Sunday, June 01, 2008

"Plain View"

The plain view doctrine is a principle that essentially can expand the scope of a lawful Fourth Amendment intrusion.

As I’ve explained before, the Fourth Amendment creates a right to be free from “unreasonable” searches and seizures.

A search violates a legitimate expectation of privacy (police unlawfully come into my home, for example), while a seizure violates a legitimate interest in the possession and use of my property (police seize my laptop without a warrant or any justification, for example).

“Reasonable” searches and seizures are okay under the Fourth Amendment.
To be “reasonable” a search and/or seizure must be conducted (i) pursuant to a valid search warrant issued by a magistrate or (b) pursuant to an exception to the search warrant requirement, such as consent (I waive my Fourth Amendment rights) or exigent circumstances (police don’t have to get a warrant, say, to break into a home if they have probable cause to believe there’s a bomb inside).

The plain view doctrine isn’t an exception; it’s a piggyback principle . . . a doctrine that can come into play when police are executing a lawful search and see something they immediately recognize as contraband or evidence of a crime. (Contraband is illegal in and of itself; cocaine and marijuana are contraband. Evidence of a crime is not illegal in and of itself, but it can be seized because it can be used to convict someone of a crime; a gun police have probable cause to believe was used to murder someone is evidence of a crime, but not contraband.)

Here’s how I illustrate the plain view doctrine to my students: Assume police have a warrant to go to John Doe’s home and search for a stolen safe (a small one). They enter his home – which is lawful, since they have the warrant and it authorizes them to do this – and start to look around for the safe. On a table in the living room they see a package of what they immediately recognize as cocaine. (When I do this with my students I say we can even hypothesize that Mr. Doe has been kind enough to label it “cocaine” to remove all doubt that they have probable cause to recognize it as contraband). The search warrant is for a safe and, as such, it does not authorize them to seize the cocaine, even though they have probable cause to believe it is contraband (and evidence of a crime, too).

This is where the plain view doctrine comes in: It says that if police are at a lawful Fourth Amendment vantage point – i.e., if they have the right to be where they are – and from that vantage point they can see something and it is “immediately apparent to them” (they have probable cause to believe) that it is evidence of a crime, they can seize it. The Supreme Court has said that the search warrant protects the person’s privacy, so the only incremental intrusion on a Fourth Amendment interest is the intrusion on possession when the officers seize the evidence they have observed, the cocaine in this example. The Supreme Court has said that such a seizure is reasonable under the Fourth Amendment because the police have probable cause to believe the item is contraband and/or evidence of a crime (they can be the same thing, as with Mr. Doe’s hypothetical cocaine), which means the owner – Mr. Doe, here – does not have the right to object to its being seized, essentially.

If you want to read a Supreme Court opinion applying the doctrine, check out Arizona v. Hicks, 480 U.S. 321 (1987). In that decision, the Court made it clear that the plain view doctrine ONLY allows police to seize the item they saw (in plain view) and as to which they have probable cause. It does not allow them to seize more than that or to start searching for other evidence.

I want to talk about what I consider an odd Ohio plain view case, State v. Mays, 161 Ohio App.3d 175, 829 N.E.2d 773 (Ohio App. 2005). Daniela Mays was convicted of murder and appealed, arguing, in part, that the trial court had erroneously not suppressed evidence from a computer police had seized under the plain view doctrine.

Here are the facts, as set out in the court of appeals’ opinion:
Mays was a 36-year-old mother of three, and the victim was her 75-year-old fiancé. The victim's wife had been in a nursing home with Alzheimer's disease for 14 years. . . . [H]e had never had any children of his own. He was quite fond of defendant's children and told her he wanted to marry her so he could give her children his name and his benefits from his retirement from General Motors. . . .

On November 12, 2002, the victim was visiting defendant. . . . Defendant called 911 because she said the victim was becoming belligerent and acting strange. She told the paramedics that he was diabetic and that she feared his blood sugar was at a dangerous level. After determining that the victim's blood sugar was within normal limits . . . the paramedics began to leave. They had not yet left defendant's driveway, when she called 911 again. This time, the paramedics requested police assistance. With the police accompanying them, the paramedics again entered the home. . . . [T]he police noted that the victim was accusing defendant of hiding his glucometer and she was accusing the victim of hiding her digital camera. The police offered to ask the victim to leave, but defendant stated that she did not want that. They then warned defendant not to call 911 again. . . .

