What Constitutes/Plain View
Category > What Constitutes/Plain View
Police could properly seize a package that smelled like marijuana but could not search the package without a warrant.Defendant sent a package that smelled like marijuana and Fed Ex employees notified police. The subsequent warrantless search of the package violated the Fourth Amendment. While a container’s mobility may constitute an exigent circumstance sufficient to justify a warrant less seizure, it cannot alone justify a search once the package is seized. The officers should have obtained a warrant to search the package. The prosecution on appeal also argued the search was justified by plain smell, similar to the plain view doctrine, but that issue was forfeited by the DA’s failure to raise it during the suppression hearing.id: 23228
A warrantless search cannot be justified based on smell alone.Defendant consigned a sealed package to Federal Express for shipment. The package reeked of marijuana. Fed Ex notified the police who seized the package and later opened it at the police station. The police did not seek a warrant even though no exigent circumstances existed at the time of the search. However, the warrantless search was not justified based on smell alone, and smelling something is different from seeing something. The trial court erred in denying the motion to suppress. id: 22452
The downloading of data from the vehicle’s sensing and diagnostic module following the fatal vehicle-pedestrian collision violated defendant’s Fourth Amendment rights.Defendant was convicted of vehicular manslaughter. The trial court erred in denying his suppression motion because he had a reasonable expectation of privacy in the data contained in his vehicle’s sensing and diagnostic module (SDM), also referred to as an event data recorder, and the downloading of the data from the SDM was a search not supported by probable cause. The download occurred long after the accident, and was done at the request of the DA’s office by police officers who believed no relevant data would be found.id: 22038
Supreme Court says using device to detect heat coming from home was a "search."Officers were suspicious that defendant was growing marijuana in his home in a triplex, so they used a thermal imaging device to scan the triplex to see if the heat emanating from it was consistent with the high intensity lamps typically used to grow marijuana indoors. The scan showed that defendant's garage roof and a side wall were hotter than the rest of his home and warmer than neighboring units. Based in part on this, a magistrate judge issued a search warrant, and the officers found marijuana. In <i>U.S. v. Kyllo</i> 190 F.3d 1041 (9th Cir. 1999), a divided Ninth Circuit panel held that using the device was not a "search." The Supreme Court granted certiorari, and in a 5-4 opinion written by Justice Scalia, the Supreme Court reversed, holding that "where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." Based on this test, the information obtained in this case by the thermal imager was a product of a search, even though it only detected heat radiating from the home's external surface.id: 16355
Police roadblock into which the decedent crashed was a Fourth Amendment seizure.In this civil suit under 42 U.S.C. 1983 the plaintiffs alleged that the police placed an 18-wheel tractor-trailer across a two-lane road, and effectively concealed this roadblock by placing it unilluminated behind a curve while blinding approaching vehicles with the lights of a police car. The decedent, attempting to elude the police in a stolen car during a 20-mile high-speed chase, crashed into the roadblock and was killed. The Supreme Court, per Justice Scalia, unanimously held that the roadblock constituted a Fourth Amendment seizure. The case was remanded for consideration as to whether the seizure was unreasonable.id: 11108
Supreme Court holds eviction from mobile home park was a seizure under Fourth Amendment.Rather than await judgment in their eviction action, the owners of a mobile home park chose to evict a family by forcibly removing their mobile home, as deputy sheriffs stood by to forestall any possible resistance. In a unanimous opinion written by Justice White, the Supreme Court held that the seizure and removal of the mobile home implicated Fourth Amendment rights. The court said that this case gave new meaning to the term 'mobile home.' We fail to see how being unceremoniously disposed of one's home in the manner alleged to have occurred here can be viewed as anything but a seizure involving the protection of the Fourth Amendment.id: 11112
