Seizure of Items Found in Plain View

Ordinarily, police officers executing a valid search warrant may seize only items specifically named in the search warrant. An exception to that rule is found in the “plain view doctrine.” The doctrine creates an exception to the warrant requirement when property is found in “plain view” because “[t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.”¹

There are two requirements that must be met before a seizure of items not listed in the warrant is reasonable under the plain view doctrine.² First, the officer seizing the evidence must lawfully be in a position to discover the evidence. Second, it must be immediately apparent that the items seized “may be evidence of a crime, contraband, or otherwise subject to seizure.”³

If the officer is conducting a search of the defendant’s house pursuant to a search warrant, the search warrant must be valid. Likewise, the officer must discover the evidence while conducting the search authorized by the warrant.⁴ The plain view exception does not apply if the officer seizes items he finds while conducting a search not authorized by the warrant.⁵ For example, if the officer is authorized by the warrant to search for a stolen piano and finds drugs in a shoe box in a closet, he may not seize the drugs. In that situation, the officer’s search in the closet, and the box, is not authorized by the warrant because the officer could not believe that a piano would be found in the box in the closet. If the search warrant authorizes the officer to search for small items that could fit into a shoe box, the officer is authorized to search a shoe box in a closet and, therefore, may seize evidence he finds inside the shoe box.⁶

But the officer may seize the evidence only if the incriminating character of the evidence is “immediately apparent” to the officer.⁷ The incriminating nature of the evidence “need not relate to the crime under investigation.” ⁸ Rather, the evidence may be seized if it relates to “some criminal activity of which the officer is aware.”⁹ For example, an officer searching for stolen property may seize illegal drugs found in plain view. In addition, the officer need not be absolutely certain of the incriminating nature of the evidence. It is sufficient if there is a “probability that incriminating evidence is involved.”¹⁰ Thus, it is enough if the officer reasonably believes, based on his knowledge and experience, that the item is cocaine, for example. The officer need not test the item to determine for certain it is cocaine before seizing it.

ENDNOTES

1 State v. Williams, 1994-NMSC-050, ¶ 11, 117 N.M. 551, 874 P.2d 12 (quoting Payton v. New York, 445 U.S. 573, 587 (1980)).

2 These requirements also apply to the seizure of items found in plain view during a valid warrantless search.

3 Williams, 1994-NMSC-050, ¶¶ 11, 13-14. In Texas v. Brown, 460 U.S. 730, 737 (1983), the Court included a third requirement – that the discovery of the seized items must have been inadvertent. The Court later discarded that requirement, as our Supreme Court recognized in Williams, 1994-NMSC-050, ¶ 12. See also State v. Steinzig, 1999- NMCA-107, ¶ 29, 127 N.M. 752, 987 P.2d 409.

4 State v. Arredondo, 1997-NMCA-081, ¶¶ 21-22, 123 N.M. 628, 944 P.2d 276 (discovery of marijuana under driver’s seat during valid search for weapons in automobile fell within plain view exception, but discovery of cocaine in small hole in dashboard did not fall within plain view exception).

5 Similarly, the plain view doctrine does not apply if the officer conducting a warrantless search is not authorized to be in the place where the evidence is viewed, and if the search exceeds the scope of a valid warrantless search. See State v. Howl, 2016-NMCA-084, ¶ 18, 381 P.3d 684.

6 See State v. Dobbs, 1983-NMCA-033, ¶¶ 10-13, 100 N.M. 60, 665 P.2d 1151 (seizure of vibrator found under bed was reasonable where officer’s search under defendant’s bed was within the scope of the warrant because he could logically have expected to find ski mask or sock there), overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110; State v. Calloway, 1990-NMCA-110, ¶ 17, 111 N.M. 47, 801 P.2d 117 (seizure of briefcase during the warrantless search of a house after a fire, which was justified by exigent circumstances, was reasonable because the briefcase could have contained chemicals used to start the fire); State v. Lara, 1990-NMCA-075 ¶ 23, 110 N.M. 507, 797 P.2d 296 (plain view exception applied to blood stains observed during a protective sweep of the defendant’s home, where officers were investigating a battery).

7 Williams, 1994-NMSC-050, ¶ 11.

8 State v. Miles, 1989-NMCA-028, ¶ 11, 108 N.M. 556, 775 P.2d 758.

9 Id.

10 Williams, 1994-NMSC-050, ¶ 15.