Plain View

Introduction

Plain view rises to constitutional significance as a justification for warrantless seizures, not searches. "It is important to distinguish 'plain view,' as used . . . to justify seizure of an object, from an officer's mere observation of an item left in plain view. Whereas the latter generally involves no Fourth Amendment search . . . , the former generally does implicate the Amendment's limitations upon seizures of personal property." Texas v. Brown, 460 U.S. 730, 738 n.4 (1983) (plurality opinion). "If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. . . . A seizure of the article, however, would obviously invade the owner's possessory interest." Horton v. California, 496 U.S. 128, 133-134 (1990). Commonwealth v. A Juvenile (No. 2), 411 Mass. 157, 162 (1991) (same). Commonwealth v. Garcia, 34 Mass. App. Ct. 645, 649 (1993) (same). See Commonwealth v. Hason, 387 Mass. 169, 176-177 (1982) (lawful inspection of a stolen vehicle parked on a public street); Commonwealth v. A Juvenile (No. 2), supra, 161-162 (same, hit-and-run vehicle parked in a semi-private driveway); United States v. Hensel, 699 F.2d 18, 32 (1st Cir. 1983) (officers copied the license number of a car parked on a private driveway); Commonwealth v. Skea, 18 Mass. App. Ct. 685, 688-689 (1984) (police observed drugs through the windows of a car parked in a public lot); Commonwealth v. Doulette, 414 Mass. 653, 655 (1993) (same); Commonwealth v. Dowdy, 36 Mass. App. Ct. 495, 498 (1994) (drugs clearly visible in a package carried by the defendant); Commonwealth v. Irwin, 391 Mass. 765, 770-771 (1984) (same, transparent Tupperware container); Commonwealth v. Sergienko, 399 Mass. 291, 293-294 (1987) (vehicle interior in "open view"); Commonwealth v. Figueroa, 412 Mass. 745, 749 & n.6 (1992) (object visible behind the broken interior panel of a car door); State v. Cloutier, 544 A.2d 1277, 1279 (Me. 1988) (officer observed marihuana plants through a basement window while investigating a suspected burglary); State v. Rose, 909 P.2d 280, 286 (Wash. 1996) (officer saw marihuana and a scale while peering through an open porch window).

The lawful view of an exposed item does not by itself justify a "plain view" seizure. For a seizure to be valid, there are three mutually dependent prerequisites: (1) a prior valid intrusion by officers into a constitutionally protected area; (2) an "inadvertent" discovery of the item to be seized; and (3) "immediate" recognition of the item's evidentiary significance (that is, probable cause for its seizure). Commonwealth v. Forde, 367 Mass. 798, 808-809 (1975) (Hennessey, J., concurring); Coolidge v. New Hampshire, 403 U.S. 443 (1971) (plurality opinion). Compare Horton v. California, 496 U.S. 128, 140 (1990) (the federal plain view doctrine has no inadvertence requirement). "Plain view" is best understood not as an exception to the warrant requirement but as an extension of the prior justification that brings an officer without a warrant into the presence of evidence or contraband. Texas v. Brown, 460 U.S. 730, 738-739 (1983) (plurality opinion). Cf. Coolidge v. New Hampshire, supra, at 468 ("[P]lain view alone is never enough to justify the warrantless seizure of evidence"). In this regard, a useful distinction may be drawn between items in "plain view" and items in "open view." "In the plain view situation, the view takes place after [a valid] intrusion into activities or areas as to which there is a reasonable expectation of privacy. . . . In the open view situation, however, the observation takes place from a non-intrusive vantage point." State v. Kaaheena, 575 P.2d 462, 466 (Haw. 1978). "In legitimate open view sightings . . . [i]f the evidence is not in an area where there is a reasonable expectation of privacy, that is, if it is located in a common space, the evidence is subject to seizure by the government agent who spots it, without the necessity of a warrant or exigent circumstances. . . . However, if the evidence in question is in open view in an area in which the evidence retains its constitutional protection, a warrant is required or exigent circumstances must exist before the object may be seized." State v. Meyer, 893 P.2d 159, 164 (Haw. 1995). United States v. Jones, 187 F.3d 210, 221 n.10 (1st Cir. 1999) (same). See People v. Hassan, 624 N.E.2d 1330, 1338-1339 (Ill. App. 1993) (observation of drugs in open view did not justify a warrantless entry of defendant's home); Commonwealth v. Sheridan, 470 Mass. 752, 760 (2015) (same, defendant's car); United States v. Whaley, 781 F.2d 417, 418-419 (5th Cir. 1986) (that marijuana plants were in open view did not justify officers' warrantless trespass on defendant's property). In Commonwealth v. Snow, 76 Mass. App. Ct. 116 (2010), the Appeals Court's attempt to equate an object in "plain view" with one that is "plainly visible," appears to be based on the confusion of a legal doctrine – plain view – with a description of sensory perception. Id., at 119-120 (no evidence that a gun next to the driver's seat was protruding or "lying out in the open" when it was only observed after the officer looked directly down and saw the grip and barrel).

Just as the observation of evidence in open view does not justify the warrantless entry of a home to effect a seizure, the observation of evidence in plain view after a valid intrusion does not justify a warrantless reentry of the home to seize it. "Once police officers leave a home where they believe they saw evidence in plain view, they are in essentially the same position as any officer with reliable information that contraband is in a residence." Middleton v. State, 714 N.E.2d 1099, 1102 (Ind. 1999). Bilida v. McLeod, 211 F.3d 166, 172 (1st Cir. 2000) (same). Compare Wengert v. State, 771 A.2d 389, 399, 401 (Md. 2001) (police lawfully in a home, who have probable cause to believe that items in plain view are evidence of a crime, do not require a warrant before summoning more experienced officers to the scene to verify their suspicions – the "overwhelming" majority view).

