plain view doctrine in Georgia

2012Compare State v. Webb, 193 Ga. App. 2, 4-5 (2), (3) ( 386 SE2d 891 ) (1989) (the plain view doctrine supports a warrantless search, seizure, and arrest if the officers are lawfully in position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating).

2012Compare State v. Webb, 193 Ga. App. 2, 4-5 (2), (3) ( 386 SE2d 891 ) (1989) (the plain view doctrine supports a warrantless search, seizure, and arrest if the officers are lawfully in position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating).

2003As explicated in Coolidge v. New Hampshire, 403 U. S. 443, 468 (II) (C) (91 SC 2022, 29 LE2d 564) (1971), the plain view doctrine requires the existence of three criteria: (1) there must be a prior valid intrusion onto a person’s property before the evidence is observed and seized; (2) discovery of the evidence must be inadvertent; and (3) it must be apparent that the item seized is evidence or contraband.

1992The plain view doctrine applies when “the police officer . . . had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused.” Coolidge v. New Hampshire, 403 U. S. 443, 466 (91 SC 2022, 29 LE2d 564, 583) (1971).

2023See, e.g., George v. State, 312 Ga. 801, 804-805 (865 SE2d 127) (2021) (discussing the appellant’s claim that investigators seized evidence that was beyond the scope of the search warrant and explaining that the plain-view exception to the warrant requirement may apply in such circumstances). 29 the car keys, the affidavit underlying the warrant attested that investigators did not locate “the keys and key fob to [Gardner’s] Nissan Titan truck[,] which he drove to the bowling alley.” The magistrate could reasonably infer from this information that Perez took Gardner’s keys and key fob at the ti

2023See, e.g., George v. State, 312 Ga. 801, 804-805 (865 SE2d 127) (2021) (discussing the appellant’s claim that investigators seized evidence that was beyond the scope of the search warrant and explaining that the plain-view exception to the warrant requirement may apply in such circumstances). 29 the car keys, the affidavit underlying the warrant attested that investigators did not locate “the keys and key fob to [Gardner’s] Nissan Titan truck[,] which he drove to the bowling alley.” The magistrate could reasonably infer from this information that Perez took Gardner’s keys and key fob at the ti

2023One way a proprietor can argue that the invitee could have discovered and avoided a hazard had she exercised ordinary care is to argue that she reasonably should have known about the hazard because it was “in plain view.” See Marlowe v. Cabe, 207 Ga. App. 764, 765 (429 SE2d 151) (1993) (“The plain view doctrine imposes a duty on an invitee ‘to look where he is walking and to see large objects in plain view which are at a location where they are customarily placed and expected to be.’”); Stenhouse v. Winn Dixie Stores, Inc., 147 Ga. App. 473, 474 (249 SE2d 276) (1978) (same).

2023One way a proprietor can argue that the invitee could have discovered and avoided a hazard had she exercised ordinary care is to argue that she reasonably should have known about the hazard because it was “in plain view.” See Marlowe v. Cabe, 207 Ga. App. 764, 765 (429 SE2d 151) (1993) (“The plain view doctrine imposes a duty on an invitee ‘to look where he is walking and to see large objects in plain view which are at a location where they are customarily placed and expected to be.’”); Stenhouse v. Winn Dixie Stores, Inc., 147 Ga. App. 473, 474 (249 SE2d 276) (1978) (same).

2022In Horton, the United States Supreme Court established the plain-view exception to the Fourth Amendment’s warrant requirement and explained that “an essential predicate to any valid warrantless seizure of incriminating evidence” is that “not only must the item be in plain view,” but also “its incriminating character must also be immediately apparent” and the officer “must . . . have a lawful right of access to the object 12 itself.” Horton, 496 U.S. at 136-137 (II).

2022In Horton, the United States Supreme Court established the plain-view exception to the Fourth Amendment’s warrant requirement and explained that “an essential predicate to any valid warrantless seizure of incriminating evidence” is that “not only must the item be in plain view,” but also “its incriminating character must also be immediately apparent” and the officer “must have a lawful right of access to the object 12 itself.” Horton, 496 U.S. at 136-137 (II).

2000Furthermore, we find that the seized evidence was properly discovered under the plain view doctrine. “ ‘Plain view’ is best understood not as an independent exception to the Warrant Clause but simply as an extension of whatever prior justification might exist for an officer’s access to an object or situation.” Galbreath v. State, 213 Ga. App. 80, 82 (2) ( 443 SE2d 664 ) (1994).

