Why Plain View Works

Why Plain View Works

Whether the officer did anything the Fourth Amendment regulates when the item came into sight is the first question plain view answers. “Search” is a legal term of art, and a good deal of conduct a layperson would call searching, such as observing a person's property from an airplane, does not qualify.¹ Two tests define it: under Katz v. United States, government action is a search if it infringes a reasonable expectation of privacy, and under United States v. Jones it is a search if it intrudes on a constitutionally protected area.² Katz itself explained that what a person knowingly exposes to the public, even in the home or office, falls outside the Fourth Amendment's protection, while what a person seeks to keep private may be protected even in a publicly accessible place.³ An officer who views an object from a place the officer is entitled to occupy has entered no protected area and has learned only what the owner left open to that vantage point, so the look is not a search and no warrant was ever required for it.

The pair differs in a single fact, the officer's location, and that fact carries the whole analysis. The sidewalk officer perceived the scene from a place open to anyone, so the perception was not a search and the testimony stands. The interior officer saw the same scene with the same eyes, but the presence that made the view possible was itself unlawful, and a clear view cannot cure an intrusion that produced it. Seeing is only half of the doctrine, because taking an object is a separate act: a seizure invades the owner's possessory interest even when the look invaded nothing.⁴ That added intrusion is small against what the warrant requirement protects, and the reason appears once the requirement's two jobs are separated.

The warrant requirement does two distinct things. A magistrate's review screens out searches that lack probable cause, and the demand for a particular description keeps an approved search from turning into general rummaging through a person's belongings.⁵ Plain view leaves the first job undisturbed because the officer is already present for a reason that was justified independently, whether a warrant for another object, hot pursuit, a search incident to arrest, or some other valid reason for being there.⁶ It leaves the second job undisturbed because picking up one object already in view does not turn the encounter into an exploratory search. What would threaten that second job is an officer who uses a lawful presence to move from object to object until something incriminating finally emerges, and the doctrine does not permit that kind of extension.⁷ Against this small risk stands a real law-enforcement gain, since an officer told to ignore evidence in view until a warrant arrives may lose the evidence or face danger while waiting.⁸

That structure explains why the label attached to plain view matters. The Coolidge plurality described it as an independent exception to the warrant requirement.⁹ Its formulation asked for a prior lawful intrusion, an inadvertent discovery, and an immediately apparent incriminating character, and the next sections take up those conditions one at a time, though the inadvertence condition has since been dropped.¹⁰ Brown called the independent-exception description somewhat inaccurate and recast plain view as an extension of whatever prior justification gave the officer access to the object.¹¹ The recasting changes where the analysis starts. If plain view stood alone, the officer would need to show only that the object was visible and incriminating; if it extends a prior justification, the first question is always what entitled the officer to be there, because the seizure can reach no farther than that justification.

The consequence is that plain view never authorizes an officer to enter a place and take something. Brown marked the boundary itself, observing that a different situation arises when property in open view sits on private premises to which access is not otherwise available to the seizing officer.¹² A clear view of contraband through a window is therefore not a license to go in and get it. Even the fullest probable cause that an incriminating object lies inside a suspect's home cannot by itself justify a warrantless entry to seize it, because probable cause does not take the place of a warrant absent exigent circumstances.¹³ When a warrant or an exigency does supply the entry, plain view then supplements it, which is the sequence the extension idea predicts.

Where a prior justification does exist, the extension can reach items unrelated to it. An officer who stands lawfully in a place under a warrant may seize items not described in the warrant that he sees there, even items wholly unconnected to the crime under investigation, so long as their incriminating character is apparent and probable cause links them to crime.¹⁴ In United States v. Murphy, the Eighth Circuit upheld the seizure of chemicals used to manufacture methamphetamine by officers who were executing a warrant to search for weapons.¹⁵ The warrant supplied the position, and the chemicals came into view from it. The result reverses when the position itself is unlawful: if police enter a house illegally, the exception does not apply even though cocaine lies in plain view.¹⁶

Every consequence above depends on the officer's starting position, so the next section asks what counts as a lawful vantage point. The justifications that can supply one range from a warrant for something else to a traffic stop, and plain view reaches only as far as the justification beneath it.