Section 9.10 Justification for Seizure: Plain View

• Library: Criminal Practice 2012 Supp

B. (§9.10) Justification for Seizure: Plain View

Law enforcement officers may seize items when they have probable cause to believe that those items are contraband, evidence, or fruits of crime. Although searches and seizures are both thought to be subject to the warrant preference, seizures generally can be made without a warrant based on the doctrine of plain view. An officer who is in a place the officer has a right to be may seize an item that the officer has probable cause to believe is contraband, evidence, or fruits of a crime without a warrant in reliance on this doctrine. See, e.g., Payton v. N.Y., 445 U.S. 573, 587 (1980) (“[t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity”); Horton v. Cal., 496 U.S. 128 (1990).

In Horton, the Court rejected the requirement discussed in Coolidge v. New Hampshire, 403 U.S. 443 (1971), that any discovery made under the plain-view doctrine be inadvertent. The Court noted that, because the plain-view doctrine is, in actuality, a seizure doctrine that does not implicate privacy rights, the inadvertence requirement is unnecessary to adequately protect legitimate Fourth Amendment interests. Horton, 496 U.S. at 128.

It should be clear that the plain-view doctrine never justifies an entry or intrusion to make a seizure; it merely justifies the seizure. If an entry or intrusion is necessary, that entry or intrusion must be independently justified. “What the ‘plain view’ cases have in common is . . . each of them had a prior justification for an intrusion in...