Prior Valid Intrusion

The officer must be lawfully in the presence of the evidence or contraband. Horton v. California, 496 U.S. 128, 137 (1990). Cf. Commonwealth v. Neilson, 423 Mass. 75, 80 (1996) (officers had no right to be present in the dormitory room where their plain view observations were made). The following are examples of prior valid intrusions.

1. An Arrest

Evidence that "inadvertently" comes into view while an officer is effecting a valid arrest may be seized without a warrant. Commonwealth v. Walker, 370 Mass. 548, 557 (1976); Commonwealth v. DiMatteo, 12 Mass. App. Ct. 547, 549 (1981). The inadvertence requirement does not apply, however, to a search incident to arrest. While the search incident to arrest is limited to the arrestee's person and the area (or vehicle interior) under his immediate control, the right to seize evidence in plain view is limited only by the permitted scope of the intrusion. See Commonwealth v. Forde, 367 Mass. 798, 809 (1975) (Hennessey, J., concurring). Cf. M.G.L. c. 276, § 1, and the note on Commonwealth v. Toole in the chapter on Searches Incident to Arrest.

2. Security Sweeps

Where officers, pursuant to Maryland v. Buie, 494 U.S. 325 (1990), conduct a safety sweep of a premises to flush out the possible accomplices of a person arrested or detained for a serious crime, evidence that comes into plain view may be seized. Mincey v. Arizona, 437 U.S. 385, 393 (1978); Commonwealth v. Bowden, 379 Mass. 472, 478 (1980); Commonwealth v. Acosta, 416 Mass. 279, 283 (1993). See United States v. Irizarry, 673 F.2d 554, 558 (1st Cir. 1982) (contraband discovered during a sweep of a motel room); United States v. Tabor, 722 F.2d 596, 598 (10th Cir. 1983) (same, sweep of house and adjacent barn). Cf. Washington v. Chrisman, 455 U.S. 1, 5-9 (1982) (where officer maintained custodial control over a defendant who asked to retrieve identification from his room, marijuana seeds in plain view were properly seized); Commonwealth v. Franco, 419 Mass. 635, 641 (1995) (officers moved arrestee to another room to escape overpowering chemical odors); State v. Wise, 879 S.W.2d 494, 505 (Mo. 1994) (officer accompanied arrestee's stepson while he retrieved defendant's personal belongings).

3. Investigatory ("Terry") Stops and Frisks

The stop may be occasioned by a motor vehicle violation or other minor infraction, Commonwealth v. LaBossiere, 347 Mass. 384, 385-386 (1964), or by "specific and articulable facts" justifying a threshold inquiry. Commonwealth v. Ling, 370 Mass. 238, 240-241 (1976). Evidence or contraband exposed to view during a Terry "frisk" may be seized. Commonwealth v. King, 389 Mass. 233, 240-241 (1983); Commonwealth v. Ferguson, 410 Mass. 611, 614 (1991); Michigan v. Long, 463 U.S. 1032, 1050 (1983) (contraband discovered during a protective "frisk" of a vehicle); Commonwealth v. Swartz, 454 Mass. 330, 335 (2009) (contraband observed in plain view during s sobriety checkpoint stop). Cf. Minnesota v. Dickerson, 508 U.S. 366, 375-376 (1993) ("plain feel"). See also Commonwealth v. Wilson, 441 Mass. 390, 397 (2004) (adopting "plain feel" as compatible with art. 14 – "[t]he only difference between the [plain view and plain feel] doctrines is the sensory perception used to identify the contraband nature of the object").

4. Execution of a Warrant

Police executing a valid search or arrest warrant may seize evidence encountered in plain view. Commonwealth v. LaPlante, 416 Mass. 433, 440 (1993); Commonwealth v. Feijoo, 419 Mass. 486, 498 (1995); Commonwealth v. Franco, 419 Mass. 635, 640 (1995); Commonwealth v. Wood, 389 Mass. 552, 558 (1983); Commonwealth v. Wojcik, 358 Mass. 623, 626-628 (1971); Commonwealth v. Ventola, 1 Mass. App. Ct. 459, 464 (1973). See also United States v. Aguirre, 839 F.2d 854, 858-859 (1st Cir. 1988); United States v. Robles, 45 F.3d 1, 6 (1st Cir. 1995); United States v. Clayton, 210 F.3d 841, 845 (8th Cir. 2000); United States v. Van Damme, 48 F.3d 461, 466-467 (9th Cir. 1995). Cf. United States v. Spencer, 684 F.2d 220, 224 (2d Cir. 1982) (entry of a home to serve a misdemeanor bench warrant permitted seizure of weapons in plain view). Computer searches are no exception to the doctrine. See Commonwealth v. Ericson, 85 Mass. App. Ct. 326, 333-334 (2014); United States v. Stabile, 633 F.3d 219, 240-241 & n.16 (3d Cir. 2011). Items named in invalid portions of a warrant that are in plain view may be seized if the scope and intensity of the search leading to their discovery is consistent with the valid portions of the warrant. Commonwealth v. Lett, 393 Mass. 141, 147 (1984); Commonwealth v. D'Amour, 428 Mass. 725, 730-732 (1999); Commonwealth v. Tyree, 455 Mass. 676, 694 (2010); United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir. 1983); United States v. Soussi, 29 F.3d 565, 572 (10th Cir. 1994).

5. Automobile Searches

Evidence unrelated to the probable cause justifying the search of a vehicle may be seized if it is discovered in plain view. Commonwealth v. Ciaramitaro, 51 Mass. App. Ct. 638, 645 (2001) (officer searching for illegal weapons found cocaine); United States v. Moschetta, 646 F.2d 955, 959 (5th Cir. 1981) (the search of an automobile trunk for drugs led to the discovery of an illegally possessed rifle).

