Anthony Bandiero, Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training

A roadside chat recorded at the National Addiction Conference in Chicago. The question comes from a California officer who attended one of our classes in L.A.: officers are lawfully inside a house, they see something they suspect is stolen, and they want to know if they can pick it up and read the serial number.

If you’re lawfully present in a house, can you manipulate an object to check its serial number? This is a question from an officer in California. I also want to give a shout out to my friends at Desert Snow. I attended one of your classes in L.A. So this is a California cop.

Here’s the deal. Officers are in a house for lawful reasons, such as consent, exigency, maybe a domestic. While inside, they see something they suspect is stolen in plain view. Can they manipulate it to read the serial numbers? Let’s say it’s a unique bike that was recently stolen. Is that immediately recognizable? Or how about it’s a box of power tools that match a recent grand theft? Do you see these two as the same? Are we in a search warrant situation here?

What is the difference between plain view and plain view seizure?

Okay, here’s the rule. There’s plain view and there’s plain view seizure. I want you to separate these out. For me, plain view is nothing more than right to be, right to see, hear and smell. Right to be. You can look at things, and you can use your God-given senses. The only God-given sense that gets a little touchy under plain view is when you start touching things.

So then you have plain view seizure. Add the word seizure at the end, and you also have to add one more requirement: that the evidence can be obtained without conducting another constitutional intrusion.

So if you are in a house lawfully, and you see an object in plain view that is immediately recognizable as evidence, contraband, fruits or instrumentalities of a crime, and you’re in the house, you can physically grab that piece of evidence without a search warrant, because you’re lawfully present and there is no additional intrusion to grab it.

Can you walk into an open garage to seize a stolen bike you can see?

If you’re walking by a garage, and you’re not inside the house, you’re just walking down an alleyway, the guy’s garage is open and you see a stolen bicycle in that garage, you cannot walk into that garage and seize the bicycle, even though it is in plain view. The problem is it’s not plain view seizure, because you don’t have a constitutional right under these facts to walk into this guy’s garage and take the property out of there. You would need something else to get you lawfully present. Exigency, consent or search warrant, generally, are the three.

Do you need probable cause before you move the object? Arizona v. Hicks

Going back to the situation here. The key question for my officer is this. Does the officer have probable cause that the bicycle is stolen before the manipulation? If all the cop has is reasonable suspicion, you’re going to lose the case. That is Arizona v. Hicks, United States Supreme Court, where a cop manipulated a stereo to see a serial number. Yes, it was stolen, but the cop cannot manipulate things based on reasonable suspicion alone. You need probable cause to seize it. And of course, you get the serial number under plain view. But that’s the key here.

How do you build probable cause that a bike is stolen?

So if we’re looking at that bike, do we have a fair probability that that’s stolen? Well, look at the totality of the circumstances. How unique is that bike? What about this guy’s history? Is he one of your common thieves in town? Has he been arrested for theft? Is he abnormally nervous about the bike? If you ask him, man, that’s a really nice bike, where’d you get it from? Oh, no, my friend gave it to me. And you know that bike is probably worth money. Look at those things.

Would a judge give you a warrant? The plain view test

The other thing that answers these plain view questions is this. Before I ask you whether you can seize it, let me ask you this. Do you believe a judge will give you a warrant? And you’re like, yeah, I think so. And I say, okay, well, tell me why. X, Y, Z. And then I say, well, there you go. You’re giving me plain view seizure. Plain view is that the object is immediately apparent as contraband, evidence, or fruits or instrumentalities of crime. So tell me why, first, you think that it’s evidence and you have probable cause. Then we go to the next question about whether or not you can seize it. Does that make sense?

Can you rummage through a box of tools that matches a theft report?

It’s the same thing with the box of tools. You want to start rummaging through this box of tools? All right, tell me why. Do you have probable cause? If you don’t have probable cause and you’re just kind of going off a hunch here, you’re not going to win that case. So maybe you do something else. If you don’t have probable cause, maybe you ask for consent. But that’s what you need.

If you can get a search warrant, then you have probable cause. But if you’re wrong on that, and the judge is like, hey, you think you had probable cause out there? I’m telling you, I don’t think you did. I don’t think a box of tools without anything else is enough for probable cause. I would never give you a warrant on that. Then you’re going to lose that case. But that answers your question.

The short version

  • Plain view is nothing more than right to be, right to see, hear and smell. Plain view seizure adds one more requirement: the evidence can be obtained without conducting another constitutional intrusion.
  • You can see a stolen bike in an open garage from the alley, but you cannot walk in and seize it. You need exigency, consent or a search warrant to get you lawfully present.
  • Does the officer have probable cause that the bicycle is stolen before the manipulation? If all the cop has is reasonable suspicion, you’re going to lose the case. That is Arizona v. Hicks.
  • Build the probable cause from the totality of the circumstances. How unique is the bike? The guy’s history? Is he abnormally nervous? Where’d you get it from?
  • Ask yourself, would a judge give you a warrant? Tell me why. If you can, you’re giving me plain view seizure. A box of tools without anything else is probably not enough.

I think it’s a great scenario that cops run into all the time, and I hope it helps. At the end of the day, I hope I’ve helped you get it right every single time.

Related from Blue to Gold

This article is a lightly edited transcript of a Blue to Gold roadside chat and is for training purposes only. It is not legal advice. Check your own state law and your prosecutor before acting. Source video: Ep. #278