Question about search warrents

[Pok]

Starting with a disclaimer, this is not to start sh*t.

The thread about the officer killed during the no knock warrant, and the guy not being charged inspired a question. Please do not discuss no knock warrants in this thread. We all know why.

I am not asking for legal advice, and this is more for having an theoretical discussion. I know how things actually go in the real world.


Does a search warrant give the police the authority to actually enter your home without your consent (serious question)? I have no experience with this, but I would think that a warrant is a court order to allow the police in, and if you refused the order, you'd be committing the crime of disobeying a court order. I imagine that you could be arrested for that at the door, but I think that if the warrant doesn't actually let them in, they still have to stay out.

In the other thread I'd think that failing to obey a court order has a harsher sentence than possessing some pot.

Like I said, I know how it would play out in the real world. This is not a real world kind of question.

If I'm way off, I expect I'll be educated quickly.

 

[leagle2]

They wouldn't need a warrant if they had your consent. So, Yes the police, if they have a search warrant, may enter your home without your consent. If the PoPo are at your door with a search warrant you have a whole lot more problems than a contempt of court citation.

 

[Copper75]

A Search Warrant gives them the right to enter and search for the items listed in the warrant. They also have the right to overcome resistance encountered while trying to gain entry.

Sent from my KFTT using Tapatalk

 

[G22inSC]

Short answer...yes. Don't need your consent if a warrant is in hand.

 

[MCSO1357]

A warrant is issued after an officer is sworn in and testifies/presents probable cause to a judge. The warrant is usually specific in nature and says when, where and what may be seized.

 

[Bracamonte]

I know how things actually go in the real world.

Ok...(?)

Does a search warrant give the police the authority to actually enter your home without your consent (serious question)?

Yes, it is authority granted by a magistrate for any entity (Affiant) who has written the warrant to enter a place without consent to search and seize that which is listed in the warrant.

I have no experience with this, but I would think that a warrant is a court order to allow the police in, and if you refused the order, you'd be committing the crime of disobeying a court order.

Depends on the state, but yes, you could be charged with something similar to Interference of Public Duties.

I imagine that you could be arrested for that at the door, but I think that if the warrant doesn't actually let them in, they still have to stay out.

It is usually assumed that the persons inside will want to keep authorities (or police) out, and that force will be necessary to safely secure the premise in order for the search to be conducted. The warrant directs the officers to go to the specific place and search, so there would never be a warrant that "doesn't actually let them in" and make them "still have to stay out." That would negate the purpose of the warrant.

Like I said, I know how it would play out in the real world. This is not a real world kind of question.

If this is not a real world question, what is the purpose of asking such questions?

 

[Pok]

Ok...(?)




Yes, it is authority granted by a magistrate for any entity (Affiant) who has written the warrant to enter a place without consent to search and seize that which is listed in the warrant.




Depends on the state, but yes, you could be charged with something similar to Interference of Public Duties.

Edit: I was comparing this to my understanding that a person can refuse a field sobriety check, but in doing so commits a crime, or at least admits guilt to something else that is usually just as bad, but does not actually get the field sobriety check.




It is usually assumed that the persons inside will want to keep authorities (or police) out, and that force will be necessary to safely secure the premise in order for the search to be conducted. The warrant directs the officers to go to the specific place and search, so there would never be a warrant that "doesn't actually let them in" and make them "still have to stay out." That would negate the purpose of the warrant.



If this is not a real world question, what is the purpose of asking such questions?

I'm not trying to seem odd. I asked the questions in that way because I had thought that the warrant was an order given to a person mandating that they "allow" access to these areas, and not an order given to police to "go here and search". I fully understand that the police would go in and search either way whether or not it is technically allowed, as that is really the point of the warrant in the first place. I was just wondering if it is actually within the letter of the law to do so. Like I said though it will happen anyway and that wont change.

From the replies so far it seems like I was mistaken, and that a warrant is in fact a directive for police to go in and search. So is showing the warrant to the person on site required usually, or is it a courtesy/ means of de-escalation?



EDIT: I was comparing this to my understanding that a person could refuse a field sobriety check, but in doing so is committing a crime, or admitting guilt to something else, that is usually equally as bad, but never actually takes the sobriety check.

