plain view doctrine in Utah

1998However, to establish that the plain view exception applies, the State must demonstrate that: “(1) the officer is lawfully present where the search ... occur[s]; (2) the evidence is in plain view; and (3) the evidence is clearly incriminating.” Romero, 660 P.2d at 718 ; see also Holmes, 774 P.2d at 510 . 2 Evidence is “clearly incriminating” if the officer observing it has “ ‘probable cause to associate the property with criminal activity.’” Id. at 510 (quoting State v. Kelly, 718 *977 P.2d 385, 390 (Utah 1986) (quoting Payton v. New York, 445 U.S. 573, 587 , 100 S.Ct. 1371, 1380 , 63 L.Ed.2d

1998However, to establish that the plain view exception applies, the State must demonstrate that: “(1) the officer is lawfully present where the search ... occur[s]; (2) the evidence is in plain view; and (3) the evidence is clearly incriminating.” Romero, 660 P.2d at 718 ; see also Holmes, 774 P.2d at 510 . 2 Evidence is “clearly incriminating” if the officer observing it has “ ‘probable cause to associate the property with criminal activity.’” Id. at 510 (quoting State v. Kelly, 718 *977 P.2d 385, 390 (Utah 1986) (quoting Payton v. New York, 445 U.S. 573, 587 , 100 S.Ct. 1371, 1380 , 63 L.Ed.2d

2026“A seizure is valid under the plain view doctrine if (1) the officer is lawfully present, (2) the item is in plain view, and (3) the item is clearly incriminating.” State v. Shepard, 955 P.2d 352, 357 (Utah Ct. App. 1998).

2000“A seizure is valid under the plain view doctrine if (1) the officer is lawfully present, (2) the item is in plain view, and (3) the item is clearly incriminating.” State v. Shepard, 955 P.2d 352, 357 (Utah Ct.App.1998). ¶ 23 If he or she is invited onto private property, a government agent “does not need probable cause nor warrant to enter so long as he does not exceed the scope of his invitation.” Scherer, 673 F.2d at 182 . “ ‘Once inside the house, [an agent may not] exceed the scope of his invitation by ransacking the house generally, but he may seize anything in plain view.’ ” United Stat

1986We therefore, rejected the State’s contention that the plants were legally seized pursuant to the plain view exception "because the evidence was not discovered incident to a prior justified intrusion, but was instead the result of an uninvited entry by which the police officers achieved ‘plain view.'” Id.

1986However, the plain view exception may not be used merely as a pretext for a warrantless search, i.e., where officers know in advance that an item will be present and use that knowledge as justification for a warrantless search and seizure. *390 See State v. Harris, Utah, 671 P.2d 175 (1983).

1998However, to establish that the plain view exception applies, the State must demonstrate that: “(1) the officer is lawfully present where the search ... occur[s]; (2) the evidence is in plain view; and (3) the evidence is clearly incriminating.” Romero, 660 P.2d at 718 ; see also Holmes, 774 P.2d at 510 . 2 Evidence is “clearly incriminating” if the officer observing it has “ ‘probable cause to associate the property with criminal activity.’” Id. at 510 (quoting State v. Kelly, 718 *977 P.2d 385, 390 (Utah 1986) (quoting Payton v. New York, 445 U.S. 573, 587 , 100 S.Ct. 1371, 1380 , 63 L.Ed.2d

1998However, to establish that the plain view exception applies, the State must demonstrate that: “(1) the officer is lawfully present where the search ... occur[s]; (2) the evidence is in plain view; and (3) the evidence is clearly incriminating.” Romero, 660 P.2d at 718 ; see also Holmes, 774 P.2d at 510 . 2 Evidence is “clearly incriminating” if the officer observing it has “ ‘probable cause to associate the property with criminal activity.’” Id. at 510 (quoting State v. Kelly, 718 *977 P.2d 385, 390 (Utah 1986) (quoting Payton v. New York, 445 U.S. 573, 587 , 100 S.Ct. 1371, 1380 , 63 L.Ed.2d

2003However, to establish that the plain view exception applies, the State must demonstrate that: "(1) the officer is lawfully present where the search ... occur[s]; (2) the evidence is in plain view; and (3) the evidence is clearly incriminating." State v. Gallegos, 967 P.2d 973, 976 (Utah Ct.App.1998) (alteration in original) (citations omitted).

2003However, to establish that the plain view exception applies, the State must demonstrate that: "(1) the officer is lawfully present where the search ... occur(s]; (2) the evidence is in plain view; and (8) the evidence is clearly incriminating." State v. Gallegos, 967 P.2d 973, 976 (Utah Ct.App.1998) (alteration in original) (citations omitted).

1994The Naisbitt decision relied on State v. Bartley, 784 P.2d 1231 (Utah App.1989), which in turn, cites 1 Wayne R.

1992See Harris v. United States, 390 U.S. 234, 236 , 88 S.Ct. 992, 993 , 19 L.Ed.2d 1067 (1968) (per curiam); see also Bartley, 784 P.2d at 1235 (Objects in plain view “may be seized without a warrant if the police officer is lawfully present and the evidence is clearly incriminating.”).

1986Romero relied on two United States Supreme Court cases: Washington v. Chrisman, 455 U.S. 1 , 102 S.Ct. 812 , 70 L.Ed.2d 778 (1982), and Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971) (plurality opinion). 1 More recently, in Texas v. Brown, *390 460 U.S. 730 , 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983) (plurality opinion), the Supreme Court further examined the plain view doctrine.

