Look Here: 4th Amendment Musings

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The Plain View Doctrine . . . Quickly
Tuesday, May 9th, 2017
The Plain View Doctrine . . . Quickly

The plain view doctrine is an established—but sometimes misunderstood principle—which provides that police officers who are lawfully engaged in an activity in a particular place may immediately seize suspicious property without a warrant if the officers perceive the property during the scope of their lawful activity and if the incriminating character of the property is “immediately apparent.”1 The doctrine is not an exception to the requirement that officers must have legal authority to be present in or to conduct a search of a place.2 Rather, it is an extension of officers’ authority to conduct a seizure of property discovered while conducting an otherwise lawful activity.3

The doctrine has its origins in the general rule that incriminating objects found in a public place may be seized without a warrant.4 Owners of property located in a public place have no expectation of privacy associated with such property. While an owner of property located on private premises does have an expectation of privacy, that expectation dissolves once a police officer lawfully conducting an activity on the premises has observed the property, and the owner’s only remaining interests are those of possession and ownership.5 Under these circumstances, the courts have found that requiring police to obtain a warrant for such property would constitute a “needless inconvenience,” and have therefore created the plain view doctrine to allow for the immediate, warrantless seizure of items lawfully observed.6

As the test has evolved, there have been some judicial disputes about what is required for the plain view doctrine to be properly invoked, but those disputes were settled definitively by the Supreme Court in 1990 in Horton v. California.7 That case held that for the plain view doctrine to apply, three conditions must be satisfied. First, an officer must be lawfully present at the place where the seized object can be plainly viewed. Second, the officer must have a lawful right of access to the object. Finally, the incriminating character of the object must be “immediately apparent” to the officer at the time the object is perceived.

Texas courts generally follow the Federal rules in application of the plain view doctrine, and have specifically rejected any greater protections under the Texas Constitution than those provided by the Fourth Amendment.8 The first prong of the Horton test simply inquires whether the officers had a right to have access to the premises where the incriminating evidence is found. Thus, the initial entry by officers onto private premises must be lawful under the Fourth Amendment, either pursuant to a lawfully issued warrant, some exception to the warrant requirement, or under the same rules as applicable to the general public.9 The second prong of Horton is an outgrowth of the first, and serves as a limitation upon officers converting a search pursuant to a warrant founded in some specificity into a general warrant.10 It simply requires, in addition to being lawfully present on the premises, that officers must not exceed the scope of their lawful activities by searching containers, furniture, closets, etc., to which their lawful search authority does not extend.11,12 The final prong of the Horton test requiring that the incriminating nature of the evidence be “immediately apparent” to officers has been described as a requirement that police must have probable cause to associate the item with criminal activity at the time of the seizure (as opposed to actual, firm knowledge of illegality).13 It is worth noting that the doctrine is not limited to the sense of sight; officers may use any of their senses, including feel, in satisfying the Horton test.14

In application, the initial question that should be asked when reviewing evidence ostensibly seized under the plain view doctrine is “what authority did the officers have for being on the premises?” If officers are present pursuant to a valid warrant—either search or arrest—then the Horton test is satisfied. If not, then some validly invoked exception to the warrant requirement must be identified in order for a plain view seizure to be justified: Exigent circumstances, the “automobile exception,” the community caretaking function, and consent to the entry are all examples of potential valid warrant exceptions that will support a plain view seizure. With either a warrant or a valid exception, it is important to note any limitations that would limit an officer’s access to certain areas of a given premises. For instance, consent to admit officers into a living area for an investigative conversation may not extend to a general consent to peruse the master bath suite of a residence.

Assuming that officers are lawfully present, the question becomes whether the officers had lawful access to view the seized item.15 If an item is in open view in a place where officers have authority to be, then the plain view doctrine undoubtedly applies. But officers may find evidence in plain view only as a result of opening cupboards, cabinets, drawers, and other containers. For these situations, the question focuses on whether officers properly exercised authority to access these areas. If officers are executing an arrest warrant at a defendant’s home, for example, they are justified in checking areas where a person may be concealed, but would likely exceed the scope of their authority (i.e., would have no right of access) by checking the sock drawer.16

The final question turns to a probable cause determination based on the state of knowledge of the officers at the time of the seizure. “Probable cause merely requires that the facts available to the officer would warrant a man of reasonable caution [to believe] that certain items may be contraband.”17 Officers may combine their training and experience with their observations to draw inferences as to whether an item is likely associated with criminal conduct.18

To reiterate, the plain view doctrine is not, in and of itself, an exception to the warrant requirement regarding police conduct of searches; rather, it provides the authority for officers to make warrantless seizures of evidence they lawfully have independent access to and which they observe in places they have independent authority to be. Given the nature of the doctrine as “piggybacking” on other Fourth Amendment law, application of the plain view doctrine can be nuanced and will almost certainly be fact-oriented on a case-by-case basis.

When analyzing a claimed plain view seizure, ask:

1. Was the officer lawfully present at the place where the object could be plainly viewed?
2. Did the officer have the lawful right of access to the object?
3. Was the incriminating character of the object “immediately apparent” to the officer the moment the object was perceived?

