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Booth 1359 (Next to Marvel)
97. Plain View
The Illustrated Guide to Law
The comic that teaches what the law is, how it really works, and why.
Be sure to see me at New York Comic Con, Oct. 10-13!
Booth 1359 (Next to Marvel)
Hmm. Surely it’s more complex then “of course not”. I suppose a cop seeing cocaine being cut through an open window from the sidewalk probably, maybe, has time to get a warrant, and short of a terrorist bomb, the cop isn’t justified in the immediate intrusion. But if the cop does make an immediate intrusion for reasons out of the control of the house owners (cf. the D&D scenario earlier), they justified in adding insult to injury?
The cops had a warrant in the D&D scenario earlier. So they had a clear right to be in the house.
They had a clear legal right, which doesn’t really answer the question.
To stick to the case at hand, these drug dealers were engaged in private activities in their home when a stranger invaded their house (some presumptions there) and it looks like this evidence is not going to be suppressed. Why should people cutting drugs, in front of an open window, visible to the public, have a right to privacy; and other people, who took efforts to maintain their privacy, lose that right due to the lies or misdeeds of a third party?
Life isn’t fair. Whether that person was a stranger or not doesn’t really matter. The police had a reason to enter, and the law allowed it. When they are allowed to be in a place, visual evidence is fair game.
Now, for the people who are inside a home doing something in plain view; that is not smart, but there are reasons for the protection of privacy from the police in such a case. Mostly, because we do desire privacy, we don’t want anyone (including the police) sneaking around peeking in our windows randomly. There are several other issues that could arise from this, like a police officer abusing the system to stalk somebody. To go into another aspect, the property owner has rights as well, including not allowing the police on the property except in case of warrants or something like the events here.
In short, they did something that was against the law, and got caught even if just due to bad luck. A home is a reasonable expectation of privacy, but there are situations in which that will not be true. However, insofar as possible, the law tries to protect the people from abuse of power with regard to privacy… which is a good thing in most cases.
This argument is counter intuitive and goes against the principles of the the compromise the Founding Fathers agreed upon. Specifcially, that “the people” should not fear their government. If I am not safe in my own home from a random encounter with the government, where am I safe? In this case the door was left open after the perp went through. What if the door had been closed or even locked; would the government be allowed to “break-and-enter?”
@Carl (no reply button, oddly) – Erm. I’m not sure if you’re aware, but it’s a little difficult for a criminal being pursued to bust through a closed, locked door, close the door, and repair the lock and busted frame he caused by kicking the door open before the pursuing officers could stop him. It would be extremely clear that the perp had been through there.
On the other hand, I’m sure Nathan (the artist/lawyer) will be getting to the specifics of what the police are allowed to do when they’re unsure of where the perp went, but have them tracked down to a specific area (e.g. seen entering an apartment building or condo).
And really, it’s just as Robert said. A home is a reasonable expectation of privacy, but there are situations in which that will not be true, such as emergencies. Here’s another example: people lie. We saw this in the D&D scenario, and we can see this in Real Life. Whether it’s to save their own butts or to kick someone else’s, people can and will lie to get their own way.
Ever hear of “SWATting”? It’s a type of prank call where someone tricks 9-1-1 into dispatching an emergency response to a location where no such emergency is occuring. It can be as simple as a police visit to as drastic as a bomb squad or SWAT team deployment (hence the name). Do you think it would be feasible for the police to look at every single emergency called into 9-1-1 and go “Hmm, well, it could be a prank call. Let’s just send one officer to go and make sure that Mrs. Smith of 1234 Example St. is actually being threatened by a .
(cont’d, misclick) home burglar, and we’ll go from there.”
But again, I think Nathan will be getting into more detail about this (or willing to explain in the comments).
Y. Exeter, the question I had was not about entering, but using evidence obtained when entering. In any case, I’m not sure I agree with the law here, but I think I understand it.
As the panel was saying once the police are inside the plain view doctrine is in effect. Also, as the last lesson pointed out people aren’t allowed a lawful expectation of privacy where contraband, drugs, are involved.
If that was really true though, drug evidence wouldn’t ever be suppressed, even if the cops chose a house to raid by throwing darts at a map.
