What is the plain view exception to the Fourth Amendment?

The Fourth Amendment protects against unreasonable searches and seizures, and it requires that search warrants or arrest warrants be based “upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

But that doesn’t mean that police must always get a warrant before searching you or your property…

One of the many exceptions that the courts have created to the Fourth Amendment’s warrant requirement is the plain view exception. Below, we’ll talk about what the plain view exception is and how police can use it in conjunction with various other exceptions to the Fourth Amendment to search you, your car, or your home without probable cause and without bothering to get a warrant.

What is the Plain View Exception?

The plain view exception allows police to seize evidence any time 1) they are lawfully in a place where they can view the evidence and 2) the incriminating nature of the evidence is obvious.

As the SC Supreme Court said in State v. Wright:

Under the ‘plain view’ exception to the warrant requirement, objects falling within the plain view of a law enforcement officer who is rightfully in a position to view the objects are subject to seizure and may be introduced as evidence…

…the two elements needed to satisfy the plain view exception are: (1) the initial intrusion which afforded the authorities the plain view was lawful and (2) the incriminating nature of the evidence was immediately apparent to the seizing authorities.

In Wright, the police received a tip about dogfighting at a residence and, as they drove up the driveway to the residence, they saw:

• A large number of vehicles at the home,
• Spotlights outdoors next to the home,
• People and dogs running from the home, and
• A portable dogfighting pit that people were attempting to dismantle as the police pulled up.

When they approached the dogfighting pit in the yard, “deputies saw in plain view dogfighting paraphernalia, including a dogfighting pit, dog muzzles, drugs, syringes, several injured dogs, and a dog suspension collar.”

The SC Supreme Court found that the seizure of evidence without first seeking a warrant was reasonable under a combination of the plain view exception and the exigent circumstances exception to the Fourth Amendment:

…the deputies’ observations from the public highway and the dirt road, the anonymous tip, and the exigent circumstances that developed after the deputies entered the shared dirt road justified the initial intrusion onto the property surrounding Coulette’s residence to capture fleeing suspects and dogs, ensure public safety, and prevent further destruction of evidence.

Does it matter that the “plain view” discovery of the dogfighting pit was intentional, based on an anonymous tip, and that it was not inadvertent?

There is no “Inadvertent Discovery Requirement” for the Plain View Exception

There was an “inadvertent discovery requirement” for the plain view exception, but the SC Supreme Court dropped this requirement based on the US Supreme Court’s decision in Horton v. California:

Consistent with federal law prior to 1990, South Carolina case law regarding the plain view exception requires: (1) the initial intrusion which afforded the authorities the plain view was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent to the seizing authorities.  Beckham, 334 S.C. at 317, 513 S.E.2d at 613 (citation omitted).  However, in Horton v. California, 496 U.S. 128, 110 S. Ct. 2301 (1990), the United States Supreme Court (USSC) discarded the inadvertent discovery requirement for the plain view exception.  In doing so, the USSC noted, “evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.”  Horton, 496 U.S. at 138, 110 S. Ct. at 2308–09.  Moreover, “[t]he fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement.”  Id. at 138, 110 S. Ct. at 2309.

This means that police can “manufacture” a plain view situation any time they don’t have probable cause for a warrant by driving up to a suspect’s home just to see what’s in their yard, or to see what they can see inside the home through a door or window (if they have reasonable suspicion for a “knock and talk” – see below).

The Plain Feel Exception

If an officer is conducting an otherwise lawful “pat down” and feels what appears to be contraband, the courts have said that the officer can seize the contraband without first getting a warrant under the “plain feel exception” to the warrant requirement.

For example, in State v. Smith, the SC Court of Appeals upheld a warrantless search where the officer testified that he felt a bulge when conducting a pat down and “it was obvious to me that it was some kind of narcotic:”

At the suppression hearing in the instant case, Russell testified when he patted down Smith, “I felt a bulge in his left jacket side and you know it was obvious to me it was a baggy of some type.” He further stated, “after being in law enforcement for so long, you know, it’s touch and feel it was obvious to me that it was some kind of narcotic.” Upon feeling the baggy, Russell asked Smith, “what’s this your reefer?” Smith responded, “Yeah, man, that’s my reefer.”