 

[pawprint2]

A warrant is issued after an officer is sworn in and testifies/presents probable cause to a judge. The warrant is usually specific in nature and says when, where and what may be seized.

This may have been true 12 years ago, but the above statement is flat out wrong. The patriot act gives the FBI (and maybe others) the right to fill out their own search warrants, without presenting anything to a judge. This is not theory, but daily practice, in fact the figures are somewhere around 350,000 of these (fill in your own warrant) have been served from the period 2001-today! What makes these patriot act, fill in your own type warrants interesting, is the person they have served them on is in violation of Federal law if they talk about it. Please spend a couple of minutes with Google, things have changed.

 

[Bracamonte]

I fully understand that the police would go in and search either way whether or not it is technically allowed,

No, the police would NOT go in and search if it WAS NOT technically allowed. The warrant is what makes it lawfully allowed. No warrant, not lawfully allowed unless consented or exigent circumstances exist.

I was just wondering if it is actually within the letter of the law to do so. Like I said though it will happen anyway and that wont change.

It will continue you to happen because, yes, that IS the letter of the law. The second sentence you write seems to imply that authorities will continue to search whether warrants allow them to or not. The whole purpose of the warrant is to allow the search! It's all in the scope of the law.

So is showing the warrant to the person on site required usually, or is it a courtesy/ means of de-escalation?

Every state has their code of criminal law procedures written differently, but usually a copy of the warrant must be left after executing the search.

 

[Pok]

No, the police would NOT go in and search if it WAS NOT technically allowed. The warrant is what makes it lawfully allowed. No warrant, not lawfully allowed unless consented or exigent circumstances exist.



It will continue you to happen because, yes, that IS the letter of the law. The second sentence you write seems to imply that authorities will continue to search whether warrants allow them to or not. The whole purpose of the warrant is to allow the search! It's all in the scope of the law.



Every state has their code of criminal law procedures written differently, but usually a copy of the warrant must be left after executing the search.

Its hard to interpret intent with text, but you seem offended by my typings. I apologize before this gets the way we all know these threads can get.

I am not implying that police are doing what they cannot (obviously some do) knowingly. I was asking to see if it is something that has just always been that way and never examined.

I have never seen a search warrant. I don't have dealings with the police that aren't usually pleasant. This was actually just a question.

It comes down to the nature of the warrant as in: Is it a notification to the person at the door receiving it to step aside and allow the officers in and search, or is it notification to the officers that they may go in and search, and it is shown to the person at the door just to let them know what is going on.

It seems from the responses that it is the latter case.

I understand everyone's butts clenching because of the fights these threads cause, but it isn't the case here from my side at least. No offenses intended

 

[Bracamonte]

This may have been true 12 years ago, but the above statement is flat out wrong. The patriot act gives the FBI (and maybe others) the right to fill out their own search warrants, without presenting anything to a judge. This is not theory, but daily practice, in fact the figures are somewhere around 350,000 of these (fill in your own warrant) have been served from the period 2001-today! What makes these patriot act, fill in your own type warrants interesting, is the person they have served them on is in violation of Federal law if they talk about it. Please spend a couple of minutes with Google, things have changed.

Sorry, sir, but MSC01357 is not flat out wrong. He was 100% accurate in his statement as this is how it is defined in all the states and in Federal law.

You are speaking of the Foreign Intelligence Surveillance Act which was included in the Patriot Act. They are not search warrants but warrants for surveillance, and they have their own court (FISC) that has eleven judges appointed by the Chief Justice of the United States. Probable cause is brought to these judges for approval on surveillance warrants and search warrants. Warrants for surveillance can be approved without court order, but require the President. But, we are talking about surveillance, not search warrants.

Please spend a couple of minutes with Google, things have changed.

Please stake your knowledge on more than just Google. It is still the internet.

Sorry to everyone else for dragging this thread along. This is my last post.

 

[W54/XM-388]

The answer to your questions are pretty self obvious if you have lived in the real world for any amount of time, or kept up on the laws and court rulings over the years.

I'm not really sure why you need to ask, and then say you don't want to discuss the issues behind the serious problem of no knock entries.

The whole case you mentioned, revolves around the defendants claim that there was no knock and no announcement and he did not know they were the police till after bullets were already flying, and that specifically he had no way of knowing they were the police (and not some criminal gang) till after shots were already fired.