No, they’re allowed the lawful expectation of privacy -in their homes-, which means the police cannot do something that would grant them the ability to see things that legally belong in their homes, such as by busting in and raiding. If the police can detect the presence of drugs from outside the home, however, without seeing other things inside, they’re allowed to do so (you could do drug raids by having drug dogs sniff everyone’s doorstep, but it probably wouldn’t be effective).
The lawful expectation of privacy relating to contraband doesn’t really apply though. Once the “plain view” doctrine goes into effect, they’ve effectively lost their expectation of privacy to everything in plain view (i.e. once the criminal broke your front door in, you can no longer expect parts of your home to be private, as a matter of law). If they brought drug dogs in though, such as if they had a k-9 unit helping the chase, those dogs could sniff at places the police couldn’t search once inside the building, such as in the pockets of the people in the building, and I’m pretty sure any drugs they found could be brought out as evidence at trial.
Y. Exeter,
Actually, after reviewing the previous frames again, the door to the “drugs” was clearly shut and undamaged. Shoud this make a difference?
If an intruder enters an unlocked door, it would take less than a second to lock it, while slamming it shut.
I really don’t see the need for sarcasm in this forum. We are simply having an intelectual discussion about beliefs. As you mention, Nathan is the expert and will tell us what the current precedent is. In the mean time, we all may politely postulate…
Regards,
Carl
It might make a difference if they weren’t right on the guy’s heels, but the police just saw him go through it. They had every reason to believe the person they were chasing was in there, cause he went in there literally 5 seconds ago.
Well, if you google….
There was a case not too long back – though I forget exactly WHERE, the US is a BIG place –
Two trespassers cutting through someone’s back yard.
Man walking around naked in his house, visible from the back yard.
OUTCOME: He is now a convicted sex offender, because some idiot twat and her womb turd cut through his yard without invitation. (Hence the crass language, it’s deserved for that female. The child is just guilty of being born with bad DNA.)
I point it out because it’s yet another example of our rights being destroyed in the name of “justice.” Poor dried up (ahem) didn’t know what a naked man looked like and was TRAUMATIZED, the poor dear! And her CHILD, oh the scars! (IIRC it was a female child, too.)
But if you’re not permitted to walk around naked in your own home when you can’t even be seen from the front of the house maybe this world SHOULD be snuffed.
The Clover (Cancer) needs to be eradicated…
Many cases like that turn out to have extenuating circumstances which were ignored for the drama factor, thus making it misleading. For example, the now-dated McDonald’s hot coffee lawsuit is like that.
However, I think the real problem will be with the original perp. The cop could have gone to either house (if he didn’t see footprints, there seemed to be none in the panel) and busted in. He ended up being lucky and choosing the right one, but if he was wrong, he would not be able to accuse anyone of crimes in the house. He is no longer in hot persuit, he is just walking with no one and nothing to follow anymore.
*pursuit
Just to be clear here: the cop didn’t catch the perp in the drug house — the cop passed through the drug house while chasing the perp.
I’d probably argue that the cop saw the perp barge into the drug house (so he was pretty damn sure the perp was in there) and the cop followed him. He was still in hot pursuit when the perp entered the house. I think that whether the cop caught the guy or not afterwards is rather irrelevant at this point. They had proof that they were chasing the guy, too (motorcycle, dashcam, ditched weapon, etc.).
And even though there were no footprints, there was the sign of a busted door on one of the two houses behind the drug house.
Then again, I’m not the lawyer here, so I’m not sure how that would stand.
I’m sorry, I retract my comment. I didn’t see the page where the detective saw the busted door. I was rereading this passage, and I noticed that page.
On a related note, the link to the beginning of the story line hasn’t been put in.
Guys, I’m at comic con and can’t draw anything until Monday. We’ll get there soon enough.
I love it! A lawyer taking a chance on copyright infingement. Must be bowling ball size and titanium — not brass…
I’m sure you’d do very well on reddit. Forget comic authors, you’re my favorite person of the year.
Technically, they had the legal right to enter the house for the purpose of catching their pursued suspect, but the drug thing had nothing to do with the pursuit (unless they can prove it) and thus cannot be used as evidence. In real life, the government wins.
The lesson here: Never trust a stock door, and always lock the door.
The drugs were out there right in plain view of the cops. Hell, they were even labeled “Drugs”. It might be different if they were in a drawer, or hidden in a place where a person couldn’t hide, but police aren’t required to just plain ignore evidence that’s right in plain view.