6. Automobile Inventories

An officer conducting a routine (non-pretextual) administrative inventory of the contents of an impounded vehicle may seize evidence or contraband that comes into plain view. See South Dakota v. Opperman, 428 U.S. 364, 376 n.10 (1976); Commonwealth v. Figueroa, 412 Mass. 745, 749 (1992); Commonwealth v. Matchett, 386 Mass. 492, 509-511 (1982); Commonwealth v. Fuller, 30 Mass. App. Ct. 927, 928 (1991); United States v. Strahan, 674 F.2d 96, 100 (1st Cir. 1982). The same is also true of evidence encountered during the carrying out of the physical acts necessary to effect the impoundment of a vehicle. Commonwealth v. Ford, 394 Mass. 421, 424 n.1 (1985); Commonwealth v. Goncalves, 62 Mass. App. Ct. 153, 157 (2004).

7. Hot Pursuit

Police in hot pursuit of a suspect may seize incriminating items that come into view during the chase. Commonwealth v. Rodriquez, 364 Mass. 87, 93 (1973).

8. Exigent Searches

Police acting to prevent the imminent destruction of evidence or for other exigent purposes may seize evidence in plain view. Arizona v. Hicks, 480 U.S. 321, 326 (1987). See Commonwealth v. A Juvenile (No. 2), 411 Mass. 157, 162-166 (1991) (seizure of a vehicle exhibiting evidence of a hit-and-run accident); Commonwealth v. Paniaqua, 413 Mass. 796, 798-799 (1992) (exigent entry to locate a gunman); Commonwealth v. Bass, 24 Mass. App. Ct. 972, 973 (1987) (same, armed fugitive); United States v. Schmidt, 700 F.3d 934, 938-939 (7th Cir. 2012) (possible gunshot victims); State v. Klauss, 562 A.2d 558, 561-562 (Conn. App. 1989) (possible suicide).

9. Consent Searches

Incriminating items discovered in plain view during a consensual search may be seized even if outside the scope of the consent that is given. United States v. Shigemura, 682 F.2d 699, 706 (8th Cir. 1982); Commonwealth v. Hinds, 437 Mass. 54, 61 (2002); Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 228 (1992); Commonwealth v. Rexach, 20 Mass. App. Ct. 919 (1985); Commonwealth v. Santiago, 30 Mass. App. Ct. 207, 211 (1991); Commonwealth v. Brown, 32 Mass. App. Ct. 649, 652 (1992); Commonwealth v. Marmolejos, 35 Mass. App. Ct. 1, 3 n.3 (1993); Commonwealth v. Podgurski, 44 Mass. App. Ct. 929, 931 (1998).

10. Booking Inventories

An officer conducting a routine inventory of a prisoner's property incident to incarceration may seize any facially incriminating evidence or contraband that comes into plain view. Illinois v. Lafayette, 462 U.S. 640, 646 (1983); Commonwealth v. Vuthy Seng, 436 Mass. 537, 551 & n.13 (2002). See Commonwealth v. Wilson, 389 Mass. 115, 116-117 (1983) (drugs found in defendant's wallet); Commonwealth v. Ross, 361 Mass. 665, 681 (1972) (bloodstained currency); Commonwealth v. Cullen, 79 Mass. App. Ct. 618, 622 (2011) (papers linking defendant to a pattern of threats).

11. Implied Invitation

Police who venture into areas impliedly open to the public, like sidewalks, walkways, driveways, and porches, "are free to keep their eyes open" and seize any evidence that comes into plain view. State v. Seagull, 632 P.2d 44, 47 (Wash. 1981). 1 LaFave, Search and Seizure § 2.3(a) (2012). See Commonwealth v. Simmons, 392 Mass. 45, 50 (1984) (driveway); Commonwealth v. A Juvenile (No. 2), 411 Mass. 157, 161-162 (1991) (same); Commonwealth v. Pietrass, 392 Mass. 892, 901 (1984) (walkway and porch); State v. Rose, 909 P.2d 280, 283 (Wash. 1996) (same); People v. Shorty, 731 P.2d 679, 681-682 (Colo. 1987) (apartment stairwell); Commonwealth v. Villar, 40 Mass. App. Ct. 742, 745 (1996) (common hallway).

12. Administrative and "Caretaking" Duties

An officer who encounters incriminating evidence or contraband while performing an administrative inspection or a community service unrelated to criminal law enforcement may seize it without a warrant. See Commonwealth v. Accaputo, 380 Mass. 435, 448 (1980) (officer conducting a routine administrative inspection came upon an illegal firearm); Commonwealth v. Roland R., a juvenile, 448 Mass. 278, 284 (2007) (courthouse security officer discovered drugs while inspecting a visitor's tote bag for weapons); Commonwealth v. Anselmo, 33 Mass. App. Ct. 602, 615 (1992) (Alcoholic Beverages Control Commission inspection, stolen beer); Commonwealth v. Eagleton, 402 Mass. 199, 207 (1988) (used car lot inspection, M.G.L. c. 140, § 66, expired inflammable liquids license); Commonwealth v. Santana, 420 Mass. 205, 212 (1995) (officer leaned into defendant's car to return personal property); Commonwealth v. Entwistle, 463 Mass. 205, 217 (2012) (officers who entered a home in search of a missing family reasonably recorded a VIN number on a vehicle lease bill lying in plain view on a kitchen table); United States v. Ceballos, 706 F.2d 1198, 1201 (11th Cir. 1983) (Coast Guard officers discovered marijuana while making a routine document inspection); State v. Bell, 737 P.2d 254, 257-258 (Wash. 1987) (firefighters found marijuana plants while dousing a kitchen fire); Commonwealth v. Ringgard, 71 Mass. App. Ct. 197, 202-203 (2008) (police found firearm while attempting the rescue of an occupant of a burning building); Commonwealth v. Cantelli, 83 Mass. App. Ct. 156, 168 (2013) (same, police were seeking to shut off a leaking and potentially explosive gas line); United States v. Rohrig, 98 F.3d 1506, 1520-1521 (6th Cir. 1996) (police entered home in response to neighbors' complaints about loud, early morning music); United States v. Snipe, 515 F.3d 947, 950-952 (9th Cir. 2008) (officers observed drugs in plain view after responding to a call for emergency assistance); State v. Chisholm, 696 P.2d 41, 43 (Wash. App. 1985) (officer observed drugs after stopping defendant to tell him that he had left his hat on the roof of his truck); State v. Pidcock, 759 P.2d 1092, 1095-1096 (Or. 1988) (officers discovered drugs while searching a lost briefcase for identification). Cf. Cady v. Dombrowski, 413 U.S. 433, 447-448 (1973) (warrantless "caretaking" search of a vehicle believed to contain an incapacitated officer's firearm).

