Plain View Searching

• Author: By Captain John Rintamaki
• Pages: 02

I. INTRODUCTION

Rules for the collection of criminal evidence have been evolved for a variety of reasons, some rules are directed towards assuring high quality evidence at the trial proceeding itself, thus hopefully securing a higher quality trial. Other rules, however, are designed to control the conduct of the evidence gathering process

EO that other interests of society will be protected. One such interest of society is privacy. The 4th Amendment to the US Constitution proscribes any "unreasonable searches" and through court decision. the meaning of "unreasonable" has been carved out. In general, only incursions absolutely necessary to a criminal prosecution are allowed. To this end, the 4th Amendment requirement of probable cause for the issuance of a warrant by an impartial magistrate has been strictly construed. Evidence, however, is sometimes gathered in a manner outside the ambit of the search warrant mode, and, in some circumstances, is as admissible as if all technical requirements of the traditional evidence gathering process were met. It is one of these techniques of discovery, the plain view search, which will be discussed in this article.

A plain view search may be the accidental discovery of evidence by a person who innocently and with no forwarning comes across it. Examples are many: a person finding abandoned drugs on the street; a person looking for an address of a house, seeing stolen goods in the next yard; a policeman upon invitation, entering a house and seeing marihuana; or a commander, walking through the barracks, seeing a stolen item. In such situations

*This article IS adapted from l e author's thens prepared as 8 member

of the 20th Advanced Class, the Judge Advocate General's Sehwl, Charlotteaiilie, Va. The opinions and ~onelu~ionspresented herein are those of the author and do not meeesaniy represent the views of the Judge ldvoeate General's School or any other g~vernmental agene?.

**JAGC, US Army: HQ, US Army Aviation System Command, St. Louis. B.B.A., 1964, University of Michigan: J.D.. 1967, University of Michigan Law School: member af the bar of the Supreme Covrt of Michigan and the U.S. District Court, Eastern Diatriet, Michigan.

In so doing. however, the plain view search doctrine was uncovered and substantially delineated by the Court.

This article will analyze cases including applicable military cases on a11 aspects of the plain view doctrine to provide specific guidelines for the practitioner. Thus, a case-by-case analysis will often be helpful. Federal civilian and court-martial cases,' for the purposes of this article will be treated 8s one because nosignificant difference between the case law of plain view in the two jurisdictions can be found.'

11. THE PLAIN VIEW SEARCH

The seizure of evidence ordinarily arises in the following circumstances: The police, or some other enforcement agency, find themselves, by design or chance, in a spot from which they ob-serve criminal evidence. They are aware of the recent crimes in the area and the contraband taken, In addition, because of their training and experience, they can recognize other items of contraband or evidence (such as marihuana, sawed-off shotguns. and the like) when they see them. Questions cross their minds: May they seize it? Do they need a search warrant? May they arrest a person connected with the seen item? These questions are not easy to answer. The penalty for the wrong answer, assuming that the evidence is seized, is that the evidence is inadmissible. A etudy of the cases is in order to determine the circumstances in which seizure by the police is permissible.

A. PLACE FROM WHICH THE VIEW MAY BE MADE

The view on which the seizure ia based, must be innocent. A survey of the c a w reveals that the place from which the view is made often controls the admissibility of the item seized. I. Publio Land. If the viewer is on public land such as streets, highvays, or sidewalks, the view leads to a lawful seizure.' If

'Moreover, rahlie courtamartid exist by virtue of Article I of the United States Constitution and federal eourte, by Article 111, there le Bseheme of mutuality in several aieas, including evidence mattern.

The baaie military rule for testing the validity of aearehes end SeiNrea is set forth in para~raph 152 MCM 1969: "Evidence is inadmissible against the accused: If it wae obtained ad a result of an unlawful search. . . ."

