The Fourth Amendment guarantees, among other things, that ‘‘[t]he right of the people ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’’ In Coolidge v. New Hampshire, 403 U.S. 443 (1971), the Supreme Court carved out an exception to the Fourth Amendment’s warrant requirement, holding that ‘‘under certain circumstances the police may seize evidence in plain view without a warrant.’’
Following Coolidge, most lower courts agreed that a warrantless seizure would be upheld under the plain view doctrine when the following four conditions were satisfied:
The police must show that they did not violate the Fourth Amendment in arriving at the place from where the evidence could be plainly viewed. Thus, seizures of items observed in plain view are permissible during the execution of a search or arrest warrant or when a valid exception to the warrant requirement exists.
The evidence must be in plain view, or the police must otherwise have a lawful right of access to the evidence. To this end, a police officer may stand on a public sidewalk and observe incriminating evidence by looking through a window without violating the Fourth Amendment. But the officer would still need a warrant to enter and seize the evidence because the officer’s location on the sidewalk does not give him or her access or authority to seize the evidence observed in plain view.
The incriminating character of the evidence seized must be immediately apparent. Reaffirming Coolidge, in Arizona v. Hicks, 480 U.S. 321 (1987), the Court clarified that this condition is satisfied only if, after an inspection of ‘‘what is already exposed to view,’’ the police are able to determine that the evidence is incriminating. According to Hicks, an officer may not move an object even a few inches without running afoul of the Fourth Amendment’s warrant requirement unless the incriminating character of the item was apparent before the officer moved it.
Most lower courts interpreting Coolidge held that the evidence’s discovery must have been inadvertent. Nearly twenty years after Coolidge and just three years after Hicks, in Horton v. California, 496 U.S. 128 (1990), the Court rejected the inadvertence requirement. Thus, a plain view seizure will now be upheld if the first three conditions noted previously are satisfied.
In Minnesota v. Dickerson, 508 U.S. 366 (1993), the Court expanded the plain view doctrine to include plain touch seizures. The requirements for such seizures are nearly identical to those required for a plain view search. First, a police officer must lawfully be in the position from which he or she touched the evidence. Second, the evidence’s incriminating character must be immediately apparent when touched. Finally, the officer must have a lawful right of access to the evidence. Several lower courts have expanded Dickerson and recognized ‘‘plain smell’’ and ‘‘plain hearing’’ corollaries to the plain view and plain touch doctrines. The ‘‘plain smell’’ corollary has been used most frequently in cases where the smell of marijuana has been immediately apparent to officers lawfully in the marijuana’s vicinity—for example, outside a vehicle transporting large amounts of marijuana—or when officers were conducting a lawful detention of the possessor of marijuana. Likewise, the ‘‘plain hearing’’ corollary has been used in cases where officers were lawfully in the vicinity of incriminating remarks—for example, in an adjacent hotel room.
While courts’ recognition of the plain smell and plain hearing corollaries demonstrates an emerging expansion of the plain view doctrine, discernable limits have already been demarcated. Most significantly, the Supreme Court has held that police officers may not use sense-enhancement technologies not in ‘‘general public use’’ to aid their detection of incriminating evidence. In Kyllo v. United States, 533 U.S. 27 (2001), which rejected the government’s argument that its use of a thermal imager to detect an indoor marijuana cultivation operation was a plain view search, the Court stressed that, until a sense-enhancement technology becomes readily available to the public, individuals’ privacy expectations against the use of such technologies remain protected by the Fourth Amendment’s warrant requirement.
References and Further Reading
- Hilber, Katherine A., Casenote, Criminal Law—Fourth Amendment—Search Under ‘‘Plain Touch’’ Corollary to ‘‘Plain View’’ Must Stay Within the Confines Under Which It Originated, University of Detroit Mercy Law Review 71 (Spring 1994): 713–731.
- Kamisar, Yale, Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, eds. Modern Criminal Procedure: Cases, Comments, and Questions, 11th ed. St. Paul, MN: West, 2005.
- Sorenson, Quin M., Comment, Losing a Plain View of Katz: The Loss of a Reasonable Expectation of Privacy Under the Readily Available Standard, Dickinson Law Review 107(1) (Summer 2002): 179–207.
- Wallin, Howard E., Plain View Revisited, Pace Law Review 22(2) (Spring 2002): 307–345.
Cases and Statutes Cited
- Arizona v. Hicks, 480 U.S. 321 (1987)
- Coolidge v. New Hampshire, 403 U.S. 443 (1971)
- Horton v. California, 496 U.S. 128 (1990)
- Kyllo v. United States, 533 U.S. 27 (2001)
- Minnesota v. Dickerson, 508 U.S. 366 (1993)
See also Arizona v. Hicks, 480 U.S. 321 (1987); Coolidge v. New Hampshire, 403 U.S. 443 (1971); Kyllo v. United States, 533 U.S. 27 (2001); Minnesota v. Dickerson, 508 U.S. 366 (1993); Warrant Clause (IV); Warrantless Searches