Can Police Seize Drugs From Me If They Are in “Plain View”?

January 9th, 2020 by Tad Nelson in Drug Crime

The Fourth Amendment to the U.S. Constitution normally requires police to obtain a warrant before searching you or your property for potential contraband, such as illegal drugs. But there are several exceptions to this rule. For example, if a police officer observes drugs in “plain view,” the officer can seize that evidence without a warrant.

Appeals Court Affirms College Station Man’s Conviction for Possession of PCP

A recent decision from the Texas Tenth District Court of Appeals in Waco, Jones v. State, helps to illustrate how this plain view exception works in practice. In this case, police officers went to a convenience store in College Station in response to a report of someone using counterfeit money. During their visit, one of the officers “observed a man shuffling across the parking lot,” according to court records.

The officer initiated contact with the man–the defendant in this case–to “ask if he needed help.” The officer later testified that he suspected the defendant might have been using PCP. Based on his experience, the officer said he did not initiate a pat-down search of the defendant, as he knew PCP users to be “volatile and unpredictable.”

However, the officer said he did see a “glass vial in the opening of the pocket of [the defendant’s] cargo shorts, which he believed likely contained PCP.” In response to questioning, the defendant “removed the vial from his pocket.” Testing later confirmed the officer’s suspicion that the vial contained PCP.

Prosecutors charged the defendant with illegal possession of a controlled substance. At trial, the defendant asked the court to suppress the vial as evidence, arguing it was obtained by an illegal search. The prosecution replied the search fell within the “plain view” exception and the evidence was therefore admissible. The judge agreed and denied the defendant’s motion to suppress.

A jury ultimately convicted the defendant. On appeal to the Tenth District, the defendant renewed his objection to what he contended was an illegal warrantless search. But like the trial judge, the appeals court sided with the prosecution and held the plain view rule justified the officer’s actions.

As the Tenth District explained, the plain view rule applies when an officer has “probable cause to associate any visible evidence with criminal activity.” The defendant maintained that since the officer did not know what was in the glass vial, he lacked probable cause to suspect it was illegal contraband. Not so, the appeals court said. The officer was entitled to “use his training and experience in determining whether an item seen in plain view constitutes contraband.” Here, the officer testified that “based on his years of experience and training, a glass vial is a common method of transport of PCP.” More importantly, the officer said he observed the defendant acting “in a manner consistent with a person who was under the influence of PCP.”

Speak with a Houston Drug Crimes Defense Lawyer Today

Remember, if a police officer asks to conduct a warrantless search, you have the right to refuse. But also keep in mind that there are other means by which the police can still obtain potentially incriminating evidence. That is why you need to work with an experienced Houston criminal defense attorney if you are facing drug charges. Contact the Law Offices of Tad Nelson & Associates today if you need immediate legal representation. Call 281-280-0100


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