While several examples of lawful searches are set forth, one must look to paragraph 137 MCM 1969 for the complete answer. "Sa far 811 not other-wise prescribed in thja manual, the rules of evidence Beneraliy recognized in the trial of criminal ca8ea in the United States district court8 , . , will

the evidence itself is an the public land, it is seizable whether or not a prior view occurred.# Evidence located in a private piace may lawfully be seized on the probable cause supplied by the observation. 2. Quasi-public land. In this category rest lands ordinarily open to the public such as lobbies of hotels, stores, and other commercial areas, and areas ordinarily private, but held open far the public, such as common passageways or corridors of hotels or apartment buildings. Nay police or other viewers lawfully enter io view without anyone's consent? The courts have held they may. Thus, revenue agents were able to enter upon a cammon auto driveway to view a chicken coop full of illegal alcohol; and federal agents could use the common passageway of several apartments to view the disposal of narcotics.& In addition, the police or others, when in a commercial shop such as a restaurant or valet shop, may look through open doors. If they see contraband, such as illegal lottery materiai, they may seize it.O In brief, a view made from a place where anyone may lawfully enter is not constitutionally objectionable. S. Private places. Ordinarily, before one may enter a private place to search and seize, B valid search warrant must exist. However, the courts have held that under a variety of circumstances, police may validly be in a private place without a warrant. Once lawfully in an area, they may seize evidence they Bee, What, then, are the "acceptable" reasons for entry?

The first and most obvious is the invitation to enter. In Davis

9, Gnited States.lo the police who suspected Davis of drug transactions, went to his house to talk with him. They had na plan to arrest or to search Davis. Upon identifying themselves at the door, the police were invited in by Davis' 8 year old daughter. As soon as the police entered, they saw a wastebasket on the floor full of marihuana. They seized the marihuana and arrested Davis for possession of marihuana. The court held that police may ask to talk to a man at his house at reasonable times and if invited in, do not have to close their eyes. In United States 21.Conlon," the question of who can give consent was considered. The observation was ultimately made in a garage rented by

I ,A

-Safarik V. United States, 62 F.2d 592 (8th Cir. 1933). 'Polk V. United Staten. 314 F.2d 837 (9th Cii. 1963). 'Fisher V. United States, 206 F.2d IO2 (DC Cir 1963). "327 F.2d 301 (9th Cir. 1964).

"14 U.S.C.M.A. 54, 33 C.M.R. 296 (1963)

.I.

PLAIN VIEW

Conlon. A lady rented a house next to the garage and both she and the rental agent from whom she rented the parcel thought it included the garage. When she was entering the garage after sawing the lack off, a burglar alarm went off. She called the local police to assist in shutting the alarm off, They saw stolen property, called the OSI, and a conviction was obtained and upheld even though the lady was not empowered to give consent to anyone.

While in Conlon the Court of Military Appeals approved of the wrong person giving consent, United States v. Garlieh presents a narrow view of rightful consent wrongly given, and probably overrules Conlon. In Garlich, the accused bought a non-operating auto from Mrs. A. The car was in the physical possession of a mechanic who was to repair the car.. Several friends of the accused became suspicious of the accused's conduct, and went outside to look into the car on the mechanic'a property. They saw miscellaneous property through the window but couldn't recognize any of it as stolen. They returned to their ship and told the Officer of the Day who appointed the Master at Arms to investigate. The Master of Arms got permission to enter the car from iifrs, A. and from the mechanic who was going to work on the car. He entered and seized the miscellaneous property which turned out to be stolen. Garlicb was later convicted of larceny. The conviction was set aside as the Court held that the Master at Arms was B trespasser. It suggested that Nrs. A. could have lawfully entered the car to secure additional documents necwary to complete the sale, and that the mechanic could lawfully have entered the car for repair, but neither could lawfully have been in the ear for any other purpose. Thus, they could not authorize anyone else to do what they could not do, and the Master at Arms was a trespasser. The Court opined that if either Xrs. A. or the mechanic, and, I presume, an agent of either, were in the car for one of the restricted but legitimate purposes, and in the course of that business saw Contraband, then that contraband would have been properly seizable and admissible.

If the police walk up to B house using the regular sidewalk, they may seize evidence on the ground next to the sidewalk and use that evidence at the trial and as grounds for the arrest. In Cnited States o. Ellison," the police were aware of a drugstore robbery in which narcotics and cigarettes were taken. Since the modu operandi used in the robbery matched that used by

"15 U.S.C.M.A. 362, 35 C.I.R. 334 (1965) "206 F.2d 476 (DC Cir. 1953).

60 MILITARY LAW REVIEWEllison at some prior time, the police decided to talk to Ellison. At the time of the visit to Ellison, the police did not intend to arrest him, or search or seize. They were...