Drug, Guns, & Money: The Plain View Doctrine – When can police seize with or without a warrant?

Alfonso Gambone
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Alfonso Gambone is a Philadelphia criminal defense attorney dedicated to protecting your rights.

Searches made without a search warrant (warrantless searches) are presumed unreasonable and therefore unconstitutional in Pennsylvania, New Jersey, and every other jurisdiction in the United States. There are, however, exceptions to warrantless searches and one of the most major exceptions is the plain view doctrine. The plain view doctrine allows police or law enforcement to seize evidence if the property or item provides the officer with probable cause because it is either contraband (guns, drugs, drug paraphernalia) or is thought to contain contraband. If the officer does seize the item, however, he must be able to explain why the item was seized without the warrant. In the case of an illegal drug, controlled substance, illegal firearm or gun this may be obvious but in the case of alleged drug paraphernalia (Ziplock bags, Scales, container) this may be more difficult.

Originally, the plain view doctrine served as a supplement to an otherwise legal search in which a police officer was acting lawfully under the Fourth Amendment with or without a search warrant. The concept of plain view supplemented other legal doctrines such as hot pursuit, searches incident to lawful arrest, an inventory search, or some other legitimate reason for the federal government’s or state’s presence within a person’s home or car. The Supreme Court, however, in the case of Horton v. California clarified the meaning of the doctrine and now there is no requirement that the illegal item be found inadvertently during the course of an otherwise legal search.

The Court in Texas vs. Brown also ruled that a police officer didn’t have to see an item that was immediately apparent to be criminal but one that the officer believed was or contained contraband. The Court went on to say in Arizona v. Hicks that plain view and a right to seize without a warrant is based on a sum of all of the information available to the officer and the court equated it to a “light bulb” going off in the mind of the officer.

The plain view doctrine wouldn’t apply where the officer saw, for instance, a metal object partially sticking out of the bag but couldn’t articulate that it was a gun. The doctrine also wouldn’t apply if the officer saw an object that he believed was stolen but had no reason other than his hunch or guess that it was stolen (i.e. a new TV set or stereo). There are cases however where courts have ruled that the seizing of luxury items is permissible where the prosecution established a “logical nexus” between the items seized and the crime being investigated (i.e. new TV and theft).

The burden of proof is always on the prosecution to prove the plain view doctrine applies. Even if an illegal item is found in plain view during a search of a home or a car, those items would be deemed inadmissible if the court found that the stop prior to the search was illegal (traffic stop) or the search was made without probable cause (bad warrant). This is why a motion to suppress evidence is so important because it can negate evidence even if it is found in plain view. Motions to suppress also deal with probable cause to arrest and, again, if a court finds that there wasn’t probable cause to arrest someone; evidence found after that arrest, in plain view (a protective sweep of the home) would also be inadmissible in court.

Remember that the item doesn’t have to be contraband and the prosecution is only required to meet the evidentiary standard necessary to satisfy probable cause (by the preponderance of the evidence as opposed to guilt beyond a reasonable doubt). For more information on probable cause, reasonable suspicion and illegal searches and seizure I encourage you visit my free download section.

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