The plain view doctrine allows police to seize property without a warrant if its criminality is readily apparent.
The doctrine requires that:
(i) The officer be lawfully in a position from which he observes the property,
(ii) The incriminating character of the property is immediately apparent, and
(iii) The officer had a lawful right of access to the property.
The 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.
Incriminating Character Not Always Immediately Apparent
The Supreme Court has described “immediately apparent” as “an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary.” Texas v. Brown, 460 U.S. 730, 741 (1983).
Essentially, the “immediately apparent” element hinges on a probable cause determination; it does not require a law enforcement officer to know that an item is contraband or evidence of a crime. See People v. Jones, 215 Ill. 2d 261, 277 (2005).
The appropriate question is would a reasonable person in that officer’s position believe that a crime was being or had been committed?
Plain View Doctrine Examples
Below are plain view doctrine examples taken from the the case law.
People v. California
In Horton v. California, 496 U.S. 128, 136-37 (1990), the Supreme Court officially adopted a long-recognized standard that, for police to properly seize evidence in plain view, its “incriminating character” must be immediately apparent.
People v. Humphrey
In People v. Humphrey, 361 Ill. App. 3d 947 (2005) a police officer stopped a motorist for speeding. During the stop, the officer noticed a container holding hundreds of pills near the passenger’s feet.
The court held that the officer improperly seized the pills because he did not know that they contained pseudoephedrine or whether possessing the pills constituted a crime.
People v. Lee
People v. Lee, 2018 IL App (3d) 160100 (August). Episode 529 (Duration 4:49)
The officer said the baggie looked like it had oatmeal in it, later testing revealed it to be cocaine.
Police had a warrant to search defendant’s home. They suspected he was involved in a shooting. Sterling police investigated defendant’s involvement in a shooting.
A Detective found drugs underneath defendant’s bed sheets after he pulled back defendant’s bed sheets. It was a knotted, plastic bags that contained a brown, powdery substance.
Defendant claimed that the substance’s incriminating character was not immediately apparent because the detective admittedly did not know that the substance contained cocaine.
The court held this officer had probable cause to seize the substance the moment he discovered it hidden beneath defendant’s bed sheets in packaging commonly used to store illicit drugs. It is irrelevant whether he subjectively believed that the substance looked like oatmeal, heroin, or a “bad batch” of cocaine; an objectively reasonable law enforcement officer could properly infer that the suspiciously packaged powder in defendant’s bed sheets was probably evidence of a crime.
People v. Petty
People v. Petty, 2017 IL App (1st) 150641 (May). Episode 356 (Duration 7:33) (Plain View Doctrine Requires Immediate Apparent Criminality | An Unhappy Choice Of Words)
Best Buy had issued a storewide alert for an individual placing UPC labels for $42 Sony DVD players on $400 BluRay players and purchasing the more expensive players at the lower price.
They gave police the name on the receipts as well as video of the man making the purchases.
Man Is Back
Two hours after the report the man came back and the police were called. The police responded and waited in the parking lot. Defendant left the store and drove away without buying anything.
The officers stopped him and arrested him for driving on a suspended license.
As defendant was being taken out of his car, an officer saw some UPC labels on a clipboard on the front passenger-side floorboard. When searched, he had a credit card in his name that ended with the same four numbers on the Best Buy receipt.
Defendant argued that the plain-view exception to the warrant requirement does not justify the seizure of the UPC labels, as the incriminating nature of the UPC labels was not immediately apparent.
Petty maintains that the search of his car and seizure of the UPC labels was not justified as a search incident to an arrest as (i) the labels were unrelated to the traffic stop for driving on a suspended license, his only offense, and (ii) he was not within reach of his car at the time of the search. Defendant says he was not within reach of his car.
The reviewing court noted that when defendant was stopped he was under investigation for retail theft as well as for driving on a suspended license.
A mere hunch is insufficient to support the seizure, but a police officer views the facts “through the lens of his police experience and expertise” and “may draw inferences based on his own experience in deciding whether probable cause exists.”
The police officers could draw an inference from the totality of the information available to them that the UPC labels were related to the recent theft.
Also, the store manager had told the officers that storewide thefts had occurred involving falsified bar codes. UPC barcodes were the modus operandi in accomplishing the theft. So otherwise innocuous UPC labels were incriminating because the thefts that had occurred involved the scanning of UPC labels on checkout, establishing more than a mere suspicion.
It was reasonable for the officers to believe the UPC labels were evidence of a crime and it was legal for them to take possession of them through the use of the plain view doctrine.