Introduction

Seizing Items Without Further Search

Introduction

An officer who is lawfully in a place for one reason will sometimes notice an object that looks incriminating, and the practical question is whether the officer may take it on the spot or must stop and obtain a warrant first. The setting might be a traffic stop, an emergency entry into a home, a frisk, or the execution of a warrant for something else entirely. Texas v. Brown supplies a clean example. Officer Maples was working a routine driver's license checkpoint in Fort Worth when he stopped Brown's car shortly before midnight, and as he asked for the license he shined a flashlight into the car and saw Brown draw from a pocket a knotted green balloon, which Maples knew from his drug-arrest experience was a common way of packaging narcotics.¹ The Court held that Maples properly seized the balloon without first getting a warrant.²

The reason that seizure was lawful is the idea that organizes everything in this chapter. The plain-view doctrine permits an officer to seize, without a warrant, an item seen from a lawful position or during a legal search, when the officer has probable cause to believe the item is evidence of a crime.³ The plurality in Coolidge v. New Hampshire described plain view as an independent exception to the warrant requirement, but the Court in Brown treated it as an extension of whatever prior justification gave the officer access to the object in the first place.⁴ So plain view carries no authority of its own. The traffic stop, the emergency entry, the frisk, or the other warrant is what puts the officer in position, and the seizure borrows its legitimacy from that prior intrusion, which means it cannot reach farther than that intrusion could. The borrowing is reasonable for two reasons. Once an officer has perceived the object from a lawful place, the owner is left with only possessory and ownership interests in it, because looking invaded no privacy. Requiring a warrant after the officer has already seen contraband first-hand would also be a needless inconvenience that could endanger police and public.⁵

The borrowed authority is also conditioned on what the officer can tell at a glance. The seizure of property in plain view is presumptively reasonable only if there is probable cause to associate the property with criminal activity, so an officer who must conduct some further search before the item reveals itself as evidence has left the doctrine behind.⁶ This chapter builds that idea in order. It begins with why a lawful view is not a search at all, then turns to the conditions that make a seizure lawful: a lawful vantage point, a lawful right of access to the item, and an incriminating character that is immediately apparent. Brown and Arizona v. Hicks then show how much an officer must know before seizing and what an officer may do to find out, and Minnesota v. Dickerson carries the same reasoning from sight to touch during a pat-down. The first step is the Fourth Amendment reason that looking from a place the officer is entitled to be offends no one's privacy.