Quantcast
  1. This site uses cookies. By continuing to use this site, you are agreeing to our use of cookies. Learn More.

Plain View Rule

Discussion in 'Legal' started by Cyborg, Dec 7, 2008.

Thread Status:
Not open for further replies.
  1. Cyborg

    Cyborg Member

    Joined:
    Nov 18, 2008
    Messages:
    193
    Location:
    San Antonio, Texas
    I am not sure if most here are aware of the "plain view rule". That rule says that LEOs can act on any contraband that is in "plain view" in a vehicle. No search warrant is required in that case because the contraband was in "plain view".

    In the thread on accidentally carrying in a prohibited place some one mentioned
    Actually the plain view rule has limitations where SUVs, passenger vans, mini-vans, station wagons and the like are concerned. The area behind the last row of passenger seats is effectively the vehicle's trunk and is exempt from the plain view rule. The bed of a pickup is NOT excluded since it is an open area but the area behind the last row of seating in one of the vehicles I mentioned above IS.

    That being said, you still might not be safe leaving contraband visible in the back of an SUV because while the area might not apply under the plain view rule, it WOULD be fair game for a search warrent. Evidence that is not usable in court IS usable to establish probable cause for a search warrant.

    I know this because I went through most of the Basic Peace Officer course at the local community college but didn't finish because I ran afoul of an a**hole teacher who is known to get rid of at least one student out of every class.

    BTW, just having a weapon in your vehicle on any school property in Texas is a felony. Even if you don't do any jail time, convicted felons cannot legally own a firearm for 5 years AFTER they have completed all jail, probation, parole time and paid all fines in full.

    --------------------------------------------------------------------------
    Cyborg
    Burying your head in the sand only makes your a** a better target.
     
  2. nalioth

    nalioth Member

    Joined:
    Jul 9, 2007
    Messages:
    5,841
    Location:
    Houston, Texas
    This is news to me. Got a link to the law?
     
  3. Ringer

    Ringer Member

    Joined:
    Mar 31, 2003
    Messages:
    1,249
    Location:
    North Georgia
    Isn't "Contraband" by definition something that is illegal/prohibited by law? If so then why would even discuss when an LEO can or cannot act on it since we don't discuss illegal activities here?

    What am I missing with the relevance of this thread?

    Thanks
     
  4. NukemJim

    NukemJim Member

    Joined:
    Dec 26, 2002
    Messages:
    1,201
    Uhmm.. you might want to check with BATFE about that. I believe that they have a slightly different viewpoint on that. My understanding is that if you are convicted of a felony you can no longer possess a firearm without a pardon or some equivalent legal clearance.

    As always I could be wrong

    NukemJim
     
  5. Treo

    Treo member

    Joined:
    Nov 30, 2007
    Messages:
    3,110
    Location:
    Co. Springs
    First I’m going to recommend (again) that everyone reading this thread pick up a copy of “You And The Police” By Kenneth W. Royce (writing as Boston T. Party) Javelin Press Copyright 2005>

    Now I’m going to quote it on this topic.

    If the interior of your car is entirely open (such as vans and station wagons) its entirety is vulnerable to a TERRY frisk since the whole car would probably be considered within your immediate control. This is more fully discussed in chapter 7.
    Small station wagons and hatchbacks usually have a privacy shelf that Rises and lowers with the rear door. If your car hasn’t such a shelf you should construct one to preclude (as with a trunk) any possibility of interior access to the rear.

    Another tidbit from the book

    The police exist to arrest criminals. During any confrontation with the police there is at least some risk that you could be arrested. Remember, they wouldn’t be talking to you in the first place unless you were somehow a potential customer.

    And finally

    If a cop asks to search your property all sorts of warning bells should go off. Understand this there is never any real advantage to a constented search. Always, always, always refuse consent. I don’t mean often or usually I mean always! If you learn nothing else from this book you’ll probably fare well.
     
  6. Steve in PA

    Steve in PA Member

    Joined:
    Dec 29, 2002
    Messages:
    2,571
    Location:
    NE PA
    If I can see the area behind the last seat, anything I see is in plain view. Don't know who told you it is considered a "trunk" bu they are wrong.