2000Furthermore, we find that the seized evidence was properly discovered under the plain view doctrine. “ ‘Plain view’ is best understood not as an independent exception to the Warrant Clause but simply as an extension of whatever prior justification might exist for an officer’s access to an object or situation.” Galbreath v. State, 213 Ga. App. 80, 82 (2) ( 443 SE2d 664 ) (1994).

1977There was no search here as was the case in Harris v. United States, 390 U. S. 234 (88 SC 992, 19 LE2d 1067); Frazier v. Capp, 394 U. S. 731, 732 (4) (89 SC 1420, 22 LE2d 684); Ker v. California, 374 U. S. 23, 43 (83 SC 1623, 10 LE2d 726); in which the plain view doctrine is discussed.

1977Ker v. California, 374 U. S. 23 (83 SC 1623, 10 LE2d 726) (1963); see also United States v. Watson, 423 U. S. 411 (96 SC 820, 46 LE2d 598) (1976); Gerstein v. Pugh, 420 U. S. 103 (95 SC 854, 43 LE2d 54) (1975). *340 At the outset we must decide whether the warrantless seizure of the van fits an exception to the warrant requirement of the Fourth Amendment, be it a search incident to lawful arrest, the plain view doctrine, or the automobile or Carroll doctrine.

2016See Geiger v. State, 295 Ga. 190, 193 (2) ( 758 SE2d 808 ) (2014); State v. Tye, 276 Ga. 559, 563 (3) ( 580 SE2d 528 ) (2003) (addressing the plain view doctrine in the context of a motion to suppress).

2016See Geiger v. State, 295 Ga. 190, 193 (2) ( 758 SE2d 808 ) (2014); State v. Tye, 276 Ga. 559, 563 (3) ( 580 SE2d 528 ) (2003) (addressing the plain view doctrine in the context of a motion to suppress).

2011See State v. Webb, 193 Ga. App. 2, 5 (2) ( 386 SE2d 891 ) (1989) (the plain view doctrine supports a warrantless search and seizure if the officers are lawfully in position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating); Griffin v. State, 180 Ga. App. 189, 190 ( 348 SE2d 577 ) (1986) (arrest and *122 search are predicated on probable cause where officer relies on his senses to “see” contraband in plain view).

2011See State v. Webb, 193 Ga. App. 2, 5 (2) ( 386 SE2d 891 ) (1989) (the plain view doctrine supports a warrantless search and seizure if the officers are lawfully in position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating); Griffin v. State, 180 Ga. App. 189, 190 ( 348 SE2d 577 ) (1986) (arrest and *122 search are predicated on probable cause where officer relies on his senses to “see” contraband in plain view).

1995Unlike cases such as Emory Univ. v. Duncan, 182 Ga. App. 326, 328 (2) ( 355 SE2d 446 ) (1987), and Atlanta Gas Light Co. v. Brown, 94 Ga. App. 351, 354 (1) ( 94 SE2d 612 ) (1956), this case is not subject to the plain view doctrine.

1995Unlike cases such as Emory Univ. v. Duncan, 182 Ga. App. 326, 328 (2) ( 355 SE2d 446 ) (1987), and Atlanta Gas Light Co. v. Brown, 94 Ga. App. 351, 354 (1) ( 94 SE2d 612 ) (1956), this case is not subject to the plain view doctrine.

1976They also argue the inapplicability of the plain view doctrine supporting warrantless searches such as that in Anderson v. State, 123 Ga. App. 57 ( 179 SE2d 286 ) where, following a vehicle stop under suspicious circumstances, money and restaurant wrappers seen openly in the vehicle strongly suggested that fruits of a burglary were present.

1976They also argue the inapplicability of the plain view doctrine supporting warrantless searches such as that in Anderson v. State, 123 Ga. App. 57 ( 179 SE2d 286 ) where, following a vehicle stop under suspicious circumstances, money and restaurant wrappers seen openly in the vehicle strongly suggested that fruits of a burglary were present.

2021In Arizona v. Hicks, 480 U. S. 321 (107 SCt 1149, 94 LE2d 347) (1987), the United States Supreme Court held that moving a piece of stereo equipment to locate a serial number constituted a new search, distinct from the initial, authorized search, because the state conceded that the officer did not have probable cause to believe that the equipment was stolen until he moved it in order to locate the serial number. 480 U. S. at 326-327 (III).