Supreme Court strikes down checkpoint whose purpose was to find unlawful drugs.In a 6-3 opinion written by Justice O'Connor, the Supreme Court held that a highway checkpoint program whose primary purpose as the discovery and interdiction of illegal drugs violated the Fourth Amendment. The majority distinguished <i>Michigan Dept. of State Police v. Sitz</i>, 496 U.S. 444 (1990), and <i>U.S. v. Martinez-Fuerte</i>, 428 U.S. 543 (1976), which upheld the constitutionality of brief, suspicionless seizures at highway checkpoints for the purpose of combating drunk driving and intercepting illegal immigrants. The court said that stopping a vehicle constitutes a seizure but walking a narcotics-detection dog around the exterior of each car did not transform the seizure into a search. The majority cautioned that its holding "does not impair the ability of police officers to act appropriately upon information that they properly learn during a check point stop justified by a lawful primary purpose, even where such action may result in the arrest of a motorist for an offense unrelated to the purpose." Finally, the court cautioned that "the purpose inquiry in this context is to be conducted only at the programmatic level and is not an indication to probe the minds of individual officers acting at the scene." Chief Justice Rehnquist dissented, joined by Justices Thomas and in part by Justice Scalia.id: 15058
Warrantless use of a thermal imaging device to scan a private residence constitutes an unreasonable search.A warrantless scan made with a thermal imaging device of a private dwelling constitutes an unreasonable search within the Fourth Amendment of the United States Constitution.id: 11116
Officer's activation of the pager's display mechanism constituted a search but the possibility of losing evidence justified the warrantless search.While the defendant was being booked on charges of possession of cocaine for sale, his pager audibly signalled on at least 20 occasions that it had received messages. Following each signal, the booking officer pushed a button on the pager which caused the caller's telephone number to be displayed on the screen. The officer's activation of the pager's display mechanism constituted a search within the meaning of the state and federal constitution. However, the very real possibility that the evidence might be lost if not timely retrieved created an exigent circumstance necessitating the officer's immediate action. Given this exigency, the officer was justified in immediately retrieving the numbers without first obtaining a search warrant.id: 11104
Supreme Court holds testing pregnant mothers for cocaine was unreasonable search without consent.In an effort to deter pregnant women from using cocaine, a South Carolina hospital offered to cooperate with the city in prosecuting mothers whose children tested positive for drugs at birth. A task force made up of hospital representatives, police, and local officials developed a policy for identifying and testing pregnant patients suspected of drug use. The policy contained police procedures and criteria for arresting patients who tested positive and prescribed prosecutions for drug offenses or child neglect, depending on the stage of the pregnancy. In a 6-3 opinion written by Justice Stevens, the Supreme Court held that the hospital's performance of a diagnostic test to obtain evidence of a patient's criminal conduct for law enforcement purposes was an unreasonable search where the patients did not consent for the test to be used for this purpose. The majority held that the state's interest in deterring pregnant women from using cocaine could not justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant. Justice Kennedy concurred in the judgment. Justice Scalia dissented, joined in part by Chief Justice Rehnquist and Justice Thomas..id: 15131
Supreme Court holds officer's manipulation of carry-on luggage was unreasonable search.Defendant was a passenger on a Greyhound bus that was stopped for an immigration inspection at a Border Patrol checkpoint in Sierra Blanca, Texas. The immigration inspector satisfied himself that all the passengers were lawfully in the United States, and then walked toward the front of the bus squeezing the soft luggage in the overhead bins. When he squeezed defendant's bag, he felt a "brick like" object. Defendant agreed to allow the agent to open the bag, and the agent discovered a "brick" of methamphetamine. In a 7-2 opinion written by Chief Justice Rehnquist, the Supreme Court held that the agent's physical manipulation of the carry-on bag was an unreasonable search. When a bus passenger places a bag in an overhead bin, he expects that other passengers or bus employees may move it for one reason or another, but he "does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner." Justice Breyer dissented, joined by Justice Scalia.id: 15055
Updated 3/4/2024Police did not conduct a search when they accessed streetlight camera footage maintained by the city.Defendant argued the police conducted a warrantless search when they accessed streetlight camera footage maintained by the city. However, the police did not conduct a “search” under the Fourth Amendment because defendant had no reasonable expectation of privacy when using public streets and sidewalks in a manner readily observable to passersby.id: 28196
