Unreasonable Searches and Seizures

The Fourth Amendment to the US Constitution provides that persons are free in their persons from unreasonable searches and seizures. A search is defined as a governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy. A seizure is defined as the exercise of governmental control over a person or thing. What is reasonable under the Fourth Amendment depends on the circumstances. For example, certain searches and seizures are considered reasonable only if the government first obtained a warrant authorizing the action, while other searches and seizures are reasonable without a warrant.

There are at least six exceptions to the warrant requirement, i.e. where a warrantless search is reasonable and therefore valid under the Fourth Amendment. One of those is the plain view doctrine. Under the plain view doctrine, the police may make a warrantless seizure when they are (1) legitimately on the premises where they did the viewing; (2) discover evidence, fruits, or instrumentalities of crime, or contraband; (3) see such evidence in plain view; and (4) have probable cause to believe that the item is evidence, contraband, or an instrumentality of a crime. These requirements are set out in Arizona v. Hicks, 480 U.S. 321 (1987).

As applied to this scenario, the state will be able to successfully argue that the plain view doctrine applies to the backyard drug operation. Officer Nelson responded to screaming and was able to easily see into the backyard. The boys were engaging in assaultive behavior and were injuring each other. The fence gate was unlocked, and Officer Nelson was legitimately on the premises to respond to the fight. Immediately after Officer Nelson broke up the fight and as he was turning the boys over to adults, Officer Nelson noticed baggies containing a white, powdery substance in the backyard outside the house. Officer Nelson will state that his training and experience told him that he had probable cause to believe that the baggies contained contraband because of the nature of the substance and how it was packaged. The evidence was in plain view resting on a table outside the house as he was turning the boys over to their parents.

The judge will likely find that Officer Nelson was legitimately in the backyard, that the baggies did indeed contain contraband, that the baggies were in plain view, and that Officer Nelson had probably cause to believe that the baggies contained contraband. The defendant's dress in a nightgown does not contribute to probable cause. The state will have the contraband admitted into evidence under the plain view doctrine exception to the Fourth Amendment.

The defense may attempt to argue that evidence of the baggies should be suppressed because: (1) Officer Nelson had no legitimate reason to be in the backyard and (2) that the defendant had a reasonable expectation of privacy in the backyard to her house because it had a brick fence. Both will fail. Officer Nelson's job is to keep the public peace and respond to disturbances, such as screaming. As to the privacy argument, Officer Nelson was able to look over the fence without standing on his toes. Unless Officer Nelson is very tall, the prosecution will successfully argue that there was no reasonable exception of privacy in a fence that anyone can see over. Persons generally have no expectation of privacy in things held out to the public. That the baggies were near the patio entrance is irrelevant. If the baggies were inside the patio Officer Nelson may have needed a search warrant to search for them, but they were outside in the backyard.

Regarding the marijuana cigarettes, the prosecution will similarly successfully argue that the marijuana is admissible under the plain view doctrine. The police were legitimately viewing the marijuana in the street. They fell out of the defendant's purse after the snatcher dropped it, and they were in plain view. The police did not have to open the purse and go through the contents to find them. The officers will testify that their training told them that they had probable cause to believe that they were marijuana cigarettes, probably primarily based on how they were rolled and their smell. If it turns out that the cigarettes contain marijuana, the judge will likely rule them admissible under the plain view doctrine.

The defense doesn't have any real defense. A very weak defense would be that the street was not a public street but an alley used for garbage trucks. This will not succeed, and the marijuana will be found admissible.

Under the open field doctrine, areas outside the curtilage are subject to police entry and search. The curtilage is defined as the dwelling, outbuildings connected to the dwelling, and the land immediately surrounding the dwelling. Areas outside the curtilage are unprotected by the Fourth Amendment because these areas are considered to be held out to the public. Persons have no expectation of privacy in areas outside the curtilage. The baggies were found on a table a few yards away from the house’s patio in the backyard. The entire backyard is included in the curtilage because it is connected to the house and is surrounded by a brick fence. Under normal circumstances, the patio would be a protected area under the Fourth Amendment not able to be searched without a warrant. But as the police were already in the back yard responding to the fight, there is no Fourth Amendment violation.

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