plain view doctrine in Vermont

2021The plain view doctrine is based on two principles: “first, ‘that when a police officer has observed an object in plain view’ from a legal vantage point, the owner's privacy interests are forfeited, and second, that requiring a warrant once the police ‘have 10 obtained a first-hand perception of [the object] would be a needless inconvenience.’ ” Bauder, 2007 VT 16, ¶ 30 (quoting Texas v. Brown, 460 U.S. 730, 739 (1983)). ¶ 22.

2021The plain-view doctrine is based on two principles: “first, ‘that when a police officer has observed an object in plain view’ from a legal vantage point, the owner’s privacy interests are forfeited, and second, that requiring a warrant once the police ‘have obtained a first-hand perception of [the object] would be a needless inconvenience.’ ” Bauder, 2007 VT 16, ¶ 30 (quoting Texas v. Brown, 460 U.S. 730, 739 (1983)). 10 ¶ 22.

2021Under the plain view doctrine, “if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” In re Search Warrant, 2012 VT 102, ¶ 35 , 193 Vt. 51 , 71 A.3d 1158 (quoting Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)).

2021Under the plain-view doctrine, “if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” In re Search Warrant, 2012 VT 102, ¶ 35 , 193 Vt. 51 , 71 A.3d 1158 (quoting Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)).

2012Under the plain view doctrine, however, “if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” Minnesota v. Dickerson, 508 U.S. 366, 375 (1993); see State v. Trudeau, 165 Vt. 355, 358 , 683 A.2d 725, 727 (1996) (listing and applying requirements for plain view doctrine).

2012Under the plain view doctrine, however, “if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” Minnesota v. Dickerson, 508 U.S. 366, 375 (1993); see State v. Trudeau, 165 Vt. 355, 358 , 683 A.2d 725, 727 (1996) (listing and applying requirements for plain view doctrine).

2007The dissent relies on a single statement in Trudeau, 165 Vt. at 358 , 683 A.2d at 727 , quoting Horton v. California, 496 U.S. at 136 , 110 S.Ct. 2301 , to the effect that an "essential predicate" underlying the plain-view doctrine is that "the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed." (Emphasis added.) Nothing in either decision, however, remotely suggests that the underscored language was intended by this Court or the United States Supreme Court to establish a constructive plain-view standard, to be satisfied whene

2007The dissent relies on a single statement in Trudeau, 165 Vt. at 358 , 683 A.2d at 727 , quoting Horton v. California, 496 U.S. at 136 , to the effect that an “essential predicate” underlying the plain-view doctrine is that “the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.” (Emphasis added.) Nothing in either decision, however, remotely suggests that the underscored language was intended by this Court or the United States Supreme Court to establish a constructive plain-view standard, to be satisfied whenever an officer as

2021The plain view doctrine is based on two principles: “first, ‘that when a police officer has observed an object in plain view’ from a legal vantage point, the owner's privacy interests are forfeited, and second, that requiring a warrant once the police ‘have 10 obtained a first-hand perception of [the object] would be a needless inconvenience.’ ” Bauder, 2007 VT 16, ¶ 30 (quoting Texas v. Brown, 460 U.S. 730, 739 (1983)). ¶ 22.

2021The plain-view doctrine is based on two principles: “first, ‘that when a police officer has observed an object in plain view’ from a legal vantage point, the owner’s privacy interests are forfeited, and second, that requiring a warrant once the police ‘have obtained a first-hand perception of [the object] would be a needless inconvenience.’ ” Bauder, 2007 VT 16, ¶ 30 (quoting Texas v. Brown, 460 U.S. 730, 739 (1983)). 10 ¶ 22.

2021See United States v. Reyes, 283 F.3d 446, 465 (2d Cir. 2002) (“[W]hen ‘police take [the route which any visitor to the residence would use] for the purpose of making a general inquiry or for some other legitimate reason, they are free to keep their eyes open.’ ” (quoting LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.3(e), at 499 (3d ed. 1996))).

2021See United States v. Reyes, 283 F.3d 446, 465 (2d Cir. 2002) (“[W]hen ‘police take [the route which any visitor to the residence would use] for the purpose of making a general inquiry or for some other legitimate reason, they are free to keep their eyes open.’ ” (quoting LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.3(e), at 499 (3d ed. 1996))).

2019Under the plain-view exception, “constitutional protections do not attach to activities or possessions that a person knowingly exposes to the public.” State v. Rogers, 161 Vt. 236, 244 , 638 A.2d 569, 573-74 (1993) (quotation omitted); see also State v. Kirchoff, 156 Vt. 1, 7 , 587 A.2d 988, 993 (1991) (“[A] person cannot rely on Article 11 to protect areas or activities that have been willingly exposed to the public.

