Evidence obtained from a warrantless search is generally not admissible against a defendant in a criminal case unless one of the exceptions to the warrant requirement applies. Among those exceptions are a search incident to arrest, a search performed with consent, exigent circumstances, a brief ‘stop and frisk’ supported by reasonable suspicion, and evidence in plain view. To lawfully obtain evidence in plain view, the police officer must view it from a place where the officer has a lawful right to be and the incriminating nature of the evidence must be immediately apparent. The conditions for plain view were met, according to the Court of Criminal Appeals, in the recent case of State v. McAllister, E2012-00493-CCA-R3-CD (Tenn.Crim.App. 2-7-2013).

In the McAllister case, police officers were executing a search warrant at an apartment. The targeted residential unit was on the first floor. Observing the porch of a second floor unit above the target unit, a police officer went up the exterior stairs, weapon drawn, to secure that location for the safety of officers executing the search warrant below. The officer entering the second floor porch area observed the Defendant sitting on the porch, and demanded the Defendant not move. The Defendant was not engaging in any threatening behavior. However, the officer did observe cash and a bag of crack cocaine in a pair of tennis shoes next to the Defendant. The Defendant was arrested and charged with possessing the drugs.

After an unsuccessful attempt to suppress the evidence, the Defendant pled guilty but reserved a certified question of law, allowing him to appeal the adverse trial court ruling. The Defendant’s argument was that the Defendant, who was not a target of the search warrant, was unlawfully seized and his porch unlawfully searched by a warrantless intrusion. The Defendant’s residence was not a target of the search warrant. The Court of Criminal Appeals concluded that the plain view exception to the warrant requirement applied in this case.

The police officers conducting the search below had the right to briefly detain the Defendant to make sure he was not a threat to officers below. In addition, the cocaine and cash from the Defendant’s shoes was not obtained as a result of any detention of the Defendant. It was in plain view of the officer entering the porch area where the Defendant was sitting. For the plain view doctrine to apply of course, the officer must have had a right to enter that porch area where the contraband could be seen. The Court of Criminal Appeals agreed with the trial court that the entry onto the porch was reasonable as a safety measure in executing the search warrant at the first floor unit.

For more information about evidentiary issues related to search and seizure questions, contact The Lanzon Firm.