Why did the officer testify that “it was obvious to me that it was some kind of narcotic?” Because, in Minnesota v. Dickerson, the US Supreme Court held that the plain feel exception would only apply if the nature of the contraband was immediately apparent:

…the officer’s own testimony “belies any notion that he ‘immediately'” recognized the lump as crack cocaine. See 481 N. W. 2d, at 844. Rather, the court concluded, the officer determined that the lump was contraband only after “squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket”-a pocket which the officer already knew contained no weapon.

If the officer has to “manipulate” the object that they feel to determine what it is, the plain feel exception does not apply. Apparently though, in SC, when the officer has to ask, “is this contraband?” the plain feel exception somehow does apply.

How Police Search Without Getting a Warrant

Do you see a pattern, where officers who are trained in Fourth Amendment law can use various combinations of the exceptions to get around the warrant requirement?

Knock and Talk/ Plain View/ Protective Sweep

In SC, police must have a reasonable suspicion (less evidence than is required for probable cause) of criminal activity before they can conduct a “knock and talk.”

What’s a knock and talk?

Assuming the police have some evidence of criminal activity (for example, the anonymous tip of dogfighting activity in the Wright case), they can walk up to your door, knock, and engage you in conversation.

“How are you doing today? We’ve had some complaints about possible drug deals happening in the area. Do you mind answering a few questions? Do you mind if we have a look around?”

Even if you say no, rest assured they are looking over your shoulder into your home, peeking in your windows as they talk to you, and scanning your property for any hint of criminal activity in “plain view,” that would then allow them to seize evidence and place you in custody without the hassle of getting a warrant.

“Whoa, wait a minute. Is that weed I see on your coffee table there?”

Now the police are in your home, seizing a bag of weed that they are almost certainly going to arrest you for. They’re in the door, without a warrant, scanning the room for more “plain view” surprises. Next, they get to walk through your home to conduct a “protective sweep” (another warrant exception) for the officers’ safety, to make sure there are no gangsters hiding in the closets with assault rifles.

At this point, the police have now entered your home, placed you under arrest, and searched your entire home without getting a warrant, and, thanks to the many exceptions to the search warrant requirement, it is 100% legal…

Terry Frisk/ Plain Feel

What’s another example?

If the police have a reasonable suspicion (again, less evidence than is required for probable cause and a warrant) that you have a weapon, they can conduct a “Terry frisk,” patting you down solely to see if they feel a gun, knife, or other weapon.

Once they are patting you down, however, they can seize anything they feel that is immediately recognizable as contraband – without a warrant.

The exceptions to the Fourth Amendment swallowed the rule long ago – any police officer who reads and understands the language of Fourth Amendment appellate opinions can easily get away with searching you, your home, or your car without probable cause and without first getting a warrant.

Automobile Exception/ Plain View/ Terry Frisk

The “automobile exception” to the warrant requirement allows police to search your vehicle if they have probable cause, because of the danger of a vehicle driving off while the officer seeks a warrant. The courts can later review the officer’s determination that he or she had probable cause and suppress any evidence that was seized in violation of the Fourth Amendment.

But what if the police don’t have probable cause to search?

As the officer is standing at your car window asking you for license and registration, they are almost certainly looking into your car, scanning your seat, the dashboard, the floorboards, the passenger seat, and the back seats for any evidence in plain view that they can seize (and that would then give them probable cause for a full search).

What if they don’t see anything illegal?

The officer can always ask you to step out of the vehicle, pursuant to Pennsylvania v. Mimms. As you are stepping out of the vehicle, the officer is looking for anything that might fall from your lap and looking for bulges or anything on your person that could justify a search.

Still nothing? The officer can then conduct a pat-down pursuant to Terry v. Ohio because they have a reasonable suspicion that you might be armed. Nothing on you? Then they get to do a “Terry frisk” of your vehicle, scanning the areas where a gun or knife could be accessed.

The officer has now searched you and your vehicle with no probable cause and no warrant, and, assuming the officer can articulate a reasonable suspicion for the Terry frisk, it is 100% legal…

Criminal Defense Lawyer in Charleston, SC

Charleston, SC criminal defense attorney Grant B. Smaldone represents clients who have been charged with crimes in SC state and federal courts.

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