Proven Approach With Results Forged Through Experience

Mark L. Deniz, Esq.


On Behalf of | Feb 22, 2014 | Firm News |

The Law Office of Mark Deniz has the privilege of enlisting some of the best young legal minds in San Diego.  One of these persons is George Konugres.  George is a third year law student at Cal Western SOL.  He has an extremely impressive resume and has an intense desire to help people.   He was invited to write on subjects that he comes across while working with the firm.  He is taking the time off from a jury trial we are beginning in El Cajon next week to write.

Today, he is writing about APS DMV hearings and Hearsay Evidence.


by George Konugres

Have you ever had the police knock on
your door for a noise complaint, and then proceed to enter the house based on
something they saw “in plain sight?” Maybe you were pulled over in your car and
the police claimed to see something “in plain view.” What could have been a
noise complaint or routine traffic stop may turn into a labyrinth of more
serious consequences, via the plain view doctrine. The plain view doctrine allows for the seizure [there is a lawful
seizure if: i) there is interference w/ possessory interests and  ii) the interference was reasonable] of items not
named in the warrant
. While
searching for one thing, officers are entitled to seize evidence
not specified in the warrant.


The doctrine was born in 1971, the
father of which was Coolidge v. New
403 U.S. 443 (1971). In
plain sight does not merely mean something visual perceived by an individual. Assuming there are no problems in the manner in which
a plain view is acquired, it does not necessarily follow that the observed
object may be seized. It must be an “incriminating object,” meaning
there must be probable cause that the object is the fruit, instrumentality, or
evidence of a crime. Coolidge states that, “An object
which comes into view during a search incident to arrest that is appropriately
limited in scope under existing law may be seized without warrant.”
Essentially there must be probable cause that there
is evidence of a crime occurring. The police must make this determination
without exceeding their authority. Even the lesser intrusion of picking up an
object and looking at it, is impermissible on reasonable suspicion short of
probable cause.


As with any
rule of law there are elements that make up the plain view doctrine. The first
element is there must be lawful search
or seizure under way
. Therefor, if the police have a search warrant for
your house and during the search there is probable cause of more crimes, the
plain view doctrine may be applicable. Furthermore, if the police have lawfully
seized your vehicle (if your are pulled over everything and everyone in the
vehicle are considered seized) and during the seizure there is probable cause
of more crimes, the plain view doctrine may be applicable.


In Horton v. California 496 U.S. 128 (1990) Police had lawful warrant to search Horton’s apartment for three
specific coins from a suspected coin robbery. When the judge signed off on the
warrant, the warrant did not include as search for any weapons. The defendant tried
to argue that the finding of the weapons during the search for the coins was
not authorized by the warrant and therefore the evidence should have been
suppressed. But the Court held that the weapons were found in plain view. They were evidence of a crime, found in
execution of a search warrant for the three coins from a robbery.


The second element of the plain view
doctrine is immediately or readily
apparent as evidence of crime.
Thus, probable cause must be immediately
apparent without a further search. It is commonplace for police to be searching
or seizing a defendant and come across evidence that is immediately apparent of
a crime in plain sight, which they can seize
even if it’s not what they expected to find. The fundamental interpretation of
this part of the doctrine proffers the notion that the criminality of the
evidence must be immediately apparent. Meaning, probable cause must be apparent
upon visual inspection, and nothing else can be used to determine probable
cause. Arizona v. Hicks is the best
example of immediately apparent without further search to determine the
criminality of what is found.


In Arizona v. Hicks 480
U.S. 321 (1987) Police made a warrantless but justified
entry to arrest Hicks and “de-weapon” him after his neighbor
experienced a bullet shot through the shared wall. Police entered Hick’s
apartment only to find that he was not home. Police spotted two very expensive
stereos in this sordid, foul apartment. Police picked up the stereos to find
the serial numbers on the bottom of the stereos. They reported the serial
numbers to dispatch, which subsequently informed the police the stereos were
stolen. The issue at this point becomes whether you have a reasonable
expectation of privacy in the bottom of your stereo? Turns out you do.


If there was
probable cause that the stereos were stolen then the police could have picked
them up. However, here there was not sufficient probable cause that stereos
were evidence of a crime prior to picking them up. The rule that came out of Hicks was; an observed item may be seized
only if there is probable cause it constitutes the fruits, instrumentalities or
evidence of crime.
Id 321. It therefore stands, reasonable suspicion is an insufficient basis for a
closer examination of an item. However, the stereos could have been seized upon
reasonable suspicion. They then could be taken back to the station house and
examined for serial numbers.


The plain view doctrine is an exception
to the search warrant. Thus, a defendant should always press the issue of a
warrant, however in doing so be sure there is not already a lawful search under
way, or that you, or your vehicle are not already seized.


Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges.  Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case.  Contact the Law Office of Mark Deniz now for a free case evaluation at 858-751-4384 or send an email to [email protected].