Supreme Court says reasonable suspicion not necessary for dog to be used during traffic stop.Police officers stopped defendant for speeding. Immediately after the stop, while one officer was writing defendant a speeding ticket, another officer came to the scene and walked a drug-detection dog around defendant's car. The dog alerted to the car, and a subsequent search revealed marijuana. The state courts held that in the absence of some reasonable suspicion, police officers could not use a drug-detecting dog during a routine traffic stop. The Supreme Court reversed, finding that a dog sniff during a legal traffic stop that reveals no information other than the location of a substance that no individual has the right to possess does not implicate legitimate privacy interests.id: 20124
The DNA testing of saliva defendant deposited on the mouthpiece of a preliminary alcohol screening device did not constitute a search. Defendant argued that testing the mouthpiece of the PAS device for DNA was a search that could not be conducted without a warrant under the Fourth Amendment. However, the test was not a search because defendant abandoned any privacy right he had in the saliva he deposited on the police device.id: 22462
Testing the key in the front door lock did not violate the Fourth Amendment and the information gained from the testing could be considered in applying the independent source doctrine.Police officers made a warrantless entry into 321 Sanford using a key retrieved from the abandoned Volkswagen. Defendant argued that testing the key in the lock was a search that could only be performed pursuant to a warrant. Assuming that the key insertion was a search, it was based on reasonable suspicion and served a legitimate investigative purpose (confirming that defendant had access to 321 Sanford). The testing was therefore not an unreasonable search even though it was not authorized by a warrant and even if police did not have probable cause to believe there was evidence in the house before inserting the key in the lock. The information could be considered in determining whether the warrant issued after the illegal entry was supported by probable cause. id: 22470
Dog sniff of truck bed was proper where the dog was well-trained and the alert justified a search of the backpack and the dog’s subsequent sniff of the pickup truck’s bed.A well-trained detection dog’s sniff of the exterior of a pickup truck does not constitute a search for Fourth Amendment purposes. Defendants argued the prosecution failed to prove the dog used in the present case was reliable. Contrary to the defendant’s claim, no evidence of the dog’s success rate was required. Morever, the alert from the dog established probable cause to search the backpack found in the truck. Finally, the dog did not exceed the allowable scope of a dog sniff by putting his paws on the pickup truck and sniffing inside the bed of the truck. This was an instinctive action which followed the original detection from a point outside of the truck. id: 22318
The DNA testing of a discarded cigarette butt was not a constitutionally protected “search”.Defendant voluntarily discarded a cigarette butt by tossing it onto a public sidewalk. Police then collected and DNA tested the item which identified defendant as a suspect in an ongoing criminal investigation. The collection and testing of the cigarette butt was not a search under the Fourth Amendment since defendant had no reasonable expectation of privacy in the discarded item.id: 21877
Police observations from a private driveway in a rural area did not violate the “curtilage” rule.Defendants were convicted of cultivating marijuana. They argued the police who conducted the warrantless surveillance of their property intruded upon the curtilage of that property in violation of their Fourth Amendment rights. However, the police made their observations from the driveway of a property in a rural area. The evidence did not show the area of the driveway was within an enclosure surrounding the residence, although they did enter through “an opening in a fence.” Finally, no steps were taken to protect the residence from observations made from the driveway. The trial court properly found the area searched was outside the curtilage of the property.id: 21936
Police use of night vision goggles did not constitute a “search” in violation of the Fourth Amendment.Police use of night vision goggles to aid their observations of the house did not constitute a “search” for Fourth Amendment purposes. Unlike thermal imaging devices, night goggles may be purchased by the public, and do not penetrate walls, detect something that would otherwise be invisible or provide information that would otherwise require physical intrusion. id: 21937
