Chapter 53: Plain View
Generally
Summary of rule: Officers may seize evidence without a warrant if they observed it “in plain view” from a place where the suspect could not reasonably expect privacy.[1]
Objectives of rule: The Plain View Rule serves two purposes:
Allow justifiable seizures in private places: While officers do not need a warrant to seize evidence they see in public places, the Plain View Rule permits them to seize evidence in private places if the three requirements (below) are met.
Avoid unnecessary obstacles: When the requirements (below) are met, the suspect’s privacy interest in the property is sufficiently reduced by the overriding needs of law enforcement.[2]
Summary of requirements: Evidence is “in plain view” if (1) officers observed it from a lawful vantage point, (2) they had probable cause to believe it was evidence of a crime, and (3) they had a legal right to access it.[3]
Lawful Vantage Point
: The location from which the officers initially saw the evidence is deemed a lawful vantage point if it would have been unreasonable for the suspect to expect that others could not have seen it.[4] Also see Chapter 59 Standing (Privacy Expectations in Certain Places and Things). The following are examples of lawful vantage points:
Public places: Officers saw the evidence while in a public place.[5]
Suspect’s home: Interior: Officers saw the evidence while they were lawfully inside the suspect’s home via consent, to execute a search or arrest warrant, to conduct a probation or parole search, or because exigent circumstances justified an immediate warrantless entry.[6] See Chapter 19 Exigent Circumstances Searches; Chapter 36 Executing Search Warrants (Scope of Search); Chapter 54 Knock and Talks; Chapter 17 Driveways and Yards: Entering (Looking through windows).
Wandering around: If officers are lawfully inside a suspect’s residence, they may not wander around unless the suspect consents. However, if officers see evidence in plain view, they may walk to and seize it.[7] A further incursion may be permissible if officers saw something that gave them probable cause to believe nearby evidence existed; e.g., officers lawfully inside the home of a woman who had recently stabbed her husband were permitted to follow a trail of blood in plain view that led to a bedroom where the knife was in plain view.[8]
Suspect’s home: Exterior
Walking on normal access routes: Officers may walk to the front door via normal access routes, then knock or otherwise announce their presence. But if no one answers within a reasonable time, any observations they make may be illegal if they loitered on the property or explored the grounds. See Chapter 17 Driveways and Yards: Entering
Walking on a private driveway: Entry onto a driveway (where they saw the evidence) is generally lawful if they used the portion of the driveway that visitors would traverse to access the front door. See Chapter 17 Driveways and Yards: Entering
Watching from neighbor’s property: A neighbor’s property is a lawful vantage point, even if the officers were trespassing.[9] In one older case, however, an observation from a neighbor’s property was deemed unlawful because the officers “had to squeeze into a narrow area between the neighbor’s garage and defendant’s fence” to see the evidence.[10] See Chapter 17 Driveways and Yards: Entering; Chapter 59 Standing.
Use of binoculars, flashlight: A lawful vantage point does not become unlawful merely because officers could not initially see the item without using a common visual aid (such as a flashlight or binoculars), or without bending down or elevating themselves somewhat.[11] Compare highly intrusive visual aids; e.g., evidence inside a high-rise apartment was not in plain view when seen from ~250 yards away using high-power binoculars.[12]
Observation during lawful detention, search: Officers saw the evidence in the course of a lawful detention, arrest, or search.[13]
Observation of effects in hospital: If officers are lawfully present in an area of a hospital (typically an ER), they may seize an item in plain view if they have probable cause to believe it is evidence of a crime; e.g., from an ER hallway, the officer saw and seized bloodied clothing taken from a man just shot during a robbery.[14] Also see Chapter 59 Standing (Privacy Expectations in Certain Places and Things, Hospital rooms).
Observation during computer search: Officers searching computer files may see unlisted data or graphics that constitute evidence of some other crime. Such unlisted evidence is in plain view—and may be copied without a warrant—if discovered while searching a file they were authorized to search. See Chapter 15 Computer Searches.
Observation during pawnshop inspection: Evidence in a pawnshop is in plain view of officers conducting a lawful inspection pursuant to the California Financial Code.[15]
Probable Cause
: Even if officers observed the evidence from a lawful vantage point, they may not seize it unless they have probable cause to believe that it is, in fact, evidence of a crime.[16] Probable cause that an item is evidence of a crime is usually based on one or both of the following:
Based on observation: From the object’s physical appearance and context, officers had probable cause to believe it was evidence of a crime.
Based on smell (“Plain smell”): Based on a distinctive odor and the object’s location, officers had probable cause to believe it was evidence of a crime. See Chapter 4 Probable Cause to Search.
