Plainview exception as noted by Darren Chaker, http://darrenchaker.us/ In United States v. Garcia, 496 F;3d 495 (6th Cir. 2007), the Sixth Circuit held that a document does not fall within the “plain view” exception if the document must first be read in order for incriminating nature to be determined. In Garcia, the defendant was charged with engaging in a marijuana distribution conspiracy. The defendant moved to suppress several documents that were seized during a search of his residence, including pieces of notebook paper displaying various mathematical calculations, receipts, a map, and financial records. The trial court denied the defendant’s motion to suppress, concluding that the documents were properly seized pursuant to the “plain view” doctrine. On appeal, the Sixth Circuit considered the specific issue of whether a document even though in plain view – is within the “plain view” exception if it must be read in order for its incriminating nature to be determined: “Unless an exception applies, a warrant is generally required to permit law enforcement officers to search a place or seize an item. United States v. McLevain, 310 F.3d 434, 438 (6th Cir. 2002). The warrant in this case did not authorize the search for or seizure of documents or drug paraphernalia, and the officers therefore cannot rely on the warrant to authorize their seizure of the documents. The district court meticulously reviewed each of the proffered documents, finding that most of them were lawfully seized pursuant to the “plain view” exception to the warrant requirement, but rejecting some that were not. Garcia argues that the district court erred because none of the documents seized from his residence were encompassed by the plain view doctrine. We commend the district court’s painstaking and conscientious attempt to resolve this issue, but we agree with Garcia that the documents seized from his residence did not come within the plain view doctrine, and the district court erred in admitting them.”
The law recognizes the plain view doctrine as an exception to the warrant requirement. See Horton [v. California],496 U.S. [128,] 134 [(1990)]. “It is well established that under certain circumstance the police may seize evidence in plain view without a warrant.” Coolidgev. New Hampshire, 403 U.S. 443, 465 (1971). Four factors [*15] must be satisfied in order for the plain view doctrine to apply: (1) the object must be in plain view; (2) the officer must be legally present in the place from which the object can be plainly seen; (3) the object’s incriminating nature must be immediately apparent; and (4) the
officer must have a right of access to the object. Horton,496 U.S. at 136-37;McLevain, 310 F.3d at 438-39…
With the above in mind, the plain view exception continues to evolve and come back to the basic requirement – the item must be in plain view and police must have a lawful right to be where the object is seen in plain view.
Greetings - I am Darren Chaker. I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case is a leading case on viewpoint discrimination.
In a recent case, Chaker v. Crogan was used to vindicate people who filed a complaint against police. Those people were arrested and charged with a law Chaker v. Crogan invalidated! They sued for being arrested and charged with an unconstitutional statute, Penal Code 148.6. The federal court denied the City's motion to dismiss and the case settled. See Cuadra v. City of South San Francisco, 2010 WL 55875, *1+ (N.D.Cal. Jan 04, 2010)
I love the fight and made cutting edge case law in the end. No doubt without the support of the ACLU (Ramona Ripston, Mark Rosenbaum, Peter Eliasberg, & Dan Tokaji) winning on appeal, and Joshua Rosenkranz www.orrick.com/lawyers/Bio.asp?ID=225990 assembling a small army of the best attorneys to defeat the California Attorney General's efforts to have the U.S. Supreme Court reverse the Ninth Circuit---this case would not have had a backbone to stand on.
The case has been cited over 196 times as authority, and written about extensively.
* