privacy against a blanket authority to search through requirement of a warrant to search or seize persons or things. Katz v U.S., 389 U.S. 347, 357 1967, Johnson v U.S., 333 U.S. 10, 14 (1948). The warrant must state with particularity what is to be searched or seized. Marron v U.S. 275 U.S. 192, 196 (1927); Coolidge v New Hampshire, 403 U.S. 443, 467 (1971).

Though police must, whenever practical, obtain advance judicial approval of searches and seizures through the warrant procedure, numerous exceptions to this requirement have been created. Terry v Ohio, 392 U.S. 1, 20 (1968). One of the myriad of exceptions, known as the “plain view” exception, was born by the ruling in Coolidge, supra at 465.

In order for an item to be seized without a warrant through the plain view exception, certain criteria must be met: 1) the object seized must be in “plain view,” 2) the officer must be legally present where the object can be plainly seen, 3) the incriminating nature of the object must be immediately apparent, and 4) the officer must have a right of access to the object. Horton v California, 496 U.S. 128, 136-37 91990).

Let’s look specifically to the “immediately apparent” requirement, which exists to protect against a lawful particularized search from becoming an unlawful exploratory search. See Arizona v Hicks, 480 U.S. 321, 334 (1987).

To determine whether something is “immediately apparent” we have a three-part test U.S. v McLevain, 310 F.3d 434, 441 (6th Cir. 2002): 1) a connection between the item seized and the items particularized in the warrant, 2) whether the appearance of the object gives probable cause to believe the item is associated with criminal activity, 3) whether “the executing officers can, at the time of discovery of the object, on the facts available to them, determine probable cause of the object’s incriminating nature.” The courts have stated an object’s incriminating nature is not immediately apparent if it “appears suspicious but further investigation is required to establish probable cause as to its association with criminal activity” and an officer must recognize the incriminating nature of an object as a result of his “immediate” or “instantaneous sensory perception.” U.S. v Garcia, 496 F.3d 495, 511 (6th Cir 2008).

In Hicks, supra, police viewed stereo equipment with suspicion, but not probable cause, to believe it was stolen. An officer moved the stereo to see serial numbers, which he wrote down. The court held that the officer engaged in an investigatory search when moving the stereo, thus, it was not immediately apparent to be incriminating evidence. No instantaneous sensory perception means no plain view exception.

The remedy is said to be through the exclusionary rule which mandates suppression of illegally seized evidence. Mapp v Ohio, 367 U.S. 643, 657 (1961). This is a judicially created rule. The existence of a rule does not mean it is consistently followed, especially where federal review of Fourth Amendment claims arising from a state court conviction are concerned. If relief is denied we must continue to request review if ever the reality of liberty is to be known to us.

Stay tuned… more discussions on the way.
Sal Salerno
Toledo, Ohio