Plain View Rule

[NukemJim]

Cyborg posted

I am so very sorry I ever said anything here. not a nice room

Cyborg, as I think you can tell from many of the responses, (please verify yourself if you do not believe) the information you were giving out in the initial post seems to be incorrect.

Warrantlless searches are a very hot topic in the "Gun Culture" (Copyrighted by John Ross ) both due to possible jail time for innocent actions*, and the temperment of many of those in the "Gun Culture".

When you post inaccurate info on such a subject you will generate controversy.

When you attmpt to defend inaccurate infor you fan the flames. IMHO if you post something you find out is wrong, go back edit your post either correcting the erroneous data or recplacing it with a "Never Mind" notice.

Please do not hold hard feelings.

Best wishes

NukemJim






(*Example after a weekend of shooting with my 3 of my nephews in Michigan a .22 round falls under a seat. I drive to work in Chicago. I get pulled over, searched, and the round is found. Possible jailtime for me, unless I have a gun registered in Chicago in that uses that ammo. Since I do not live in Chicago that is not possible.)

 

[MGshaggy]

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.

In Cyborg's defense, the rule he was given in class and repeated here in his first post may well be the rule in his jurisdiction. That particular jurisdiction may be one where the ability of LE to use the plain view rule is more restrictive than than it could be either by law or by department policy. Just because the constitution (under current case law) permits the government to go further in a search doesn't mean every jurisdiction must go as far as constitutionally permissible.

 

[KenW.]

In accordance with the "plain view" doctrine, If I as a law enforcement office, am in a place I am allowed to be, see any contraband in plain sight, I may take action. Whether its interviewing a complainant on his back porch and notice a marijuana plant in the neighbors backyard, or glance into the back of a van.

In other than exigent circumstances, it is preferable to use my observations to justify a search warrant though.

 

[KenW.]

Oh, and I may also use items available to the general public (such as binoculars) to enhance my senses.

Once again, unless its an emergency, it is preferable to get a search warrant.

 

[Cyborg]

They Searched The Frakkking Van

waterhouse, they searched the frakking van top to bottom, stem to stern, all but tore the freaking thing apart. They took their own sweet time about starting - AFTER they ordered us out of the vehicle - and then pulled everything out of the vehicle and glove box. Meanwhile every vehicle that passed through had all its occupants with their noses pressed up against the glass goggling at the "criminals" who were getting their car searched. They never apologized for our time or trouble. They did not offer to get my wife or 16 year old daughter water or let them get out of the sun. And then when they were finished, without so much as a "by your leave" they went on to other things leaving my Wife, daughter and I to put everything back into the vehicle - INCLUDING the spare tire and jack!

The stop had nothing to do with my daughter's nationality or citizenship. They never asked for any of the documentation on my daughter. Any fool can see she isn't Hispanic and since she was with us and spoke unaccented English she self-evidently was not an illegal.

I later found out that there had been an incident involving a white, full-sized Ford Van that they were apparently looking for. Why they stopped my Bronze Dodge Grand Caravan minivan I'll never know. I do know that if they or the numbnuts running the checkpoint on I-10 between El Paso and Las Crucis ask me to allow a search I will politely but firmly tell them "No". I will also put my phone on full video and audio record from the time we stop until we are allowed to leave.

The kicker to all this is that if they wanted to catch illegals all they'd have to do is wait on the banks of the Rio Bravo in El Paso. Pretty much every time I have come through in daylight hours I have seen folks wading accross the river in broad daylight. Plus, anybody that can read a map can see a couple of dozen ways to get into NM or Texas without driving on the Interstate past those checkpoints. I keep expecting to be asked for my "papers".

Of course a lot of this would be avoided if more cops remembered that they are NOT the Law, neither are they ABOVE the law; they only ENFORCE the law.

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]

In Cyborg's defense, the rule he was given in class and repeated here in his first post may well be the rule in his jurisdiction.

Thank you, MGshaggy. From the answers waterhouse gives he is one of the cops I would give a wide berth. I would not be surprised if he didn't write me a whole book's worth of citations if I refused to allow his "consentual" search. That would be OK because I would demand a trial by jury and would introduce the recording I made as evidence.

NukemJim, the information I gave was exactly as I was given it. I went back and checked my handouts and class notes. So I DO NOT accept that the information I gave out was incorrect. If it was limited to the jurisdiction in which I live then I will gladly accept that.

KenW, you might want to check on what exactly is fair game under "plain view" when it comes to the curtelage around my land. Also, if I have a six-foot privacy fence what they can do to look into my yard.

Cyborg
Cops don't like me 'cause I know more than most civilians what their limits are.

 

[waterhouse]

I can't speak for the El Paso checkpoint, I worked in Laredo, but they should all be run the same way. The first thing that should have happened is they should have told you why you were being sent to secondary. Usually it is something like:

"Good afternoon Sir, I'm Agent X, US Border Patrol, the reason you were sent to secondary is that a K9 hit on your car. Please step out of the car and stand over here. The same dog will be over at the earliest possible time to check the car again."

or

"The agent at primary had a question about your documents . . ."

or something like that.