13. Statutory Authority

An officer, who enters a building or home to suppress a riot or breach of the peace pursuant to M.G.L. c. 41, § 98, may seize evidence or contraband in plain view. Cf. Griffin v. Wisconsin, 483 U.S. 868 (1987) (statutorily authorized probation search).

Inadvertence

The second prerequisite of a plain view seizure, as defined by Justice Stewart for the plurality in Coolidge, was the "inadvertent" discovery of the item to be seized. Were it otherwise, Justice Stewart argued, the exception risked transforming a permissible limited search into an impermissible general one. "If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a violation of the express constitutional requirement of 'Warrants . . . particularly describing . . . [the] things to be seized.'" Coolidge v. New Hampshire, 403 U.S. 443, 471 (1971) (plurality opinion). See Commonwealth v. Lett, 393 Mass. 141, 147 (1984) ("If police have probable cause to search for an item, and are thus systematically looking for it, they must mention it in their warrant or forfeit its admission in evidence").

This reasoning was rejected by Justice Stevens, writing for the majority in Horton v. California, 496 U.S. 128 (1990). "First, evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer." Id., at 138. "Second, the suggestion that the inadvertence requirement is necessary to prevent the police from conducting general searches, or from converting specific warrants into general warrants, is not persuasive because that interest is already served by the requirements that no warrant issue unless it 'particularly describ[es] the place to be searched and the persons or things to be seized,' . . . and that a warrantless search be circumscribed by the exigencies which justify its initiation." Id., at 139-140. "Once those commands have been satisfied and the officer has a lawful right of access . . . no additional Fourth Amendment interest is furthered by requiring that the discovery of evidence be inadvertent." Id., at 140.

The Supreme Judicial Court in turn rejected the reasoning of Horton in deciding to retain the inadvertence requirement as part of "our art. 14 jurisprudence." Commonwealth v. Balicki, 436 Mass. 1, 9 (2002). "The concerns that we expressed in [Commonwealth v. Walker, 370 Mass. 548, 557 (1976)] that 'attention must be paid also to seeing that the police, in full possession of probable case to believe that incriminating evidence is present in a particular place, have not waited until an opportune moment to "place themselves in a position to gain a plain view of the evidence"' are no less important today. . . . Although the Court in Horton may have been correct that the inadvertent discovery requirement furthers no privacy interests, we find that it continues to protect the possessory interests conferred on our citizens by art. 14." Id., at 10. "Inadvertent" does not mean "surprising," "unanticipated," or "unintentional." It signifies only the lack of prior probable cause. Commonwealth v. Cefalo, 381 Mass. 319, 331 n.9 (1980). See Commonwealth v. Tarjick, 87 Mass. App. Ct. 374, 378 (2015) (police executing a search warrant for a computer, cell phone, and video camera thought to contain explicit photos of an abused victim, had no prior probable cause to believe that digital cameras and memory cards would also be present). In this vein, "[t]he anticipation of finding some additional contraband or other evidence of criminality is not the same as having probable cause to believe that specific items of evidence will be present at the location searched. Such generalized anticipation undoubtedly exists in conjunction with almost every search, and to conclude that its presence negates inadvertence would stretch the requirement beyond its intent and limited purpose." Commonwealth v. Balicki, supra, at 14. See Commonwealth v. Lett, 393 Mass.147 (1984) (seizure of items for which probable cause is lacking need not be fortuitous); Commonwealth v. Tisserand, 5 Mass. App. Ct. 383, 386-387 (1977) (officer inventoried an impounded vehicle "suspecting" that he would find evidence of a robbery); Commonwealth v. Blake, 23 Mass. App. Ct. 456, 463-464 (1987) (officer "suspected" that his demand for defendant's vehicle registration might expose an incriminating scale).

The inadvertence requirement does not apply to items that are contraband, stolen, or inherently dangerous. These may be seized simply on the basis of a lawful intrusion and observation. Coolidge v. New Hampshire, 403 U.S. 443, 472 (1971) (plurality opinion). See Commonwealth v. Hason, 387 Mass. 169, 176-177 (1982) (stolen car); Commonwealth v. Accaputo, 380 Mass. 435, 448 (1980) (illegal firearm); Commonwealth v. LaPlante, 416 Mass. 433, 440 & n.9 (1993) (fruits of a burglary). It also does not apply to items seized pursuant to invalid portions of a severed warrant where the proper inquiry is not inadvertence but whether the items in plain view were seized within the scope and intensity of the search permitted by the warrant. Commonwealth v. Tyree, 455 Mass. 676, 694-695 (2010).

