Chapter 9 Plain View, Open Fields, Abandonment, and Border Searches

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Chapter 9 Plain View, Open Fields, Abandonment,
and Border Searches
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• Plain view, open fields, and abandonment are not
  governed by the 4th amendment
• No intrusion into a persons reasonable
  expectation of privacy
• Do not require a warrant or p/c

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Plain View Doctrine

• Able to seize items in plain view as long as
  three requirements are met (sometimes four)
• All three requirements must be present
• If one or more requirements is missing then not
  plain view

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Plain View Doctrine Requirements

• 1 Item must be seen by the officer
• 2 Officer must be legally present in the
  place from which the item is seen
• The officer must not have done anything illegal
  to get to the spot from which the items are seen

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Plain View Doctrine Requirements

• Applies to
• Traffic stops
• Responding to CFS
• Search Warrant
• Vehicle inventory
• When conducting investigations
• Etc.

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Plain View Doctrine Requirements

• 3 Must be immediately apparent that the
  item is subject to seizure
• Recognition must be immediate and not the result
  of further prying or examination
• Example cant suspect item is stolen and get
  serial number to verify (justify by other means,
  consent or p/c and exigent circumstances)

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Plain View Doctrine Requirements

• Immediately apparent requirement must be based on
  p/c
• Arizona v. Hicks (1987) bullet through floor
  injuring man below entered suspects apt.
  found 3 weapons and stocking mask also took
  serial numbers off of stereo
• Stereo was excluded as evidence because not
  immediately apparent

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Plain View Doctrine Requirements

• Is Inadvertence Required under Plain View?
• No, if you have a search warrant
• Old rule required that the discovery must be
  purely accidental to be plain view
• Officers could not have any prior knowledge that
  the evidence was present in the place

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Plain View Doctrine Requirements

• Some argue that inadvertence is the fourth
  requirement for plain view unless a warrant is
  present
• Horton v. California (1990) applied for warrant
  to search for 3 rings and weapons used in
  robbery, warrant issued for proceeds not weapons
  did not find 3 rings but found weapons and
  seized them under plain view

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Plain View Doctrine Requirements

• Horton argued that the discovery of the weapons
  was not inadvertent
• Court disagreed therefore stating that
  inadvertence is not required for plain view in
  this instance

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Plain View Doctrine Requirements

• Does this apply to warrantless plain view
  discoveries?
• Most plain view cases are still the result of
  inadvertence

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Open Fields Doctrine

• Items is open fields are not protected by the 4th
  amendment so they can be seized without a warrant
  or p/c
• Areas not included in Open Fields
• Houses
• Curtilage

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Open Fields Doctrine

• Curtilage means the grounds and buildings
  immediately surrounding a dwelling and associated
  with it
• Residential yards if public does not have access
• Garages (unless far from house and rarely used)
• Sheds/barns (depends on location and use)

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Open Fields Doctrine

• Rule of Thumb the farther buildings are from
  the house, the more likely it will be considered
  in an open field
• Test to determine curtilage was established in US
  v Dunn (1987)

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Open Fields Doctrine

• 4 factors to determine curtilage
• 1 The proximity of the area to the home
• 2 Whether the area is in an enclosure
  surrounding the home
• 3 The nature and uses of the area
• 4 The steps taken to conceal the area from
  public view

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Open Fields Doctrine

• Test is difficult to apply with precision
• Dunn suspected of manufacturing drugs on farm
  officers jumped fences and used a flashlight to
  look in a barn located 50 yards from the house
  found a drug laboratory got warrant to enter
  barn - Dunn argued part of the curtilage, Court
  disagreed

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Open Fields Doctrine

• Oliver v US (1984) suspected of growing
  marijuana 1 mile from house officers passed a
  locked gate and no trespassing signs to enter
  Olivers property Did not have a warrant, p/c,
  or exigent circumstances found marijuana
  growing in field
• Oliver argued violated 4th amendment rights

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Open Fields Doctrine

• Court disagreed stated that it was legal for
  the police to enter and search open fields
  without either a warrant or p/c
• Court stated that just because the governments
  intrusion into an open field is a trespass, does
  not make it a search in the constitutional sense

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Open Fields Doctrine

• The concept of curtilage has become severely
  restricted by the Court in recent years and the
  concept of open fields have been broadened

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Open Fields vs. Plain View

• Open Fields Plain View
• Seizable item is not in a house, Seizable item
  usually is in a
• dwelling or curtilage house, dwelling or
  curtilage
• Items hidden from view may be Only items not
  hidden from
• seized view may be seized
• Awareness of item may be through Awareness of
  item is limited
• sight, hearing, smell touch or tasted to sense of
  sight
• Open space May be in an enclosed or
• open space

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Abandonment

• Giving up possession or ownership of an item
• Not protected by 4th amendment because no
  intrusion into a reasonable expectation of privacy

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Factors Used to Determine if Item has been
Abandoned

• 1 Where the property is left
• General rule is that if the item is left in a
  public place then it is abandoned
• Includes garbage left outside the curtilage

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Factors Used to Determine if Item has been
Abandoned

• 2 Intent to abandon
• Usually determined objectively by what a person
  does, not subjectively by what a person thinks
• Denial of ownership can be used to establish
  abandonment

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Abandonment

• In order to be abandonment, the officers actions
  that led to the seizure must be legal

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Factors for Abandonment of Motor Vehicles

• 1) Flight from vehicle
• 2) Where and for how long left unattended
• 3) Condition in which vehicle is left (unlocked,
  etc.)
• 4) Denial of possession or ownership

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Immigration and Border Searches

• A person can be stopped in a border area or the
  functional equivalent of a border if the officer
  has reasonable suspicion that the person is
  illegally in this country
• Alimentary canal smugglers may be detained at
  border based on reasonable suspicion

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Immigration and Border Searches

• During border searches, the 4th amendment balance
  of interests between individual rights and
  governmental concerns weighs heavily in favor of
  the government
• Stopping vehicles at fixed checkpoints and asking
  a few brief questions does not require reasonable
  suspicion

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U.S. v. Flores-Montano (2004)

• The Court concluded that the Governments
  authority to conduct suspicionless inspections at
  the border includes the authority to remove,
  disassemble, and reassemble a vehicles fuel tank.