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While we would never advocate breaking the law, we do believe in being aware of the law. And as a criminal defense law firm we are seeing too many cases where law enforcement gather evidence and build their case of unlawful activity using the Doctrine of Plain View.
Although searches and seizures (the taking of your property) are both thought to be subject to the warrant preference, seizures generally can be made without a warrant based on the doctrine of plain view. Law enforcement officers may seize items when they have probable cause to believe that those items are contraband, evidence, or fruits of crime. An officer who is in a place the officer has a right to be may seize an item that the officer has probable cause to believe is contraband, evidence, or fruits of a crime without a warrant in reliance on this doctrine. See, e.g., Payton v. N.Y., 445 U.S. 573, 587 (1980) (“[t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity”); Horton v. Cal., 496 U.S. 128 (1990).
It should be clear that the plain-view doctrine never justifies an entry or intrusion to make a seizure; it merely justifies the seizure. If an entry or intrusion is necessary, that entry or intrusion must be independently justified. “What the ‘plain view’ cases have in common is . . . each of them had a prior justification for an intrusion in the course of which [the officer] came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification . . . .” State v. Hutchinson, 796 S.W.2d 100, 106 (Mo. App. S.D. 1990). Thus, an officer seeing contraband through a closed but uncovered window may not enter the building to seize the contraband under the plain-view doctrine. If, however, the officer is already legitimately inside the premises and sees the contraband in plain view, that doctrine will justify seizure without a warrant. “To establish the plain view exception, the burden is on the State to prove by a preponderance of the evidence that the evidence obtained in the searches was readily visible, plainly or easily seen.” State v. Rutter, 93 S.W.3d 714, 724 (Mo. banc 2002). For an extremely careful discussion and application of the plain-view doctrine, see State v. Johnston, 957 S.W.2d 734, 742–45 (Mo. banc 1997).
Seizure under the plain-view doctrine is limited to items the officer can identify as subject to seizure based on visual inspection only. Ariz. v. Hicks, 480 U.S. 321 (1987). In Hicks, the Court refused to recognize a doctrine of “cursory inspection” and indicated that manual handling of an item could not be justified under the theory of plain view. See also State v. Budgetts, 771 S.W.2d 902 (Mo. App. W.D. 1989). When, however, an officer has an independent right to handle an item and through the handling determines that the item is contraband, evidence, or fruits of crime, the doctrine of “plain feel” will allow its seizure. Minn. v. Dickerson, 508 U.S. 366 (1993). Any manipulation that is not independently justified will defeat application of this doctrine because “the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” Hutchinson, 796 S.W.2d at 106. Similarly, when an officer is in a place the officer has a right to be and can determine through smell alone that an item is seizable, the corollary doctrine of plain smell will allow seizure without a warrant. See Polson v. City of Lee’s Summit, 535 F. Supp. 555, 558–59 (W.D. Mo. 1982).
Missouri specifically adopted the “plain-feel” doctrine in State v. Rushing, 935 S.W.2d 30 (Mo. banc 1996). In Rushing, during a frisk, an officer felt a type of container that he stated was known to be used by drug traffickers. The Court held that the plain-feel doctrine could justify seizure of an item felt but not seen when that feel, considered in conjunction with information and observations regarding the area, the transaction, and the knowledge and experience of the officer were sufficient to give rise to probable cause. Two judges dissented, believing that the decision was inconsistent with Hicks, 480 U.S. 321. The plain-view doctrine has generally been used to justify seizures only and not entries, but the decision in Rushing seems less clear on this point. The decision has been criticized for going beyond the boundaries of the Supreme Court’s holding in Dickerson, 508 U.S. 366, see Daniel E. Blegen, Note, Seizures of Containers Using the Plain Feel Doctrine: Did Missouri Go Too Far? or When Is a Pill Bottle Just a Pill Bottle?, 63 Mo. L. Rev. 243 (1998), and for creating confusion for the police, prosecutors, and courts, see Cynthia A. Rushefsky, The “Plain Feel” Doctrine in Missouri: State of Missouri v. Shaun Rushing, 53 J. MoBar 215 (1997).
Rushing has been applied in several cases, leading to suppression when there was insufficient evidence that, by virtue of contour or mass, the officer could immediately identify the item seized as contraband, State v. Moore, 99 S.W.3d 579, 583–84 (Mo. App. S.D. 2003), and when there was no evidence that the officer knew from experience that criminals commonly use the type of container involved to store contraband, State v. Courtney, 102 S.W.3d 81, 89 (Mo. App. W.D. 2003).
More recently, the court ruled that a multi-family dwelling’s back staircase that was shared by all of the tenants and did not lead directly to the defendant’s residence was not curtilage. United States v. Brooks, 645 F.3d 971 (8th Cir. 2011). In finding that this area was not curtilage, the court also noted the shared nature of the area, its visibility from public areas of the building, and that the gates to the back of the building were open and unlocked when officers arrived. Id. at 975–76. Because this area was not curtilage, officers had a right to be in the staircase, and the seizure of a firearm that was in plain view was appropriate. Id. at 976.
Criminal Practice 2012 Supp - 9.10 Justification for Seizure: Plain View (Criminal Practice (2005 Ed. + 2012 Cum Supp)).
Cleanliness is next to godliness as the saying goes. Clean up any semblance or what could be perceived as illegal activity, do not give law enforcement a reason to seize your property.
If you have any questions or concerns please call us at 816-503-6739.