I’m sure that Nathan will get more into it later, but I’m not sure that kind of logic sits well with me.
Here, we’re talking about drug possession, but what about a more directly heinous crime? What if the Motorcycle Guy barged through a house where Blonde Buzzcut was assaulting or murdering Lady 74? Does that render any and all evidence within view at that crime scene — including the cop’s witness testimony and the woman’s body — suddenly invalid because it had nothing to do with the chase?
Is our liberty so invaluable that we would put one murder victim above the privacy of the other 330 million people in our country?
Drugs are a far cry from beating or murdering someone. Drugs have only been against the law for this past century, killing people has been against the law for a lot longer. The reason is because drug abuse is something you do to yourself, but killing people is something you do to others. If society wants to keep the stuff outlawed, it can jump through the hoops and pay the cost.
What you are opposing is drug law in general, not issues of constitutional law. The point of the 4th amendment is not to establish circumstances that would ensure you cannot be caught doing something patently illegal simply because it occured in a certain place. The point is to prevent the government from making arbitrary, capricious searches in the hope of finding something, or for the purpose of harassing political opponents. The fact is as long as you are doing something illegal, there is a decent chance of getting caught. Indeed, the law is more or less designed that way. We *want* murderers, rapists, arsonists, robbers, and even pickpockets to land in jail. The hot pursuit exception is allowed precisely because the very nature of it precludes the possibility that the building in question was in any way targeted. Combine that with the need for public safety that criminal pursuit endangers, it trumps the protection of the 4th amendment in much the same way the need for saftey on public roads trumped Patty’s privacy interest in her Old Blue in the previous series. As long as drug posession is a crime, and especially as long as drug distribution is a felony, it will be treated like any other crime for legal purposes. Don’t like it? Take it up with the legestlature that makes the rules, not the judiciary that follows them.
It’s not just an issue with prohibition though. It could have been any petty crime, the point is that there are already different standards of police behavior for different crimes, and there would be nothing wrong with allowing evidence of a murder or similarly serious crime, but suppressing evidence of lesser crimes.
Better lesson: don’t sell cocaine out of your house. Or anywhere, really. :-P
Regardless of where you are, you ought to fear your government if you’re committing a serious crime. That’s kinda one of the points of them punishing crime, so you won’t do it. Not so you’ll be more careful when you do.
I mean, if I were in this situation, in my living room, naked and watching Telletubbies, when the robber and the cops barged in… well, I’d have no legal recourse against the cops THEN, either. I’d really wish they hadn’t done it (because I’d be embarrassed as hell as the place was searched for weapons and fugitives), but their duty to catch the guy outweighs my privacy when naked in my own home (which is legal).
The idea that a drug dealer should have a right to privacy that is superior to mine is pretty odd to me.
It’s odd, and it has been addressed in pretty much the way you’ve suggested.
“As a matter of law, you don’t have that expectation of privacy in contraband – stuff that’s illegal to possess, like drugs or explosives.”
Or rephrased:
“You may or may not expect your contraband to be private, but so far as the law is concerned, that expectation isn’t legitimate.”
https://lawcomic.net/guide/?p=1998
I don’t believe the intent of the 4th Amendment was to protect only “legal” activities and property. The Founders had just revolted against the Crown. They were worried about not being able to overthrow the “monster” they had created:
“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”
— Thomas Jefferson
It seems to me that the current interpretation of the law has thrown out the fundemental principle of: it is better to allow a hundred muderers to go free than to condem one innocent man.
I see it as, “The government doesn’t have a right to kick your door down without a good reason”. Not that they never have the right to kick it down.
The point has been made that the pretext can be fabricated, E.G., Swatting; also, “anonymous tips;” also, “I smell marijuana.”
They fabricate reasons as convenient. (You can find sites where cops tell each other how to “fix” someone who knows their rights and DARES to question the Almighty State Pig Enforcer – E.G., planting evidence on them – include touching the drug packet to the person, so it has their DNA on the drug container.)
With “Law Enforcement” like that, who needs enemies?
Further, the cops who DO turn in corrupt officers have a tendency to be harassed out of the force, terminated “with cause,” or terminated with extreme prejudice (killed.)
I realize that this concern gets addressed in a bit, but just for completeness’ sake (and for new readers, I’ll put the argument here).