I might suggest if you really want the details just for fun, go see a decent criminal defense lawyer in your area that handles a lot of average day to day cases & pay for an hour or two of their time and ask them exactly what the local law says you can and can't do and then how it has played out in the real world for their clients.

 

[pawprint2]

Sorry, sir, but MSC01357 is not flat out wrong. He was 100% accurate in his statement as this is how it is defined in all the states and in Federal law.

You are speaking of the Foreign Intelligence Surveillance Act which was included in the Patriot Act. They are not search warrants but warrants for surveillance, and they have their own court (FISC) that has eleven judges appointed by the Chief Justice of the United States. Probable cause is brought to these judges for approval on surveillance warrants and search warrants. Warrants for surveillance can be approved without court order, but require the President. But, we are talking about surveillance, not search warrants.




Please stake your knowledge on more than just Google. It is still the internet.

Sorry to everyone else for dragging this thread along. This is my last post.

The one thing you are correct about, it this is the internet, and you should choose you sources of informed and accurate information carefully, for example: you could choose the expert truculent, or a US Senator. May I put forward a letter from a U.S. Senator,




Press Release of Senator PaulSenator Rand Paul’s Letter of Opposition to the Patriot Act

Contact: Gary Howard: 202-224-4343
Tuesday, February 15, 2011

WASHINGTON, D.C. – Senator Rand Paul (Ky.) released the following Dear Colleague letter to his fellow Senators this morning regarding the renewal of the USA PATRIOT Act.

Dear Colleague:

James Otis argued against general warrants and writs of assistance that were issued by British soldiers without judicial review and that did not name the subject or items to be searched.

He condemned these general warrants as “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever w[ere] found in an English law book.” Otis objected to these writs of assistance because they “placed the liberty of every man in the hands of every petty officer.” The Fourth Amendment was intended to guarantee that only judges—not soldiers or policemen—would issue warrants. Otis’ battle against warrantless searches led to our Fourth Amendment guarantee against unreasonable government intrusion.

My main objection to the PATRIOT Act is that searches that should require a judge’s warrant are performed with a letter from an FBI agent—a National Security Letter (“NSL”).

I object to these warrantless searches being performed on United States citizens. I object to the 200,000 NSL searches that have been performed without a judge’s warrant.

I object to over 2 million searches of bank records, called Suspicious Activity Reports, performed on U.S. citizens without a judge’s warrant.

As February 28th approaches, with three provisions of the USA PATRIOT Act set to expire, it is time to re-consider this question: Do the many provisions of this bill, which were enacted in such haste after 9/11, have an actual basis in our Constitution, and are they even necessary to achieve valid law-enforcement goals?

The USA PATRIOT Act, passed in the wake of the worst act of terrorism in U.S. history, is no doubt well-intentioned. However, rather than examine what went wrong, and fix the problems, Congress instead hastily passed a long-standing wish list of power grabs like warrantless searches and roving wiretaps. The government greatly expanded its own power, ignoring obvious answers in favor of the permanent expansion of a police state.

It is not acceptable to willfully ignore the most basic provisions of our Constitution—in this case—the Fourth and First Amendments—in the name of “security.”

For example, one of the three provisions set to expire on February 28th—the “library provision,” section 215 of the PATRIOT Act—allows the government to obtain records from a person or entity by making only the minimal showing of “relevance” to an international terrorism or espionage investigation. This provision also imposes a year-long nondisclosure, or “gag” order. “Relevance” is a far cry from the Fourth Amendment’s requirement of probable cause. Likewise, the “roving wiretap” provision, section 206 of the PATRIOT Act, which is also scheduled to expire on the 28th, does not comply with the Fourth Amendment. This provision makes possible “John Doe roving wiretaps,” which do not require the government to name the target of the wiretap, nor to identify the specific place or facility to be monitored. This bears an uncanny resemblance to the Writs of Assistance fought against by Otis and the American colonists.

Other provisions of the PATRIOT Act previously made permanent and not scheduled to expire present even greater concerns. These include the use and abuse by the FBI of so-called National Security Letters. These secret demand letters, which allow the government to obtain financial records and other sensitive information held by Internet Service Providers, banks, credit companies, and telephone carriers—all without appropriate judicial oversight—also impose a gag order on recipients.



