California State University, Dominguez Hills
University of Wisconsin, Parkside
Latest update: January 16, 1999
Faculty on the Site.

The plain view doctrine is an aspect of the legality of search argument. It serves to elucidate the egregiousness of the search. Nota bene: One of the requirements of this doctrine is that the person who does the seizing has the authority to seize. Since a private citizen does not have the authority to seize, the fact that the evidence is in plain view will not justify the seizure.

The plain view doctrine does not apply to CSUDH moot court problems because we never deal with police. Nevertheless, the doctrine is likely to come up in questions to see if you understand whether it applies and because an attorney dimly remembers the doctrine and forgotten that it does not apply if there is no right to search and seize.

REQUIREMENTS FOR SEIZURE OF EVIDENCE IN PLAIN VIEW

1. Law enforcement authority to seize.

2. Law enforcement official must be in a place he has a right to be in. i.e. He can't climb up on garbage cans to peer into your kitchen window.

3. Discovery of the evidence must be inadvertent. If official is looking for the evidence, the discovery is not accidental or inadvertent.

4. It must be immediately apparent that what the official has discovered is evidence. If a policeman who is arresting someone in the person's living room sees a stolen Renoir on the wall, he cannot seize it. Why? How does he know it's not a reproduction? He must get a warrant to seize what he believes is the Renoir, if he has enough facts to substantiate his suspicions.

Since our problems never involve law enforcement officials, the plain view doctrine doesn't apply. But you will gain points for knowing why it doesn't apply. In most of our problems the evidence is arguably in plain view, so that the doctrine inevitably comes to mind.

Authority: Texas v. Brown (1983) 75 L.Ed.2d 502, 103 S.Ct. 1535.

Annotation to Texas v Brown: "Validity of Seizure under Fourth Amendment 'Plain View' Doctrine - Supreme Court Cases," 75 L.Ed.2d 1018.

The plain view doctrine is summarized in that annotation:

"A plurality of the Supreme Court has ruled that the plain view doctrine is subject to the limitation that (1) a law enforcement officer [emphasis added] must lawfully make an initial intrusion or otherwise properly be in a position from which he can view a particular area, (2) the discovery of evidence in plain view must be inadvertent, and (3) it must be immediately apparent to the police that they have evidence before them. [citations omitted]" at 1023."

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From the Incident through the System Legally: Knowledge Base of Legal Concepts

California State University, Dominguez Hills
University of Wisconsin, Parkside
Latest update: January 16, 1999
Faculty on the Site.

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