101 Things
                    An Author Needs to Know
                 About the Police and the Law

           The cop said it was in "plain view".          

                  What does that mean?

The plain view doctrine allows an officer to seize, without a warrant, what he considers to be evidence and/or contraband found in plain view during a lawful observation. 

So let's break that down. What is evidence?  It can be a physical thing or it can be the spoken word, but basically it is something that will establish a point.  Let's say you have an open bottle of alcohol in the car and you're pulled over for suspicion of drunk driving.  If the cop sees the open container, it will be seized as evidence that you were driving while impaired. 


And contraband is simple.  It's goods that have been imported or exported illegally. Drugs are a perfect example.

So you're pulled over on the highway by the police for speeding and the cop comes up to the window with his flashlight.  Can he look inside your car?  Yes.  With that flashlight?  Yes, again. This is considered a lawful observation. 

In order for him to seize something that is in plain view the courts apply a three-prong test called the Horton test. 

     1)  The officer has to be lawfully present at the place where the evidence is plainly viewed. (He's on patrol, he's in a lawful place on the streets.)

     2)  The officer has to have lawful right of access to the object.  That means the officer could not seize the evidence if he has to look/enter into a place in which you have a reasonable expectation of privacy.  Can he look in your trunk?  No, not without your permission.  Can he look in your handbag or the backpack in the rear seat?  No. You could have a human head in there but you were speeding, so what does your trunk or the backpack have to do with it? Nothing.  Therefore, he can't poke around in there.
     3)  The incriminating character of the object has to be immediately apparent.  So, you've got a joint in the ashtray.  (I know, who has ashtrays these days, right?)  If the cops sees it while he's asking for your license and registration, you're in trouble. He will ask you to step out of the car and he will seize the contraband, which is now going to be evidence in your trial.

How about if you have a gun on the front seat?  Not illegal if you have the proper permits to carry in most states.  It is your responsibility to know when you have crossed a state line where the rules differ.  My driveway where I used to live in Massachusetts was 40 feet from the state border. So if I turned left I was in Connecticut.  Different set of regulations there.  Carrying a weapon that is accessible to passengers in a vehicle is not recommended.  If you are stopped by a police officer and the weapon is visible, cooperate fully with the officer's commands. When the officer approaches the window, tell him right away that you have a weapon in the car.  Do not make him nervous.  Do not joke around.  Do not make sudden moves or touch the gun for any reason. If the officer wants to see it, the officer will remove it himself.