There are 2 main reasons why everyone gets out of the vehicle:
1) it is easier to see everyone's hands
2) the dogs are trained to smell hidden passengers

If there are no visible people in the car, and the dog smells something, it is either a hidden person or hidden drugs.

So that is why you were asked to exit the vehicle.

They shouldn't have touched anything in your vehicle without a positive hit from a dog, which gives probable cause. I wasn't there, so I can't speak to what happened.

The kicker to all this is that if they wanted to catch illegals all they'd have to do is wait on the banks of the Rio Bravo in El Paso.

I promise, they are doing just that, and they are using all sorts of fancy technology as force multipliers as well. Unfortunately there are only so many agents for many miles of border, and after you catch someone you essentially have to leave your post to bring the criminal in and start rolling their prints and doing paperwork. With the lack of manpower, it is no wonder that some people manage to get through the first line of defense, so they also have checkpoints on the major roads heading north, as well as temporary mobile checkpoints that they can put up to "surprise" those enterprising folks who looked at a map to find another road.

It isn't a perfect system, and I had a lot of problems with it all, which is why I left, but they do a heck of a job with the resources that they have.

 

[waterhouse]

From the answers waterhouse gives he is one of the cops I would give a wide berth. I would not be surprised if he didn't write me a whole book's worth of citations if I refused to allow his "consentual" search.

Please let me know which post I made led you to believe I was in favor of writing a book's worth of citations (assuming the double negative was not a round about way of saying you thought I wouldn't write a bunch of citations? I make that assumption based on the wide berth comment.) I never wrote a citation in my life. We didn't give tickets for entering the county illegally, we just arrested people. We had no jurisdiction to stop people for speeding or broken taillights.

 

[Cyborg]

waterhouse, you sound like one of the cops deaconkharma was talking about when he wrore:

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...

I never wrote a citation in my life.

OK. And if the former Border Patrol (now ICE) could have written them are you saying you wouldn't have?

It appears I mistook you for cassandrasdaddy who asked about the bogus citations written by a cop who was refused a "consentual" search

is it crooked if the offenses are real? they have discretion as to how/what they write.

For that I apologize.

But I will testify under penalty of perjury that nobody EVER told us why our vehicle was searched. Of course back then I had no idea about the definition of probable cause or reasonable vs mere suspicion. I frelling will know it now and nobody is searching me or mine without a warrant. And if they try to say that failure to consent to search constitutes probable cause then I will tell them to go get that warrant and we'll see what a jury says.

Cyborg

 

[waterhouse]

waterhouse, you sound like one of the cops deaconkharma was talking about when he wrore:

Once again, what did I actually write to make you believe this.

OK. And if the former Border Patrol (now ICE) could have written them are you saying you wouldn't have?

When did the Border Patrol become ICE? As of last year, ICE was tasked with interior enforcement. They were involved with things like the Tyson Chicken illegal immigrant workers, and pretty much everything that isn't near the Border. The Border Patrol became part of CPB, Customs and Border Protection. This is more curiosity than anything, as I was unaware of any agencies merging since I left.

To answer your question, I absolutely would not have been happy writing citations. I liked patrolling the border, I hated the paperwork involved in making arrests. I certainly wouldn't volunteer to do any more paperwork than was absolutely necessary.

I frelling will know it now and nobody is searching me or mine without a warrant.

In your class, I presume they went over all of the exceptions to warrant searches. Please keep them all in mind.

 

[waterhouse]

This has all gotten very far off topic from the original post, so I will bow out.

I cannot find any case law stating that the rears of SUVs or station wagons are exempt from plain view doctrine, but my experience was on a Federal level. As Cyborg mentioned, it is safest to keep things you don't want seen well covered.

 

[Steve in PA]

Plain view is just that......anything in plain view. It doesn't matter if it is in the back of a station wagon, etc. If I can see it without moving or opening something, it is in plain view.

 

[TexasRifleman]

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:

To nitpick even more, there are cases where firearms CAN be on school property, even inside the buildings.

on the physical premises of a school or
educational institution, any grounds or building on which an
activity sponsored by a school or educational institution is being
conducted, or a passenger transportation vehicle of a school or
educational institution, whether the school or educational
institution is public or private, unless pursuant to written
regulations or written authorization of the institution;

Written permission to bring firearms onto school property is all you need. It's been done, trust me. I have a letter from a private school authorizing me to carry my concealed weapon into the school building. My kid was a student there at the time.

No offense to the OP but I think I know why he didn't pass the class

 

[kurtmax]

I highly suggest not listening to the OP. He is wrong on so many levels.

What you need to know is very, very simple.

Don't talk to the police, except for telling them that you don't consent to searches.

You don't need to know what they can and cannot search, the court and your attorney will sort that out afterwards. Most police know what they can and cannot search and if they know you won't consent they aren't going to do an illegal search. If they do search illegally, so what?