Lawful Access to Evidence
: If officers lawfully observed the evidence from outside a structure, vehicle, or container, they may enter the place or vehicle, or open the container, to seize it only if they also had a legal right to access and inspect.[17]
Executing search warrants: Officers executing a search warrant have a lawful right to access the contents of any place or thing in which at least one listed item may reasonably be found. See Chapter 36 Executing Search Warrants (Scope of Search).
Executing arrest warrant: Officers executing an arrest warrant have a lawful right to enter any place in which the arrestee may be found.
Probation and parole searches: Officers conducting probation or parole searches have a lawful right to access places and things that might reasonably disclose a violation. See Chapter 25 Probation and Parole Searches.
Evidence in vehicles: When officers have probable cause to believe evidence is located in a vehicle, they may enter the vehicle to access it. See Chapter 22 Marijuana Searches; Chapter 31 Vehicle Searches (Probable Cause Searches).
Inspection of containers: If officers have probable cause to believe there is evidence inside a container they saw from a lawful vantage point, they may open the container and seize the evidence.
e.g., OK to record serial numbers of suspected stolen property if the numbers were in plain view, but not OK to manipulate the item to locate the serial numbers.[18]
Exigent circumstances: Officers may access and seize any evidence they see from a lawful vantage point if they reasonably believe the evidence would be lost, destroyed, or compromised if they waited for a warrant. See Chapter 19 Exigent Circumstances Searches.
Notes
[1] USSC:
Payton v. New York (1980) 445 US 573, 587 ["The seizure of
property in plain view involves no invasion of privacy and is
presumptively reasonable."]; Minnesota v. Dickerson (1993)
508 US 366, 375 ["The rationale of the plain-view doctrine is that
if contraband is left in open view and is observed by a police
officer from a lawful vantage point, there has been no invasion of
a legitimate expectation of privacy and thus no 'search'"].
CAL: P v. Bradford (1997) 15 C4 1229, 1295;
P v. Kilpatrick (1980) 105 CA3 401, 408;
P v. Albritton (1982) 138 CA3 79, 85, fn.1.
[2] USSC: Arizona v. Hicks (1987)
480 US 321, 327 [justification for the plain view doctrine "is the
desirability of sparing police the inconvenience and the risk—to
themselves or to preservation of the evidence—of going to obtain a
warrant," edited]
[3] USSC:
Payton v. New York (1980) 445 US 573, 587 ["The seizure of
property in plain view involves no invasion of privacy and is
presumptively reasonable."]; Minnesota v. Dickerson (1993)
508 US 366, 375 ["The rationale of the plain-view doctrine is that
if contraband is left in open view and is observed by a police
officer from a lawful vantage point, there has been no invasion of
a legitimate expectation of privacy and thus no 'search'"].
CAL: P v. Bradford (1997) 15 C4 1229, 1295;
P v. Kilpatrick (1980) 105 CA3 401, 408;
P v. Albritton (1982) 138 CA3 79, 85, fn.1.
[4] USSC:
Illinois v. Andreas (1983) 463 US 765, 771 ["The plain view
doctrine is grounded on the proposition that once police are
lawfully in a position to observe an item first-hand, its owner's
privacy interest in that item is lost."]. CAL:
Guidi v. Superior Court (1973) 10 C3 1, 6 ["the legality of
the seizure of an object falling within the plain view of an
officer is dependent upon that officer's right to be in the
position from which he gained his view of the seized object"];
Horton v. California (1990) 496 US 128, 136 ["It is an
essential predicate to any valid warrantless seizure of
incriminating evidence that the officer did not violate the Fourth
Amendment in arriving at the place from which the evidence could
be plainly viewed."]; P v. Bradford (1997) 15 C4 1229, 1295
["The officers lawfully must be in a position from which they can
view a particular area"]. ALSO SEE:
P v. Albritton (1982) 138 CA3 79, 85, fn.1 ["The 'plain
view doctrine' is intended to provide a basis for making a seizure
without a warrant. By comparison, 'in plain view' is descriptive
of a situation in which there has been no search at all,"
edited.].
[5] USSC: Florida v. Riley (1989)
488 US 445, 449 ["the police may see what may be seen from a
public vantage point where they have a right to be"];
California v. Greenwood (1988) 486 US 35, 41 [officers
"cannot reasonably be expected to avert their eyes from evidence
of criminal activity that could have been observed by any member
of the public"]. CAL: P v. Camacho (2000) 23 C4 824,
834 ["Had [the officers] been standing on a public sidewalk, they
could have observed defendant [in his home] for as long as they
wished."].
[6] USSC: Arizona v. Hicks (1987)
480 US 321 [exigent circumstances entry].
[7] OTHER: US v. Carter (6C 2004)
378 F3 584, 589-90 ["the blunt was in plain view," "there was
nothing improper in [the officer's] decision to take the few steps
to the table [on which the blunt was located].
