We’ve talked so many times here about the death of the Fourth Amendment, particularly in the war on drugs. It has been trashed over and over again from every direction.

We haven’t talked much about “plain view.” Plain view is the notion that if an officer sees something illegal sitting out in plain view, it’s perfectly OK for him to charge you with it. So, if you’ve been robbed and you invite a police officer into your home to show him that your piggy bank was broken open, and there are twelve severed heads on the counter, the officer isn’t required to ignore them — they are in plain view and now you’re going to be charged with some heinous crime.

However, that’s not how plain view normally works. Officers work hard to get themselves into position where they can see as much as possible in an attempt to go fishing.

Terry v. Ohio, followed by Michigan v. Long, allowed police to pat people down, and even do a routine search of a car in certain situations for the safety of the officer to insure that there are no weapons present. (I wonder how often people detained by officers are able to dive back into their car and grab a weapon.) Of course, if they find drugs, well, that just happened to be in plain view, while they were searching for tiny guns which might be hidden inside film canisters [is that a dated reference?].

If you open the door to your house when police knock and they see something illegal through the open door (or through your window), they can act.

Just this past month, the 9th Circuit made a particularly bad ruling in United States v. Lemus, holding that when police arrested a man outside his house, the police had the authority to sweep inside the house to make sure there was nothing there to endanger them!

Thanks to Fourth Amendment.com, we give you the powerful words in dissent of Chief Judge Kozinski…