2019Under the plain-view exception, “constitutional protections do not attach to activities or possessions that a person knowingly exposes to the public.” State v. Rogers, 161 Vt. 236, 244 , 638 A.2d 569, 573-74 (1993) (quotation omitted); see also State v. Kirchoff, 156 Vt. 1, 7 , 587 A.2d 988, 993 (1991) (“[A] person cannot rely on Article 11 to protect areas or activities that have been willingly exposed to the public.

2007On these facts, I would affirm the decision not to suppress the evidence found in the search of the car under Article 11 of the Vermont Constitution, without reaching the search-incident-to-arrest issue. 12 Cf. State v. Savva, 159 Vt. 75, 88 , 616 A.2d 774, 781 (1991) (recognizing “a separate and higher expectation of privacy for contain ers used to transport personal possessions than for objects exposed to plain view within an automobile’s interior”). ¶ 52.

2007On these facts, I would affirm the decision not to suppress the evidence found in the search of the car under Article 11 of the Vermont Constitution, without reaching the search-incident-to-arrest issue. 12 Cf. State v. Savva, 159 Vt. 75, 88 , 616 A.2d 774, 781 (1991) (recognizing “a separate and higher expectation of privacy for contain ers used to transport personal possessions than for objects exposed to plain view within an automobile’s interior”). ¶ 52.

2021As the United States Supreme Court has recognized, “[w]hile law enforcement officers need not ‘shield their eyes’ when passing by the home ‘on public thoroughfares,’ an officer’s leave to gather information is sharply circumscribed when [the officer] steps off those thoroughfares and enters the Fourth Amendment’s protected areas.” Jardines, 569 U.S. at 7 (citation omitted).

2021Id. 569 U.S. at 7-8 . ¶ 24.

2012“The plain view doctrine is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owner’s privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy.” Illinois v. Andreas, 463 U.S. 765, 771 (1983).

2012Ct. App. 2009). [24] “The plain view doctrine is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owner’s privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy.” Illinois v. Andreas , 463 U.S. 765, 771 (1983).

2019Under the plain-view exception, “constitutional protections do not attach to activities or possessions that a person knowingly exposes to the public.” State v. Rogers, 161 Vt. 236, 244 , 638 A.2d 569, 573-74 (1993) (quotation omitted); see also State v. Kirchoff, 156 Vt. 1, 7 , 587 A.2d 988, 993 (1991) (“[A] person cannot rely on Article 11 to protect areas or activities that have been willingly exposed to the public.

2019Under the plain-view exception, “constitutional protections do not attach to activities or possessions that a person knowingly exposes to the public.” State v. Rogers, 161 Vt. 236, 244 , 638 A.2d 569, 573-74 (1993) (quotation omitted); see also State v. Kirchoff, 156 Vt. 1, 7 , 587 A.2d 988, 993 (1991) (“[A] person cannot rely on Article 11 to protect areas or activities that have been willingly exposed to the public.

2016In Edens v. Kennedy, the Fourth Circuit held that “[w]hen such intent [to exclude uninvited visitors] would be apparent to a reasonable officer, the police may not enter the enclosed area without a warrant or exigent circumstances.” 112 F. App’x 870, 876 (4th Cir. 2004).

2016As with the plain-view exception generally, “[ajbsent evidence of intent to exclude the public, the entryway to a person’s house offers implied permission to approach and knock on the front door.” People v. Kozlowski, 505 N.E.2d 611, 612 (N.Y. 1987).

2012See Stabile, 633 F.3d at 240-41 , 241 n.16 (upholding plain view seizure during search of computer files, reserving review on case-by-case basis and expressly “declin[ing] to follow the Ninth Circuit’s suggestion to ‘forswear reliance on the plain view doctrine’ ” as proposed in the CDT II concurrence (quoting CDT II, 621 F.3d at 1178 (Kozinski, C.J., concurring))); United States v. Mann, 592 F.3d 779, 785 (7th Cir. 2010) (upholding plain view seizure during computer search, and refusing to “jettison[]” plain view or apply the original CDT I search conditions, observing that “there is nothing

2012See Stabile , 633 F.3d at 240-41 , 240 n.16 (upholding plain view seizure during search of computer files, reserving review on case-by-case basis and expressly “declin[ing] to follow the Ninth Circuit’s suggestion to ‘forswear reliance on the plain view doctrine’ ” as proposed in the CDT II concurrence (quoting CDT II , 621 F.3d at 1178 (Kozinski, C.J., concurring))); United States v. Mann , 592 F.3d 779, 785 (7th Cir. 2010) (upholding plain view seizure during computer search, and refusing to “jettison[]” plain view or apply the original CDT I search conditions, observing that “there is nothi