[8] CAL: P v. Bagwell (1974) 38
CA3 127, 131 ["Having a right to seize evidence in plain sight for
later judicial use, [the officer] had a corresponding right to
closely observe this incriminating indicia of violence for the
same evidentiary purpose. This continuing observation led him to
the far end of the hallway where he, accordingly, had a right to
be. At that point the trail of blood led his eyes to the bedroom
where in plain view was the death weapon."].
[9] CAL: P v. Claeys (2002) 97
CA4 55, 59 ["We can find no California cases, nor does defendant
cite any, where a search has been held invalid under the federal
Constitution because the police trespassed onto property adjoining
a defendant's property."].
[10] CAL: P v. Fly (1973) 34 CA3
665, 667.
[11] USSC: Texas v. Brown (1983)
460 US 730, 740 ["the use of artificial means to illuminate a
darkened area simply does not constitute a search"];
US v. Dunn (1987) 480 US 294, 305 ["the officers' use of
the beam of a flashlight, directed through the essentially open
front of respondent's barn, did not transform their observations
into an unreasonable search"]; On Lee v. US (1952) 343 US
747, 754 ["the use of bifocals, field glasses or the telescope to
magnify the object of a witness' vision is not a forbidden search
or seizure"]. CAL: P v. Chavez (2008) 161 CA4 1493,
1501 ["Officer Leahy merely raised himself approximately three
inches onto his tip toes when he made the observation."];
P v. Superior Court (Stroud) (1974) 37 CA3 836, 839
["looking over the five-foot fence from the neighbor's yard
disclosed no more than what was in plain view"];
P v. Superior Court (Mata) (1970) 3 CA3 636, 639
["Observation of that which is in view is lawful, whether the
illumination is daylight, moonlight, lights with the vehicle,
lights from street lamps, neon signs, or lamps, or the flash of
lights from adjacent vehicles."]; P v. Clark (1989) 212 CA3
1233, 1238 ["The deputies' use of a flashlight to illuminate the
interior of the jacket pocket did not change the plain view nature
of the discovery."]; P v. Arno (1979) 90 CA3 505, 509 ["if
the purpose of the optically aided view is to permit clandestine
police surveillance of that which could be seen from a more
obvious vantage point without the optical aid, there is no
unconstitutional intrusion"]; P v. St. Amour (1980) 104 CA3
886, 893 ["So long as the object which is viewed is perceptible to
the naked eye, the government may use technological aid of
whatever type without infringing on the person's Fourth Amendment
rights," edited.]; Burkholder v. Superior Court (1979) 96
CA3 421, 426 [binoculars merely provided "greater detail"];
P v. Joubert (1981) 118 CA3 637, 646 ["a binocular aided
aerial examination from a lawful altitude does not infringe on a
property holder's constitutional right of privacy"]. OTHER:
US v. Contreras (7C 2016) 820 F3 255, 261 ["the use of
binoculars or lighting to improve the visibility of an object
already in plain view has long been held to be constitutional"];
US v. Elkins (6C 2002) 300 F3 638, 654 ["Any contortions
[the officer] made to peer through the opening did not change the
'plain view' character of his observation" and, therefore, "his
look through the gap was not a search requiring a warrant."];
James v. US (DCC 1969) 418 F2 1150, 1151 [warrant not
required merely because an officer, in order to conduct
surveillance, had to "crane his neck, or bend over, or squat."].
[12] CAL: P v. Arno (1979) 90
CA3 505, 512 ["Here the activity seen through [the officer's]
10-power binoculars within suite 804 was not observable to anyone
not using an optical aid."].
[13] USSC: Texas v.
Brown (1983) 460 US 730, 737, 739 ["the validity of the
officer's initial stop of appellant's vehicle" was not
questioned]; US v. Hensley (1985) 469 US 221,
235 ["Having stopped Henley, the Covington police were entitled to
seize evidence revealed in plain view in the course of the lawful
stop"]. CAL: P v. DeCosse (1986) 183 CA3 404,
410 ["Standing where he had a right to be, the officer was
lawfully entitled to observe, in plain sight, the opened alcoholic
beverage container."]; P v. Sandoval (1985) 164 CA3 958,
963 ["The objects were in plain view and the officer clearly had a
right to be in the position to have that view."]. COMPARE:
US v. Loines (6C 2023) __ F4 __ [2023 WL 118834] [contents
of closed vehicle console were not in plain view].
[14] OTHER: US v. Clancy (6C
2020) 979 F3 1135, 1139 [the officers "could see his bloodied
clothing from the hallway—a public thoroughfare, not a private
space"]. COMPARE: P v. Caro (2019) 7 C5 463, 489
[photographing a suspect's surgery procedure probably not OK].
