Lawful Position and Access

Lawful Position and Access

Plain view works only when some other justification has already put the officer in the right place, and that premise organizes the next three requirements. In Texas v. Brown the Court said that plain view provides grounds for seizing an item when the officer's access to it has some prior justification under the Fourth Amendment, and it recast the doctrine as an extension of that justification.¹ An extension reaches only as far as the thing it extends. Plain view therefore fails in two situations: when no justification exists at all, and when one exists but is too narrow to cover the place the officer stood or the step the officer took.

The justification can give way at three separate points, and each point has its own requirement. The first is the vantage point, meaning the place from which the officer perceives the item, which must be a place the officer is entitled to occupy. The second is the manner of seeing. Officer Maples in Brown looked through the window of a car stopped at a license checkpoint and used a flashlight to do it,² so the question is when an aid to the eyes turns looking into a search. The third is access to the item itself. Seeing contraband from a lawful spot does not entitle the officer to go and get it, and Brown flagged this limit when it noted that a different situation arises if the property in open view sits on private premises to which access is not otherwise available to the seizing officer.³

The "too narrow" failure is the one most easily overlooked, because the officer in that case is lawfully present and may even have a warrant.

The officer in both settings is lawfully inside the house, yet the justification covers the closet and not the envelope. That is why the analysis asks not only whether the officer was lawfully present, but whether the justification for being there reaches the particular spot and the particular act. The next subsection begins with the first piece, the vantage point, and asks what can make an officer's position lawful.

Lawful Vantage Point

The first condition of plain view concerns where the officer stands at the moment the item comes into perception. The officer must be in a place the officer is entitled to occupy, and that entitlement has to come from a source other than the sighting itself. The Coolidge plurality put the requirement as a lawful initial intrusion, or otherwise a proper position from which to view the area.⁴ In Texas v. Brown, Officer Maples stood at the driver's window of a car he had stopped at a routine license checkpoint, asked for the license, and from that spot shined a flashlight into the car and saw the knotted green balloon in Brown's hand.⁵ The checkpoint stop was the prior justification, and every later step of the plain-view analysis ran forward from it. Because the doctrine adds nothing to an officer's right to be somewhere, the vantage point is the first fact to fix in any problem.

Many different justifications can supply that entitlement, which is why the requirement is easy to satisfy and also easy to overlook. The recognized sources include a warrant to search for some other object, hot pursuit of a suspect, a search incident to lawful arrest, and any other legitimate reason for being present, even one unconnected with a search aimed at the accused.⁶ Traffic and license stops, Terry stops, and consent to enter belong to that last group, since each gives the officer a lawful place to stand. Exigent entries work the same way: in Arizona v. Hicks police went into an apartment after a bullet fired through the floor injured a man downstairs, to look for the shooter, other victims, and weapons, and the lawfulness of that warrantless entry was conceded.⁷ In Kentucky v. King, officers who entered an apartment under a claim of emergency saw illegal narcotics in plain view.⁸ A public place requires no entry at all, so police who see a person rolling a marijuana cigarette on the street may seize it, because they stood where anyone may stand.⁹ The list is open-ended for a structural reason: plain view creates no right to be anywhere, so the only question is whether some independent source of authority already put the officer there.

The warrant setting deserves separate attention because it is where plain view most often arises, and because it shows that the vantage point must be judged by what the justification actually covers. In Horton v. California, officers held a warrant to search a home for the proceeds of an armed robbery but not for the weapon, and while looking for the jewelry they found and seized the gun; the seizure was reasonable because the warrant made them lawfully present and they were looking in places that could reasonably hold the items the warrant named.¹⁰ Paper searches follow the same logic. An officer executing a warrant for particular documents must examine many other documents at least cursorily to learn whether they fall within the warrant, so the critical question is whether the officer was acting in the proper execution of the warrant when the item came into view.¹¹ In Andresen v. Maryland, the warrant covered documents about one real estate lot, and the officers lawfully came across and seized documents showing the same scheme as to another lot in the subdivision.¹²

In each of these settings the item seized has nothing to do with the reason the officer is there. That disconnection is the normal case, and Hicks said so directly. The Arizona Court of Appeals had treated the officers' handling of the stereo equipment as automatically unreasonable because it was unrelated to the justification for entering the apartment. The Supreme Court rejected that view, reasoning that lack of relationship always exists with action validated by plain view, and that where officers act for the purpose that justified the entry, invoking the doctrine is superfluous.¹³ The misreading to avoid is the belief that the officer must be looking for the item seized. A rule requiring relatedness would leave the doctrine with nothing to do, since it exists for the object the officer was not searching for. The plain-view claim in Hicks itself failed on a different ground, which a later section develops: moving the equipment to read its serial numbers was a separate search.¹⁴

The mirror-image point is that an unlawful starting position leaves plain view with nothing to extend. If police illegally enter a house, the exception does not apply even though cocaine lies in plain view.¹⁵ The reason follows from the extension idea, because plain view borrows the legitimacy of a prior justification and an unlawful entry has none to lend. An incentive reason points the same direction. If what an officer saw after an illegal entry could validate the seizure, the sighting would validate the very intrusion that produced it, and an officer with a hunch would have every reason to go in first and justify the entry afterward by pointing to what was found.

