Inadvertence Not Required

Inadvertence Not Required

The previous section ended on a question about the officer's state of mind: does it matter that the officer expected to find the item before ever arriving? Under current law it does not. The answer needs its own section because an older formulation of plain view listed inadvertence as a separate element, and a student who learned that version will recite a requirement the Court has dropped. Texas v. Brown described the plurality's formulation in Coolidge v. New Hampshire as three requirements: the officer must be properly positioned to view the area, the officer must discover the evidence "inadvertently," and it must be immediately apparent that the items observed may be evidence of a crime, contraband, or otherwise subject to seizure.¹ Inadvertence meant that the officer could not "know in advance the location of [certain] evidence and intend to seize it," using plain view only as a pretext.² Those were the views of four Justices. Brown observed that no majority had ever expressly adopted the formulation and that it was sharply criticized when issued, so it served as a point of reference without binding force.³

The inadvertence requirement had a rationale, and seeing it explains why the Court later found it unnecessary. When police stumble on evidence during a lawful search, stopping to get a warrant that describes it is a great inconvenience. When police know in advance where the evidence is, the situation is different, because they could easily have had the object included in their warrant.⁴ The worry was an incentive problem. An officer who expects to find an item but leaves it out of the warrant application avoids the magistrate's check on whether probable cause supports taking that item, and plain view would then serve as a pretext for enlarging the search. The inadvertence rule tried to remove that temptation by denying plain view to anyone who had planned on it.

Horton v. California rejected that reasoning. The officer there held a warrant to search the defendant's home for the proceeds of a robbery, and during the search the officer found and seized several weapons that the warrant did not list. The officer admitted expecting to find them, so the discovery was not inadvertent.⁵ The Court upheld the seizure anyway: an officer's interest in an item, and full expectation of finding it during a search, should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement.⁶ Inadvertence is a characteristic of most legitimate plain-view seizures, the Court said, but it is "not a necessary condition."⁷

The reason for the change lies in what each rule protects. The particularity requirement serves the interest in limiting the area and duration of the search, an interest the inadvertence requirement protected inadequately.⁸ A warrant search stays confined to the places where the described items could be, so an officer's private expectation about some other item does not enlarge the intrusion by an inch. Once the officers uncover the item the warrant names, the search is at an end.⁹ The inadvertence inquiry also had a defect of its own. It made the outcome depend on a state of mind that a court can reconstruct only after the fact, and it penalized the candid officer, as in Horton, while an officer who kept quiet about the same expectation would have escaped the rule. The officer's subjective intent is now irrelevant.¹⁰

What carried the seizure in Horton were the elements that remain. The officers were lawfully in the home because they held a warrant, the seized gun was plainly visible from places where they could reasonably look for the items the warrant named, its incriminating nature was immediately apparent, and taking it required no additional intrusion.¹¹ Inadvertence appears nowhere in that list. The Court's later statement of the doctrine in Minnesota v. Dickerson likewise asks only whether police are lawfully positioned to view the object, whether its incriminating character is immediately apparent, and whether they have a lawful right of access to it.¹² The same indifference to the officer's purposes explains why an item need not relate to the crime the warrant targets, so long as the officer is lawfully present and probable cause is immediately apparent.¹³

The second version fails for a reason that has nothing to do with expectation. Plain view may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges, and the limit on the search lives in the warrant's scope.¹⁴ Because that limit survives the loss of the inadvertence requirement, officers who expect to find an item gain no license to look anywhere they please. The same concern has surfaced in computer searches, where a warrant to examine electronic files could otherwise become a license to open everything stored on the device. A court troubled by that risk is policing the scope of the search, which Horton leaves to the limits of the warrant.¹⁵ On an exam, the usual error is listing inadvertence among the elements, because an answer that rejects a seizure on that ground applies a test the Court has abandoned.¹⁶

With inadvertence cleared away, the remaining element does the real work: whether the item's incriminating character was immediately apparent to the officer who saw it.