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OPEN VIEW/ PLAIN VIEW
Contrasting Plain View with Open View
Evidence not admissible under open view may be admissible under the plain view doctrine. The “plain view” doctrine is an exception to the Fourth Amendments’s warrant requirement that applies after police intrude into an area in which there is a reasonable expectation of privacy. State v. Myers, 117 Wn.2d 332, 815 P.2d 761 (1991)(plain view doctrine applied after officers already entered house with consent).
Under the open view doctrine, if an officer detects something by using one or more of his or her sense, while lawfully present at the vantage point where the senses are used, no search has occurred. There is no search within the meaning of the Fourth Amendment. The conduct of an officer does not exceed the open view doctrine just because the officer is there deliberately look for evidence of a crime. State v. Rose, 128 Wn.2d 388, 909 P.2d 280 (1996)(illumination of interior of a mobile home by a flashlight through an open curtained window at night satisfies open view doctrine)(Note: J. Talmadge in State v. Ross, 141 Wn.2d 304, 319 indicates he would overrule Rose)
see also, State v. Maxfield, 125 Wn.2d 378, 886 P.2d 123 (1994)(open view doctrine; investigator went to residence to look for evidence of marijuana grow operation); State v. Bobic, 140 Wn.2d 250 (2000)(cops peering through small hole into storage unit from lawful vantage point in adjacent unit constituted open view).
Something detected by an officer’s senses from a nonintrusive vantage point is in “open view”. That which is “left exposed to public view” is in open view. However, where an officer substantially or unreasonably departs from a nonintrusive area, or employs a particularly intrusive method of viewing, he may exceed the scope of “open view”. State v. Ross, 141 Wn.2d 304 (2000); State v. Seagull, 95 Wn.2d 898, 632 P.2d 44 (1981)(finding an officer has the same license to intrude as a reasonably respectful citizen); State v. Meyers, 117 Wn.2d 332, 815 P.2d 761 (1991)(evidence admissible where police on porch smelled odor of marijuana on saw cigarette rolling papers through open door of residence).
Where the curtilage of a dwelling is involved the first inquiry is whether officers were conducting legitimate business when they entered impliedly open areas of the curtilage. State v. Ross, 141 Wn.2d 304 (2000)(police entry onto property at midnight was hour when “no reasonably respectful citizen” would be welcome absent invitation or emergency”); State v. Smith, 113 Wn. App. 846 (2002)(police exceeded scope of curtilage impliedly open to public, but independent source applied to seized evidence).
“Impliedly open” routes to a house include a driveway, walkway, or access route leading to the residence or porch of the residence but also depends on the individual facts of a case. State v. Seagull, 95 Wn.2d 898, 902, 632 P.2d 44 (1981); State v. Hoke, 72 Wn. App. 869, 866 P.2d 670 (1994).
Cases rejecting application of open view doctrine
State v. Littlefair,129 Wn. App. 330 (2005)(reversing conviction where officer not on legitimate business when entering curtilage of property for purpose of gathering information in support of probable cause for warrant);
State v. Boethin, 126 Wn. App. 700 (2005)(officers deviated substantially from what reasonably respectuful citizen would have done; evidence suppressed); State v. Ross, 91 Wn. App. 814 (1998) affirmed 141 Wn.2d 304 (2000)(particularly invasive police viewing exceeded scope of implied invitation in curtilage area precluding application of “open view” doctrine); State v. Thorson, 98 Wn. App. 528 (1999)(rejecting application of “open view” doctrine where police trespass to area which was also not subject to the likelihood of observation by strangers); State v. Dystra, 84 Wn. App. 186 (1996)(view of marijuana from porch under facts not supportable as “open view”); State v. Johnson, 75 Wn. App. 692, 879 P.2d 984 (1994)(DEA furtive entry on land under cover of darkness to get look at marijuana grow operation); State v. Seagull, 95 Wn.2d 898, 632 P.2d 44 (1981).
Courts have generally found that an attempt to block a view through the window shows a reasonable expectation of privacy. State v. Cardenas, 146 Wn.2d 400,409 (2002)(not deciding issue but containing collected “curtain cases”)
Cases where open view applied
State v. Meyers, 117 Wn.2d 332, 815 P.2d 761 (1991)(evidence admissible where police on porch smelled odor of marijuana and saw cigarette rolling papers through open door of residence); State v. Neeley, 113 Wn. App. 100 (2002)(view into car); State v. Lemus,103 Wn. App. 94 (2002)(view through car window of powdery substance on driver’s pant leg); State v. Courcy, 48 Wn. App. 326 (1987)(“single purpose” bindle seen in wallet when defendant opening wallet to pull out ID seen in open view).
The requirements for plain view are 1) a prior justification for intrusion, 2) inadvertent discovery of incriminating evidence, and 3) immediate knowledge by the officer that he had evidence before him. State v. Chrisman, 94 Wn.2d 711 715 (1980)(Chrisman I); State v. Kull, 155 Wn.2d 80, 85 (2005)(officer safety justification for intrusion not factually supported and reversing failure to suppress evidence).
The plain view doctrine does not apply to render lawful a seizure of evidence procured or brought into view by invasion of an accused constitutional rights. Such evidence is inadmissible against a defendant. State v. Lansden, 144 Wn.2d 654 (2001)(officers accompanying the execution of a civil administrative warrant issued without legal authority) citing State v. Dennis, 16 Wn. App. 417, 558 P.2d 297 (1976).
Miscellaneous cases on Plain View
State v. Cook, 104 Wn. App. 186 (2001)(knotted plastic with drugs fell out of cigarette pack when car passenger getting ID out); State v. Lair, 95 Wn.2d 706 (1981)(permitting the opening of a folded paper by the officer in the course of a lawful arrest as being in plain view).
A note on the “single purpose container rule”
The “single purpose container rule” posits that certain containers by their very nature (i.e. burglar tools case, gun case) cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. In applying the single purpose container doctrine, courts require virtual certainly that the container, the the circumstances viewed, holds contraband, as if transparent. State v. Courcy, 48 Wn. App. 326 (1987).
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