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Search and Seizure for Police and Prosecutors

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V. Seizing Contraband or Other Evidence in Plain View During a Warrantless Search of a Vehicle

 

  1. Seizing contraband or other evidence in plain view during a warrantless search of a vehicle.
    1. Requirements of plain view exception.
      1. The warrantless search must be a valid search because officer must lawfully be in the place where the items are observed.
      2. It must be immediately apparent (officer must have probable cause to believe) that the items are evidence of a crime or contraband.
    2. Items in plain view that are often lawfully possessed cannot be seized unless the context in which they are observed establishes probable cause to believe they are evidence or contraband.
      1. Circumstances of the encounter that may help establish probable cause include:
        1. The reason for the encounter,The location of the encounter,
        2. The officer’s prior knowledge of the defendant, and
        3. The defendant’s demeanor or furtive actions.
      2. Furtive actions, alone, cannot establish probable cause to believe that items that are often lawfully possessed are evidence of a crime or contraband.

During any valid warrantless search of a vehicle, an officer who observes in plain view items that are immediately identifiable as contraband or evidence of a crime may seize those items. There are two requirements for a valid seizure under the plain view exception. First, the warrantless search must be a valid search – a search that meets the requirements for a consensual search, a search incident to arrest, or a search based on probable cause plus exigent circumstances. For example, if the officer finds items while searching beyond the scope of a valid search incident to arrest, those items may not be seized. Indeed, those items should not even be relied upon in seeking a warrant.68

The second requirement for seizure under the plain view exception is that it must be immediately apparent to the officer that the items are either evidence of a crime or contraband.69 In other words, the officer must be aware of facts and circumstances that are sufficient to establish probable cause to believe that the items are evidence of a crime or contraband.70

When an officer views in plain view an item that “is often lawfully possessed,” probable cause to believe that the item is, in this instance, evidence of a crime or contraband depends on the context in which the item is observed, such as (1) the circumstances of the encounter, (2) the officer’s training and experience, and (3) the particular item observed.71 Relevant circumstances of the encounter include (1) the reason for the encounter, (2) the location of the encounter, (3) the officer’s prior knowledge of the defendant, and (4) the demeanor and conduct of the defendant, such as nervousness or making furtive movements.72 Nervousness and furtive movements alone are not sufficient, but considered together with other circumstances, may be sufficient to establish probable cause to believe the items are evidence or contraband.73

 

ENDNOTES

68 See State v. Wagoner, 2001-NMCA-014, ¶ 21, 130 N.M. 274, 24 P.3d 306.

69 State v. Sanchez, 2015-NMCA-084, ¶ 13, 355 P.3d 795 (citing State v. Ochoa, 2004-NMSC- 050, ¶ 9, 139 N.M. 81, 93 P.3d 1286)).

70 Id. (citing State v. Williams, 1994-NMSC-050, ¶ 15, 117 N.M. 551, 874 P.2d 12).

71 Id. ¶ 16.

72 Id. ¶¶ 17-18.

73 Id. ¶ 22.