"Immediately Apparent" Evidentiary Significance

Plain view is a doctrine of seizure. It is not an invitation to probe or rummage through items not readily recognized as incriminating. Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971) (plurality opinion); Arizona v. Hicks, 480 U.S. 321, 326-327 (1987); Commonwealth v. Blevines, 438 Mass. 604, 609 (2003). See Commonwealth v. Rand, 363 Mass. 554, 557-558 (1973) (hour long inspection of an impounded car believed involved in a hit-and-run accident); Commonwealth v. Bass, 24 Mass. App. Ct. 972, 974 (1987) (purported "security sweep" of the concealed shelf of a dry bar); United States v. Miller, 769 F.2d 554, 558 (9th Cir. 1985) (probe of a container wrapped and concealed in a plastic bag); United States v. Doe, 61 F.3d 107, 111-113 (1st Cir. 1995) (same); State v. Reimer, 899 P.2d 427, 432 (Idaho 1995) (sealed insulation compartment of a drinking mug); White v. State, 729 S.W.2d 737, 741 (Tex. Crim. App. 1987) (en banc) (minute examination of property strewn about defendants' apartment). While the passive inspection of an item exposed to open view is neither a search nor a seizure, the slightest movement of an object without probable cause is per se unreasonable. Arizona v. Hicks, supra, at 325 (shifting of stereo components to gain access to incriminating serial numbers). See Commonwealth v. Cruz, 53 Mass. App. Ct. 24, 35 (2001) (officer determined that a cellular telephone was a counterfeit clone only after activating its identification number); Ray v. State, 634 So.2d 695, 696 (Fla. App. 1994) (only by turning over a gun did the officer become aware that its serial number had been defaced). Compare Riddick v. State, 571 A.2d 1239, 1251 (Md. 1990) (officer recognized a spoon as drug paraphernalia only after he seized it) with Hippler v. State, 574 A.2d 348, 354 (Md. Ct. Spec. App. 1990) (officer recognized a bottle protruding from defendant's pocket as a PCP container before the seizure). Cf. Commonwealth v. Ferguson, 410 Mass. 611, 615 (1991) (no evidence that officer observed the contents of a bag before removing it from defendant's jacket pocket); Commonwealth v. Garcia, 34 Mass. App. Ct. 645, 650 n.7 (1993) (same, plastic baggie seized from car floor). Compare United States v. Harvey, 961 F.2d 1361, 1364 (8th Cir. 1992) (movement of luggage from one public place to another to make it accessible to a drug sniffing dog "revealed nothing of independent evidentiary value"); United States v. Reed, 141 F.3d 644, 650 (6th Cir. 1998) (dog's "instinctive reaction" in pawing hidden drugs into view had no Fourth Amendment significance). Hicks, it should be noted, does not relieve a defendant of the burden of showing a legitimate expectation of privacy in the object that is the subject of a search. United States v. Haqq, 278 F.3d 44, 51 (2d Cir. 2002) (trial court erred in presuming that because police searched a suitcase in defendant's home without a warrant an expectation of privacy was violated without first considering whether defendant had in fact established a possessory interest in the suitcase).

"[T]he use of the phrase 'immediately apparent' [in Coolidge] was very likely an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary for an application of the 'plain view' doctrine." Texas v. Brown, 460 U.S. 730, 741 (1993) (plurality opinion). The doctrine requires only that an officer have probable cause before seizing an incriminating item. Minnesota v. Dickerson, 508 U.S. 366, 376 (1993); State v. White, 370 S.E.2d 390, 395 (N.C. 1988); People v. Champion, 549 N.W.2d 849, 857 (Mich. 1996); Wengert v. State, 771 A.2d 389, 397 (Md. 2001). Compare Arizona v. Hicks, 480 U.S. 321, 326-327 (1987) (mere suspicion, however reasonable, that stereo components were stolen did not justify shifting their position to uncover the serial numbers); Liichow v. State, 419 A.2d 1041, 1047 (Md. 1980) (inconspicuous white tablets were not readily identifiable as a controlled substance); Commonwealth v. White, 469 Mass. 96, 102 (2014) (same); ; Commonwealth v. King, 67 Mass. App. Ct. 823, 829 (2006) (same, substance identified only as "green, leafy vegetable matter"); Harris v. Commonwealth, 400 S.E.2d 191, 196 (Va. 1991) ("facially innocent" film canister); Commonwealth v. Garcia-German, 90 Mass. App. Ct. 753, 756 (2016) (prescription pill bottle containing unidentifiable pills of different colors); Commonwealth v. Garcia, 34 Mass. App. Ct. 645, 650 (1993) (apparently empty plastic baggie). An officer's training and experience should, however, be weighed deferentially. Texas v. Brown, supra, at 746 (Powell, J., concurring) (experienced officer recognized that an innocent-looking party balloon was knotted in a fashion commonly used to package heroin); United States v. Johnston, 784 F.2d 416, 421 (1st Cir. 1986) (experienced officer recognized adding machine tapes and written notations as drug related); Commonwealth v. Halsey, 41 Mass. App. Ct. 200, 201 (1996) (officer knew from training and experience that pedophiles use pornography to inveigle children into sexual activity). Compare United States v. McLernon, 746 F.2d 1098, 1125-1126 (6th Cir. 1984) (significance of note pad and calendar found in the hotel room of suspected drug dealers was not immediately obvious); United States v. Garcia, 496 F.3d 495, 511 (6th Cir. 2007) (same, receipts, financial records, and invoices); United States v. Szymkowiak, 727 F.2d 95, 98-99 (6th Cir. 1984) (officers had no ready means of ascertaining whether firearms were possessed legally); United States v. Beal, 810 F.2d 574, 577 (6th Cir. 1987) (officers had no immediately available means of determining whether outwardly appearing fountain pens were in fact disguised firearms); United States v. Khoury, 901 F.2d 948, 959 (11th Cir. 1990) (agent conducting an inventory recognized the contents of a notebook as incriminating only upon a second more careful examination). Cf. United States v. Menon, 24 F.3d 550, 563 (3d Cir. 1994) (whether an item was in fact "immediately" recognized as evidence of a crime "should be measured, at a minimum, by the collective knowledge of the officers on the scene").

Contraband, instrumentalities, and "fruits" of a crime are in most cases easily recognized as such. See Commonwealth v. Irwin, 391 Mass. 765, 770-771 (1984) (officer observed marijuana through the translucent top of a Tupperware container on the back seat of the car); United States v. Poulos, 895 F.2d 1113, 1122 (6th Cir. 1990) (gun silencers, like sawed-off shotguns, are so rarely legally possessed, that their very presence in plain view is inherently incriminating); Commonwealth v. Pierre, 71 Mass. App. Ct. 58, 64-65 (2008) (the incriminating nature of a locker full of CDs was readily established by their quantity, lack of markings, and photocopied case covers). The law draws no distinction between the seizure of contraband and "mere" evidence. Warden v. Hayden, 387 U.S. 294, 300-301 (1967); Commonwealth v. Wojcik, 358 Mass. 623, 627 (1971). "Mere" evidence, however, "may be seized only if the officers recognize it to be plausibly related as proof to criminal activity of which they were already aware." Commonwealth v. Rodriguez, 378 Mass. 296, 303 (1979) (officers did not have probable cause to believe that defendant had worn the seized clothing during the commission of the crime); Commonwealth v. Cruz, 53 Mass. App. Ct. 24, 35 nn. 9, 10 (2001) (police had no prior knowledge of defendant's involvement in telephone cloning and acquired probable cause only after illegally manipulating a counterfeit cellular phone). For illustrations of proper seizures of "mere" evidence, see Commonwealth v. Moynihan, 376 Mass. 468, 472-474 (1978) (clothing matching the description of the robbers' dress); Commonwealth v. Halsey, 41 Mass. App. Ct. 200, 202 (1996) (pornographic material plausibly related to defendant's pederast activities); United States v. McDonald, 723 F.2d 1288, 1295-1296 (7th Cir. 1983) (mail, credit cards, drivers' licenses, and money orders inscribed with names other than defendant's); People v. Najjar, 984 P.2d 592, 596-597 (Colo. 1999) (claim ticket in the possession of a suspect who stated that his only luggage consisted of a carry-on bag); United States v. Jefferson, 714 F.2d 689, 694-695 (7th Cir. 1983) (furs and jewelry recognized as the probable proceeds of narcotics trafficking); United States v. Slocum, 708 F.2d 587, 605 (11th Cir. 1983) (documents recognized as the kind used in a particular fraudulent scheme).

An officer may have probable cause to make a plain view seizure even where he has insufficient information to relate the evidence to a specific prior crime. See People v. DeVito, 353 N.Y.S.2d 990, 995-996 (N.Y. Sup. Ct. 1974); LaFave, 2 Search and Seizure, § 3.6(a) (1996). Among factors that may establish probable cause are: (1) the nature of the item itself – is it the kind more likely to be stolen or used for criminal purposes than carried as a personal effect? People v. Howell, 231 N.W.2d 650, 651 (Mich. 1975); (2) implausible explanations of how or where an item was acquired, Commonwealth v. Modica, 24 Mass. App. Ct. 334, 339 (1987); (3) the officer's knowledge of the suspect's reputation for criminal dealing in similar items, Commonwealth v. Ortiz, 376 Mass. 349, 354 (1978); (4) attempts to conceal the item from police or to otherwise evade detection, Commonwealth v. Battle, 1 Mass. App. Ct. 579, 582 (1973); and (5) the circumstances in which the item is found, United States v. Meyer, 827 F.2d 943, 945 (3d Cir. 1987) (bag of watches cached with jewelry previously identified as stolen). See also Ruffin v. Commonwealth, 409 S.E.2d 177, 180 (Va. App. 1991) (packet concealed in defendant's sock).

Single Purpose Containers; Plain Touch; Plain Smell

The seizure of a container under the plain view doctrine ordinarily "does not compromise the interest in preserving the privacy of its contentsbecause it may only be opened pursuant to either a search warrant, or one of the well-delineated exceptions to the warrant requirement."Horton v. California, 496 U.S. 128, 141 n.11 (1990) (citations omitted). See Commonwealth v. Straw, 422 Mass. 756, 762 n.3 (1996) (the plain view justification for seizing a jettisoned briefcase did not justify a warrantless search of its contents). Certain "single purpose" containers, however, so clearly announce their contents to a casual observer that they are for all practical purposes transparent. See Arkansas v. Sanders, 442 U.S. 753, 764 n.13 (1979) (burglar tool kits and gun cases); Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion) (tied-off party balloon); State v. Courcy, 739 P.2d 98, 100 (Wash. App. 1987) (cocaine bindle); United States v. Prandy-Binett, 995 F.2d 1069, 1071 (D.C. Cir. 1993) (kilogram of cocaine wrapped in aluminum duct tape). Cf. United States v. Corral, 970 F.2d 719, 725 (10th Cir. 1992) ("[W]here the contents of a seized container are a foregone conclusion, [the] prohibition against the warrantless searches of containers under the plain view doctrine does not apply"); Commonwealth v. Irwin, 391 Mass. 765, 770-771 (1984) (same, translucent Tupperware container); State v. Wallace, 910 P.2d 695, 717 (Haw. 1996) (transparent plastic bag). See United States v. Bonfiglio, 713 F.2d 932, 937 (2d Cir. 1983) (markings clearly indicated that a cassette tape contained a surreptitiously recorded and incriminating conversation). Compare United States v. Villarreal, 963 F.2d 770, 776 (5th Cir. 1992) ("[A] label on a container is not an invitation to search it"). The circumstances under which a container is found may also serve to announce its contents. United States v. Williams, 41 F.3d 192, 197-198 (4th Cir. 1994) (five one kilogram packages wrapped in cellophane and stuffed in a suitcase with rags). Compare United States v. Bonitz, 826 F.2d 954, 956-957 (10th Cir. 1987) (hard plastic case revealed nothing as to its contents); United States v. Donnes, 947 F.2d 1430, 1437-1438 (10th Cir. 1991) (same, innocuous camera lens case); Harris v. Commonwealth, 400 S.E.2d 191, 196 (Va. 1991) (film canister); Newhall v. State, 843 P.2d 1254, 1259-1260 (Alaska App. 1992) (drugs wrapped in newspaper); United States v. Rigales, 630 F.2d 364, 367-368 (5th Cir. 1980) (bulge inside a zippered briefcase bore no resemblance to a pistol); United States v. Dart, 747 F.2d 263, 269 (4th Cir. 1984) (same, weapons concealed beneath a blanket).

