CRJ325 - CASE STUDY 2 - PLAIN VIEW, OPEN FIELDS, ABANDONMENT, AND BORDER SEARCHES AS THEY RELATE TO SEARCH AND SEIZURES

PLAIN VIEW, OPEN FIELDS, ABANDONMENT, AND BORDER SEARCHES AS THEY RELATE TO SEARCH AND SEIZURES
CASE STUDY TWO

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Plain View, Open Fields, Abandonment,
and Border Searches as They Relate to
Search and Seizure
Strayer University
Felicia McCaw
Professor Christopher J. Abreau
CRJ325
Online Spring 2017
May 11, 2017

Plain View, Open Fields, Abandonment,
and Border Searches as They Relate to
Search and Seizure
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The need to attend to the Fourth Amendment during investigative purpose and its protective status in dealing with the populace and the retained criminal element in society which also attributes allowances and actions associated with everyday duty. As such the consequences of correct calls and designation dealing with probable cause or reasonable suspicion further the ability to act upon the stated intent of probable cause and reasonable suspicion. Because probable cause is a higher level than reasonable suspicion it further necessitates and adheres to the purpose of intent to pursue and follow-up for further investigation. Also, the totality of the circumstances configures highly in the ability to indeed claim that probable cause or reasonable suspicion is possible and exist. Both probable cause and reasonable suspicion has the ability to be challenged whether due to exigent circumstances, error, or incorrect attention to acquiring information whether by tips, abandonment, open fields investigation, border searches or by informants.

Therefore, searches and ultimately seizures are based upon warrant (the rule – with specifications) and without a warrant (the exception or dependent on circumstances) allows the Plainview Doctrine to cover differing amounts of scenarios which would allow the seizing of condemnatory evidence but as each scenario alternates so does the approach to search and seize and are conditional as each investigative strategy is acted out.

In collation with the search and seizure process, the border search includes three types of searches which are routine, non-routine and extended. As with other searches the scenario does not need a warrant if there is reasonable suspicion and the effective seizure can be allowed based upon this. The routine search is usually not personally invasive to the privacy of an individual but may proceed to a non-routine search if reasonable suspicion is founded and has grounds. As such the non-routine search compels a more invasionary search of the individual (e.g., strip search).

Plain View, Open Fields, Abandonment,
and Border Searches as They Relate to
Search and Seizure
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Extended searches goes beyond the limits of routine and non-routine by allowing searches that pertain to possible acts of criminality beyond both the physical and virtual borders provided that reasonable suspicion exists.

With a valid stop, the officer is allowed to search and seize illegal items in plain view. With an invalid stop, harassment or color or race identified can purposely cause reason to challenge an unreasonable or reasonable stop, search, seizure and support a motion to dismiss contraband or findings unless it is conclusively a border search. In effect the Plainview Doctrine must have probable cause which parallels to a stop that is also conditioned to reasonable suspicion except for a border search it does not need probable cause but may be based upon reasonable suspicion.

Further as stipulated by the Plain View Doctrine police officers have the right to seize items that are in plain view as long as they have the legal right and are positioned to see the items and may seize without warrant. Also, plain view is not categorized as a search but is an element of a valid stop, questioning and investigative state of the stop or search of a premises, home or vehicle and must adhere to all three requirements as follows:

• The officer must have gained awareness of the item solely by sighting it
• The officer must be in that physical position legally
• It must be immediately apparent that it is a seizable item

In relation to open fields and the gathering of information this does not affect the Fourth Amendment as to violation because there is no reasonable expectation of privacy in an open field that constitutes a trespass. In support of this is the case of Oliver v. United States, 466 U.S. 170 (1984). Even if the stated fact that a barn is situated outside of the fenced area surrounding the house it is considered to be part of an open field and not the curtilage of a home as sup-

Plain View, Open Fields, Abandonment,
and Border Searches as They Relate to
Search and Seizure
4

ported by the case of the United States v. Dunn, 480 U.S. 294 (1987).

Next, comes the state of abandonment and to the fact there is no reasonable expectation related to an item that has been abandoned and as thus the police are free to seize and search such items. For example, in support is the case California v. Greenwood, 486 U.S. 35 (1988) wherein that garbage left outside the curtilage of a home for regular collection is considered abandoned and therefore may be seized by the police by warrant. Further the state of abandonment has to show that the owner has given up rights to the property and must demonstrate an intention that ownership has been voluntarily relinquished and has dismissed control over the property.