2021In Arizona v. Hicks, 480 U. S. 321 (107 SCt 1149, 94 LE2d 347) (1987), the United States Supreme Court held that moving a piece of stereo equipment to locate a serial number constituted a new search, distinct from the initial, authorized search, because the state conceded that the officer did not have probable cause to believe that the equipment was stolen until he moved it in order to locate the serial number. 480 U. S. at 326-327 (III).

2007It is true, as the dissent notes, that "the plain view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer only if the officer's access to the object itself has some prior Fourth Amendment justification." (Citation, punctuation, and footnote omitted; emphasis in original.) State v. Schwartz, 261 Ga.App. 742, 745 (2), 583 S.E.2d 573 (2003).

2007It is true, as the dissent notes, that "the plain view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer only if the officer's access to the object itself has some prior Fourth Amendment justification." (Citation, punctuation, and footnote omitted; emphasis in original.) State v. Schwartz, 261 Ga.App. 742, 745 (2), 583 S.E.2d 573 (2003).

2013Cf. Zack’s Properties v. Gafford, 241 Ga. App. 43, 44 (1) ( 526 SE2d 80 ) (1999) (jury question when plaintiff fell pushing full grocery cart through busy parking lot).

2013Cf. Zack’s Properties v. Gafford, 241 Ga. App. 43, 44 (1) ( 526 SE2d 80 ) (1999) (jury question when plaintiff fell pushing full grocery cart through busy parking lot).

2012Dillard, J., concurs in the judgment. 15 Weeks, supra; Bobo, supra; cf. Zeeman, supra (suspected contraband was in plain view where police officer was legally in a position to see it and discovered it inadvertently after defendant had opened the door to enter his vehicle). 16 Compare State v. Webb, 193 Ga. App. 2, 4-5 (2) (3) ( 386 SE2d 891 ) (1989) (the plain view doctrine supports a warrantless search, seizure, and arrest if the officers are lawfully in position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating). 17 State v. Fishe

2012Dillard, J., concurs in the judgment. 15 Weeks, supra; Bobo, supra; cf. Zeeman, supra (suspected contraband was in plain view where police officer was legally in a position to see it and discovered it inadvertently after defendant had opened the door to enter his vehicle). 16 Compare State v. Webb, 193 Ga. App. 2, 4-5 (2) (3) ( 386 SE2d 891 ) (1989) (the plain view doctrine supports a warrantless search, seizure, and arrest if the officers are lawfully in position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating). 17 State v. Fishe

2003See also Whittington v. State, 165 Ga. App. 763, 765 ( 302 SE2d 617 ) (1983).

2003See also Whittington v. State, 165 Ga. App. 763, 765 ( 302 SE2d 617 ) (1983).

2003Under the plain view doctrine, the officer collecting the evidence must not have violated the Fourth Amendment in arriving at the place from which he or she sees the evidence. [Cit.] Moreover, the incriminating *563 nature of the object must be “ ‘immediately apparent.’ ” [Cit.] This requirement means that the officer must have probable cause “to believe that the item in question is evidence of a crime or is contraband.” [Cit.] Moss v. State, 275 Ga. 96, 104 (14) ( 561 SE2d 382 ) (2002).

2003Under the plain view doctrine, the officer collecting the evidence must not have violated the Fourth Amendment in arriving at the place from which he or she sees the evidence. [Cit.] Moreover, the incriminating *563 nature of the object must be “ ‘immediately apparent.’ ” [Cit.] This requirement means that the officer must have probable cause “to believe that the item in question is evidence of a crime or is contraband.” [Cit.] Moss v. State, 275 Ga. 96, 104 (14) ( 561 SE2d 382 ) (2002).

1992The evidentiary record supports the trial court’s findings of fact, and the application of the plain view doctrine was appropriate, State v. Hodges, 184 Ga. App. 21, 34-25 ( 360 SE2d 903 ) (1987).

1992The evidentiary record supports the trial court’s findings of fact, and the application of the plain view doctrine was appropriate, State v. Hodges, 184 Ga. App. 21, 34-25 ( 360 SE2d 903 ) (1987).

2008Even though the plain view doctrine would have justified an immediate seizure of the marijuana and other evidence (see Texas v. Brown, 460 U. S. 730, 739 (103 SC 1535, 75 LE2d 502) (1983); Leon-Velazquez v. State, supra, 269 Ga. App. at 762-763 ), the officers nevertheless erred on the side of the Fourth Amendment, and obtained a search warrant before seizing those items.