2012See Stabile, 633 F.3d at 240-41 , 241 n.16 (upholding plain view seizure during search of computer files, reserving review on case-by-case basis and expressly “declin[ing] to follow the Ninth Circuit’s suggestion to ‘forswear reliance on the plain view doctrine’ ” as proposed in the CDT II concurrence (quoting CDT II, 621 F.3d at 1178 (Kozinski, C.J., concurring))); United States v. Mann, 592 F.3d 779, 785 (7th Cir. 2010) (upholding plain view seizure during computer search, and refusing to “jettison[]” plain view or apply the original CDT I search conditions, observing that “there is nothing

2012See Stabile , 633 F.3d at 240-41 , 240 n.16 (upholding plain view seizure during search of computer files, reserving review on case-by-case basis and expressly “declin[ing] to follow the Ninth Circuit’s suggestion to ‘forswear reliance on the plain view doctrine’ ” as proposed in the CDT II concurrence (quoting CDT II , 621 F.3d at 1178 (Kozinski, C.J., concurring))); United States v. Mann , 592 F.3d 779, 785 (7th Cir. 2010) (upholding plain view seizure during computer search, and refusing to “jettison[]” plain view or apply the original CDT I search conditions, observing that “there is nothi

2012See Stabile, 633 F.3d at 240-41 , 241 n.16 (upholding plain view seizure during search of computer files, reserving review on case-by-case basis and expressly “declin[ing] to follow the Ninth Circuit’s suggestion to ‘forswear reliance on the plain view doctrine’ ” as proposed in the CDT II concurrence (quoting CDT II, 621 F.3d at 1178 (Kozinski, C.J., concurring))); United States v. Mann, 592 F.3d 779, 785 (7th Cir. 2010) (upholding plain view seizure during computer search, and refusing to “jettison[]” plain view or apply the original CDT I search conditions, observing that “there is nothing

2012See Stabile , 633 F.3d at 240-41 , 240 n.16 (upholding plain view seizure during search of computer files, reserving review on case-by-case basis and expressly “declin[ing] to follow the Ninth Circuit’s suggestion to ‘forswear reliance on the plain view doctrine’ ” as proposed in the CDT II concurrence (quoting CDT II , 621 F.3d at 1178 (Kozinski, C.J., concurring))); United States v. Mann , 592 F.3d 779, 785 (7th Cir. 2010) (upholding plain view seizure during computer search, and refusing to “jettison[]” plain view or apply the original CDT I search conditions, observing that “there is nothi

1996According to the Court, this prong of the plain-view doctrine is satisfied whenever “‘there is probable cause to associate the property [in plain view] with criminal activity.’” Id. at 741-42 (quoting Payton v. New York, 445 U.S. 573, 587 (1980)). “[P]robable cause is a flexible, commonsense standard.

1996According to the Court, this prong of the plain-view doctrine is satisfied whenever " ` there is probable cause to associate the property [in plain view] with criminal activity.'" Id. at 741-42, 103 S.Ct. at 1543 (quoting Payton v. New York, 445 U.S. 573, 587 , 100 S.Ct. 1371, 1380 , 63 L.Ed.2d 639 (1980)). "[P]robable cause is a flexible, common-sense standard.

1996It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief’ that certain items may be contraband or stolen property or useful as evidence of a crime . . . .” Id. at 742 (citation omitted) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). 3 Here, the beer can satisfies these requirements.

1996It merely requires that the facts available to the officer would `warrant a man of reasonable caution in the belief' that certain items may be contraband or stolen property or useful as evidence of a crime...." Id. at 742, 103 S.Ct. at 1543 (citation omitted) (quoting Carroll v. United States, 267 U.S. 132, 162 , 45 S.Ct. 280, 288 , 69 L.Ed. 543 (1925)). [3] Here, the beer can satisfies these requirements.

1992For example, in Cardwell v. Lewis, 417 U.S. 583, 590 (1974), a case in which paint scrapings were taken from a car’s exterior and its tire treads were compared to a cast made at a crime scene, the Court went beyond the plain view analysis and stated: One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects.

1992For example, in Cardwell v. Lewis, 417 U.S. 583, 590 , 94 S.Ct. 2464, 2469 , 41 L.Ed.2d 325 (1974), a case in which paint scrapings were taken from a car's exterior and its tire treads were compared to a cast made at a crime scene, the Court went beyond the plain view analysis and stated: One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects.

1976The plain view rule does not go into hibernation at sunset. *119 Marshall v. United States, 422 F.2d 185, 189 (5th Cir. 1970).