NSL abuse has been and likely continues to be rampant. The widely-circulated 2007 report issued by the Inspector General from the Department of Justice documents “widespread and serious misuse of the FBI’s national security letter authorities. In many instances, the FBI’s misuse of national security letters violated NSL statutes, Attorney General Guidelines, or the FBI’s own internal policies.” Another audit released in 2008 revealed similar abuses, including the fact that the FBI had issued inappropriate “blanket NSLs” that did not comply with FBI policy, and which allowed the FBI to obtain data on 3,860 telephone numbers by issuing only eleven “blanket NSLs.” The 2008 audit also confirmed that the FBI increasingly used NSLs to seek information on U.S. citizens. From 2003 to 2006, almost 200,000 NSL requests were issued. In 2006 alone, almost 60% of the 49,425 requests were issued specifically for investigations of U.S. citizens or legal aliens.



In addition, First Amendment advocates should be concerned about an especially troubling aspect of the 2008 audit, which documented a situation in which the FBI applied to the United States Foreign Intelligence Surveillance Court (FISC) to obtain a section 215 order. The Court denied the order on First Amendment grounds. Not to be deterred, the FBI simply used an NSL to obtain the same information.

A recent report released by the Electronic Frontier Foundation (“EFF”) entitled, “Patterns of Misconduct: FBI Intelligence Violations from 2001-2008,” documents further NSL abuse. EFF estimates that, based on the proportion of violations reported to the Intelligence Oversight Board and the FBI’s own statements regarding NSL violations, the actual number of violations that may have occurred since 2001 could approach 40,000 violations of law, Executive Order, and other regulations.

Yet another troublesome (and now permanent) provision of the PATRIOT Act is the expansion of Suspicious Activity Reports. Sections 356 and 359 expanded the types of financial institutions required to file reports under the Bank Secrecy Act. The personal and account information required by the reports is turned over to the Treasury Department and the FBI. In 2000, there were only 163,184 reports filed. By 2007, this had increased to 1,250,439. Again, as with NSLs, there is a complete lack of judicial oversight for SARs.

Finally, I wish to remind my colleagues that one of the many ironies of the rush to advance the PATRIOT Act following 9/11 is the well-documented fact that FBI incompetence caused the failure to search the computer of the alleged 20th hijacker, Zacarias Moussaoui. As FBI agent Coleen Rowley stated, “the FBI headquarters supervisory special agent handling the Moussaoui case ‘seemed to have been consistently almost deliberately thwarting the Minneapolis FBI agents’ efforts” to meet the FISA standard for a search warrant, and therefore no request was ever made for a warrant. Why, then, was the FBI rewarded with such expansive new powers in the aftermath of this institutional failure?

In the words of former Senator Russ Feingold, the only “no” vote against the original version of the PATRIOT Act,

“[T]here is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country that allowed the police to search your home at any time for any reason; if we lived in a country that allowed the government to open your mail, eavesdrop on your phone conversations, or intercept your email communications; if we lived in a country that allowed the government to hold people in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, then the government would no doubt discover and arrest more terrorists. But that probably would not be a country in which we would want to live. And that would not be a country for which we could, in good conscience, ask our young people to fight and die. In short, that would not be America.”

I call upon each of my Senate colleagues to seriously consider whether the time has come to re-evaluate many—if not all—provisions of the PATRIOT Act. Our oath to uphold the Constitution demands it.



Sincerely,

Rand Paul, M.D.
United States Senator
Maybe truculent should give the Senator a call, he and many other highly informed U.S. Senators would be glad to hear from him, as they're not in the loop, perhaps truculent could set them straight, and maybe even run for the Senate himself, as he would be the only member that knows what's going on!!

 

[Pok]

The answer to your questions are pretty self obvious if you have lived in the real world for any amount of time, or kept up on the laws and court rulings over the years.

I'm not really sure why you need to ask, and then say you don't want to discuss the issues behind the serious problem of no knock entries.

The whole case you mentioned, revolves around the defendants claim that there was no knock and no announcement and he did not know they were the police till after bullets were already flying, and that specifically he had no way of knowing they were the police (and not some criminal gang) till after shots were already fired.

