notice of intent to charge with possession of marijuana - Legal Help
I seem to find that most folks, including law school students and even lawyers do not understand the essential ellements of this exception. Let's review it practically.
1. First and foremost, the officer must have a legitimate right to not only be on the premises BUT be in a position to have the view. Thus, if the officer has a legitimate warrant to search the garage then walks into the D's bedroom and sees pot in plain view, the pot will be excluded from evidence. THIS IS IN VIOLATION OF THE PLAIN VIEW EXCEPTION.
2. "The Officer must have legal access to that item from the ligitimate vantage point" - A COP STANDING LEGITIMATELY ON THE SIDEWALK AND VIEWING WHAT HE BELIEVES TO BE FRUITS OF A CRIME OR CONTRABAND THROUGH A PRIVATE WINDOW OR PRIVATE OPEN DOOR DOES NOT HAVE LEGITIMATE ACCESS TO THAT PRIVATE DWELLING TO SEIZE.
3. iN Court, the officer can testify as to what he/she saw from the legitimate angle e.g. public street or sidewalk BUT if the officer enters the home, he/she CANNOT TESTIFY about what they saw.
4. TOUCH - Additional to plain view (simply observing), where the officer attempts seizure. The officer must be legitimately soo close to the object that he can TOUCH IT. For instance, an officer sees a man strangle his "wife" with a stocking from the viewpoint of a public sidewalk through an open door. The perp runs. The officer cannot enter the house to seize the stocking. He must get a search warrant.
5. OTHER ISSUES INVOLVING PLAIN VIEW - A) Use of a flashlight to bring an object into plain view is OK. B) Hight tech devices NOT IN GENERAL PUBLIC USE (heat seaking and such) requires a warrent (no good under plain view exception).
6. Arial observation is allowed only with the NAKED EYE in PUBLIC navigable air space.
7. A sniffing dog in a public place smells your suit case for pot - this is plain view.
8. If an officer is in D's home for a legitimate purpose to arrest, plain view applies.
9. FINER POINTS - For instance, an illegal drug resting on a kitchen table is in plain view where an officer is on the premises for a legitimate reason BUT the officer CANNOT OPEN A CLOSED CONTAINER IN PLAIN VIEW OR EVEN MOVE AN ITEM TO GET A BETTER LOOK.
LASTLY THERE IS AN ANSCILLARY TO PLAIN VIEW CALLED "PLAIN TOUCH" - I bring this up because 'STOP AND FRISK" aka a Terry Search IS SO MUCH IN THE NEWS THESE PAST FEW WEEKS. Most folks know this type of stop as falling under the phrase "REASONABLE SUSPICION THAT CRIME IS AFOOT".
New Criminal Attorneys should remember this minor fact: If an officer performing a stop and frisk pats down a suspect and feels contraband they may seize it. However, if the officer is continues a pat down then goes back to the area of contraband, he/she has violated the plain view/touch exception and such seized evidence is fruit of the poisonous tree (not admissible).
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