The officer’s observation of the gun by looking over a six-foot fence did not constitute a search and his entry into the yard to retrieve the gun was justified by exigent circumstances.The officer investigating a domestic disturbance, got no response at the front door of the house, and went to the side gate attempting to contact the defendant. From there, the officer standing on his toes and using a flashlight, looked over the six-foot wooden fence and saw a gun next to the sliding glass door. The officer’s observation from over the fence did not constitute a search since he did not violate the defendant’s reasonable expectation of privacy. Moreover, his subsequent entry into the yard to retrieve the revolver was justified by exigent circumstances, especially given the officer’s knowledge that a seven year-old child lived in the residence.id: 20291
There was no search of the minor's gym locker within the meaning of the Fourth Amendment since the students only had an expectation of privacy in the lockers while they were in PE class and the minor had been removed from PE class before the items were removed from the locker.The minor argued an anonymous tip could not provide a reasonable suspicion for a search of his locker by school officials. However, the locker in question was a gym locker in which students were permitted to store their belongings only while they were in PE class. Because the minor had been removed from his PE class, he had no reasonable expectation of privacy in the sense that his personal belongings could remain in the gym locker. The officers' actions in directing the minor to remove his objects from the locker was not a search of the locker, it was simply an order that he comply with a known school rule. It was irrelevant that the police rather than the minor actually removed the items from the locker.id: 18020
Search was proper where there was a nexus between the items discovered and criminal activity, though not necessarily the criminal activity mentioned in the search warrant.he search warrant authorized the search of defendant's residence for evidence of racketeering activities and authorized the seizure of various documents. The search produced documents as well as drugs and firearms. The trial court erred by suppressing the seized items on the ground there was no nexus between them and the items mentioned in the search warrant. However, such a nexus is not required. Instead, the required nexus is that between the item discovered and a criminal activity, though not necessarily the criminal activity denominated in the warrant. The record did not suggest the officers searched areas unlikely to contain documents, or randomly seized items. Moreover, the items were properly seized under the plain view doctrine. Because the warrant authorized a search for documents, the officers searched the home, car and motorhome, and in doing so, looked in drawers, closets, shelves, and containers.id: 16721
Police did not violate defendant's Fourth Amendment rights by entering a neighbor's yard without permission and observing marijuana growing in his backyard by looking over an adjoining fence.Defendant argued the police violated his Fourth Amendment rights by entering his neighbor's yard without permission and observing the marijuana plants growing in his backyard by looking over an adjoining fence. However, defendant's rights stopped at his backyard fence because the plants were visible from his neighbor's property and he had no reasonable expectation of privacy in what could be seen from there. Thus, the search did not violate his constitutional rights.id: 16742
Placement of electronic tracking device under defendant's car was not a search and would have been otherwise justified by defendant's parole search condition.Defendant argued the trial court erred in denying his motion to suppress evidence of his location obtained from installation of an electronic tracking device on the undercarriage of his truck. However, defendant was on parole and subject to a standard search condition which authorized a warrentless search of defendant, his residence, and his property. Moreover, the detective who walked up the driveway and placed the tracking device under the car did not violate defendant's reasonable expectation of privacy, and therefore his conduct did not amount to a search.id: 16610
From an open field Police observed marijuana growing under a tarp behind defendant's trailer in a remote area.Acting on a tip from a confidential informant, an officer observed marijuana plants being grown under a green tarp behind defendant's trailer The officer's observations were made from an area outside of the curtilage - which is an "open field" for purposes of the Fourth Amendment. Thus, it was made from a vantage point the officer had a right to be. Moreover, the intentional placement of the marijuana in a secluded area of an open field (protected by certain natural barriers) did not demonstrate defendant's reasonable expectation of privacy.id: 15639
Detention was not unduly prolonged where officer ordered defendant out of the car following a traffic stop, and the officer properly seized the baggie found in plain view.Defendant argued he was subjected to an illegal or unreasonably prolonged detention. However, defendant was detained for expired registration tags and told the officer his driver's license was suspended. He thereafter consented to a search of the car. Once defendant was ordered out of the car, the officer standing in a lawful position saw the baggie containing drugs in plain view, and was justified in seizing it.id: 15614
