Plain View Doctrine (Dwellings/Curtilage)

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Information provided for educational purposes only and is not intended as legal advice.  Please seek your legal department or State's Attorney's office for interpretation of law.

Plain View Doctrine (Dwellings/Curtilage)
The Fourth Amendment protects citizens from unreasonable searches and seizures. As a fundamental rule of law, police officers may not enter someone’s dwelling without a search warrant, consent, or exigent circumstances. Protection of privacy afforded by the Fourth Amendment includes not only interior of person’s home, but has extended to open areas immediately adjacent thereto (curtilage). In determining whether a location is “curtilage,” the courts look at the area’s proximity or annexation to the dwelling, its inclusion within the general enclosure surrounding the dwelling, its use and enjoyment as an adjunct to the domestic economy of the family, and the steps taken by the owner of the property to shield the area from entry or observation.
The plain view doctrine has three requirements:

1) The presence of the law enforcement officer in the place from which s/he sees

the evidence must be lawful;

2) Incriminating character of object is immediately apparent (must be probable

cause to seize the evidence)

3) Officer has lawful right of access to the object (there must be no other need

for a warrant under the circumstances)

Seizure under Plain View Unlawful
People v. Abrams, 271 N.E.2d 37 (IL S.Ct. 1971): Defendants had a party at their home and leaflets had been distributed inviting people to their anti-war party. Police went to the home, did not identify themselves as police officers and made observations of illegal activity. While still at the party, they began to hear one of the defendants informing party guests that police were somewhere in the house. The police left and should have known that they would not be welcome to come back a second time. They did come back to the house again, without a search warrant and entered the house. The police were not justified in entering and seizing evidence because they did not have consent, exigent circumstances, nor a search warrant. See also People v. Clark Memorial Home, 252 N.E.2d 546 (2nd Dist. 1969).
People v. Wimbley, 731 N.E.2d 290, (1st Dist. 2000): A police informant, accompanied by the police, knocked on the defendant’s door and the defendant answered the door holding a small packet of cannabis (observed by the police with the informant). The defendant closed the door after a brief conversation with the informant. The informant knocked on the door again and within seconds the police broke down the door. The court held that the destruction of narcotics does not constitute exigent circumstances sufficient to justify warrantless entry unless police have particular reasons to believe that the evidence will be destroyed.

People v. Dale, 703 N.E.2d 927 (4th Dist. 1998): Defendant consented to police entry into his hotel room; he then withdrew his consent shortly after the police started looking around. The police were not authorized to remain in the room and therefore contraband seen by the police when it fell from the defendant’s clothing as he packed could not be seized under the plain view doctrine.
People v. Eden, 615 N.E.2d 1224, (4th Dist. 1993): Police entered a residence without consent, nor search warrant when they observed what appeared to be minors in the residence consuming alcoholic beverages. The State argued that exigent circumstances existed. The court held that exigent circumstances did not exist and therefore the police were not justified in a nonconsensual warrantless entry of defendant’s home. The State’s argument that an underage drinking party inside the residence amounted to exigent circumstances was not well taken by the court. Therefore, the evidence that was seen by police and seized was inadmissible (not properly seized under the plain view doctrine). The court noted that the offense being investigated was not grave, did not involve violence, no one was reported to be armed, police did not appear to have probable cause until they arrived at the house and saw minors holding what they suspected to be alcohol, and the likelihood that persons in the house would escape or be able to destroy all the evidence before the warrant was obtained was nil. See also People v. Olson, 444 N.E.2d 1147, (2nd Dist. 1983).
People v. Patrick, 417 N.E.2d 1056 (4th Dist. 1981): Police learned that defendant was selling drugs out of his residence. The police made a nonconsensual warrantless entry and the court found that the entry was unlawful (no exigent circumstances, even though drugs were involved and the State argued the drugs could be destroyed).

The court stated: The plain view doctrine is dependent upon an original lawful entry. When warrantless entry of someone’s home is unlawful, plain view doctrine could not be invoked to justify a warrantless seizure of cannabis and paraphernalia subsequent to the entry.

