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Plain View (podcast transcript)

Miller: Jenna, let’s get this straight. There’s no REP in what an officer can see, hear or smell from a place he or she rightfully occupies; correct?

Solari: That’s right.

Miller: And that’s Mr. Hunsucker’s analogy “right to be, right to see.” So, if I’m a cop, standing on a public sidewalk, looking into the picture window of 123 Main Street and see a plant that I know is marijuana, I’ve not triggered the 4th Amendment. Isn’t that correct?

Solari: That’s right.

Miller: Why is the marijuana plant not considered to be in plain view?

Solari: Well, because you’ve only established two out of the three requirements for plain view. You have to observe the marijuana from a place you have a right to be. You satisfied this requirement in your example. You made the observation from a public sidewalk. Second, the incriminating nature of the evidence (the marijuana plant you can see through that picture window at 123 Main Street) has to be readily apparent. You satisfied that requirement too. Through your training and experience as a police officer you know what marijuana looks like.

Miller: So, what’s missing?

Solari: You have no lawful right of access. In your example, you haven’t explained that you have a warrant or any exception to the warrant requirement to actually enter or access 123 Main Street.

Miller: So, the plain view exception to the warrant requirement has three requirements. The officer must see the item from a place he or she rightfully occupies; it’s incriminating or evidentiary nature must be readily apparent to the officer; and, thirdly the officer must be able to lawfully access the evidence.

Solari: That’s right.

Miller: Is that right?

Solari: That’s right.

Miller: Now, in my example, I was lawfully present on the sidewalk when I observed the marijuana. How can I lawfully get inside 123 Main Street and make more observations?

Solari: Use what you’ve already seen and get an arrest warrant for the resident of 123 Main Street for possession of marijuana. Use what you’ve already seen through the picture window to go get a search warrant for that location. If you don’t have an arrest warrant or a search warrant, maybe there’s an exception to the warrant requirement that might let you inside. Maybe if you knock on the door you can get consent. If somebody runs inside whom you’re trying to apprehend maybe you can use hot pursuit. If the person inside 123 Main Street saw you looking through the picture window at his marijuana plant, grabbed it and made a dash for the garbage disposal, maybe you could use your probable cause coupled with destruction of evidence and use that exception to the warrant requirement.

Miller: The second requirement was that the evidentiary nature of the item must be readily apparent. That sounds almost like probable cause to me, correct?

Solari: Right

Miller: And based on training and experience, I think most officers can probably readily identify a marijuana plant.

Solari: Sure. I would think so. Readily apparent like you said means that the officer has probable cause to believe that whatever he or she is looking at is evidence of a crime - you can tell simply by looking at it. The officer has facts and circumstances made known to him, and those facts coupled with the officer’s observations, make the evidentiary nature of the object readily apparent. For example, let’s say officers are executing a search warrant inside 123 Main Street for a stolen television set. They know the resident’s a convicted felon and while their looking for the TV in places where they have a right to look, they see a handgun laying right there on the coffee table. Now obviously as a general matter, officers can secure firearms in a safe place during a search; however, in this case, there’s also probable cause to seize that firearm as evidence of a crime because the officers at the scene knows that a convicted felon in possession of a firearm is in violation of 18 USC §922 and of course that firearm does appear to be within the possession of a convicted felon.

Miller: Now finally, this third requirement is that the officer must have a lawful right of access.

Solari: Right and this is tricky. There’s a difference between lawfully present when the officer makes her observation and lawful access. Lawfully present refers to the officer’s position when she makes the observation. Lawful access refers to where she must be to actually put a hand on the item and retrieve it. So in your example, you were lawfully present on a sidewalk when you observed that marijuana through the picture window of 123 Main Street; however, you couldn’t actually lawfully put your hand out and touch that plant and seize it. You had no right of access.

Miller: Let’s assume I’ve got authority to be inside 123 Main Street where we saw that marijuana plant. Does that automatically allow me to go to the picture window and grab it?

Solari: Not necessarily. I’ve got to know what your authority is to actually access the room where you saw the marijuana growing. If you’ve got a search warrant to search 123 Main Street, then I’ll bet you’ve got authority to go search anywhere in that house where marijuana could be, so you’re probably going to get the plant then; however, if you knocked on the door and the owner let you in, but he refused to let you go any further than the foyer you still have no right of access to that plant you saw growing in the living room.

Let’s talk about some places where we might have a right of access. This will help us review some of the law that you and I have discussed. Now, you tell me where are some places you think we could lawfully access inside a vehicle when there are facts that justify a Terry Frisk of the driver?

Miller: Okay, unlocked containers inside the passenger compartment that might contain a weapon - the glove box, the center console, and underneath the seat. I can also open a hard back briefcase if I can’t determine what’s inside simply by feeling its outside. If I found a bag of green leafy substance, that was readily apparent as marijuana, inside the briefcase, center console, or the glove box, I think I could lawfully seize that dope under the Plain View Doctrine.

Solari: Alright, I agree with you. Now could you frisk the trunk of a typical sedan type vehicle, where the trunk’s not accessible through the passenger compartment?

Miller: No and I see what your saying. I had no right of access to the trunk.

Solari: Okay, well what about a film canister you find inside the glove box? Can you open that up during a frisk of that vehicle?

Miller: Not for a Terry Frisk. Again, you can’t get a weapon inside the film canister; therefore, I don’t have a right to access the film canister, right?

Solari: Right, so again you’ve got a right to be in that passenger compartment; however, like you said you’ve got no right of access to the inside of that canister.

Miller: Now let me ask you a question.

Solari: Okay

Miller: What if you arrest the driver of this car?

Solari: Change the facts, change the answer. My right of access once I arrest somebody becomes much greater. Then, as we know, I can search the driver and the areas within his immediate control or lunging distance during my search incident to arrest. So now instead of areas that can only harbor weapons, I also have a right to access places that might harbor means of escape and evidence. Now that film canister I saw in the glove box during the Terry Frisk could be accessed since I’m doing a search incident to arrest.

Miller: Got another question. How about the trunk?

Solari: Nah, I still can’t access trunk in the typical sedan type vehicle during a search incident to arrest. The general rule is this for frisks and SIA’s - if the driver has to get out of the vehicle to access the area, then it’s not considered within his immediate control.

Miller: I like asking you questions so I’m going to ask you one more. What can you access during a protective sweep inside a home?

Solari: It depends on whether the protective sweep is done for an arrest warrant or a search warrant. Now a protective sweep for a search warrant is, as we know, you’re going to get to do a protective sweep of just about any areas assuming that your search warrant is sufficient to give you control of the whole house. A protective sweep for an arrest warrant though is much narrower. Once I make my arrest, I can frisk rooms immediately adjacent to the place of arrest without any facts at all. I get my automatic protective sweep. To go elsewhere though, that extended protective sweep, I need to articulate reasonable suspicion that someone is in there that might pose a threat to me. And of course, in any protective sweep I’m limited to searching to accessing people, size, places.

Miller: Okay. Now, what can you access with consent?

Solari: Well first, of course, any consent given we have to assume that it’s voluntary and given by someone with either actual or apparent authority over that place I want to search. Assuming we have that, then we need to determine whether it’s reasonable to assume the consenter authorized me to search. So if I’m smart, I’m doing good police work, I’m going to be very specific when I ask that person where I can search so I make sure we’re all on the same page and I can go anywhere that person has consented to let me go.

Miller: Jenna, let’s take a break and when we return we’ll talk about inspections and end reports.

Solari: Alright.