Touch as well as sight may reveal the identity of an object lawfully in an officer's grasp. Minnesota v. Dickerson, 508 U.S. 366, 375-376 (1993) ("If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context"). See Commonwealth v. Wilson, 441 Mass 390, 397 (2004) (Because, as articulated in Dickerson, a "plain feel" search may not extend beyond the limits established in Terry v. Ohio, "we conclude that the 'plain feel' doctrine is consistent with art. 14, as well as with the Fourth Amendment"). See also Commonwealth v. Johnson, 413 Mass. 598, 600-601 (1992) (cited in Wilson, supra, at 398, as recognizing the doctrine pre-Dickerson "albeit without naming it"); Commonwealth v. DiMatteo, 12 Mass. App. Ct. 547, 551 (1981) (gun was palpable through the soft thin material of a woman's handbag seized incident to arrest). A probing tactile manipulation of a traveler's luggage without prior suspicion or probable cause becomes an illegal search when it exceeds the type of casual handling that the owner could expect from fellow passengers. Bond v. United States, 529 U.S. 334, 338-339 (2000). See also United States v. Nicholson, 144 F.3d 632, 639 (10th Cir. 1998) (officer's aggressive manipulation of defendant's luggage went well beyond the kind of lawful touching approved in Dickerson).

For the "plain feel" exception to apply, the nature of the object must be "immediately apparent" to the frisking officer. Minnesota v. Dickerson, 508 U.S. 366, 375-376 (1993). While Dickerson's holding refers specifically to contraband, cases generally hold that the "plain feel" doctrine encompasses incriminating non-contraband evidence as well. See United States v. Bustos-Torres, 396 F.3d 935, 944 (8th Cir. 2005). "Immediately apparent" does not mean "for certain"; it simply means that the officer must have probable cause to believe that the object is incriminating before seizing it. Texas v. Brown, 460 U.S. 730, 741 (1983) (plurality opinion); People v. Champion, 549 N.W.2d 849, 857 (Mich. 1996); State v. Wonders, 952 P.2d 1351, 1362 (Kan. 1998). See Commonwealth v. Osborne, 62 Mass. App. Ct. 445, 450 (2004),aff'd, 445 Mass. 776 (2006) (officer immediately recognized a hard object concealed between the cheeks of defendant's buttocks as a packet of cocaine); State v. Wilson, 437 S.E.2d 387, 390 (N.C. App. 1993) (officer recognized a lumpy substance in defendant's pocket as crack cocaine); People v. Mitchell, 650 N.E.2d 1014, 1020 (Ill. 1995) (same); Commonwealth v. Johnson, 631 A.2d 1335, 1340-1341 (Pa. Super. 1993) (same, "crunchy granular substance"); State v. Trine, 673 A.2d 1098, 1111-1112 (Conn. 1996) (hard object wrapped in crunchy plastic); United States v. Proctor, 148 F.3d 39, 43 (1st Cir. 1998) (bagged marihuana); People v. Champion, supra, at 857 n.8 (pill bottle – rejecting any exception for facially innocent containers "which would serve only to encourage better packaging of illicit drugs"); State v. Rushing, 935 S.W.2d 30, 35 (Mo. 1996) (officer's "training and experience" caused him to recognize a superficially innocent container as a type commonly used to transport cocaine); Ball v. United States, 803 A.2d 971, 982 (D.C. 2002) (same). Is Dickerson a doctrine governing the seizure of evidence or is its primary concern the safety of the searching officer? At least one federal circuit court thinks the latter. "The Court in Dickerson clearly identified the object of a proper Terry search: weapons. . . . The proper question . . . , therefore, is not the immediacy and certainty with which an officer knows an object to be contraband or the amount of manipulation required to acquire that knowledge, but rather what the officer believes the object is by the time he concludes that it is not a weapon." United States v. Yamba, 506 F.3d 251, 258-259 (3d Cir. 2007).