    As long as I didn't open or move anything to see the contraband.....anything I see within my sight is in plain view.

    The only are open to frisk, incident to an arrest is the area immediately reachable by the driver. If I arrest a driver, I can't search the rear most area of the van just because it is "open".
     
  7. WardenWolf

    WardenWolf member

    Joined:
    Nov 11, 2008
    Messages:
    5,884
    Location:
    Northern Virginia
    Absolutely. Many, many people have gotten arrested because they allowed an officer who ASKED to search their vehicle to do so, and gotten nailed for something they may not have even known was there or something they didn't even know was illegal. Cars are inherently messy. Things get dropped, lost under seats, etc. Letting an officer into your car is letting him into your personal life.

    And what can you gain? If you let them search your vehicle, what could it possibly do to help you? It's not going to get you out of a ticket. It's not going to get you out of being arrested if the officer already has reason to arrest you. The ONLY thing it can do is get you in trouble. Always, ALWAYS refuse consent.
     
  8. waterhouse

    waterhouse Member

    Joined:
    Jan 7, 2005
    Messages:
    4,285
    Location:
    Round Rock, TX
    Are you a lawyer, and do you have some sort of case law that backs this up?

    I am not a lawyer, but I was in law enforcement and had several hours of lawyers teaching us about plain view. I don't recall any special limitations on plain view in SUVs etc, so now I am curious.

    I was in the Border Patrol. If I looked in to the back of your SUV and saw a foot sticking out from a blanket, I'm fairly certain that the person being smuggled under the blanket is in plain view.

    I agree that you should never consent to a search, and that I would probably never do it, but there can be real advantages to doing such. Namely saving time.

    If I get notice that there is a blue sedan with a cracked windshield smuggling marijuana, and I see a blue sedan with with a cracked windshield and only a driver (no passengers) riding very low on the suspension, I have reasonable suspicion to stop the car and question the driver. I don't have the probable cause to search the trunk, but I can call in a K9 unit, which may take 5 minutes or 2 hours. If the driver has a trunk full of cinder blocks for his home project, he can save a lot of time by opening the trunk.

    That example may sound far fetched, but I've been involved in very similar cases. The driver opened the trunk, and even offered to open his bags of cement to show us there were no drugs. He was on his way in under 3 minutes.
     
  9. 7.62X25mm

    7.62X25mm member

    Joined:
    Sep 16, 2008
    Messages:
    313
    Beyond "assuring reasonable officer safety" an LEO may not look through the windows into the interior of you vehicle.

    That's considered a "search," and without "probable cause" is barred.

    They can glance into your back seat to insure there's no one there with a gun, in waiting, but they can't examine the stuff on your floor in the back seat.

    This all gets very "iffy" and the officer can generally argue "probable cause" -- particularly if something is out "in plain view."

    If you have, for example, a range bag on the seat, he can establish "probable cause" that it "may contain a firearm" and therefore is entitled to search the contents of the bag.

    If there's a gun in the bag, and it's somehow unlawful, that provides grounds for search of the entire vehicle.

    Never consent to a search! Refusal to consent to a search does not establish probable cause.

    Ask: "Am I under arrest?" And "Am I free to go?"

    The LEO has the option to "detain" and so long as you don't request to leave, he can assert that you were remaining at the scene voluntarily.

    When you ask "Am I free to go?" The officer then needs to establish grounds for detention, or arrest, or probable cause. He can't detain you unreasonably without cause.

    But you can avoid ALL this by not being a jerk. Don't give the police a reason to stop and question you.

    That's not hard to do.
     
