Fourth Amendment Exceptions – Plain View

Fourth Amendment Exceptions – Plain View

So I realized in my last post, Patios, Porches, Police, and Backyards in Texas I somewhat put the cart before the horse. This post is to fix that. Also, this post is the fifth part of my posts on Fourth Amendment Exceptions. The Fourth Amendment Exceptions – Plain View involves things that officers see or smell. Searches without a warrant are illegal unless they fall under legally recognized exceptions. (These are the holes in the Swiss Cheese). Read some of the past posts to get a rough idea for what I’m talking about. The past posts have included:

  1. Exigency or Immediate Need to Search
  2. Search Incident to Arrest
  3. Consent
  4. Administrative Searches
What is Plain View under Texas law?

Plain view is exactly what it sounds like. It means that the illegal items or activities are open to public view or view of others. For Texas police officer to search or seize under plain view, three things must exist.

  1. The officer must legally be present in the area where they see the items or activities. (For example, if your living room window is open, but the curtains are closed, the officer can’t come to the window, push the curtains aside and poke their head into your home.)
  2. The thing that the officer seizes must be immediately recognizable as an illegal item or evidence of a crime.
  3. The officer must have the legal right to go into the area where the evidence is present. (For example, just because an officer can see a marijuana plant growing in your garage, doesn’t mean the officer has the legal right to enter that part of your home.)
Example: Marijuana Plants Growing In Your Home

Let’s say you have a large picture window in the front part of your home. Anyone can see into your home from the street if the window is left open. Police drive by your house, while the curtains are open, and see your marijuana plants?

Are the police allowed to enter your home and search? 

No. The police shouldn’t be allowed to go into your house only on the exception of plain view. Why? At that time, police have no legal right to enter into your house. They would need a separate exception to the Warrant Requirement to go into the home. Police would need to secure a Search Warrant from a Texas Judge.

Example #2: Pulled over in your car with a bag of weed in the glove box.

Are the police allowed to search your car and person? 

The answer is probably yes. Let’s say the officer is standing by your car and you open the glove box to grab your insurance. While your glove box is open, a bag of weed is sitting inside. So long as the police had a legitimate reason for pulling you over, they would be able to search the car if they see a bag of weed in your glove box. Like I listed before, in this situation, officers 1: Are legally present on the side of your car, after you’re pulled over, 2: The bag of weed would immediately recognizable as marijuana, and 3: The officer has a legal right to go into the area because the public has a decreased expectation of privacy in their cars. (We expect and get much more privacy protection in our homes.

Immediately Recognizable and “Plain Sniff”

Plain view isn’t limited to sight. The legal concept also relates to the officer’s other senses. One of these includes the officer’s sense of smell. Plain sniff can be very helpful to determine whether or not certain drugs are marijuana, or if there is an odor of alcohol on someone’s breath. The sense of smell can give the officer more clues and evidence towards illegal activities or illegal items being present.

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