The Plain View Doctrine

The plain view doctrine acts as an exception of sorts to the 4th Amendment prohibitions against illegal search and seizure.

The plain view doctrine allow law enforcement seize evidence that is in plain sight of the officer during a constitutionally valid encounter with a citizen.  The evidence that is in plain view of the officer may be legally seized so long as:

  • The officer did not violate the Fourth Amendment in leading up to the viewing of the evidence,
  • The object‘s incriminating character is immediately apparent (i.e. obvious) to the officer without further investigation, and
  • The officer has a lawful right of access to the object itself.

These requirements are set forth in the 1990 Supreme Court case Horton v. California, 496 U.S. 128 and are commonly referred to as the “three-prong Horton test.”

Prior to the Horton case, evidence must have been discovered “inadvertently”  in order to be legal under the plain view doctrine.  With Horton, this is no longer the case.  Under Horton, police officers may look for evidence which is readily visible as long as they have not violated the Fourth Amendment in doing so.  In other words, and as one might expect, an officer may look around so  long as he or she is not illegally  present to begin with.

The state’s position that the search and seizure is valid under the plain view doctrine may be attacked in a number of ways.  Fairly common, it will be argued that the search is not valid under the plain view doctrine because the police were not lawfully in a position to view the item.  This is not uncommon in situation where the officer illegally stopped your car or illegally entered your home.

It might also be invalid because the evidence incriminating nature was not immediately apparent. This can come up in a number of ways such as when the officer had to further inspect the item to determine the incriminating nature (i.e. looking at serial numbers, viewing photos on a camera, and so on.  It might also arise in a stop and frisk situation.  This might occur if the officer felt a hard item in a suspect’s pocket during a protective search but knew or had no reason to believe that it was a weapon.

It is also worth noting that for an object‘s “incriminating character” to be “immediately apparent,” an officer is not allowed to move the object in order to get closer look.  Plain view means plain view as the article lies not plain view after the officer moves the article around to put it in plain view.

The 4th Amendment protections against illegal search and seizure are among the greatest rights afforded citizens and non-citizens alike.  A finding of an illegal search will result in evidence being suppressed which means it cannot be held against you at trial.  Often times, the evidence is critical to a conviction which will result in a dismissal of the case against you.

Search and seizure law is quite complicated.   The plain view doctrine is no exception.  If you are faced with criminal charges, it is important to discuss with an experienced  criminal defense attorney  the circumstances surrounding any search and seizure incident to arrest.

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