  10. Treo

    Treo member

    Joined:
    Nov 30, 2007
    Messages:
    3,110
    Location:
    Co. Springs
    No but I suspect it's going to become more & more difficult as time goes on
     
  11. cassandrasdaddy

    cassandrasdaddy Member

    Joined:
    Jul 1, 2006
    Messages:
    4,203
    maybe

    It's not going to get you out of a ticket.


    i have first hand experience that belies that
     
  12. Treo

    Treo member

    Joined:
    Nov 30, 2007
    Messages:
    3,110
    Location:
    Co. Springs
    Somehow I suspected that if anyone on this forum would, it would be you

    The above is how I handle it if you choose to waive your rights which is exactly what you do as soon as you open your mouth and start volunteering information or consent to a searh . that's your business. I hope it works for you
     
  13. deaconkharma

    deaconkharma Member

    Joined:
    Aug 3, 2008
    Messages:
    246
    Location:
    Columbia SC
    to be honest sometimes it gets you more tickets

    I know an officer or two who will find things to write you for if you refuse. One used an example of a few "Hotel Mike's" (HM or Hispanic Males) Who refused a search. They got tickets for tread, improperly displayed tag, tag light, and a couple of other things I forgot. I am not advocating refusal, nor compliance... but just know that some police don't take kindly to a "No" and will write you tickets for all kinds of things they can write, tread on your tires if they find the tread too worn etc... Weigh your options as far as time and what tickets you will/could be getting. Especially if your car is not well maintained.
    Many people make refusal out to be all rosey and warm and fuzzy. This rosy picture aint always so. Just letting you know a refusal is not a Crucifix and the cop Bella Lugosi. ;)
     
    Last edited: Dec 7, 2008
  14. Cyborg

    Cyborg Member

    Joined:
    Nov 18, 2008
    Messages:
    193
    Location:
    San Antonio, Texas
    No, waterhouse, I am not an attorney nor am I currently a TCLEOSE Licensed Texas Peace Officer. But when I was in the Basic Law Enforcement class at San Antonio College we were told by a 20+ year veteran that the area behind the last seat is off limits as regards the plain view rule. We were also cautioned that even a stop requires reasonable suspicion (i.e. an objective and articulable suspicion) as opposed to mere suspicion. A frisk is NOT a search but a safety measure to keep the officer and any bystanders safe.

    But then we were also taught that a consentual search has an advantge over one pursuant to a warrant - i.e. it can be terminated at the consenter's discretion. Of course that was in the context of a search of a residence. Another advantage is that if you consent to the search you are allowed to remain in the home while it is being searched. You also want to be sure to actually READ the search warrant. It has to specify what the object of the search is. If they are looking for a 27" television, they shouldn't be looking in drawers.

    Ringer, I am not in any wise advocating activities that are an offense under any State's laws. Only trying to clarify the limits the police have.

    NukemJim, I was referring to Texas law when I mentioned the 5 years. I don't know about BATF although I have heard they have some pretty arcane interpretations of the law. Wasn't the wonderful party at Waco a few years back a BATF thing intitially?

    I have voluntarily submitted to a search before. Got caught at the check station on I-10 east of El Paso. Cost me 2 1/2 hours of standing in the hot sun with no shad, no water and people goggling as they went by wondering what kind of criminals we were. Also had to prove to the dip****s that my daughter (ethnic Japanese but American citizen by birth) really was my daughter and really was a citizen. No she doesn't look the slightest bit hispanic. Fortunately, when she was growing up we always carried certified true copies of her Birth Certificate, Consular Report of Birth and the Adoption Decree with us whenever we went out of town. If they ever ask to search again they're going to have to get a warrant. They'll probably flip out when they find the Uzi Eagle I carry in the glove box whenever I leave the house.

    This pretty well sums up my feelings about Washington:

    Tramp, tramp, tramp, tramp,
    The Jackboots are marching.
    Tramp, tramp, tramp, tramp,
    They’re comin’ now for you.
    Tramp, tramp, tramp,
    Just forget the constitution.
    The jackboots are marchin, boys,
    Whatcha gonna do?!

    Cyborg
     
  15. Frog48

    Frog48 Member

    Joined:
    Aug 7, 2006
    Messages:
    2,201
    Location:
    Somewhere down in Texas
    No its not, and I wish people would quit perpetuating the myth. The law prohibits weapons on school's premises. If you read further, "premises" is defined narrowly as the school buildings themselves. The exact language from the Texas Penal Code:

    "Premises" means a building or a portion of a
    building. The term does not include any public or private driveway,
    street, sidewalk or walkway, parking lot, parking garage, or other
    parking area.
     