1986Romero relied on two United States Supreme Court cases: Washington v. Chrisman, 455 U.S. 1 , 102 S.Ct. 812 , 70 L.Ed.2d 778 (1982), and Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971) (plurality opinion). 1 More recently, in Texas v. Brown, *390 460 U.S. 730 , 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983) (plurality opinion), the Supreme Court further examined the plain view doctrine.

1990See Kelly, 718 P.2d at 390 . 2 Because the bolt cutters were lawfully seized pursuant to the plain view doctrine and thus properly admissible, we need not determine whether the portion of the warrant describing stolen shop equipment, auto tools, and air tools violates the federal constitution’s particularity requirement.

1989The third and final prong of the plain view exception requires that the evidence be “clearly incriminating.” This phrase has been defined as “probable cause to associate the property with criminal activity.” Kelly, 718 P.2d at 390 (quoting Payton v. New York, 445 U.S. at 587 , 100 S.Ct. at 1380 ).

2006“A seizure is valid under the plain view doctrine if (1) the officer is lawfully present, (2) the item is in plain view, and (3) the item is clearly incriminating.” O’Brien, 959 P.2d at 649 (quotations and citation omitted). ¶ 21 The trial court noted that Chief Gurr’s tape recording of the encounter was unclear in places.

2000“A seizure is valid under the plain view doctrine if (1) the officer is lawfully present, (2) the item is in plain view, and (3) the item is clearly incriminating.” State v. Shepard, 955 P.2d 352, 357 (Utah Ct.App.1998). ¶ 23 If he or she is invited onto private property, a government agent “does not need probable cause nor warrant to enter so long as he does not exceed the scope of his invitation.” Scherer, 673 F.2d at 182 . “ ‘Once inside the house, [an agent may not] exceed the scope of his invitation by ransacking the house generally, but he may seize anything in plain view.’ ” United Stat

2000“A seizure is valid under the plain view doctrine if (1) the officer is lawfully present, (2) the item is in plain view, and (3) the item is clearly incriminating.” State v. Shepard, 955 P.2d 352, 357 (Utah Ct.App.1998). ¶ 23 If he or she is invited onto private property, a government agent “does not need probable cause nor warrant to enter so long as he does not exceed the scope of his invitation.” Scherer, 673 F.2d at 182 . “ ‘Once inside the house, [an agent may not] exceed the scope of his invitation by ransacking the house generally, but he may seize anything in plain view.’ ” United Stat

2000“A seizure is valid under the plain view doctrine if (1) the officer is lawfully present, (2) the item is in plain view, and (3) the item is clearly incriminating.” State v. Shepard, 955 P.2d 352, 357 (Utah Ct.App.1998). ¶ 23 If he or she is invited onto private property, a government agent “does not need probable cause nor warrant to enter so long as he does not exceed the scope of his invitation.” Scherer, 673 F.2d at 182 . “ ‘Once inside the house, [an agent may not] exceed the scope of his invitation by ransacking the house generally, but he may seize anything in plain view.’ ” United Stat

2000“A seizure is valid under the plain view doctrine if (1) the officer is lawfully present, (2) the item is in plain view, and (3) the item is clearly incriminating.” State v. Shepard, 955 P.2d 352, 357 (Utah Ct.App.1998). ¶ 23 If he or she is invited onto private property, a government agent “does not need probable cause nor warrant to enter so long as he does not exceed the scope of his invitation.” Scherer, 673 F.2d at 182 . “ ‘Once inside the house, [an agent may not] exceed the scope of his invitation by ransacking the house generally, but he may seize anything in plain view.’ ” United Stat

1998See State v. Keitz, 856 P.2d 685, 690 (Utah Ct.App.1993).

1993“We review the factual findings underlying the denial of a motion to suppress evidence under a ‘clearly erroneous’ standard, and review the trial court’s conclusions of law based thereon for correctness.” State v. Brooks, 849 P.2d 640, 643 (Utah App.1993) (citing State v. Brown, 853 P.2d 851, 854-55 (Utah 1992)).

1993“We review the factual findings underlying the denial of a motion to suppress evidence under a ‘clearly erroneous’ standard, and review the trial court’s conclusions of law based thereon for correctness.” State v. Brooks, 849 P.2d 640, 643 (Utah App.1993) (citing State v. Brown, 853 P.2d 851, 854-55 (Utah 1992)).

1993Id. at 610-11 (quoting Texas v. Brown, 460 U.S. 730, 737 , 103 S.Ct. 1535, 1541 , 75 L.Ed.2d 502 (1983) (plurality opinion)); accord State v. Naisbitt, 827 P.2d 969, 972 (Utah App.1992).

1992State v. Steward, 806 P.2d 213, 215 (Utah App.1991); Utah R.Civ.P. 52(a) (1990).

1992See Harris v. United States, 390 U.S. 234, 236 , 88 S.Ct. 992, 993 , 19 L.Ed.2d 1067 (1968) (per curiam); see also Bartley, 784 P.2d at 1235 (Objects in plain view “may be seized without a warrant if the police officer is lawfully present and the evidence is clearly incriminating.”).

1992See Harris v. United States, 390 U.S. 234, 236 , 88 S.Ct. 992, 993 , 19 L.Ed.2d 1067 (1968) (per curiam); see also Bartley, 784 P.2d at 1235 (Objects in plain view “may be seized without a warrant if the police officer is lawfully present and the evidence is clearly incriminating.”).