chapter nine – searches and seizures not fully protected by the fourth amendment: plain view, open...

Chapter Nine – Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches

Rolando V. del Carmen

Searches and Seizures Not Fully Protected by the Fourth Amendment: Plain View, Open Fields, Abandonment, and Border Searches

The Plain View Doctrine– Plain View Defined

• Items that are within the sight of an officer who is legally in a place from which the view is made, and who had no prior knowledge that the items were present, may properly be seized without a warrant—as long as the items are immediately recognizable as subject to seizure. Requirements of the Plain View Doctrine

– 1 -Awareness of the Item through the Use of Sight


The Plain View Doctrine– 2 - The Officer Must Be Legally in the

Place from Which the Item Is Seen• Search warrant• Hot pursuit• Valid consent • Valid arrest


The Plain View Doctrine– 3 - The Item Must Be Immediately

Apparent as Subject to Seizure• The “immediately apparent” requirement of the plain view

doctrine must be based on probable cause, not on any lesser degree of certainty such as reasonable suspicion.

• Although items must be immediately recognizable as subject to seizure if they are to fall under the plain view doctrine, it is not necessary that there be certain knowledge that incriminating evidence is involved. Probable cause is sufficient to justify seizure. Also, the use of a flashlight by an officer to look into the inside of a car at night does not constitute a search under the Fourth Amendment.


The Plain View Doctrine– Situations in Which the Plain View Doctrine

Applies• Arrest• Hot pursuit• Search incident to a valid arrest• Out on patrol• Car inventory search• Investigation in a residence• Entry into a home after obtaining valid

consent


The Plain View Doctrine– Plain View: One of Many Justifications

for Admission of Evidence in Court•Inadvertence No Longer Required

– The Fourth Amendment does not prohibit the warrantless seizure of evidence in plain view, even though the discovery of the evidence was not inadvertent. Horton v. California (1990)


The Plain View Doctrine– Plain View and Open Spaces– Plain View and Motor Vehicles – Plain View and the Use of Mechanical

Devices• The use of a beeper to monitor the whereabouts of a

person traveling in a car on public highways does not turn the surveillance into a search. Such monitoring falls under the plain view doctrine and therefore does not require a warrant. United States v. Knotts (1983)


The Plain View Doctrine– Comparison Between Plain View and Open

Spaces • The plain view doctrine can be applied to cases in which the officer

has made “a prior valid intrusion into a constitutionally protected area” (meaning when the officer is inside an enclosed space, such as a house or an apartment); the term open view applies to instances when the officer is out in open space (such as on the streets) but sees an item within an enclosed area.State v. Stachler (1977)

– Comparison Between Plain View and Plain Touch• Minnesota v. Dickerson (1993)• Terry v. Ohio (1968)


The Plain View Doctrine– Comparison Between Plain View and

Plain Touch• Although the evidence in this case was not

admissible because the officer went beyond what is allowable in frisk cases, the Court said that officers may detect the presence of contraband through the sense of touch and confiscate it if probable cause exists. Minnesota v. Dickerson (1993)


The Open Fields Doctrine– Open Fields Defined

• Items in open fields are not protected by the Fourth Amendment guarantee against unreasonable searches and seizures, so they can be seized by an officer without a warrant or probable cause.

• Areas Not Included in Open Fields• Curtilage

– Residential yards, fenced areas, apartment houses, barns and other outbuildings, garages


The Open Fields Doctrine– The Test to Determine Curtilage

• United States v. Dunn (1987)• Four Factors

– Proximity to the home– Is the area in an enclosure surrounding the

home– Nature and uses of the area– Steps take to conceal the area from view


The Open Fields Doctrine– Aerial Surveillance of Curtilage

• The constitutional protection against unreasonable search and seizure is not violated by the naked-eye aerial observation by the police of a suspect’s backyard, which is admittedly a part of the curtilage. California v. Ciraolo (1986)

• Evidence obtained by the police in a helicopter flight at a 400-foot altitude is admissible because such flights are allowed by FAA regulations and so the homeowner would have no reasonable expectation of privacy from such flights.Florida v. Riley (1989)


The Open Fields Doctrine– Open Fields Despite a Locked Gate

and a “No Trespassing” Sign• A place that is posted with a “no trespassing” sign,

has a locked gate, and is located more than a mile from the owner’s house has no reasonable expectation of privacy and is considered an open field, unprotected by the Fourth Amendment.Oliver v. United States (1984)


The Open Fields Doctrine– Open Fields and the Use of Electronic

Beepers• The use of a beeper to monitor the whereabouts of a person

traveling in a car on public highways does not turn the surveillance into a search. Such monitoring falls under the plain view doctrine and therefore does not require a warrant.United States v. Knotts (1983)

• The warrantless monitoring of a beeper after the device has been unwittingly taken into a private residence violates the Fourth Amendment rights of the residents and others.United States v. Karo (1984)


Comparison Between Open Fields and Plain ViewOpen Fields Plain View

Seizable item is not in a house, Seizable item usually is in adwelling or curtilage house, dwelling or curtilage

Items hidden from view may be Only items not hidden fromseized view may be seized

Awareness of item may be through Awareness of item is limited

sight, hearing, smell touch or tasted to sense of sight

Open space May be in an enclosed oropen space


Abandonment– Abandonment Defined– Factors That Determine When Items

are Considered Abandoned • Where the Property is Left

– Open field or public place– Private premises – Is trash or garbage abandoned?– The intent to abandon the property


Abandonment– Abandonment of Motor Vehicles

• Four key factors– Flight from vehicle to avoid apprehension– Where and how long a vehicle is left

unattended– The condition of the vehicle left unattended– Denial of ownership by person present


Comparison Between Abandonment and Plain ViewAbandonment Plain ViewOwner or possessor has given up Owner or possessor has notpossession of item given up possession of item

Seized item may be legal or illegal Seized item must be illegal

Discovery of item may be through Discovery of item must be the sense of sight, touch, hearing, through the sense of sightsmell,or taste


Border Searches– Fourth Amendment Rules Applied

Differently in Immigration• “Searches made at the border pursuant to the long-

standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.” United States v. Ramsey (1977)


Border Searches– The Forced Temporary Detention of Aliens

Believed to Be Illegal• An immigration officer may, for purposes of

questioning, detain against his or her will an individual reasonably believed to be an alien.Au Yi Lau v. United States Immigration and Naturalization Service (1971)


Border Searches– Factory surveys of Aliens

• Factory surveys in which INS officials pay surprise visits to factories and ask employees questions to determine if they are in this country legally do not constitute a Fourth Amendment seizure, so no specific, objective basis for suspecting the worker of being an illegal alien need be shown. Immigration and Naturalization Service v. Delgado (1984)

chapter nine – searches and seizures not fully protected by the fourth amendment: plain view, open...

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