  16. Treo

    Treo member

    Joined:
    Nov 30, 2007
    Messages:
    3,110
    Location:
    Co. Springs
    So you'd really want a cop that crooked to search your car?
     
  17. cassandrasdaddy

    cassandrasdaddy Member

    Joined:
    Jul 1, 2006
    Messages:
    4,203
    crooked

    is it crooked if the offenses are real? they have discretion as to how/what they write. just as you can stand tall and say what you want. if he makes up stuff its crooked.if you are hiding something you can skate on go for it. if they have you fair and square the posturing is just that posturing
     
  18. cassandrasdaddy

    cassandrasdaddy Member

    Joined:
    Jul 1, 2006
    Messages:
    4,203
    cyborg
    i am1/2 japanese and folks think i'm latino fairly often
    to round eyes we all look alike
     
  19. franconialocal

    franconialocal Member

    Joined:
    Oct 21, 2008
    Messages:
    673
    Location:
    New Hampshire
    WOW!!!

    I've got to say.....seems to be alot of ignorance about the way the law actually works here.

    If it is in plain view it's up to the plain view doctrine. Case closed.

    --Even if it's on the floor of the back seat
    --Even if it's in the utility area of an SUV

    "Beyond "assuring reasonable officer safety" an LEO may not look through the windows into the interior of you vehicle. (WRONG)

    That's considered a "search," and without "probable cause" is barred. (WRONG....to go INTO the vehicle and search is when this applies. I would need probable cause or a warrant, and if your vehicle is being towed I have to look through the vehicle anyway to do an inventory so I'm exempt there as well.)

    They can glance into your back seat to insure there's no one there with a gun, in waiting, but they can't examine the stuff on your floor in the back seat." (WRONG)

    SORRY, BUT THIS IS TOTALLY INNACURATE INFORMATION!!!!
     
  20. Dashman010

    Dashman010 Member

    Joined:
    Dec 1, 2008
    Messages:
    10
    Location:
    Indianapolis
    This is simply inaccurate. There is NO case law which supports this premise. An item has to meet 3 conditions. (1) Be in "plain view" - which means able to be seen in it's present state. A back compartment of an SUV that is windowed and an officer can see into is definitely in "plain view". (2) the initial intrusion that enables the police to view the items seized must be lawful and (3) the police must have probable cause to believe the items are contraband or stolen goods.

    Cyborg, if you can show some case law that says otherwise, I'd be all ears. But as it is, I can't find any distinction for this anywhere, whether or not a cop, class, or other non-caselaw source told you so.
     
  21. deaconkharma

    deaconkharma Member

    Joined:
    Aug 3, 2008
    Messages:
    246
    Location:
    Columbia SC
    Treo

    Read it ALL
    I never said "I WANT" them searching. Look over the whole post.
    I'm just saying it like it is. Weigh your options. You know I am not one to be searched (refer to the "to inform not inform thread") and so make sure I am good to go as far as keeping my stuff in check and well maintained... so as to avoid any Ticketing retributions for saying no. I just think people should know that the Cop is not likely to run away after you saying no like you splashed him with Holy water. If they can cite you for something in retaliation, they may, and do, and People should know that. Sometimes it is worth it to take the tickets and decline search, sometimes it is not.( such as you drive a beat up old Nova with no tread, a burnt out tag light, cracked tailight, a busted windshield, no horn, and one headlight and have nothing hidden) I never advocate consent, but then I do what I can to make sure I can decline with relative safety from any extraneous tickets. I personally have 98% of the time gotten the ticket for what I was stopped for anyhow, so no reason to be buddies with the cop. Anyway it's just info, use it for that so that when you decline, you have covered yourself appropriately. I'm not sayin... I'm just sayin... ;)
     
    Last edited: Dec 7, 2008
  22. WardenWolf

    WardenWolf member

    Joined:
    Nov 11, 2008
    Messages:
    5,884
    Location:
    Northern Virginia
    If I ever am stupid enough to let a cop search my vehicle for whatever reason, the first thing I will tell him is, "Be advised, there is a cased firearm in the door pouch." Why? Because (1) it's legal to carry that way, and (2) he's going to find it anyway, and I'd rather I tell him about it rather than him find it.

