Wednesday, February 3, 2010

Plain View

In my practice, I regularly handle cases where  the 4th Amendment right against unlawful searches and seizures was implicated. Or in some cases I argue it should have been implicated. My use of the word "implicated" means that the right either was or should have been in effect at some point.

Most people know 4th Amendment basics. The cops can't bust down a door and search the house without a warrant. Also the cops can't arrest someone 'willy-nilly'. This is where probable cause comes in and that's very messy and complicated.

The "plain view" exception to the 4th Amendment was judicially created. The most often cited case for this proposition is Coolidge v. New Hampshire. The exception is pretty basic: when a law enforcement officer is able to detect something with one or more of his senses, while lawfully present in a position to use those senses, any detection does not constitute a search under the 4th Amendment.

In plain English: if the cop has a legal right to be there, anything he sees is fair game. Traffic stop, search warrant, etc.

I have been witnessing and hearing about a lot of cases where local police make a routine traffic stop and just happen to see contraband in plain view. Guns on passenger seats, drugs in open bags on the back seat, and so on. How incredibly fortunate.

The 2009 U.S. Supreme Court case, Arizona v. Gant , stopped cops from searching vehicles after giving traffic citations, generally. I had a case last year where my client was arrested for driving on a suspended license. He was removed from his car and placed in handcuffs. The cop searched the car and found less than 1 gram of cocaine under the driver's seat.

When I got this case, Gant hadn't been decided yet. Up until Gant, vehicle searches following arrests like my client's were valid. Gant changed that and I filed a motion to suppress and cited Gant. This was a perfect Gant motion. This was exactly the type of case Gant was meant to address.

At the suppression hearing, the arresting officer testified the cocaine was in plain view. What? The arrest report didn't read it was in plain view and the officer did not testify at the preliminary hearing it was in plain view. I impeached by omission and prior testimony. The judge sided with the officer ruling Gant was inapplicable due to the plain view exception.

I was not thrilled. And now all of these plain view arrests are a daily occurrence. Coincidence? I wrote last fall that inventory searches would be the end run around Gant. I didn't anticipate contraband would start popping up in plain view all over the place. Silly me.

The other common theme is the furtive movement made while the officer is walking up to the car. Furtive. Such a cop word. Like tendered. "Suspect tendered unknown amount of US currency for a clear plastic bag containing a white powder, suspect heroin." I have heard that exact sentence more times than I can count.

I guess in Chicago, the bad guys aren't smart enough to hide things they know they shouldn't have. Or if they do hide something, they wait right until the cop is looking in the window to do so.

That's how it happens around here. Well, that's the story anyway.


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