Belated, warrantless seizure of items from defendant's property stored in the jail property room did not constitute a search.A belated, warrantless seizure of items from defendant's property room did not violate the Fourth Amendment. When the officer opened the plastic bag he was already aware the rings were inside by virtue of the inventory prepared at the time of booking. Therefore, the officer did not conduct a search, he merely retrieved items, lawfully obtained, that law enforcement knew were in its possession.id: 14922
Because the officer was taking the juvenile into protective custody lawfully, he was entitled to follow her around the house as she gathered her things.Officer went to appellant's house to take a juvenile pregnant girl into protective custody. She asked to get her things and the officer followed her around the house. Because the officer took the girl into custody lawfully, he was entitled to keep her in his sight. Anything he observed while doing so was admissible in evidence.id: 11102
Monitoring of a beeper placed in the stolen bank deposit bags by a private party did not violate the Fourth Amendment.Defendants burglarized a Payless Drug Store and made off with bank deposit bags containing approximately $14,000. Unbeknown to them, Payless had installed an electronic beeper in the bag which transmitted a signal enabling the officers to track the stolen property. Because the beeper was placed in the bags by a private party, Payless, and not a government agent, there was no search for Fourth Amendment purposes.id: 11103
Officer's asking the truck driver to see his hay pick up order did not convert the lawful detention into a search.When a truck driver is lawfully detained for an unrelated purpose, an officer's request to see his load order for hay is a minimal intrusion into the truck driver's privacy. While transportation of hay is less regulated than the alcohol or firearm industry, in light of the theft problem in the Imperial Valley, it is sufficiently regulated to justify the minimal intrusion. By driving a truck carrying hay, defendant had a reduced expectation of privacy allowing the intrusion.id: 11105
Officer's warrantless entry into the smoke-filled dwelling was well within the scope of a proper investigation.A police officer who was a trained arson investigator entered defendant's smoke-filled house after flames had been extinguished. No warrant was required for the officer to enter the residence in search of the fire's origin and cause. That the officer was not a fire official did not alter the analysis.id: 11106
Plain view observation of a weapon following detention justified a search of the automobile.Law enforcement officers may justify a protective search of a traffic detainee's car when the sole basis for believing the suspect to be dangerous was the plain view observation of a legal weapon within that vehicle.id: 11107
Requesting consent to search the car following a lawful stop did not constitute a seizure.Police stopped defendant for speeding. He then asked defendant and his companions whether he could search the car. Defendants consented and the officer presented a consent form in English and Spanish that defendant signed and returned. Defendant conceded he and his companions were legally detained for purposes of issuing a speeding citation, but argued that the transaction involving the consent to search the car constituted a seizure unsupported by any individualized suspicion of criminal activity. However, the encounter was not a seizure because nothing in the record established a show of authority indicating that compliance was compelled. Moreover, nothing suggested defendant and his companions had any reason to believe they were not free to end the discussion and proceed on their way.id: 11109
Second officer's plain-view observations from the same vantage point as the initial officer's did not constitute an unreasonable search.While photographing evidence at the crime scene, an officer followed a trail of blood to the doorway from which he made the plain view observation of contraband. Defendant argued that a second officer's observations from that vantage point constituted an unreasonable search. However, where the second officer's observations are made at a time during which the first officer's presence at the scene (and plain-view observations therefrom) is justified, the second officer's observations are not an unreasonable search because the second officer's entry went no further than that of the first officer, and was meant to interpret only what the first officer had already seen.id: 11110
