This rule applies in the case of an investigator who is "lawfully searching in connection with another
crime, or who otherwise is lawfully where he is." U.S. v. Cruz, 3 MJ 707 (AFCMR, 1977). When the
police are at a place where they have a right to be, "they are not required to close their eyes to their
surroundings." U.S. v. Beck, 35 CMR 298 (CMA, 1965). A police officer who has been admitted to a
private home by the owner (consent) may seize contraband which he observes in plain sight. This
does not, by itself, allow a forced entry into a private residence. The police officer must have a lawful
basis for being where he is when he observes the contraband. If he is not lawfully on the premises, the
plain view doctrine will not apply. Johnson v. U.S., 92 L. Ed. 436 (1948). A police officer who happens
to walk by a private residence may not forcibly enter the residence because he has observed what he
believes to be evidence or contraband inside. Under such facts, the Fourth Amendment generally
requires a warrant. Washington v. Chrisman, 70 L.Ed.2d 778 (1982).
The plain view rule frequently comes into play when the police are in the process of executing a
search warrant or authorization. In other words they are searching for item A (murder weapon) and
they discover item B (drugs) during the search. Under the plain view rule, "an agent executing a search
warrant may lawfully seize contraband not described in the warrant which he observes." U.S. v.
Abernathy, 6 MJ 819 (NCMR, 1978). In the words of the Supreme Court, "if the police enter a home
pursuant to a valid warrant authorizing the seizure of specified gambling paraphernalia but discover
illegal narcotics in the process of the search, the narcotics may be seized and introduced as evidence."
Alderman v. U.S., 22 L.Ed.2d 176 (1969).
In one case, the commander authorized a search of the suspect's wall locker. They were looking
for "any type of weapon, sharp instrument, particularly a knife." The suspect was under investigation for
a recent murder. During the search of the locker, a blood-stained towel was seized. The search,
however, had been for a murder weapon. The suspect's clothing was also seized, as it bore
bloodstains. The court upheld this as a plain view seizure. U.S. v. Schultz, 41 CMR 311 (CMA, 1970).
The plain view rule will also apply when the command is performing an inventory or inspection and,
during the conduct of the same, contraband or evidence of a crime is discovered. U.S. v. Kazmierczak,
37 CMR 214 (CMA, 1967). It also applies where the police are performing a consent search, looking
for item A (pistol), and they discover item B (a stolen wallet). U.S. v. Morrison, 5 MJ 680 (ACMR,
1978).
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