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What you should know about the “plain view” exception

by | Jun 25, 2023 | Criminal Defense

Thanks to the Fourth Amendment of the U.S. Constitution, police can’t just appear at your home or office, push their way in and start looking around and taking things without your permission or a valid search warrant – with some limited exceptions. A warrant should list the specific areas police may search and what kinds of items they’re allowed to seize (for example, computers, drugs and illegal weapons).

One exception is “exigent circumstances.” Police can enter a property if officers believe someone is in danger or evidence is being destroyed. Another exception involves what they can seize. They can typically take items in “plain view” even if the don’t have permission or the items in question are not listed in the warrant. For example, if officers spot a backpack on the entryway floor with what appears to be a bag of drugs sticking out of it, that is considered to be in plain view. They can take it and it can potentially be used as evidence.

What is required for the plain view exception to apply?

The definition of plain view seems pretty obvious. However, the law clarifies requirements for using the plain view exception. Officers must have the right to be in the location where the evidence is spotted. They must either have a warrant or permission to enter. If they have a warrant, you have the right to review it. Further, they must have spotted the evidence in a place they were authorized to search.

Further, the evidence in plain view must be spotted inadvertently. If a bag of suspected drugs could be spotted without opening the backpack, that would be inadvertent. If police wander into areas they’re not authorized to search and start opening closets or drawers, anything they find isn’t in plain view. Finally, officers must have a reason to believe an item is evidence of or relevant to a crime.

All of this is a lot to think about at a time when you’re likely fearful and upset. It can be hard to assert your rights following an arrest, even if you know what they are. That’s just one reason why it’s wise to get legal guidance as soon as possible if you’ve been charged with a crime. This can help you determine whether the evidence being used against you was legally obtained and whether it can be challenged as part of your defense strategy.