The officer's certainty about the car changes nothing, because no amount of probable cause justifies a warrantless entry to seize absent exigent circumstances.¹⁶ Certainty therefore cannot stand in for the missing justification, and the analysis stops at the vantage point.

A last question is whether the officer's reason for choosing to stand in a lawful spot matters. The Coolidge plurality's inadvertence requirement reflected concern about an officer who knows in advance where evidence is and intends to seize it, using plain view only as a pretext.¹⁷ Horton later rejected any inadvertence requirement, reasoning that an officer's interest in an item, even a firm expectation of finding it, does not invalidate its seizure when the search is confined in area and duration by a warrant or a valid exception.¹⁸ The vantage-point inquiry therefore asks an objective question: where did the officer stand, and what entitled the officer to stand there? That focus spares courts from probing what the officer privately hoped to see whenever the position itself was lawful, and a later section takes up inadvertence in full.

Entitlement to the position does not settle how the officer may look from it, so the next subsection takes up flashlights and other aids to the eyes, the question that Officer Maples's flashlight in Brown raises.

Flashlights and Technology

A lawful vantage point does not have to be a bright one, and it does not confine the officer to unaided eyesight. In Texas v. Brown a license checkpoint was operating on a summer night, and shortly before midnight Officer Maples stopped Brown's car. Standing at the driver's window, he shined a flashlight into the car and saw a green balloon, knotted near the tip, caught between two fingers of Brown's hand.²⁰ The checkpoint stop was not contested, and the Court held that lighting the interior with the flashlight trenched on no right secured by the Fourth Amendment.²¹ It reasoned by analogy to an earlier decision: "[The] use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution."²² The Court added that numerous other courts agree that using artificial means to illuminate a darkened area is not a search.²³

The reason a flashlight changes nothing comes from what a search is. Looking at an object from a place the officer is entitled to occupy invades no privacy, because the owner has left the object exposed to anyone standing in that spot. Darkness makes the object harder to see but does not make the spot any less open to the officer, so an ordinary light only lets the officer see what any member of the public standing there could see with more illumination. An incentive reason points the same way. If a flashlight turned looking into searching, a driver's protection at a checkpoint would depend on the hour, and a night-shift officer would need a warrant to glance into a car that a day-shift officer could view freely. The Fourth Amendment's protection would then track the sunset rather than anything the driver had done to keep the car's contents private.

The same logic carries beyond flashlights to other aids to the senses. In United States v. Knotts, officers hid a radio transmitter in a drum of chloroform, and when visual surveillance failed they followed its signal with a receiver on a helicopter until they relocated the drum near a cabin.²⁴ The tracking was not a search, because a person on public roads has no reasonable expectation of privacy in movements from one place to another, and visual surveillance from public places would have revealed the same information. Nothing in the Fourth Amendment stops police from augmenting the senses they were born with by whatever enhancement science and technology offer, and a complaint that a device merely made police more effective has no constitutional foundation.²⁵ A device that adds nothing to what the lawful position already exposes leaves the privacy interest where it was.

The principle has an edge, and the edge is where this subsection ends. Students go wrong by assuming that any technology is acceptable once the officer stands in a lawful place, when the boundary actually turns on whether the device is in general public use and whether it reveals what the naked eye could not. In United States v. Karo, officers used a beeper to confirm repeatedly that a container sat inside a residence whose interior was not open to visual surveillance from any public place, and using a tracking device to learn about the inside of a home was a search.²⁶ Kyllo v. United States applies the same idea to a thermal imager, a device not in general public use, aimed at a house from the street to learn what was happening inside.²⁷ The imager turns a vantage point that exposed only an exterior wall into one that exposes the interior. The owner's expectation of privacy in what the device reveals therefore survives, and the lawful position never covered that information.