    Arizona law clearly states (this is the NRA short version; the official document uses almost the exact same wording, but uses a lot of section references so you have to jump around):

    Long story short: if the firearm is laying loose on the seat, or is stuffed loose under the seat, it's illegal. If it's in a case or holster, it can be anywhere. This law works beautifully because, guess what? Gangbangers don't bother with fancy holsters or cases. A responsible gun owner is going to do it right.
     
  23. Cyborg

    Cyborg Member

    Joined:
    Nov 18, 2008
    Messages:
    193
    Location:
    San Antonio, Texas
    UNCLE! :eek: I give! King's X for criminy's sake! :cuss:

    I stand corrected (sit actually ;) ) I was relaying information which I received in a class to prepare for the Texas Basic Law Enforcement Officer Examination. I very clearly remember Sgt. Furr telling us about the limitations to the plain sight rule (which in context probably is limited to the way it is interpreted in Texas vs NH, with all due respect to franconialocal). We were tested on that area so it may well be accurate. Still no reason to argue and the safest course for Van, SUV, etc. drivers is to keep anything you don't want seen/stolen out of sight.

    I do not openly carry a weapon in my vehicle ever. I would not do so simply because any Peace Officer who saw it might be having a really tough day and could overreact. When I travel, my Uzi Eagle goes with me - in the glovebox where I can reach it and locked there when I get out of the car. If it is not visible to casual view and he cannot find it absent a search warrant (which he is FRAKKING WELL gonna need if he wants to search me and I do not care how many nit noy, charley sierra citations he writes) then as far as the LEO is concerned the weapon is not there. If the day comes that we can openly carry in Texas then Miss Vickie (named the UE for my wife so her mojo guards me when I carry it on duty) will sit in her holster on my left hip.

    I am so very sorry I ever said anything here. :banghead: not a nice room.
     
  24. waterhouse

    waterhouse Member

    Joined:
    Jan 7, 2005
    Messages:
    4,285
    Location:
    Round Rock, TX
    Are you a lawyer, and do you have any case law that shows this is true? I've had lawyers follow me through training scenarios where we cupped our hands against a window to cut down the glare before we carefully looked through the window. None of them ever informed me that I was breaking any law.

    Just to be clear, this was at a Border Patrol check station, correct? And when you say you voluntarily submitted to a search, do you mean that you let them go through your car and it took 2 hours, or do you mean that the agent at the primary lane had reasonable suspicion that your daughter may not have been a citizen so he asked you to go to a secondary (so that traffic could keep passing through the primary lane) while someone tried to clear up the reasonable suspicion, which took 2 hours?

    Also, just something to consider, while the vast majority of illegal aliens entering the US from the southern border are from central or south america, there is still a fairly large number of Indian, Chinese, and other Asian nationals who come in illegally across the southern border. The fact that your daughter does not look latino has nothing to do with reasonable suspicion.
     
  25. waterhouse

    waterhouse Member

    Joined:
    Jan 7, 2005
    Messages:
    4,285
    Location:
    Round Rock, TX
    It isn't that it isn't a nice room. This is the legal section of a firearms forum. There are many, many misconceptions about many firearms laws, as well as other laws.

    What happens over time when someone posts something as fact is that it starts getting repeated. Soon enough, many people are posting it as fact. So when we see something that doesn't quite look right, (i.e., it may not actually be factual) we try to figure out where the information came from. It helps if the information comes from an actual law or case law interpretation of an actual law. The reason people jump in to quickly correct things is that hopefully the error won't spread to far.

    Don't feel bad for posting what you posted. There are many people in the forum who might have never heard of plain view doctrine, and they will learn something by reading the thread you started.

    I've learned lots of things this way. That is why I try to be careful to ask if the poster is a lawyer, because I have been corrected on the fine points of law many times by guys who went to school to learn it and work every day with some of the laws being discussed.
     
Thread Status:
Not open for further replies.

Share This Page