 

[Cyborg]

No offense to the OP but I think I know why he didn't pass the class

You know squat all, sirrah. I am VERY FRAKKING offended by your post. I didn't fail, I fell prey to a former cop who bragged about what today would be actionable under federal abuse of authority statutes. He is famous for getting rid of one student out of EVERY class that goes through. I had a 94% average going into phase III of the BLE course. My only sin was doing some things in an unorthodox manner - to wit I swing a baton off-handed. For TexasRifleman and any other of the linguistically challenged, that means I shoot southpaw but swing a baton with my right hand. I also use the baton less like a club and more like a short sword. Make a comment about THAT, sirrah.

I spoke the truth as I was taught it, no more, no less. An we lived in a civilized country I would be able to call you out and meet you on the dueling sands. But we do not live in a civilized country so I do not have the option of seeking satisfaction. Instead I have to bear the yapping of ignorami.

kurtmax, your ignorance is even worse and more abyssal than the one styling himself TexasRifleman.

 

[DMF]

There is so much bad info on this thread it's ridiculous.

I am not aware of ANY jurisdiction that does not recognize the plain view doctrine, or the Carroll Doctrine. Some jurisdictions are iffy on "plain touch" but plain view is accepted nationwide.

What that means is if a cop can legal be somewhere, and sees something that establishes probable cause, the cop can act on that PC. In the case of an automobile in a public place that PC will mean the cop can conduct a full search of vehicle without a warrant.

The cargo area of an SUV is no different than the passenger compartment. If the object(s) in plain view that would establish PC are in the cargo compartment it makes no difference.

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.

Again, where does such nonsense come from? That statement is totally false. An officer can legally walk up to a vehicle, press his nose against the glass, shine his flashlight inside, etc.

http://caselaw.lp.findlaw.com/data/constitution/amendment04/03.html#4

http://caselaw.lp.findlaw.com/data/constitution/amendment04/04.html#4

 

[DMF]

Evidence that is not usable in court IS usable to establish probable cause for a search warrant.

Whoever told you this is flat out wrong. The same standard applies. If evidence is obtained in violation of the fourth amendment (or any other part of the Constitution, or in violation of a statute) and used as PC for a warrant the evidence obtained from the warrant will be suppressed under the exclusionary rule.

http://caselaw.lp.findlaw.com/data/constitution/amendment04/06.html#1

 

[DMF]

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.

In general (with some very narrow exceptions) any felony conviction will result in life long prohibition from possessing firearms and ammunition under federal law, specifically 18USC922(g)(1).

 

[DMF]

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.

20 year veteran of what? Because if he was a 20 year vet of LE then he must have been one of the most ignorant cops in the history of modern LE because he's dead wrong about the plain view doctrine.

 

[DMF]

Cyborg, sorry you didn't like your van being searched, but if it was a border search then it was completely legal.

http://caselaw.lp.findlaw.com/data/constitution/amendment04/04.html#2

Any fool can see she isn't Hispanic and since she was with us and spoke unaccented English she self-evidently was not an illegal.

You've got to be kidding me with this nonsense. First, "Hispanics" are not the only people who enter this country illegally. 2nd, the ability to speak English without an accent is NOT proof that the individual is in the US legally. I recently arrested a person that spoke unaccented English, but who was an illegal alien. The person was arrested on charges unrelated to alien status, but was determined to be an illegal alien after being booked on the other charges.

 

[DMF]

I frelling will know it now and nobody is searching me or mine without a warrant.

As stated above a warrant is not required to search a mobile conveyance. All that's required is PC. See the above citation regarding the mobile conveyance exception to the warrant requirement, also known as the Carroll Doctrine.

Further, other searches that do not require a warrant include, searches incident to arrest, inventory searches, border searches, and certain "frisks."

http://caselaw.lp.findlaw.com/data/constitution/amendment04/03.html#1

Based on your repeated errors about the law on this thread, I think you wasted your time and money on this LE training you claim to have received.

 

[RoostRider]

The only thing clear here is that there are lots of different interpretations of what constitutes "Plain View"...

Not being a lawyer, or a cop, or a judge, or ever having even served on a jury... but being someone who has been in court entirely too many times, and knows how it works (which isn't always 'by the book')...

If the officer thinks it constitutes plain view, he's going to do what he thinks he should do, if the prosecuting attorney agrees you will be prosecuted... that should be enough right there to put a pretty sour taste in your mouth (certainly if you have ever been tried for even the slightest thing)... your talking scads of cash just for the attorney to represent you to point out that there 'may be some interpretation issues' with the law.... if the judge/jury agree, you will be convicted, no matter what the law really says or means... again, lots of cash if you want to 'put up the good fight'...

I would personally err on the side of caution and have anything I don't want everyone else seeing out of sight....

 

[ArfinGreebly]

Squabbling

Yeah, I think this one left the High Road a while back.

Getting kinda personal.

Let's close it.