Tulsa Attorney BlogPlain View Exception – What Is It?

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Video Transcribed: My name is Brian L. Jackson. I’m a Tulsa attorney. Today, I want to talk to you guys about the plain view exception. This is a specific rule dealing with search and seizure law.

What the plain view exception is, is if you have contraband, that is you have something you’re not supposed to have under the law, out in plain view and an officer sees it, they do not need a warrant or probable cause to reach out and grab it and take it. And they are legally allowed to search the area around where that item is.

And where does typically becomes a problem, let’s say that you have a party? I’ll give you two scenarios actually, where this type can become a problem. And I’ll talk to you a little bit about how to avoid a problem in that situation. First, let’s say you have a party and the cops knock on your door.

For whatever reason, they knock on your door. You open the door and invite them in. And right there in plain view is a bomb or some other … I guess now a bomb started probably a very good example in Oklahoma, but something you’re not supposed to have, let’s say like mysterious white powder, bullets if you’re underage or firearm if you’re underage, open bottles of alcohol if you’re underage, any of those kinds of things that are prima facie evidence of a crime, they can seize that. And not only can they seize that, but they can go search the area around it too, to see if there’s other contraband.

So you know that the way to avoid that in the case of your home, the obvious way does not invite them in. And if you need to have the police in your home, for some reason, let’s say you’re the victim of a crime, if you have something you know you’re not supposed to have, put it away for crying out loud. I mean, ideally don’t have illegal stuff, but if you know you do have illegal stuff, put it away. Don’t leave it out where they can see it.

Don’t leave it out where anyone can see it because the other problem isn’t just the police, but you never know who might be willing to sell you out for it to save their own skin if they get in trouble. So a good rule of thumb is if you have something that you know you shouldn’t have, keep it to yourself.

And the other way people typically get jammed up with the plain view exception. And this probably the most common, is with your car.

Examples of this are having an open container of alcohol visible, having baggies and mysterious substances visible, vials, syringes, a pipe, any of those things that are plainly visible, will give the cop probable cause to search your car. And you get searched and you will get arrested or you’ll get cited. So the rule of thumb is, don’t have stuff out in your car that can get you jammed up, because if you get stopped, you’re going to have a problem.

There are a few other things that are kind of some interesting wrinkles with a plain view. There is some case law that supports the idea of plain smell. So for example, if the cops sniff around your car and your car smells like weed smoke, that might be enough to get them inside the car to search you. Or if it smells like you have alcohol in your car open, that might be enough to get them in to search your car.

Used to be that was a common way that cops and other law enforcement personnel could get into people’s apartments and dorm rooms is by, “Oh, I smell weed. I smell weed smoke.” As it is now, given that Oklahoma has begun doing medicinal marijuana and has more or less decriminalized it, although it is still a crime if you possess it without a card, it’s probably not the same kind of PC it would have once been. But it’s something to be aware of that if your home smells like drugs, you could get searched. That could be enough to get them in the door without a warrant, potentially. So be aware of that.

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