What Is "Plain View" Search & Seizure?

One of the most significant rights outlined in the Constitution limits the authority of law enforcement and the government to make arrests, seize property, and search the person or possessions of someone accused of a crime. The purpose of this rule is to protect and uphold an individual's right to privacy.

However, just because a search and seizure law exists does not mean that there aren't exceptions to this rule. Police can perform a search or seizure if they have probable cause, if a judge issues a warrant, or circumstances exist to justify the search without a warrant. One such exception is the premise of a plain view search and seizure and how this can apply in a criminal case.

When is a plain view search & seizure allowed?

Search and seizure only applies if there is a reasonable expectation of privacy. This means that there was your expectation would be recognized by the public at large and was violated. On the other hand, a plain view search and seizure occurs when police seize evidence that had no privacy attached to it. For example, someone that has been stopped for DUI and has a bottle of whiskey in the cup holder. A police officer could take this as evidence since it is in plain view for them to see.

Plain view search and seizure requires that:

  • Law enforcement has a legal right to be where the evidence can be seen;
  • Law enforcement can legally access the evidence; and
  • It is immediately known that the evidence is illegal or relevant.

The officer must have probable cause that the evidence is connected to a crime or contraband before that are able to take the property and must not move other objects in order to get a closer view at the evidence. Therefore, a plain view search and occurs when law enforcement has probable cause to believe that contraband or evidence in their sight should be seized for the case, so long as it doesn't violate a person's expectation of privacy.