(12) Plain View, Consent and Administrative Warrants

(12) Plain View, Consent and Administrative Warrants - CJ...

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CJ 1123 Criminal Evidence and Procedure Plain View, Consent and Administrative Warrants (Chapter 12) Plain View, Consent and Administrative Warrants 12.1 Plain View and Open Fields Doctrines Plain View – 3 key elements 1. objects must be where officers can observe them 2. officers must legally be at the location 3. must be probable cause to seize what was observed Observation: finding objects in plain view is not a search (they are not hidden) can not move items or otherwise examine them for identifying marks (serial #) can move to a better vantage point to observe them most courts also allow the use of flashlights and binoculars items do not have to be inadvertently discovered (Horton v CA) Legally on the Premises: Aerial searches are an extension of this concept CA v Ciraolo – observations made from a police aircraft qualify for Plain View The fact that the defendant built a fence around his backyard indicated a subjective expectation of privacy SC found this did not matter when the police observed some MJ plants with his naked eye from public airspace PC to Seize: there must be PC to seize – not reasonable suspicion facts must indicate it is more likely than not that the item is evidence of a crime or is contraband decision must be made w/o searching the item for clues if PC exists, item can be seized on the spot w/o a warrant even if PC does not exist the observation may provide leads in the investigation observation can be included along w/ other facts in an affidavit to obtain a warrant to conduct a full search of the location Open Fields Doctrine Established in Oliver v US and UD v Dunn – relies on history and the wording of the 4 th A Farmland and other open spaces are not included in the “persons, houses, papers and effects” specified in the 4 th A Historical protection of the cartilage (enclosed area immediately around the house) expands the A to those areas but not beyond to open fields Open Fields Doctrine has little use in the urban setting This is very useful in the search for clandestine MJ cultivation Even though fences have been built and “no trespassing” signs posted – this doctrine applies Meridith Spencer Page 1 of 7
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CJ 1123 Criminal Evidence and Procedure Plain View, Consent and Administrative Warrants (Chapter 12) Areas where there are no established roads can also be searched under this doctrine 12.2 Abandoned Property One of the key points the SC uses when analyzing search and seizure is expectation of privacy Subjective part – focuses on efforts a person took to protect their privacy Objective part – a privacy interest exists that society is willing to protect Seizing abandoned property is not an unreasonable search The fact it is abandoned clearly indicates the previous owner no longer has any interest in it – esp if left in a public place Trash sealed in opaque bags and placed at the curb for pickup by a garbage truck Opaque plastic bag - may indicate subjective privacy interest CA v Greenwood – there is no objective basis for this expectation
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(12) Plain View, Consent and Administrative Warrants - CJ...

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