Plain View Doctrine Essay

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The Fourth Amendment to the U.S. Constitution, spawned from the colonists’ experiences with general warrants issued by the English crown, purports to require a search warrant for all searches by law enforcement and other government officials:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

However, that warrant requirement is extended only to “persons, houses, papers, and effects,” and applies only to “unreasonable” searches and seizures. Furthermore, since the Fourth Amendment was ratified, constitutional jurisprudence, driven by the U.S. Supreme Court, has interpreted the Fourth Amendment to require a search warrant only when the subject of the search has a “reasonable expectation of privacy” in the premises searched and the items seized. Thus, if the subject has no reasonable expectation of privacy, no search warrant is required. To have a “reasonable expectation of privacy,” the subject must personally believe the place or item is private, and society must be willing to recognize that the subject’s belief is reasonable. Arising out of that cauldron, courts have developed a number of exceptions to the so-called search warrant requirement.

Those exceptions include searches incident to consent, exigency (including motor vehicle exception searches), public safety emergency, lawful arrest, and plain view. The plain view doctrine says that officers need not have a search warrant to seize objects found in plain view, even if the subject otherwise has a reasonable expectation of privacy in those objects. Whether the plain view doctrine is considered as an exception to the warrant requirement, or as an embodiment of the principle that officers can search things and areas wherein the suspect has no reasonable expectation of privacy, plain view searches and seizures are clearly constitutional under both rationales.

If the officers are present in a place where they have a right to be (lawful vantage point), and see— in plain view—an object they can immediately discern has evidentiary (inculpating) value, they may seize that object without a search warrant. The first part of that rule requires consideration of where officers have a right to be, that is, where officers enjoy a lawful vantage point. First, officers have a right to be present in a public place, say, on a sidewalk adjacent to the subject’s residence, or in a squad car on a public roadway. People have no reasonable expectation of privacy in that which they leave visible to the public. Second, officers have a right to be in a private place if they are present by consent, such as when the subject has invited them inside the subject’s residence. Third, officers have a right to be in a private place when they are, pursuant to a search warrant, searching there for other objects in places where those other objects may reasonably be found. So, if the officers have a search warrant to search for a stolen car, they can look in the garage, but they do not have the right to look through the subject’s desk drawer, which could not possibly contain the stolen car. Fourth, officers have a right to be present in a private place if they are there supported by some other exception to the search warrant requirement, such as when they are in hot pursuit of a subject and the subject retreats into a residence.

Then, assuming the officer has a right to be present in a place, the officer may seize whatever is found there in plain view. The object must be visible to the officer from a lawful vantage point. The officer may not manipulate the object to discern whether it is inculpating; thus, the officer may not turn the item over to find its serial number to match it to a list of stolen property.

In a classic application of the plain view doctrine, officers have a search warrant to search the murder suspect’s residence for an enumerated list of 17 items, some small enough to fit into a desk drawer. The suspect claimed the victim had never been in his residence. While executing the search warrant, officers find, in a desk drawer, a set of car keys and the victim’s work badge, neither of which was listed on the search warrant. The officers immediately knew the keys and badge had belonged to the murder victim. The officers may seize the car keys and badge, even though they were not among the items listed in the search warrant, because the officers had a right to be in the residence pursuant to the search warrant, had a right to look in desk drawers for small-sized enumerated items, immediately knew the keys and badge belonged to the victim, and immediately discerned their inculpating value because the suspect had claimed the victim had never been inside his residence.

The plain view doctrine has been extended to many other similar circumstances, including the plain feel doctrine, the plain smell doctrine, and the plain hearing doctrine. The plain feel doctrine (also known as the plain touch doctrine) holds that when an officer has a right to frisk a suspect, and during the frisk feels something in the suspect’s clothing that is immediately identifiable as contraband, say, drugs or a dangerous weapon, the officer can reach farther into the clothing, more intrusively than permitted in a typical frisk, and seize the contraband. The plain smell doctrine holds that if an officer observing from a lawful vantage point, perhaps a motel hallway, smells something the officer immediately knows is inculpating, such as marijuana smoke wafting from inside a motel room into the hallway, the person who was responsible for the source of that smell has no reasonable expectation of privacy in that smell being emitted into the public place, the hallway. The plain hearing doctrine reasons that if an officer from a lawful vantage point overhears a conversation, the conversation was loud enough that the speaker had no reasonable expectation the conversation would remain private.

Finally, modern technological changes have proved challenging for the plain view doctrine. With binoculars, much more is within plain view than with the naked eye. With thermal imaging equipment, an officer can perceive heat through walls. With personnel detectors, an officer can identify how many people are present in a building, and where each person is within that building. With global positioning system (GPS) tracking devices, the location of a vehicle or a person can be tracked by satellite. Courts are already considering the proper contours of the plain view doctrine as officers’ senses are enhanced by modern technology. Courts will likely continue to limit the plain view doctrine and these related doctrines to those things and characteristics that can be heard, seen, or smelled by human senses without extensive technological enhancement; using flashlights or binoculars to enhance the officers’ senses appears to be acceptable, but using thermal imaging technology is not.


  1. Cook, Julian A. Inside Investigative Criminal Procedure: What Matters and Why. New York: Wolters Kluwer, 2012.
  2. Dressler, Joshua and Alan C. Michaels. Understanding Criminal Procedure. 6th ed. Danvers, MA: Matthew Bender, 2013.
  3. Kerr, Orin S. “Searches and Seizures in a Digital World.” Harvard Law Review, v.119 (2005).
  4. LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment. 5th ed. Eagan, MN: West, 2012.
  5. Saylor, James. “Note, Computers as Castles: Preventing the Plain View Doctrine From Becoming a Vehicle for Overbroad Digital Searches.” Fordham Law Review, v.79 (2011).

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