Because most of us are persuaded by what is familiar, what your circuit court has said on the matter may be a good place to begin your research after comparing the facts of your particular case to Horton v. California. In that vein, here is a quick reference chart arranged by region:

Court of Appeals District Published opinion since Horton
1st—Houston Carmen v. State, 485 S.W.3d 488 (2016)
2nd—Fort Worth Collins v. State, 462 S.W.3d 617 (2015)
3rd—Austin State v. Elrod, 395 S.W.3d 869 (2013)
4th—San Antonio Tollefson v. State, 352 S.W.3d 816 (2011)
5th—Dallas State v. Amarelle, 190 S.W.3d 1 (2005)
6th—Texarkana Crayton v. State, 485 S.W.3d 488 (2016)
7th—Amarillo Barnes v. State, 424 S.W.3d 218 (2014)
8th—El Paso *no published opinions located
9th—Beaumont Pace v. State, 318 S.W.3d 526 (2010)
10th—Waco White v. State, 50 S.W.3d 31 (2001)
11th—Eastland Dew v. State, 214 S.W.3d 459 (2005)
12th—Tyler State v. Bagby, 119 S.W.3d 446 (2003)
13th—Corpus Christi State v. Bland, 475 S.W.3d 327 (2013)
14th—Houston Ford v. State, 179 S.W.3d 203 (2005)

1. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301 (1990); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022 (1971).

2. Some confusion on this point exists; see, e.g., 22 Tex. Jur. 3d § 429, characterizing the doctrine as a general exception to the warrant requirement. A close reading of the relevant cases, however, reveals the fine distinction in which courts regard plain view as an exception to the warrant requirement only in regard to seizure of incriminating evidence, and emphatically not as an exception regarding searches.

3. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535 (1983)(opinion of Rehnquist, J.) (“‘Plain view’ is perhaps better understood, therefore, not as an independent ‘exception’ to the warrant clause, but simply as an extension of whatever the prior justification for an officer’s ‘access to an object’ may be.”)

4. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371 (1980).

5. Texas v. Brown, 460 U.S. at 739, 103 S.Ct. at 1541.

6. Id.

7. 496 U.S. 128, 110 S.Ct. 2301 (1990).

8. Hillsman v. State, 999 S.W.2d 157 (Tex. App.—Houston [14th Dist.] 1999, pet ref’d).

9. See, e.g., State v. Betts, 397 S.W.3d 198 (Tex. Crim. App. 2013)(officers could not execute warrantless entry to seize allegedly mistreated dogs despite dogs being observable from alleyway); State v. Weaver, 349 S.W.3d 521 (Tex. Crim. App. 2011) (business premises are protected under Fourth Amendment, and police may enter premises open to the public to the same degree as the general public has access without a warrant and may observe objects in same manner as the general public would be able); Shadden v. State, 431 S.W.3d 623 (Tex. App.—Amarillo 2014, reh’g overruled)(police officer who found firearm and contraband in plain view did not exceed scope of exigency justifying his presence on the premises).

10. Horton, 496 U.S. at 134, 110 S.Ct. 2301.

11. E.g., pursuant to a valid search warrant, officers may only search for the object of the search and places where there is probable cause to believe it may be found; evidence found in plain view along the way would be that evidence to which officers have a right of access. Joseph v. State, 807 S.W.2d 303 (Tex. Crim. App. 1991).

12. It is worth noting that there is a split of authority in Texas regarding whether the plain view doctrine applies to seizure of items unnamed in an “evidentiary search warrant” issued pursuant to Tex. Code Crim. Proc. Ann. Art. 18.02(10). See Zarychta v. State, 44 S.W.3d 155 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d, cert. denied, 2002). Thus, the Code of Criminal Procedure may serve as a statutory limitation upon the doctrine.

13. Id., citing Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149 (1987)(stereo equipment not related to officers’ presence on premises was not known to be stolen until after officers moved it to obtain serial numbers, constituting an independent, warrantless search). See also State v. Dobbs, 323 S.W.3d 184 (Tex. Crim. App. 2010); Crayton v. State, 485 S.W.3d 488 (Tex. App.—Texarkana 2016).

14. See, e.g., Minnesota v. Dickerson, 508 U.S. 366, 113, S.Ct. 2130 (1993), and Graham v. State, 893 S.W.2d 4 (Tex. App.—Dallas 1994, no pet.)(both regarding “plain feel,” especially in context of a Terry frisk; but see State v. Steelman, 93 S.W.3d 102 (Tex. Crim. App. 2002)(smell alone does not justify a warrantless search, though it may contribute to the probable cause prong of Horton for a warrantless seizure).

15. As a cautionary note, some courts invert the order of the second and third Horton factors. See, e.g., Goonan v. State, 334 S.W.3d 357, 361 (Tex. App.—Fort Worth 2011, no pet.)

16. An interesting case highlighting the distinction is Keehn v. State, 279 S.W.3d 300 (Tex. Crim. App. 2009), in which the Court found that officers who observed a pressurized gas tank within a vehicle parked in a private driveway and who had probable cause to believe the tank might contain a drug precursor chemical nevertheless did not have a “right of access” to the interior of the vehicle, and thus could not seize the tank based on the plain view doctrine, although they could search the vehicle pursuant to the “automobile exception” to the warrant requirement and seize the tank as a result.

17. Miller v. State, 686 S.W.2d 725, 728 (Tex. App.—San Antonio 1985, no pet.)

18. Nichols v. State, 886 S.W.2d 324 (Tex. App.—Houston [1st Dist.] 1994, pet ref’d). Goonan, supra, also provides an instructive discussion of probable cause; in that case, officers searching a vehicle pursuant to the automobile exception found a pill bottle in the console that did not bear the driver’s name, was old, did not allow for refills, and with respect to which Goonan “had made furtive movements.” The Court of Appeals approved not only the officer’s seizure of the bottle, but a subsequent search of its contents, which revealed contraband. 334 S.W.3d at 361.