Seizure of an open bottle found behind the driver's seat in an area not normally occupied by the driver or passengers was lawful.Defendant was driving an older model Corvette automobile with no back seat. There was a raised area behind the driver's seat where officers, after a traffic stop, found an open tequila bottle. Defendant argued the seizure of the open bottle was illegal because it was stored in an area not normally occupied by the driver or passengers within the meaning of Vehicle Code section 2322.5. According to defendant's interpretation of the statute, the fact that an open container may be within easy reach of the driver is completely irrelevant because the plain language of the statute says nothing about accessibility. However, defendant's interpretation would lead to absurd results and the suppression motion was properly denied.id: 11111
Supreme Court holds inadvertence is not required for plain view seizure.Relying on language in a plurality opinion in <i>Coolidge v. New Hampshire,</i> 403 U.S. 433 (1971), many jurisdiction shave upheld plain view seizures only when an officer's observation of the item was inadvertent. If the officer expected to find the item, the seizure has been held improper. In this case, while executing a search warrant for property stolen in a robbery, an officer found weapons and clothing used in the robbery. In a 7-2 opinion written by Justice Stevens, the Court concluded that the officer's discovery of the weapons and clothing was no inadvertent; but the Court rejected any requirement of inadvertence to support a plain view seizure. The Court stated that Fourth Amendment interests are better served by objective standards of conduct rather than standards depending on the subjective state of mind of the officer. Justices Brennan and Marshall dissented.id: 11113
Supreme Court permits police to seize contraband detected by plain feel in pat down.During a pat down search pursuant to <i>Terry v. Ohio,</i> 392 U.S. 1 (1968), the officer felt a small lump in the defendant's front pocket. He said he examined it with my fingers and it slid and it felt to be a lump of crack cocaine in cellophane. The officer reached into the pocket and retrieved the crack cocaine. In a unanimous opinion by Justice White, the Supreme Court held that the police may seize contraband detected through the sense of touch during a <i>Terry</i> protective pat down search. Nevertheless, by a 6-3 vote, the Court held that the search here was illegal because the officer could tell that the lump was contraband only after squeezing, sliding and otherwise manipulating the contents of defendant's pocket. The incriminating character of the object was not immediately apparent. Justice Scalia concurred separately, disagreeing with the analysis in <i>Terry</i>. Chief Justice Rehnquist and Justices Blackmun and Thomas dissented from the ruling that manipulation of the object violated <i>Terry</i>, preferring to remand to decide that question.id: 11114
That the intrusion upon an open field may have been a trespass did not make it a search in the constitutional sense.Defendant argued the trial court erred in denying his motion to suppress evidence seized from the trailer in which he was living and the area surrounding the trailer. He urged the officers did not make their observations of the marijuana from a lawful public place because the area in question was part of an Indian reservation and the officers had not obtained permission to be on the property at that time. However, the fact that the police stood in open fields on an Indian reservation did not render their observations unconstitutional even if the clearing was the curtilage of appellant's home. Finally, it was not necessary for the officers to have identified the plants as marijuana for a certainty if the objects clearly visible from their location in the open fields established probable cause to believe marijuana and related items would be found on the premises.id: 11115
Drugs abandoned prior to seizure were not subject to suppression and there was no seizure where defendant failed to yield to a show of authority.Police were conducting surveillance at the residence of a probationer (who had admitted dealing drugs from his home). They observed three men including probationer and defendant leave the residence with a large brown paper bag. When the men had entered probationer's home a few minutes earlier they carried a smaller brown bag and looked around in a hurried manner. Officers pursued the three men in the car and activated their lights. The driver attempted to elude the officers but crashed into a wall. Defendant opened the car door and discarded a weapon and brown paper bag containing cocaine. Defendant moved to suppress those items. The officers' show of authority in pursuing defendants did not amount to a seizure that may have subjected the abandoned items to suppression. Moreover, the detention of defendant was proper given the officer's expertise in drug trafficking, the furtive actions he witnessed and the knowledge that probationer was selling drugs from his residence.id: 11046
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245