The Plain View Exception

The “plain view” exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be.  The plain view doctrine was established by the Supreme Court in:42

Notes, Comments, and Questions 

In Coolidge v. New Hampshire, 403 U.S. 443 (1971), the Court stated that the “plain view exception” existed but did not justify the search at issue in the case. In Arizona v. Hicks, 480 U.S. 321 (1987), the Court explained the plain view exception further. As the Hicks Court sets forth, the plain view exception can apply only if an officer conducts a seizure (1) while the officer is somewhere the officer has the lawful right to be (e.g., while on a public sidewalk, or inside a house executing a warrant) and (2) the officer has probable cause to believe that the object is subject to seizure. Objects are subject to seizure if they are contraband or are otherwise evidence of, fruits of, or instrumentalities of a crime. (“Contraband” refers to items that are unlawful to possess, such as illegal drugs.) In Hicks, an officer was lawfully inside a house and spotted an object the officer believed to be stolen. But because the officer lacked probable cause to support his belief upon picking up the item, the officer’s seizure of the object (a stolen stereo) was deemed outside the scope of the exception—that is, it was unlawful.

In Horton v. California, 496 U.S. 128 (1990), the Court expanded the scope of the plain view exception by removing the “inadvertence requirement” set forth in Justice Stewart’s plurality opinion in Coolidge. Although the Horton Court described Coolidge as “binding precedent,” it held that the inadvertence requirement was not “essential” to the Court’s result in Coolidge. As the Horton majority put it, for the exception to apply, “not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.” In addition, “not only must the item be in plain view; its incriminating character must also be ‘immediately apparent.’”