Location tracking marks a further edge, because the old beeper on public roads no longer sets the standard. Knotts left open the possibility that dragnet-style surveillance would call for different constitutional principles, and Carpenter v. United States supplied some of them. Modern tools such as GPS monitoring and cell phone tracking are remarkably easy, cheap, and efficient compared to traditional investigative techniques, and they can follow everyone's location over long periods and reveal intimate associations. Accessing historical cell-site location information is therefore a search requiring a warrant, even though the data discloses only movements through public spaces.²⁸ That analysis applies its own test and does not depend on the flashlight rule, so a problem about cell-site records should not be run through plain view. A separate limit also applies to ordinary senses: detecting something from a lawful position is not a search, but an officer who goes beyond what the position authorizes, such as squeezing a bag that the officer may only pick up and move, has conducted one.²⁹

A lawful view, even an aided one, still leaves the officer standing where the view was obtained. The next subsection takes up the separate requirement of a lawful right of access to the item itself.

Lawful Right of Access

The previous two subsections asked where the officer stood and how the officer looked. A third question concerns the item itself: once the officer has seen it, what entitles the officer to reach it? Seeing and seizing are separate acts, and the first does not carry the second with it. The Supreme Court's statement of the doctrine in Minnesota v. Dickerson treats access as its own element. If police are lawfully in a position to view an object, its incriminating character is immediately apparent, and the officers have a lawful right of access to the object, they may seize it without a warrant.³¹ Vantage point and access can therefore come apart, and the examples below show how.

Access is easy to satisfy when the item is already within the officer's lawful reach. Objects such as weapons or contraband found in a public place may be seized without a warrant, because looking at them invades no privacy and the seizure is presumptively reasonable when probable cause links them to crime.³² In Texas v. Brown the Court marked off the contrasting situation, in which property in open view is "situated on private premises to which access is not otherwise available for the seizing officer."³³ The Court explained that plain view gives grounds for a seizure only when the officer's access to the object already has some prior justification under the Fourth Amendment, so the doctrine extends an existing justification and creates none of its own.³⁴

The reason for the limit comes from what the sighting accomplishes. Once an officer has perceived an object from a lawful place, the owner's remaining interests are only those of possession and ownership, and making the officer go get a warrant at that point would be a needless inconvenience.³⁵ That reasoning assumes the officer is already there. An officer who is still outside has not yet intruded on anything, and stepping into a home is a new intrusion that sight alone did not authorize. The warrant requirement protects people in two ways: a magistrate checks for probable cause before any intrusion, and the warrant confines how far the intrusion reaches. Plain view can leave the first protection intact only because the officer's initial intrusion already had its own justification, such as a warrant or a recognized exception.³⁶ If a sighting from outside could itself justify going in, probable cause would lead straight to entry with no magistrate in between, and everything visible from a sidewalk, porch, or window would be open to warrantless seizure.

The standard illustration is an officer walking down a city street who sees marijuana lying on a table inside a nearby house, through a window.³⁷ The view is lawful, because the street is open to everyone. If the officer has no warrant and no recognized exception permits entry, however, plain view cannot justify going into the house, and the officer cannot take the marijuana. What the sighting does supply is probable cause, which the officer can take to a magistrate to obtain a warrant for the house.³⁸ The strength of that probable cause does not change the result. Even where the object is contraband, no amount of probable cause justifies a warrantless entry and seizure without exigent circumstances.³⁹

Exigent circumstances, meaning an emergency that does not leave time to get a warrant, can supply the missing access. If the occupant sees the officer watching and immediately moves to destroy the marijuana, the officer may be allowed to enter without a warrant to prevent the destruction.⁴⁰ In that sequence the exigency justifies the entry, and plain view then permits the seizure of what is found once the officer is inside. The two doctrines work together, but each must be satisfied on its own facts, and the officer's own certainty about the marijuana cannot create the emergency.

The only variable that moved is access. Officers executing a warrant may seize unlisted items they see in the course of lawful execution, provided the items are plainly connected with criminal activity and the officers have probable cause to believe they are evidence, and it does not matter that the items are unrelated to the crime under investigation.⁴¹ The officer on the street and the officer in the front room both saw the same marijuana from a lawful position. Only the second had a lawful way to pick it up.

A closely related problem arises when the officer is lawfully inside a place, but only for a limited purpose. Access extends as far as the prior justification extends and no further, so the permission to be in a room does not become permission to open whatever the room holds. The contents of a closed container are not exposed to view, and opening the container is a further intrusion that needs its own justification.

The doctrine may not be used to turn a limited intrusion into a general, exploratory one, extending the search from one object to another until something incriminating at last emerges.⁴² Hicks applies the same idea to equipment in view: the officers' act of moving stereo components to read their serial numbers was a separate search, a point a later section develops.⁴³ The full scenario of a guest officer who exceeds the scope of an invitation is taken up when the elements are combined at the end of this chapter.

With position, aids to sight, and access settled, the next section asks whether it matters that the officer expected to find the item before ever arriving.