Chapter Nine

1
Chapter Nine Searches and Seizures Not Fully
Protected by the Fourth Amendment Plain View,
Open Fields, Abandonment, and Border Searches

• Rolando V. del Carmen

2
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• The Plain View Doctrine
• Plain View Defined
• Items that are within the sight of an officer who
  is legally in a place from which the view is
  made, and who had no prior knowledge that the
  items were present, may properly be seized
  without a warrantas long as the items are
  immediately recognizable as subject to seizure.
  Requirements of the Plain View Doctrine
• 1 -Awareness of the Item through the Use of Sight

3
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• The Plain View Doctrine
• 2 - The Officer Must Be Legally in the Place from
  Which the Item Is Seen
• Search warrant
• Hot pursuit
• Valid consent
• Valid arrest

4
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• The Plain View Doctrine
• 3 - The Item Must Be Immediately Apparent as
  Subject to Seizure
• The immediately apparent requirement of the
  plain view doctrine must be based on probable
  cause, not on any lesser degree of certainty such
  as reasonable suspicion.
• Although items must be immediately recognizable
  as subject to seizure if they are to fall under
  the plain view doctrine, it is not necessary that
  there be certain knowledge that incriminating
  evidence is involved. Probable cause is
  sufficient to justify seizure. Also, the use of a
  flashlight by an officer to look into the inside
  of a car at night does not constitute a search
  under the Fourth Amendment.

5
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• The Plain View Doctrine
• Situations in Which the Plain View Doctrine
  Applies
• Arrest
• Hot pursuit
• Search incident to a valid arrest
• Out on patrol
• Car inventory search
• Investigation in a residence
• Entry into a home after obtaining valid consent

6
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• The Plain View Doctrine
• Plain View One of Many Justifications for
  Admission of Evidence in Court
• Inadvertence No Longer Required
• The Fourth Amendment does not prohibit the
  warrantless seizure of evidence in plain view,
  even though the discovery of the evidence was not
  inadvertent. Horton v. California (1990)

7
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• The Plain View Doctrine
• Plain View and Open Spaces
• Plain View and Motor Vehicles
• Plain View and the Use of Mechanical Devices
• The use of a beeper to monitor the whereabouts of
  a person traveling in a car on public highways
  does not turn the surveillance into a search.
  Such monitoring falls under the plain view
  doctrine and therefore does not require a
  warrant. United States v. Knotts (1983)

8
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• The Plain View Doctrine
• Comparison Between Plain View and Open Spaces
• The plain view doctrine can be applied to cases
  in which the officer has made a prior valid
  intrusion into a constitutionally protected area
  (meaning when the officer is inside an enclosed
  space, such as a house or an apartment) the term
  open view applies to instances when the officer
  is out in open space (such as on the streets) but
  sees an item within an enclosed area.State v.
  Stachler (1977)
• Comparison Between Plain View and Plain Touch
• Minnesota v. Dickerson (1993)
• Terry v. Ohio (1968)

9
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• The Plain View Doctrine
• Comparison Between Plain View and Plain Touch
• Although the evidence in this case was not
  admissible because the officer went beyond what
  is allowable in frisk cases, the Court said that
  officers may detect the presence of contraband
  through the sense of touch and confiscate it if
  probable cause exists. Minnesota v. Dickerson
  (1993)

10
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• The Open Fields Doctrine
• Open Fields Defined
• Items in open fields are not protected by the
  Fourth Amendment guarantee against unreasonable
  searches and seizures, so they can be seized by
  an officer without a warrant or probable cause.
• Areas Not Included in Open Fields
• Curtilage
• Residential yards, fenced areas, apartment
  houses, barns and other outbuildings, garages

11
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• The Open Fields Doctrine
• The Test to Determine Curtilage
• United States v. Dunn (1987)
• Four Factors
• Proximity to the home
• Is the area in an enclosure surrounding the home
• Nature and uses of the area
• Steps take to conceal the area from view

12
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• The Open Fields Doctrine
• Aerial Surveillance of Curtilage
• The constitutional protection against
  unreasonable search and seizure is not violated
  by the naked-eye aerial observation by the police
  of a suspects backyard, which is admittedly a
  part of the curtilage. California v. Ciraolo
  (1986)
• Evidence obtained by the police in a helicopter
  flight at a 400-foot altitude is admissible
  because such flights are allowed by FAA
  regulations and so the homeowner would have no
  reasonable expectation of privacy from such
  flights.Florida v. Riley (1989)

13
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• The Open Fields Doctrine
• Open Fields Despite a Locked Gate and a No
  Trespassing Sign
• A place that is posted with a no trespassing
  sign, has a locked gate, and is located more than
  a mile from the owners house has no reasonable
  expectation of privacy and is considered an open
  field, unprotected by the Fourth Amendment.Oliver
  v. United States (1984)

14
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• The Open Fields Doctrine
• Open Fields and the Use of Electronic Beepers
• The use of a beeper to monitor the whereabouts of
  a person traveling in a car on public highways
  does not turn the surveillance into a search.
  Such monitoring falls under the plain view
  doctrine and therefore does not require a
  warrant.United States v. Knotts (1983)
• The warrantless monitoring of a beeper after the
  device has been unwittingly taken into a private
  residence violates the Fourth Amendment rights of
  the residents and others.United States v. Karo
  (1984)

15
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• Comparison Between Open Fields and 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

16
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• Abandonment
• Abandonment Defined
• Factors That Determine When Items are Considered
  Abandoned
• Where the Property is Left
• Open field or public place
• Private premises
• Is trash or garbage abandoned?
• The intent to abandon the property

17
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• Abandonment
• Abandonment of Motor Vehicles
• Four key factors
• Flight from vehicle to avoid apprehension
• Where and how long a vehicle is left unattended
• The condition of the vehicle left unattended
• Denial of ownership by person present

18
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• Comparison Between Abandonment and Plain View
• Abandonment Plain View
• Owner or possessor has given up Owner or
  possessor has not
• possession of item given up possession of item
• Seized item may be legal or illegal Seized item
  must be illegal
• Discovery of item may be through Discovery of
  item must be
• the sense of sight, touch, hearing, through the
  sense of sight
• smell,or taste

19
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• Border Searches
• Fourth Amendment Rules Applied Differently in
  Immigration
• Searches made at the border pursuant to the
  long-standing right of the sovereign to protect
  itself by stopping and examining persons and
  property crossing into this country, are
  reasonable simply by virtue of the fact that they
  occur at the border. United States v. Ramsey
  (1977)

20
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• Border Searches
• The Forced Temporary Detention of Aliens Believed
  to Be Illegal
• An immigration officer may, for purposes of
  questioning, detain against his or her will an
  individual reasonably believed to be an alien.Au
  Yi Lau v. United States Immigration and
  Naturalization Service (1971)

21
Searches and Seizures Not Fully Protected by the
Fourth Amendment Plain View, Open Fields,
Abandonment, and Border Searches

• Border Searches
• Factory surveys of Aliens
• Factory surveys in which INS officials pay
  surprise visits to factories and ask employees
  questions to determine if they are in this
  country legally do not constitute a Fourth
  Amendment seizure, so no specific, objective
  basis for suspecting the worker of being an
  illegal alien need be shown. Immigration and
  Naturalization Service v. Delgado (1984)