Immediately Apparent Requirement

Immediately Apparent Requirement

The first two elements of plain view fix where the officer stands and how the officer reaches the item. The third concerns what the officer knows about the item once it is in view, and it is the element on which the rest of this chapter concentrates. In the modern formulation, police may seize an object without a warrant if they are lawfully positioned to view it, have a lawful right of access to it, and its incriminating character is immediately apparent.¹ The phrase comes from the third part of the test the plurality proposed in Coolidge v. New Hampshire, and the later cases carry it forward.² In substance the element asks whether the officer has probable cause to associate the property with criminal activity, that is, probable cause to believe the item is contraband or a fruit, instrumentality, or evidence of a crime.³

The word "immediately" describes how the probable cause arrives, and it does not set a stopwatch. An officer may take a moment to think, and a trained officer may draw on experience in doing so. What the word excludes is any additional investigation of the object to build probable cause that the sighting alone did not supply. The level of certainty is probable cause, the same level a magistrate would require before issuing a warrant for the item, and reasonable suspicion does not meet it. An officer who sees what looks like an ordinary cigarette may not seize it because it might contain marijuana, while an officer who watches someone roll a marijuana cigarette in public may seize it on the spot.⁴ The two cigarettes look alike from across the street; what differs is whether the officer's own observations already establish what the item is.

The reason for the element follows from the first of the two protections the warrant requirement provides. A warrant places a neutral magistrate's probable cause judgment between the officer and the seizure.⁵ Plain view dispenses with that step because the officer is already lawfully present and a trip to a magistrate would often be impracticable and would do little to advance the Fourth Amendment's goals.⁶ The officer's own on-the-spot judgment therefore takes the magistrate's place, and a substitute protects nothing unless it meets the standard it replaces. If a hunch could justify the seizure, anything within sight of a lawfully present officer could be taken, and the guarantee against seizures without probable cause would vanish whenever an officer happened to be in the room. The second protection explains why the element also controls how the officer gets to probable cause. If the officer could pick up, open, or test the object until something incriminating emerged, lawful presence for one purpose would become a general exploratory search, which is the evil the particularity requirement exists to prevent.⁷

The Court's modern statement joins both halves. If police lack probable cause to believe an object in plain view is contraband without conducting some further search of the object, its incriminating character is not immediately apparent, and plain view cannot justify the seizure.⁸ Put differently, probable cause must be determined without examining the object beyond what the purpose of the officers' entry already justified.⁹ That limit is measured against the original justification. A look that the warrant or other justification already authorizes does not count as the forbidden further search. Officers executing a warrant for particular papers must examine other papers at least cursorily to see whether they are the ones named, and if that proper examination shows content establishing probable cause of a different crime, the papers may be seized at once.¹⁰

In Andresen v. Maryland the warrant covered documents about a false-pretenses sale of Lot 13T, and the officers also seized documents about another lot in the same subdivision. The seizure was upheld because, in light of what the officers knew about the fraud under investigation, the second-lot documents were evidently relevant to the intent to defraud: the defendant had handled the other lot in essentially the same way, so he could not claim that failing to deliver clear title on Lot 13T was mere inadvertence.¹¹ The officers' knowledge of the offense therefore forms part of the probable cause analysis, since a document can mean nothing to a stranger and still be plainly incriminating to an officer who understands the elements of the crime and how they are proved.¹² The contrasting case appears in the concurring opinion in Stanley v. Georgia, which Coolidge endorsed: agents executing a warrant for gambling paraphernalia ran reels of film they found through a projector in another room and seized them as obscene, and the concurrence explained that this was not a plain-view discovery because the contents of the films could not be determined by mere inspection.¹³ What separates the two is the source of the knowledge. In Andresen the content itself, read during the sorting the warrant permitted, supplied probable cause, while in Stanley the officers had to do something further to the film to learn what it was. Coolidge itself supplies a second negative example, because police who seized a car from a driveway hoping to find microscopic fibers could not tell its evidentiary value until the interior was examined microscopically.¹⁴

Answers on this element usually go wrong by treating a suspicion that more handling would confirm as though it were probable cause. The question to ask of any plain-view seizure is what the officer knew before touching, moving, or opening the object, and whether that knowledge alone amounted to probable cause.

That definition leaves two questions open, and the next two sections answer them. Texas v. Brown asks whose perspective the probable cause judgment reflects and allows a trained officer to draw on experience in forming it.¹⁶ Arizona v. Hicks asks what the officer may do to the object before forming that judgment, and holds that moving stereo components to read their serial numbers required probable cause the officers did not have.