2003Texas v. Brown, 460 U. S. 730 (103 SC 1535, 75 LE2d 502) (1983); Coolidge v. New Hampshire, 403 U. S. 443 (91 SC 2022, 29 LE2d 564) (1971).

2022On certiorari, the Supreme Court of Georgia overruled the line of authority on which we had relied, including Walsh v. State, 236 Ga. App. 558, 560 (1) (b) ( 512 SE2d 408 ) (1999), and McBee v. State, 228 Ga. App. 16, 21 (3) ( 491 SE2d 97 ) (1997), and concluded that we had “erred in considering the relevance of evidence alone as justifying its seizure outside the scope of a search warrant, without considering whether the requirements of the plain view doctrine have been met.” George v. State, 312 Ga. 801, 807 ( 865 SE2d 127 ) (2021).

2022On certiorari, the Supreme Court of Georgia overruled the line of authority on which we had relied, including Walsh v. State, 236 Ga. App. 558, 560 (1) (b) ( 512 SE2d 408 ) (1999), and McBee v. State, 228 Ga. App. 16, 21 (3) ( 491 SE2d 97 ) (1997), and concluded that we had “erred in considering the relevance of evidence alone as justifying its seizure outside the scope of a search warrant, without considering whether the requirements of the plain view doctrine have been met.” George v. State, 312 Ga. 801, 807 ( 865 SE2d 127 ) (2021).

1979(But see Sewell v. State, 238 Ga. 495 ( 233 SE2d 187 ), applying the plain view doctrine in a different context.) We are satisfied that the evidence presented in this case meets all three requirements.

1979(But see Sewell v. State, 238 Ga. 495 ( 233 SE2d 187 ), applying the plain view doctrine in a different context.) We are satisfied that the evidence presented in this case meets all three requirements.

1977There was no search here as was the case in Harris v. United States, 390 U. S. 234 (88 SC 992, 19 LE2d 1067); Frazier v. Capp, 394 U. S. 731, 732 (4) (89 SC 1420, 22 LE2d 684); Ker v. California, 374 U. S. 23, 43 (83 SC 1623, 10 LE2d 726); in which the plain view doctrine is discussed.

1977There was no search here as was the case in Harris v. United States, 390 U. S. 234 (88 SC 992, 19 LE2d 1067); Frazier v. Capp, 394 U. S. 731, 732 (4) (89 SC 1420, 22 LE2d 684); Ker v. California, 374 U. S. 23, 43 (83 SC 1623, 10 LE2d 726); in which the plain view doctrine is discussed.

2012Dillard, J., concurs in the judgment. 15 Weeks, supra; Bobo, supra; cf. Zeeman, supra (suspected contraband was in plain view where police officer was legally in a position to see it and discovered it inadvertently after defendant had opened the door to enter his vehicle). 16 Compare State v. Webb, 193 Ga. App. 2, 4-5 (2) (3) ( 386 SE2d 891 ) (1989) (the plain view doctrine supports a warrantless search, seizure, and arrest if the officers are lawfully in position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating). 17 State v. Fishe

2003The plain view doctrine permits “a warrantless search and seizure if the agents are lawfully in position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating.” (Punctuation and footnote omitted.) Zeeman v. State, 249 Ga. App. 625, 628 (2) ( 549 SE2d 442 ) (2001).

2006See id. at 743 (1) (noting that the plain view doctrine may be used to show that the plaintiff had constructive knowledge of the hazard, which is a necessary element in establishing the plaintiff s voluntary negligence).

2005Id. at 742 .

1992The officer *631 was merely relying upon the information to conduct a visual survey of appellee’s property from the public street. “ ‘[T]he expectation that . . . evidence will be discovered does not preclude operation of the plain view exception to the warrant requirement.’ [Cits.]” State v. Scott, 159 Ga. App. 869, 870 (2) ( 285 SE2d 599 ) (1981).

1992The officer *631 was merely relying upon the information to conduct a visual survey of appellee’s property from the public street. “ ‘[T]he expectation that . . . evidence will be discovered does not preclude operation of the plain view exception to the warrant requirement.’ [Cits.]” State v. Scott, 159 Ga. App. 869, 870 (2) ( 285 SE2d 599 ) (1981).