If the cops have the legal rights to be *anywhere*, then they have the legal rights to seize any illegal item within clear view/hearing/smell. As long as they’re not opening doors/drawers to find them, or do something extra that further violates your privacy, they’re free to take it.
For starters, I’m a scientist and not a lawyer. I certainly don’t know any of the ins and outs of trial law but, for some odd reason, I know a hair about 4th Amendment SCOTUS rulings. I guarantee I’m leaving relevant case law out, but here are two potentially entertaining cases to consider:
Brigham City, Utah v. Stuart (2006): Officers are allowed to respond to *ongoing* violence occurring *within* a home. While cops aren’t allowed to enter without a warrant for the sole purpose of saving evidence from destruction (as per Welch v. Wisconsin), if they have reason to believe an ongoing threat to any occupants (noises or sight of violence, a crazed gunman running in, etc.) they can enter. This reaffirms hot pursuit, as a criminal is inherently dangerous to occupants of a space (United States v. Santana). A potential issue that might come up is a “knock-and-announce” rule, mentioned towards the end of the ruling. While the officer clearly banged on the door and shouted for the 2nd home where the biker was found, there was no announce entering the druggie’s home (as evidenced by them clearly being startled by the cops entering). Ignoring the fact that they should have noticed a biker running through their house and expected the cops afterwards, that might be grounds for *something* in a coming strip.
Minnesota v. Carter (1998): To claim 4th Amendment protection, a defendant must demonstrate that he *personally* has a reasonable expectation of privacy in the place searched. That case specifically deals with defendants who were present in a home solely to package and distribute cocaine and weren’t “overnight guests” (which are protected by Minnesota v. Olson as “when we cannot sleep in our own home we seek out another private place to sleep….”). While a home might be a private sanctuary for the owner, guests receive the protections appropriate to their stay (in that case, the apartment was a place of business with few/no protections for its occupants). This is *relevant* to the two drug users, as one of them likely did not live there and, as such, has no standing to contest the search.
Finally, here’s a weird one that just proves that (essentially) no matter what precautions you take, cops can get a warrant if plain sight is available.
Florida v. Riley (1989): Things visible in plain sight to an officer who does not violate the curtilage of a home are fair grounds to obtain a warrant, even if the cop used a helicopter to obtain an unnatural vantage point. This case is weird, since it mostly deals with whether or not the contents of a home visible by air are protected even if the pilot isn’t quite within FAA guidelines. It essentially rules that as long as the officer can legally be somewhere (meaning he doesn’t violate the bushes or heavy fencing surrounding your house, as that can easily violate your right to privacy), things the cop sees are admissible in a search warrant application. I bring this case up because it solidifies the idea in the above panel that, while the cop probably can’t bust in and get the drugs he saw from the sidewalk, he absolutely can get a warrant in about 30 minutes and bust down the door.
Drones will be an interesting question soon, as is the radar surveillance that allows the cops to check out your home from curbside…
No warrant needed for that one; wondering if the drone will be permitted to surveil the house and scan for contraband?
Face recognition has advanced; so has object recognition. And if plastic baggies and a postal scale are “evidence” as “drug paraphernalia”?
(note again that cops will plant evidence.)
This reminds me of a real life case from Albany, NY. It’s been around a decade since it happened, so I don’t quite recall the details.
A suspect shot at a police officer, and fled to the Arbor Hill section of Albany. The police didn’t know exactly which residence the suspect fled to, and proceeded to search house to house. The search they conducted resulted in at least 100 arrests for unrelated crimes, and there was a small uproar about how it was all conducted.
I don’t know how many homes were involved, but I wouldn’t think that a Reasonable Suspicion that a suspect was in a group of 50 homes translates into a Reasonable Suspicion that the suspect is in any one of those homes. I don’t think there is an exact percentage, but 2% of Reasonable doesn’t seem reasonable to me.
Please correct any errors in the assumptions that underlie my questions. (My understanding of warrants is limited at best)
If a warrant is generally limited in scope as to what/where police can look, what is the reason that entry under urgent circumstances is not also limited in scope? They may enter to pursue, for example, but may not act on evidence gathered outside that purpose.
Does anyone know of a case in which police were found to use persuit as a pretext for bypassing a warrant?
No, while cops probably should be limited by the scope of a warrant or justification, in reality they’re allowed to grab anything they see. This naturally opens the door to all kinds of police corruption, but it’s no secret that the state cares about punishing people, not your rights.