Therefore, the 4th, 5th, 6th and 14th Amendments are all constitutional safeguards which help protect the police officer (police department) and the populace from unfair treatment, unreasonable searches and acquiring of evidence as reflected by the following example:

Officer Jones asked the neighborhood’s regular trash collector to put the content of the defendant’s garbage that was left on the curb in plastic bags and to turn over the bags to him at the end of the day. The trash collector did as the officer asked in order to not mix the garbage once he collected the defendant’s garbage. The officer searched through the garbage and found items indicative of narcotics use. The officer then recited the information that was obtained from the trash in an affidavit in support of a warrant to search the defendant’s home. The officer encountered the defendant at the house later that day upon execution of the warrant. The officer found quantities of cocaine and marijuana during the search and arrested the defendant on felony narcotic charges.

In pertaining to this example, first of all Officer Jones violated the defendant’s rights because he had no probable cause or reasonable suspicion to ask the garbage man to secure the trash in plastic bags for him therefore this is a clear violation of Fourth Amendment rights. Next, the purpose of the trash man as an actor or collaborator without reasonable suspicion is again a violation because it defies the purpose that the clear point is how was the judgment made for this person, specific address and trash to be singled out. Further the rights of curtilage cannot be utilized

Plain View, Open Fields, Abandonment,
and Border Searches as They Relate to
Search and Seizure
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if plastics bags are seen within the privacy of home boundaries and therefore be seen as abandoned. Contents in plastic bags do not necessary concede to the state of abandonment and therefore do accede to invasion and the compromise of the Fourth Amendment rights. Possible infringement of the Fifth Amendment rights due to possible race discrimination, discrimination, profiling, bias, bigotry or stereotype and lack of equal treatment is a possible factor in this scenario. The effective rights of the Sixth Amendment are offered due to a right to a fair trial and right to defend against levied charges. The Fourteenth Amendment is effectively not violated because as to fairness and right to trial this allows the inability to violate a citizen's privileges or immunities; shall not deprive any person of life, liberty, or property without due process of law; and must guarantee all persons equal protection of the laws. In consequence, as in the providing of these Amendments the right to due process, equal protection during the arrest. interim, before and after trial is offered with condition of right to appeal.



References

Search and seizure. (2017, April 09). Retrieved April 16, 2017, from https://en.wikipedia.org/wiki/Search_and_seizure
Abandonment. (n.d.). Retrieved May 08, 2017, from http://legal-dictionary.thefreedictionary.com/Abandonment
Di, Y., Feng, H., Mingyu, L., Meizi, L., & Doss, D.A. (2016). DO YOU HAVE ANYTHING TO DECLARE? CONSIDERATIONS OF THE FOURTH AMENDMENT AND BORDER SEARCHES. Allied Academies International Conference: Proceedings Of The Academy Of Organizational Culture, Communications & Conflict (AOCCC),
Horton v. California: The Plain View Doctrine Loses Its ... (n.d.). Retrieved May 11, 2017, from http://www.bing.com/cr?IG=F62BD8B131A14D13BAEF1DE59F019077&CID=1E1709E6E42469321FC60366E5B46887&rd=1&h=X5Mgb6q_XG6KdGQfrTWX_5nUU9YIHEYHnMrg4H96dWM&v=1&r=http%3a%2f%2frepository.jmls.edu%2fcgi%2fviewcontent.cgi%3farticle%3d1900%26context%3dlawreview&p=DevEx,5079.1
Border Searches. (n.d.). Retrieved May 08, 2017, from http://law.justia.com/constitution/us/amendment-04/18-border-searches.html
Victor, D. (2017, February 14). What Are Your Rights if Border Agents Want to Search Your Phone? Retrieved May 08, 2017, from https://www.nytimes.com/2017/02/14/business/border-enforcement-airport-phones.html?_r=0
Janes, J. (2016). The Border Search Doctrine in the Digital Age: Implications of Riley v. California on Border Law Enforcement's Authority for Warrantless Searches of Electronic Devices. Review Of Litigation, 35(1), 71-104.


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