Plain View Exception to the Warrant Requirement
The plain view exception lets police seize incriminating evidence or contraband they come across, but it is not a free-standing power to go searching.
14. Plain View Exception to the Warrant Requirement
When police conduct a search pursuant to a warrant (or an exception to the warrant requirement), they may seize any incriminating evidence or contraband that is in plain view. 45
- The plain view exception interacts with both searches based on a warrant and those permitted by the automobile exception.
- I.e., when police search an area pursuant to a warrant, they may seize incriminating evidence or contraband that is in plain view—even if not contemplated by the warrant.
- Similarly, if police have probable cause to search a car for particular evidence, they may seize any other contraband or incriminating evidence that is in plain view.
- The incriminating nature of evidence must be “immediately apparent” for the plain view exception to apply.
- The plain view exception also supports police surveillance in public spaces.
- Police may even surveille private spaces (such as the interior of a home) if those spaces are within plain sight of a public space (such as the public sidewalk).
- Police, however, must have a lawful right of access to seize evidence observed through plain view. I.e., when police see incriminating evidence through a window, they must get a warrant or identify a second warrant exception to enter the building to seize the evidence.
- The Supreme Court also allows police to enhance their surveillance in public spaces with technologies that are readily available to the public (such as binoculars or cameras with telephoto lenses).
- But police may not enhance their surveillance with technologies that are not readily available to the public. E.g., the Supreme Court held that surveillance of a private home with a thermal imaging device was an unreasonable search even though police wielding the device were in public airspace. Kylo v. United States, 533 U.S. 27 (2001).
The plain view exception lets police seize incriminating evidence or contraband they come across, but it is not a free-standing power to go searching. It rides on a vantage the police already have lawfully: lawfully positioned, the item's incriminating character immediately apparent, and a lawful right of access to reach it.
- 1The seeing: an officer who is already somewhere they are entitled to be, conducting a search under a valid warrant or under another exception such as the automobile exception, may seize something that comes into view even if the warrant never named it. The incriminating nature of the item has to be immediately apparent: the officer cannot have to move, manipulate, or investigate the object to figure out it is contraband.
- 2The seizing: plain view authorizes the seizure only where the police already have a lawful right of access to the item. Seeing is not seizing.
The same logic supports surveillance. Police may watch what happens in public spaces, and they may even watch private spaces, like the interior of a home, when those spaces are in plain sight from a public spot such as a sidewalk. They may sharpen that view with technology that is readily available to the public, binoculars or a telephoto lens. But technology that is not readily available to the public is a different matter; aiming a thermal imaging device at a private home, even from public airspace, was held to be an unreasonable search.
Seeing is not seizing. Spotting contraband through a window from the sidewalk lets police look, but it does not let them walk in. To enter and seize, they still need a warrant or a separate exception.
Plain view has two gates, and the second one is where points are lost.
Gate one is the seeing: the officer must already be lawfully positioned, conducting a search under a warrant or another exception, and the incriminating nature of the item must be immediately apparent.
No moving or investigating the object to figure out what it is.
Gate two is the seizing: the officer must have a lawful right of access to reach the item.
Seeing is not seizing.
Contraband spotted through a window from a public sidewalk can be looked at, but the officer cannot enter to grab it without a warrant or a separate exception.
On surveillance, the line is the tool: readily available tech (binoculars, telephoto lens) is fine; tech not readily available to the public (thermal imaging of a home) is an unreasonable search.
lawfully positioned + immediately apparent + lawful access to seize.
An officer is executing a valid warrant to search a residence for stolen electronics. While moving through the kitchen, the officer sees, sitting openly on the counter, a clear bag of what is obviously an illegal drug. The warrant says nothing about drugs.
Suppose the officer is standing on the public sidewalk and sees that same bag through a front window. The officer may look, but the officer has no lawful right of access to the interior. Seeing is not seizing. To go in and take the bag, the officer needs a warrant or a separate exception.
From the sidewalk the officer uses a thermal imaging device, not readily available to the public, to detect heat patterns inside the home. That use is itself an unreasonable search, and plain view does not save it.