At some point, the victim left defendant's house and returned to his own home nearby. Defendant and her mother testified that he had left at 11:00 p.m., defendant having called her mother at 11:05 p.m. to tell her so.

At around 5:30 . . . the next day, the victim called 911. He complained that he felt drunk, although he had not consumed any alcohol. Paramedis convinced him to allow them to take him to the hospital. . . . By 10:30 a.m., he was unconscious and in severe metabolic acidosis. The doctors could not determine the cause. . . . The[y]. . . suspected he had ingested a toxic substance, but were at a loss to determine what that substance was.

Defendant made several visits to the hospital that morning. At one visit, she presented the hospital with a durable power of attorney for health care for the victim, naming her as the attorney. This document, however, was not properly executed, and the hospital decided it was not enforceable. . . .

Because the victim's condition was rapidly deteriorating, a police officer at the hospital requested officers to visit defendant's home to ascertain what had occurred the previous night. When these officers arrived, defendant . . . showed them the blood splattered around the house. She also showed them purported bruises on her arms. Although the officers testified that they had not seen any bruising, they had seen a few scratches.
State v. Mays, supra.

Ms. Mays apparently told the police that she and the victim had been fighting before he left the previous evening, which accounted for the blood and the bruises she claimed to have. State v. Mays, supra. The officers decided they needed help, and called for a detective. After a detective arrived, an officer showed him the blood in the rooms. “As he was looking around,” the detective saw a desktop computer, which was turned on; its screen displayed an instant message, “he will die today.” State v. Mays, supra.

Police arrested Ms. Mays and the detective called for a detective who was familiar with digital evidence. That detective brought a camera and photographed the screen showing the “he will die today” message. This detective saved the instant message to the hard drive, shut down the computer and the police took – seized – the computer.

The victim died the next day. An autopsy showed lethal levels of ethylene glycol – “a toxic ingredient of antifreeze . . .and other automotive fluids” – in his blood. State v. Mays, supra. Ms. Mays was charged with murder and convicted. State v. Mays, supra.

On appeal, she argued that the police improperly seized her personal computer because they took it without having a warrant . . . and she certainly did not consent to their taking it. The court held that it was valid under the plain view doctrine:
The first requirement, that the officer be legally in a position to see the evidence, therefore, is satisfied. . . . [And] the message on the computer was clearly evidence of criminal activity. The victim was near death. He had told the police that defendant had beaten him. Defendant's computer screen read, `[H]e will die today.’ When police are investigating a suspected attempted murder, evidence of the suspected assailant's foreknowledge of the victim's death certainly qualifies as evidence of criminal activity.
State v. Mays, supra. I see the court’s point – it does seem suspicious though, as my students pointed out when we discussed this case in class, the message could have been about anything . . . a relative, a character in a soap opera, a pet, etc.

Probable cause, though, is not certainty; it’s not even more likely than not. It means that a reasonable person – factoring in that person’s expertise, such as that of the police – on seeing this item would believe it was evidence of criminal activity. I can buy that.

My quibble with this case goes to the scope of the seizure: They clearly had probable cause to believe the MESSAGE was evidence of criminal activity, so the detective’s taking a photograph of it (assuming that was a seizure) was fine under the plain view doctrine. I’m just not sure that the doctrine justified their taking the entire computer . . . .


Nicholas said...

I completely agree that taking the entire computer just feels wrong. I assume that the police just wanted to make sure they could access all chat records with whoever sent the message so that they could search for more definite and incriminating evidence. I have two questions about this case, one from the detective’s side and the other from a defense attorney’s perspective.

1. In this case should the detectives have just taken the picture of the screen to a judge and asked for a warrant to search and copy all chat logs/word documents/e-mails on the computer?

2. Seeing as the detectives did not do this, would any evidence obtained from the computer outside of the first message get thrown out? It doesn’t seem like it became an issue here but if she had chat logs detailing plans to kill the man and the police over-reached in the original search to get at them, it feels like a motion to suppress might succeed there.

Susan Brenner said...

I think your #1 would have been the better bet, because I think they were only justified in seizing what they had probable cause to believe was evidence of a crime: the message itself. Now, the message might well have given them probable cause to think there was other evidence in the computer, but that's probable cause to conduct a search (not to seize), and under the decision in Hicks would need a warrant.

I don't know if a motion to suppress would succeed, but I would certainly have filed it. The defense did, as I said (I think?) in the post, file a motion to suppress, but I can't tell from the opinion if it was focused on this particular, rather narrow issue. And maybe it was, and maybe the court just didn't see it this way.