Consent search rules

Under the plain view doctrine, if the sight of an object gives the police probable cause to believe that it is the instrumentality of a crime, the object may be seized without a warrant if three conditions are met: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object’s incriminating nature is immediately apparent.

“Immediately apparent” means that the viewing of the object must create probable cause to believe it is contraband without further search of the object. For example, one US. Supreme Court case held that officers could not move a stereo turntable to look at the serial number.

In addition, if the police reach their plain view vantage point by violating the Fourth Amendment, the plain view exception does not save the search.

Some states add the requirement that the view be inadvertent, meaning that the officer did not expect or seek to find the item.

Attacking a plain view search

Your criminal defense attorney can challenge a plain view search in two ways:

  • How did the police put themselves in a position to view the item? They may have entered into an area where they had no right to be, such as by looking through photo albums when they are searching for a firearm, or by looking into a car they illegally stopped.
  • Was the incriminating nature of the item immediately apparent? If it was not, and the police inspected the item in an intrusive manner or conducted more investigation after seizing the item to determine its incriminating character, the plain view exception does not apply.

For example, the U.S. Supreme Court decided that when an officer felt a hard object in a defendant’s pocket during a legal stop and knew it was not a weapon, he could not remove the object to confirm his suspicion that it was crack cocaine. And in another case the Supreme Court decided that seizure of a computer, when probable cause of its incriminating nature become apparent only upon seeing the serial number, could not be justified under plain view doctrine. See Searches of computers.