An option that loosens the immediately-apparent requirement, for example one that lets the officer pick up, open, or examine an item to figure out it is contraband, or one that limits seizures to only the items the warrant named.
The incriminating nature must be immediately apparent without moving or investigating the object, and during a lawful search police may seize in-plain-view contraband even if the warrant did not contemplate it.A 'Yes, the seizure is valid' option resting on the true fact that the officer clearly saw the contraband from a lawful public vantage, such as through a window from the sidewalk.
Seeing is not seizing. Police must have a lawful right of access to seize; observing contraband through a window does not authorize entry without a warrant or another exception.An absolute option saying police may seize anything they can see, or may always enter to retrieve anything in view, or that any device used from a public place is fine.
The exception is bounded: it requires a lawful vantage, an immediately apparent incriminating nature, and a lawful right of access to the item; lawful public position alone does not permit any device or any seizure.An option that treats any sense-enhancing technology as permissible, or that turns on whether the officer merely stood in a public place, ignoring the readily-available line.
Police may enhance public-space surveillance only with technology readily available to the public; technology not readily available to the public, such as thermal imaging of a home, is an unreasonable search.the stem puts an officer in some position, on a sidewalk, inside a home under a warrant, beside a lawfully stopped car, where the officer notices incriminating evidence or contraband, and then asks whether the officer may seize it or whether the observation was lawful.
Gate one, the seeing: is the officer lawfully positioned, and was the item's incriminating nature immediately apparent without moving or investigating it?
If the officer had to handle or examine the object to recognize it, plain view fails.
Gate two, the seizing: does the officer have a lawful right of access to reach the item?
If the contraband was merely seen through a window from outside, the officer may look but may not enter without a warrant or another exception; seeing is not seizing.
And if the observation depended on technology, ask whether that technology is readily available to the public; binoculars and a telephoto lens are fine, but thermal imaging of a home is an unreasonable search.
When the vantage is lawful, the incriminating nature is obvious, and the officer can lawfully reach the item, the seizure stands.
An officer was lawfully inside a residence executing a valid warrant that authorized a search for stolen power tools. While checking a closet for the tools, the officer saw on a shelf a small open dish holding several glassine packets of a white powder that was, on sight, an illegal drug. The warrant said nothing about drugs. The officer did not have to pick up, open, or test anything to recognize the packets as contraband, and seized them. The accused later moved to suppress the packets.
Should the court uphold the seizure of the packets?
Standing on a public sidewalk, an officer looked through the uncovered front window of a house and saw, on a table just inside, what was unmistakably a stash of illegal contraband. Without a warrant and without asking for consent, the officer walked up to the front door, entered the house, and seized the contraband from the table. The officer relied solely on having clearly seen the items from the sidewalk. The accused moved to suppress the seized contraband.
Should the court suppress the contraband?
From a public street, an officer watched a suspect through a camera fitted with an ordinary telephoto lens of a kind sold to the general public, observing activity that was visible through the suspect's open front window. The officer did not enter any private area and used only the magnified view to see what was already exposed to anyone on the street. The suspect later argued that using the telephoto lens turned the observation into an unreasonable search.
Is the officer's use of the telephoto lens a lawful enhancement of public-space surveillance?
An officer had probable cause to search a lawfully stopped car for a stolen laptop and began searching for it. While looking under the passenger seat, where a laptop could fit, the officer saw an unsealed bag of obvious contraband that had nothing to do with the laptop. The incriminating nature of the bag was apparent at a glance, and the officer was searching only places where the laptop could have been. The officer seized the bag, and the driver moved to suppress it.
Should the court uphold the seizure of the bag of contraband?
Suspecting that a home was being used to grow illegal plants under high-intensity lamps, officers parked on a public street and aimed a thermal imaging device at the house to detect heat radiating from inside the walls. The device, which was not the kind of equipment generally available to the public, revealed unusually warm areas, and the officers used that information to support further action. The homeowner challenged the use of the device as an unreasonable search.
Was the officers' use of the thermal imaging device an unreasonable search?