I might suggest if you really want the details just for fun, go see a decent criminal defense lawyer in your area that handles a lot of average day to day cases & pay for an hour or two of their time and ask them exactly what the local law says you can and can't do and then how it has played out in the real world for their clients.

I am not involved in law except for trying to avoid breaking them. Keeping up on laws or rulings is not something I spend my time on.

I have my opinions of no knock warrants, but I consider it a taboo subject because it always gets ugly here, and no learning can be had. The thread I mentioned can be discussed there. I asked my question because I was inspired to ask after reading the other thread, but this discussion is not that one.

Your suggestion of hiring a lawyer to answer my questions is more than silly, and you can't be serious. I'll just ask here as I did, and got answers that I consider good enough for my purposes. If I needed actual legal advice (that I clearly stated in my op that I did not), I would consult an expert.

 

[Deputy D.A.]

It looks like your original questions have been answered, but I will add or restate a couple points. The warrant is not an order to the individual who owns the home/place to be searched, but to the officer(s) executing the search. In practice the items being searched for, and to be seized if found, as well as the places that are subject to being searched should be enumerated with at least some specificity in the warrant. A warrant is not needed to search a person who gives consent to be searched, or consent to have their particular property searched. Issues can arise for example in homes shared by roommates and what consent can be given by one to the area exclusively occupied by the other. There are other doctrines that can come in to play such as plain view. There are also many peculiarities in an individuals rights against unlawful search and seizure in individual states that exceed the protections provided by the U.S. Constitution. My only advice to any one is to obey the law, what I have written above is just general information that can vary by circumstance and jurisdiction.

 

[pawprint2]

An interesting piece, A Federal Judge, has ruled on some parts of the "self issuing warrants-without a judge's okay' :



Patriot Act Loses In Court

WILLIAM McCALL, The Associated Press Staff
Published: September 27, 2007 | Updated: March 26, 2013 at 11:00 PM


PORTLAND, Ore. - Two provisions of the USA Patriot Act are unconstitutional because they allow search warrants to be issued without a showing of probable cause, a federal judge ruled Wednesday.

U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, 'now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment.'

Portland lawyer Brandon Mayfield sought the ruling in a lawsuit against the federal government after he was mistakenly linked by the FBI to the Madrid train bombings that killed 191 people in 2004.

The federal government apologized and settled part of the lawsuit for $2 million after admitting a fingerprint was misread. As part of the settlement, Mayfield retained the right to challenge parts of the Patriot Act, which greatly expanded the authority of law enforcers to investigate suspected acts of terrorism.

Mayfield claimed that secret searches of his house and his office under the Foreign Intelligence Surveillance Act violated the Fourth Amendment's guarantee against unreasonable search and seizure. Aiken agreed with Mayfield and repeatedly criticized the government.

'For over 200 years, this Nation has adhered to the rule of law - with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised,' she wrote.

By asking her to dismiss Mayfield's lawsuit, the judge said, the U.S. attorney general's office was 'asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so.'

Elden Rosenthal, Mayfield's attorney, issued a statement on his behalf praising the judge, saying she 'has upheld both the tradition of judicial independence, and our nation's most cherished principle of the right to be secure in one's own home.'

Justice Department spokesman Peter Carr said the agency was reviewing the decision, and he declined to comment further.

 

[eli polite]

I just read 2 days ago here in Delaware (where I live) is working on passing a law that if a search warrant is issued and they kick in the wrong door and you defend your self and kill an officer you cant be charged with a crime... The reason I bring this up is we would be one of a few states that actually has this law.. if this law is not in existence in your state and you shoot and kill an officer who is in the wrong home what would the charges be! has any one gone to jail for this happening!

My thought would be if you open fire on a group of officers raiding your home (you have no idea who they are). They obviously are thinking there in the rite home. they are going to think your the bad guy opening up on them and your chances of living through it are pretty slim..

 

[Deputy D.A.]

It would not be the first time it has happened, but it is very rare that the officers execute the warrant on the wrong residence. Many agencies will put in a detailed description of the exterior of the home to be searched to reduce the odds of such a mistake. Some agencies have a photo of the exterior attached to also reduce any mistake. Frequently the residence has already been identified by surveillance and or in some cases the exterior is being secured while a warrant is quickly being obtained. Also, remember search warrants of most homes will not be night time warrants, nor will they be executed on a no knock basis. All of these things make a truly surprise entry into the wrong home a very rare occurrence.