People v. Montgomery, 405 N.E.2d 1275, (1st Dist. 1981): Police arrest defendant without a warrant in the defendant’s hallway; the hallway was 6-8 feet from a living room in which police observed evidence of the sexual assault. The court held that the warrantless entry to arrest the defendant was unlawful (no arrest warrant, no exigent circumstances). There was no issue at the trial court over whether the police were given consent to enter; this court said even if there was consent, the consent was only to be where they found the defendant (in the hallway) and not in the living room which is where the evidence was located.
People v. Pakula, 411 N.E.2d 1385 (3rd Dist. 1980): Police not justified in entering into defendant’s backyard and seizing cannabis plants based on plain view because they did not have a search warrant, consent, nor exigent circumstances. Exigent circumstances did not exist because there was no endangerment that the contraband would be destroyed.

Seizure under Plain View Lawful
People v. Heidman, 144 N.E.2d 580, (IL S.Ct. 1957): Police were invited into defendant’s residence and upon entering they observed items of evidence in plain view.

The police were justified in seizing those items because they had a lawful right to be in the residence (consent given by defendant).

People v. Lozano, 736 N.E.2d 608, (1st Dist. 2000): Defendant consented to police entry into his residence and seizure of his gun and badge was permissible under the plain view doctrine.
*People v. Garcia, 695 N.E.2d 1292, (1st Dist. 1998): Police arrested a juvenile for consumption of alcohol by a minor on a front porch and while doing so, one officer saw through the screen door that two defendants were weighing what appeared to be cocaine and had a handgun near them in the kitchen. The court found that this nonconsensual warrantless entry was justified due to exigent circumstances. The court noted that the entry was “peaceful” since the door to the house was open and the storm door unlocked. The court also noted that there was a firearm involved and that the police were entering to apprehend the defendant.
*People v. Pierini, 664 N.E.2d 140, (1st Dist. 1996): Police knocked on defendant’s door and when the door was opened they smelled a strong odor of burnt cannabis while standing outside of the defendant’s residence. The police also saw “just next to the door inside to the right on like a nightstand was a cigar box full of half-smoked marijuana cigarettes and roaches…” The officer reached his arm inside the residence, picked one up, smelled it, and determined it was cannabis. The court found that the warrantless nonconsensual entry was justified pursuant to exigent circumstances because the crime was ongoing in the police officer’s presence and the evidence could have been destroyed if a search warrant was obtained.
People v. Turnipseed, 653 N.E.2d 1258, (1st Dist. 1995): Defendant consented to police entering her apartment and the defendant closed the door to a safe, but before she closed the safe, an officer saw a white powdery substance in a plastic bag inside the safe (that he believed to be crack and cocaine). The court held that the police had a right to be in the defendant’s residence and the drugs in plain view were properly seized.
People v. Elders, 380 N.E.2d 10, (5th Dist. 1978): Police entered defendant’s residence in order to check on his four year old son because his wife had contacted the police and was fearful for her son’s safety (because defendant was drunk, had struck his wife, brandished a rifle at her and was then alone with her son). The police ordered the defendant out of the residence; they then went inside to ascertain the welfare of the infant boy. As one officer was leaving the residence, he saw a rifle leaning against front door frame and he seized it. The court found that the police had exigent circumstances to enter and were therefore lawfully present and justified in seizing evidence under the plain view doctrine.

It seems that many cases in this area of the law focus on whether or not the police were justified in entering based upon “exigent circumstances.” In People v. White, 512 N.E.2d 677, (IL S.Ct. 1987) the Illinois Supreme Court set forth a number of factors that may be considered in determining whether or not exigency exists, including (1) whether the offense under investigation was recently committed; (2) whether there was any deliberate or unjustified delay by the officers during which time a warrant could have been obtained; (3) whether a grave offense is involved, particularly a crime of violence; (4) whether the suspect is reasonably believed to be armed; (5) whether or not the police officers were acting upon a clear showing of probable cause; (6) whether there is a likelihood that the suspect will escape if not swiftly apprehended; (7) whether there is a strong reason to believe that the suspect is in the premises; and (8) whether the police entry, though nonconsensual, is made peaceably.

Created by the Police Training Institute, University of Illinois @ Urbana-Champaign

Posted November 2009

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