Why Police Officers Love the “Plain View” Exception

by Jamison Koehler on October 27, 2011

Police officers love the “plain view” exception to the Fourth Amendment requirement for a warrant.

It is because this exception is so straightforward and understandable:  I didn’t need a warrant because I saw it with my own eyes.  I immediately recognized it as contraband.  So I grabbed it.

All the other exceptions are much more complicated, and the law surrounding them is always changing.  How can you be sure an arrest is “lawful” with respect to the search-incident-to-arrest exception? What is “reasonable suspicion” for a stop-and-frisk?  How do you define “hot pursuit”?  That type of thing.

Not so with the old “plain view” standby.  Police officers don’t need a law degree to figure it out.

As a result, officers will often opt for this exception even if they could have stuck to the truth and still prevailed under another exception. But it is a slippery slope. Once they have bent the truth to justify the legality of the stop through the “plain view” exception, it becomes easier to tell an even bigger lie the next time.

And they can often get themselves into all sorts of trouble with the lie.  They develop xray vision and see things that no mortal could possibly see. They tell contorted stories that no reasonable person would ever believe.  And judges who accept these tall stories for the sake of convenience – the search must have been legally justified through one of the exceptions so why not this one? — aren’t doing anybody a favor.  Neither is the prosecutor who decides to look the other way.

I had a case the other day in which the officer went to great lengths to explain how he could have seen contraband sticking out of a client’s pocket when the physical evidence – and the officer’s own previous testimony — screamed foul.  What the officer did not seem to realize is that he could have justified recovery of the contraband through the “search-incident-to-arrest” exception.

Falsus in unius, falsus in omnibus.  Or, as my grandmother always liked to say, “too clever by half.”  Except when the judge accepts the lie. In that case, it is simply “clever.”

5 Comments on “Why Police Officers Love the “Plain View” Exception

  1. Beckley: I have to chuckle because I am a little less forgiving toward police officers than you appear to be.

    Yes, you can blame it on the training, and it is true that officers have to absorb a tremendous amount of information in a short time. And, yes, you can blame it on the laws because, after all, who can decipher the arcane distinctions between reasonable suspicion and probable cause? This is often the argument that is made every time someone argues in favor of a bright-line rule that will be easily understood by police officers.

    But I take a somewhat more cynical view toward police officers. I suspect police officers often claim that the contraband was in plain view because they realize that the legality of a more intrusive search of a suspect might be called into question.

  2. Draughn:

    Yeah, consent would be my guess too. Police also seem to like exigent circumstances.

    While I had never heard of the “plain smell” exception before, I have always been a big fan of the “plain feel” doctrine, at least conceptually. Yes, the officer will testify, the instant I felt the pill bottle in the suspect’s pocket, I knew immediately that there were five pink pills inside that bottle and that those pink pills were contraband.

  3. That’s because he knows from his training and experience that possessors of illicit substances commonly makes use of bottles of that shape and size. Also, the bottle was in the suspect’s pocket, and he knows from training and experience that gang members typically wear clothing with pockets.

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