On the other hand, the "plain feel" exception "is limited; it does not permit an officer to conduct a general exploratory search for whatever evidence of criminal activity he might find." Commonwealth v. Wilson, 441 Mass. 390, 397 (2004). See Minnesota v. Dickerson, 508 U.S. 366, 378 (1993) (officer determined a lump to be crack cocaine only after "squeezing, sliding and otherwise manipulating the contents of the defendant's pocket"); United States v. Schiavo, 29 F.3d 6, 8-9 (1st Cir. 1994) (the pat frisk gave officer no clue as to the contents of a bag felt beneath the defendant's jacket); United States v. Craddock, 841 F.3d 756, 759 (8th Cir. 2016) (fob in defendant's pocket was not immediately identifiable as incriminating where frisking officer was unable to associate it on contact with a nearby stolen vehicle); Ex parte Warren, 783 So.2d 86, 94-95 (Ala. 2000) (plastic "Tic Tac" box , the mere feel of a commonplace container that could be used to conceal contraband is not sufficiently incriminating to justify a seizure); Commonwealth v. Stevenson, 744 A.2d 1261, 1266 (Pa. 2000) (same, pill bottle); Commonwealth v. Jones , 217 S.W.3d 190, 198 (Ky. 2006) (same); State v. Parker, 622 So.2d 791, 795 (La. App. 1993) (matchbox); Howard v. State, 645 So.2d 156, 158-159 (Fla. App. 1994) (film canister); Murphy v. Commonwealth, 570 S.E.2d 836, 839 (Va. 2002) (plastic baggie); United States v. Ponce, 8 F.3d 989, 999 (5th Cir. 1993) (officer speculated that a "squishy" wad of paper might conceal a razor blade); Commonwealth v. Marconi, 597 A.2d 616, 621-623 (Pa. Super. 1991) (officer could only guess as to the identity of a rock or pebble-like object); Jones v. State, 682 A.2d 248, 256 (Md. 1996) (officer's expert testimony that what he felt was crack cocaine "was nothing more than a conclusion and, as such, could be rejected" by the motion judge); State v. Beveridge, 436 S.E.2d 912, 916 (N.C. App. 1993) (officer knew that a rolled baggie contained drugs only after ordering defendant to remove it from his pocket); In the Matter of D.D. v. State, 668 N.E.2d 1250, 1253-1254 (Ind. App. 1996) (same, small bag containing rock cocaine). The division among courts over the application of the "plain touch" exception to the seizure of outwardly innocent containers often depends on whether the focus is on the officer's tactile perceptions or also includes attendant circumstances such as the officer's training and experience (or personal safety). See Commonwealth v. Amado, 474 Mass. 147, 153, 155 (2016) (while officer felt a soft object hidden behind defendant's genitals, he could point to no aggregation of facts establishing probable cause to believe that defendant was engaged in drug dealing). See also Ball v. United States, 803 A.2d 971, 976-977 nn. 4, 5 (D.C. 2002) (contrasting cases).

Smell, like feel, may give an officer probable cause to believe that he is in the presence of contraband. Johnson v. United States, 333 U.S. 10, 13 (1948). A long line of cases finding probable cause based on a "strong emanating odor of marihuana," of which Commonwealth v. Garden, 451 Mass. 43, 48 (2008), is an example, must now be read in light of the "Act establishing a sensible State marihuana policy" (approved by the voters in 2008), decriminalizing the possession of one ounce or less of marihuana, as well as the 2016 referendum initiative legalizing the production and sale to adults (over twenty-one years of age) of recreational amounts (one ounce or less) of marihuana and marihuana products. [As of this writing, the enabling legislation associated with the referendum will allow retail sales of marihuana by licensed outlets to begin in July of 2018]. The 2016 referendum also legalized the cultivation of up to twelve marihuana plants and the possession of up to ten ounces of marihuana in the home for personal use. Following passage of the 2008 Act, in Commonwealth v. Cruz, 459 Mass. 459 (2011), the Supreme Judicial Court held that the odor of burnt marihuana did not justify an order to exit a vehicle in anticipation of a search. "[T]o order a passenger in a stopped vehicle to exit based merely on suspicion of an offense, that offense must be criminal." Id., at 469. See also Commonwealth v. Overmyer, 469 Mass. 16, 21 (2014) (the smell of unburnt marihuana, by itself, is not a reliable predictor of the presence of a criminal amount, that is, more than one ounce, of marihuana giving rise to probable cause to believe criminal activity is afoot); Commonwealth v. Rodriguez, 472 Mass. 767, 769-770 (2015) (same, burnt marihuana). Of perhaps greater significance, the Court in Cruz , Overmyer, and Rodriguez rejected the line of cases holding that the discovery of a small (non-criminal) amount of marihuana in a vehicle established probable cause to search the vehicle for more drugs. See Commonwealth v. Cruz, supra, at 474-475; Commonwealth v. Overmyer, supra, at 20-21; Commonwealth v. Rodriguez, at 770. See also Commonwealth v. Jackson, 464 Mass. 758, 765-766 (2013) (observation of a marihuana cigarette does not give probable cause to believe that a person is in possession of more than one ounce of marihuana). [Author's Note: For a not too subtly veiled critique of the Overmeyer and Cruz line of cases, and the Supreme Judicial Court's holding that smell alone does not give rise to a reasonable suspicion (or probable cause) that a person is in possession of more than one ounce of marihuana, see Justice Cypher's opinion in Commonwealth v. Locke, 89 Mass. App. Ct. 497, 503 n.9 (2016) ("It is undeniably true that precise quantity cannot ordinarily be determined by one's nose. But that is not the same as concluding that relative quantity cannot be determined through smell . . . . [W]e may not know the precise number of loaves being baked at the bakery, but we know from smell alone that it is more than one; a burning house does not cause us to exclaim, 'I smell a match.'")] The Court in Overmeyer did note an Executive Office of Public Safety and Security advisory counseling police who seize contraband marihuana of an indeterminate amount to weigh it at the station (if a scale is not immediately available) and if the weight is greater than an ounce to summons the defendant to court on a criminal complaint. Commonwealth v. Overmeyer, supra, at 17-18 n.2. It remains the case that where a defendant is arrested for operating under the influence of marihuana, a search of the vehicle incident to arrest for evidence of the impaired driving crime is lawful. See Commonwealth v. Crann, 469 Mass. 24, 29-30 (2014).


Massachusetts Prosecutor's Guide Online
Copyright © 2005-2018, Richard G. Stearns