Plain view doctrine

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The plain view doctrine allows an officer to seize without a warrant, evidence and contraband found in plain view during a lawful observation.

For the plain view doctrine to apply for discoveries, three criteria must be met:

1. the officer is where he has a legal right to be,
2. ordinary senses must not be enhanced by advanced technology, and
3. any discovery must be by chance.

In order for the officer to seize the item, the officer must have probable cause to believe the item is evidence of a crime or is contraband. The police may not move objects to get a better view. In Arizona v. Hicks 480 U.S. 321 (1987), the officer was found to have acted unlawfully. While investigating a shooting, the officer moved, without probable cause, stereo equipment to record the serial numbers. The plain view doctrine has also been expanded to include the sub doctrines of plain feel, plain smell, and plain hearing.^[1]

In Horton v. California 496 U.S. 128 (1990), the court eliminated the requirement that the discovery of evidence in plain view be inadvertent. Previously, "inadvertent discovery" was required leading to difficulties in defining "inadvertent discovery." A three-prong test is now used. The test requires the officer to be "engaged in lawful activity at the time," "the object’s incriminating character was immediately apparent and not concealed," and "the officer had lawful access to the object and it was discovered accidentally."^[2]

[edit] References

1. ^ Retrieved August 14, 2006, from FindLaw: U.S. Constitution: Fourth Amendment: Annotations pg. 4 of 6 Web site: http://caselaw.lp.findlaw.com/data/constitution/amendment04/04.html
2. ^ O'Connor, T (05/15/06). Retrieved August 14, 2006, from SEARCH AND SEIZURE: A GUIDE TO RULES, REQUIREMENTS, TESTS, DOCTRINES, AND EXCEPTIONS Web site: http://faculty.ncwc.edu/toconnor/405/405lect04.htm

[edit] See also

1. RayMing Chang, Why the Plain View Doctrine Should Not Apply to Digital Evidence, 12 Suffolk Journal of Trial and Appellate Advocacy 31 (Spring 2007)

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