Week Five, Part 7 - Crim: Plain View

The last class on Friday is Criminal Procedure. It’s been a grueling week: 24 cases to read and brief. I’m tired, but looking forward to Saturday. A former colleague of mine from Pillsbury has arrived in South Bend. Tomorrow we’ll visit Notre Dame stadium to watch the Irish play the University of Texas Longhorns.

Professor Tex Dutile sets out the legal doctrine of “plain view,” the right of police officers to seize readily apparent evidence or contraband. Then he calls on a Kevin Hansen, a tall red-head sitting near the front. Dutile checks Hansen’s name off a list. There’s no doubt. Dutile’s going to grill all of us before the semester ends.

“Mr. Hansen, suppose I have a warrant to search the bottom drawer of the desk in your living room. As I walk in the front door, I look down the hallway into the kitchen and see 400 glycine bags of white powdery substance... labeled 'heroin.'”

The class laughs.

“Can I seize them?” Dutile asks.

“Under plain view, that would be okay,” Kevin says.

“No, no, no! Think like a lawyer. Show us your warm zeal for the law!”

Kevin grimaces and strokes his beard. He looks back and forth between his laptop and a brief of Horton v. California, a 1990 Supreme Court case. In Horton, the petitioner argued that the trial court should suppress evidence a police officer discovered in plain view because the search warrant did not mention the particular items.

Kevin regroups. “The warrant gives you legal justification to be in my house. It’s apparent that the heroin is illegal. Therefore, seizure is okay.”

“That’s better!” Dutile says. “Now suppose I look through the kitchen window. In your garage I see an illegal apparatus for distilling alcoholic beverages. Can I seize it?”

The hypos come rapid fire, each testing the boundaries of the basic doctrine. “How about the pirated tapes of the Osmond Brothers I notice in your bedroom? The vial of pills on the bathroom sink? What if I lift the turntable on your expensive stereo... which seems out of place in a badly furnished apartment... and discover that the serial number matches one on my stolen property list?”

We never get a definitive answer.

Dutile makes me laugh, but I wish he'd lecture more -- and question less -- about the topic at hand.

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