Can Police Use the “Plain View” Exception for Unrelated Evidence?
In general, no, an officer cannot use the "plain view" exception to seize items unrelated to the execution of a warrant if those items are not immediately apparent to be contraband or evidence of a crime. The plain view doctrine allows law enforcement officers to seize evidence without a warrant when they are lawfully present in an area and the incriminating nature of the evidence is immediately apparent. However, if the item does not clearly indicate criminal activity upon first sight, the officer cannot legally seize it without further investigation or obtaining a warrant.
The U.S. Court of Appeals for the Sixth Circuit case U.S. v. McLevain, 310 F.3d 434 (6th Cir. 2002), provides an important framework for understanding the limitations of the plain view doctrine, especially when the incriminating nature of the item is not obvious.
The Plain View Doctrine Explained
The plain view doctrine is an exception to the Fourth Amendment's warrant requirement. It permits the seizure of evidence without a warrant if the following conditions are met:
Lawful Presence: The officer must be lawfully present at the location where they see the evidence.
Immediate Apparent Incriminating Nature: The incriminating nature of the object must be immediately apparent to the officer.
Lawful Access to the Object: The officer must have a legal right to access the object itself.
This doctrine is meant to allow officers to seize evidence that they come across in the course of a lawful search, but it does not give officers free rein to seize items if it is not clear from the outset that the item is related to criminal activity.
Facts of U.S. v. McLevain
In McLevain, police officers obtained a valid warrant to search a residence for a person named Gary Cauley, who was believed to be hiding at the home. During the search, a narcotics officer noticed several items: a twist tie, a cut cigarette filter under the bed, and later, a spoon with residue and a pill bottle with no label in the garage. Although the twist tie and cigarette filter were not immediately incriminating, the officer suspected they were related to drug use. The spoon was field tested, and it tested positive for methamphetamine, which led to a second search warrant being issued to search for drugs. The second search uncovered drugs and cash hidden in a kerosene heater.
The defendant argued that the evidence found in the second search should be suppressed because the original seizure of the spoon and other items violated the Fourth Amendment. The court ultimately agreed with the defendant, ruling that the seizure of the items was not justified under the plain view doctrine because the items’ incriminating nature was not immediately apparent at the time of the search.
Key Principles from U.S. v. McLevain
Incriminating Nature Must Be Immediately Apparent:
For the plain view doctrine to apply, the incriminating nature of the item must be obvious without further investigation or manipulation. In McLevain, the court ruled that a twist tie and a cigarette filter are everyday objects and their connection to criminal activity was not immediately apparent. Similarly, the spoon, while field tested later, did not have an immediately clear link to drug activity when first seen.No Intrinsic Criminality:
The court noted that the twist tie and cigarette filter were not items that were intrinsically associated with criminal activity. In contrast, certain items like drugs or illegal firearms might have an obvious illegal nature that justifies immediate seizure under plain view.Nexus to the Crime:
There must be a connection between the items observed and the suspected criminal activity outlined in the search warrant. The search in McLevain was focused on finding a fugitive, and the observed items (twist tie, cigarette filter, spoon) had no clear connection to that objective. The narcotics officer's personal suspicions were insufficient to establish probable cause for the seizure.No Lawful Right of Access:
The court ruled that, because the officer did not have probable cause to believe the items were immediately linked to criminal activity, the officer had no lawful right of access to seize and field test the spoon.
When Can Officers Seize Items Under the Plain View Doctrine?
To properly seize evidence under the plain view doctrine, officers must be able to reasonably infer that the item is connected to criminal activity without further investigation. For example, if an officer sees drugs or a firearm during the execution of a search warrant for other evidence, they can seize those items without a warrant because their criminal nature is immediately apparent.
However, when the item in question is not clearly contraband—such as household objects like a twist tie or a spoon—the officer must have probable cause to believe the item is related to a crime. If that connection is not obvious, the officer cannot seize the item or conduct tests (such as field testing for drugs) without first obtaining a warrant.
Exceptions to the Plain View Doctrine
There are a few situations where officers might still seize items without a warrant, even if the plain view doctrine does not apply:
Exigent Circumstances:
If there is an immediate threat to public safety or a risk that evidence will be destroyed, officers may seize items without a warrant.Consent:
If the property owner consents to the search or seizure, officers may seize items not covered by the original warrant.Probable Cause and Additional Warrants:
If officers develop probable cause to believe the item is related to a crime during the course of the search, they can secure a second warrant to search or seize the item, as was done in McLevain (though the initial seizure of the spoon was ruled improper).
Conclusion: Limits of the Plain View Doctrine
The U.S. v. McLevain case illustrates the limits of the plain view doctrine. While officers may seize items in plain view during a lawful search, they must be able to immediately recognize the item as contraband or evidence of a crime. If the item’s criminal nature is not immediately apparent, the seizure is not justified under the plain view exception, and a warrant must be obtained before the item can be further examined or seized.
In the case of McLevain, because the twist tie, cigarette filter, and spoon were not clearly connected to criminal activity at first sight, the officer should have obtained a warrant before seizing and testing the items.
Frequently Asked Questions (FAQs)
Can police seize an item if they suspect it might be contraband but aren’t sure?
No, the plain view doctrine only applies if the item’s incriminating nature is immediately apparent. If the officer is unsure, they must obtain a warrant before seizing or testing the item.Can everyday objects like a twist tie or spoon be seized under the plain view doctrine?
Only if the item’s connection to criminal activity is immediately apparent. If the object is something commonly found in homes and not clearly related to a crime, it cannot be seized without further justification.What happens if police seize an item that doesn’t immediately appear to be contraband?
If an officer seizes an item that is not obviously contraband or evidence of a crime, the seizure may be ruled unconstitutional, and the evidence may be suppressed in court.Can officers use the plain view doctrine to search unrelated areas during the execution of a warrant?
No, the plain view doctrine only allows officers to seize items that are in plain view while they are legally present in the area specified by the warrant. They cannot use it as a justification to search unrelated areas.What should an officer do if they see something suspicious but not obviously illegal during a search?
The officer should secure the item and obtain a warrant before conducting further tests or seizures if its incriminating nature is not immediately clear.