[15] CAL: Fin. Code§ 21206 ["Every
pawnbroker shall produce his or her records of loans and all
pledged property, for inspection by the following persons:…
(b) Any peace officer or employee designated by the chief of
police or sheriff"]. 9th CIR: G&G Jewelry, Inc.
v. City of Oakland (9C 1993) 989 F2 1093, 1101 ["The
pawnbroker was required by statute to produce the pawned property
for inspection"]; Sanders v.
City of San Diego (9C 1996) 93 F3 1423, 1427 [officer "was
authorized to be on the premises, to inspect the property"].
[16] USSC: Arizona v.
Hicks (1987) 480 US 321, 326 ["We now hold that probable
cause is required."]; CAL: P v. Stokes (1990)
224 CA3 715; P v. Holt (1989) 212 CA3 1200, 1204.
OTHER: US v. Banks (8C 2008) 514 F3
769, 773] ["The third requirement, that the incriminating
character of an item be immediately apparent is satisfied when
police have probable cause to associate with property with
criminal activity."]. NOTE: In Coolidge
v. New Hampshire (1971) 403 US 443, 466 a plurality
of the Supreme Court said that officers may not seize evidence in
plain view unless it was "immediately apparent" that the item was
evidence of a crime. Subsequently, the Court observed that the
term "immediately apparent" was "very likely an unhappy choice of
words, since it can be taken to imply that an unduly high degree
of certainty as to the incriminatory character of evidence is
necessary for an application of the 'plain view' doctrine."
Texas v. Brown (1983) 460 US 730, 741. The
Court then ruled that only probable cause is required. At p. 742.
NOTE: In P v. Clark (1989) 212 CA3 1233,
1238-39, the court ruled that if an item is in plain view, and if
officers have lawful access to it—but not probable cause to seize
it—they may inspect the item for the purpose of trying to
determine if probable cause exists if there is
reasonable suspicion to believe the item constitutes
fruits, instrumentalities, or evidence of a crime. Such an
inspection must be brief and must not constitute "exploratory
rummaging." This ruling is, however, arguably contrary to
Hicks. ALSO SEE: Minnesota v.
Dickerson (1993) 508 US 366, 375 [the requirement that the
object's incriminating character must be "immediately apparent" is
satisfied if officers have probable cause to believe it is
evidence]; P v. Clark (1989) 212 CA3 1233,
1238 ["The phrase 'immediately apparent' means probable cause must
exist to believe the object is evidence"].
[17] USSC:
Illinois v. Andreas (1983) 463 US 765, 771 [the officers'
entry must have "some prior Fourth Amendment justification"];
Horton v. California (1990) 496 US 128, 137 [officer "must
also have a lawful right of access to the object"]. CAL:
P v. Ortiz (1995) 32 CA4 286, 291 ["Before Officer Forsythe
could enter the hotel room to arrest defendant and seize the
tinfoil bindles containing heroin, he needed to have a lawful
right of access to defendant and the heroin."];
P v. Robles (2000) 23 C4 789, 801 ["a police officer is
required to obtain a warrant to enter a residence even if
contraband is clearly displayed in a window and the officer
observes the contraband from a place in which he or she has a
right to be"]. OTHER: US v. Davis (4C 2012) 690 F3
226, 234 ["the lawful access requirement is intended to clarify
that police may not enter a premises to make a warrantless
seizure, even if they could otherwise see (from a lawful vantage
point) that there was contraband in plain sight"]. NOTE: If
the suspect hid the evidence after officers saw it, they may
nevertheless seize it from wherever it was hidden.
P v. Superior Court (Reilly) (1975) 53 CA3 40, 48 ["where
the suspect, in fear of imminent disclosure or arrest, is observed
to secrete an article, which if left in plain sight would have
been subject to seizure, there is no constitutionally unreasonable
search or seizure in retrieving that article"]. NOTE: In
the past, there was a fourth requirement: the officer's discovery
of the evidence must have been "inadvertent." This requirement has
been abrogated. See Horton v. California (1990) 496 US 128,
141. ALSO SEE: P v. Superior Court (Spielman) (1980)
102 CA3 342, 348, fn.1 (conc. opn. Grodin, J.) ["Seeing something
in plain view does not, of course, dispose, ipso facto, of the
problem of crossing constitutionally protected thresholds. Those
who thoughtlessly over-apply the plain view doctrine to every
situation where there is a visual open view have not yet learned
the simple lesson long since mastered by old hands at the
burlesque houses, 'You can't touch everything you can see.'"].
[18] USSC:
Arizona v. Hicks (1987) 480 US 321, 325;
Coolidge v. New Hampshire (1971) 403 US 443, 466 ["the
plain view doctrine may not be used to extend a general
exploratory search from one object to another until something
incriminating emerges"].
NOTE: We doubt that today's Supreme Court would rule that
merely picking up an item that is in plain view constitutes a
search. See the dissenting opinion of Justice O'Connor which we
think makes more sense than Justice Scalia's majority opinion.