 

[KYpatriot]

Everyone should read and reread Pawprint's two posts. He is keyed in on how things have indeed changed for the worse. Makes me sick. All they have to do is mention terrorism in the same sentence and whatever three letter agency at hand gets their unConstitutional get outa jail free card.

 

[ArmyJerry]

This is not a new situation, this has happened before going back well before the patriot act, I seem to remember that a cop was shot dead in a shoot out with a petty criminal (I think it was early 90's late 80's) but he never identified himself and the criminal thought he was another criminal trying to rob him, criminal found not guilty for killing the cop. Legal or not, I personally think putting cops in a bad situation like this is not smart, or even called for. They suspect the guy is a drug dealer, just wait til he comes out of the house then arrest his ass and search the home. Less likely to shoot it out if he is with his wife or kid or presented with overwhelming force up front. Putting cops in this situation is a failure in leadership of the mayor and officers in charge of that department. Here in Miami, the cops get very worried because of actual home invasions by fake cops, this raises the chances there will be a shoot out with real cops during warrant executions.

 

[eli polite]

one last question...not trying to jack the thread. When Justen Bebers home was searched I herd they found some drugs, coke or pills or something But there were going to be no charges because it was not on the warrant. Exactly how does this work? If its in plain sight and they don't have to search for it will they get charged? If they find it hidden does that exempt it?

 

[19Scout77]

Everyone should read and reread Pawprint's two posts.

Are you kidding? His bs is a complete waste of time if read but once...reread? Now thats just plain stupid.

 

[MCSO1357]

I've written and executed hundreds of search and arrest warrants. I worked for a large county sheriff's department (read: MCSO). There are circumstances where a warrant is not required to enter a residence or arrest someone, but it is always best to use restraint when possible. Not only does seizing evidence or hooking some asshole without a warrant (when you should have one) embarrassing, but it can get your ass in a sling (i.e. evidence tossed or inadmissible, disciplined, fired, and charged with a crime). I can't comment on what the Feds do or have done, but I have seen some shady shit come down from some of their investigations that were "gray" in nature.

The greatest power that a cop possesses is the authority to deprive a person of their personal freedom. Any asshat can shoot somebody, happens every day. Taking somebody to jail with the legitimate power bestowed upon him/her by the state that they are sworn in is the ultimate responsibility (in my humble opinion). That is why when I hear about abuses of arrest powers (and they do happen, but are not the norm) makes me sad and sick to my stomach.

 

[gpz750]

They would have to go back to the judge and request a search warrant for said drugs.

 

[Deputy D.A.]

Like most every legal question the answer depends on the specific facts as the addition or omission of even one fact can change the outcome legally. The plain view doctrine allows law enforcement officers to seize contraband that is in plain view to them when they are in a position legally. E.g. Officers search a home under the authority of a search warrant to search and seize a stolen 50" plasma television are not likely (at least under a rationally anticipated warrant) going to have authority to search inside your wallet or sock drawer as a 50" television could not hidden in such a small area. If they did so and happen to find a small package of powder cocaine the search would almost assuredly not hold up and the evidence would get suppressed for trial purposes. In contrast, if they enter into your bedroom to look for the television and see in plain view an active home meth lab, that is likely going to be seized and be deemed admissible for prosecution. If it is not clear from the sight of the item that it is contraband chances of suppression are high. As was also indicated officers may seek to supplement the original warrant based on observations made while appropriately executing a valid warrant. Again, this is just a very broad and general interpretation of the law and it can vary greatly between jurisdictions.

 

[Hairball]

Any illegal substance left out in the open would be covered under the plain view doctrine and they would not need an additional warrant for the drugs. Now if the drugs had been placed out of sight and the officer happens to find them while searching for something else, that is a different issue.

"Thus, the significant elements in any plain view doctrine seizure are: (1) the officer must already have lawful presence in an area protected by the 4th Amendment. In a house, that would mean that the officer must have entered with a warrant, exigency or consent. (2) The officer must observe an item in plain view. (3) The officer must immediately recognize the item as evidence or contraband without making a further intrusion."