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Look what I found in Plain View under that stack of boxes in the back of your upstairs closet

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…

This is an extraordinary case: Our court approves, without blinking, a police sweep of a person’s home without a warrant, without probable cause, without reasonable suspicion and without exigency—in other words, with nothing at all to support the entry except the curiosity police always have about what they might find if they go rummaging around a suspect’s home. Once inside, the police managed to turn up a gun “in plain view”—stuck between two cushions of the living room couch—and we reward them by upholding the search.

Did I mention that this was an entry into somebody’s home, the place where the protections of the Fourth Amendment are supposedly at their zenith? The place where the “government bears a heavy burden of demonstrating that exceptional circumstances justif[y] departure from the warrant requirement.” United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985). The place where warrantless searches are deemed “presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980).

Government encroachment into the home, which I lamented three years ago in United States v. Black, 482 F.3d 1044, 1045-46 (9th Cir. 2007) (Kozinski, J., dissenting from the denial of rehearing en banc), has continued, abetted by the creative collaborators of the courts. This is another example: The panel goes to considerable lengths to approve a fishing expedition by four police officers inside Lemus’s home after he was arrested just outside it. The opinion misapplies Supreme Court precedent, conflicts with our own case law and is contrary to the great weight of authority in the other circuits. It is also the only case I know of, in any jurisdiction covered by the Fourth Amendment, where invasion of the home has been approved based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes.

Whatever may have been left of the Fourth Amendment after Black is now gone. The evisceration of this crucial constitutional protector of the sanctity and privacy of what Americans consider their castles is pretty much complete. Welcome to the fish bowl.

. . .

3. How has it come to this? There’s a simple answer: Plain view is killing the Fourth Amendment. Because our plain view case law is so favorable to the police, they have a strong incentive to maneuver into a position where they can find things in plain view, or close enough to lie about it.

This is a case in point. While the officers were finishing their room-to-room sweep of Lemus’s apartment, apparently finding no one and nothing suspicious, the detectives entered as well. Yet Buie permits only a sweep for people who might be dangerous. Once the officers found no one in the living room, what authorized entry by the detectives? There was absolutely no reason for the detectives to enter except to try to find contraband in “plain view.” So, the detectives went in and, while there, Diaz thought he saw “something sticking out from the couch” that “looked like the butt of a weapon.” Lemus, 582 F.3d at 960. Longoria then lifted the couch cushion “to make sure” and found a gun. Id. at 961. Under what theory of “plain view” may police lift cushions off a couch to make sure something is contraband? Why weren’t the officers required to get a warrant—if they could—based on what they saw, before rummaging through the couch?

. . .

Plain view encourages the police to find every possible loophole to get themselves into a place where they can take a good look around, discover some evidence and then get a warrant to seize what they already know is there. This tiresome two-step is the new dropsy evidence. As often as not, the chance of hitting the plain-view jackpot is what drives the police into a man’s house, his doctor’s office or his ISP. Carefully drawn limitations in a warrant and narrow justifications for exceptions to the warrant requirement are becoming afterthoughts. “Police officer safety,” the narrow justification in Buie, had nothing to do with this search. Gathering evidence did. We should not abet such skirting of the Fourth Amendment by the police; it only encourages them to do worse.

Powerful words. The sad part is that Kozinski is in the minority in our courts.

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10 comments to Look what I found in Plain View under that stack of boxes in the back of your upstairs closet

  • Just me

    America the free? I think not.So is it up to the jurys of this country to set persedence to change laws?

  • Shap

    Here’s hoping the Supreme Court grants cert. for this case. From the cases that I’ve read, the 9th circuit has a habit of getting their shitty opinions overturned.

  • claygooding

    One more terrorist attack,and they will just throw the bill of rights in the trash can. And of course,although the new search laws and measures are for terrorist investigations,the drug cops will adopt them,for their own.

  • Bruce

    Sigghh gone are the days when upon searching my car and retrieving my hash pipe and, upon tapping it onto roof of police car the officer stuck it into my shirt pocket with a wink and “you get outta here and behave yourself or my ass is grass for letting you go”

  • iDub

    shouldn’t ACLU be all over this?

  • ezrydn

    Where is it, New York, where the cops tell you you’d better show them what’s in your pockets and when you do, you qualify for “plain/public view?” Just because the Constitution says you don’t have the right, LEOs don’t understand that until voiced by the Supremes. Even then, I’ll bet the knuckledraggers won’t catch a hint.

  • Just me

    A thought on something OT. Senator Bunning is voting against more unemployment benefits…ok it sucks they decide to cut spending by cutting the unemployed. I know how that can feel , I was unemployed not 2 weeks ago. If it was me…I would be pissed to see that some dope smoker or some poor MMJ patient was in jail , sucking up funds that could go to my family. I could find many many cuts that would allow for more unemployment benefits , but the powers that be wouldnt like it. Not just cutting funds for wod’s. Any way….AT some point arresting pot smokers will be a very low priority at this rate.

    Freaking politicians….No money? cut schools! no money? cut unemployment. no money? KEEP SPENDING IT TO ARREST NON_VIOLENT POTSMOKERS ! Just idiocy.

    Ok sorry everyone…has to vent that one.

  • Kant

    I don’t remember where I heard this (or who said it) but they had this great quote. (paraphrased) “We will collapse. We’ll be penniless and indentured to the chinese But we will never let go of our drug war.”

  • DavesNotHere

    OK, so everything inside of a home is now considered in plain view from outside of a home according to the Democrats and Republicans interpretation of our Constitution. Great.

    How about warrant-less phone eavesdropping of suspected druggies whenever the police feel like it? A Democrat from Peoria, IL wants to give Illinois police the power to eavesdrop without having to get a warrant. If somebody comments on some blog about wanting to legalize cannabis, the cops can decide that is probable cause enough to listen in on their phone calls.

    Jehan Gordon sponsors eavesdrop legislation

    “If you want to eavesdrop on me, just go ahead – if that’s what floats your boat. But that’s how I feel.”

    This Democrat should be run out office faster than Scott Lee Cohen, but Democrats could care less about basic human rights.

  • VOTE for Legalizing Marijuana on Change.org:

    I am hoping that MPP, NORML, SSDP, LEAP and others will use their email lists and get behind this vote. They ask us to go support their videos, questions, ideas…. so hopefully they will rally behind us and get their email lists involved. The idea has dropped into 8th place, and there are many that are very close behind. Now is the time for us to be active!

    9 days to go….

    There is time to secure our spot in the discussion and there is plenty of time to lose it. What is your choice???

    MPP, NORML, SSDP, LEAP…. Can we count on you???

    http://bit.ly/cMZCHB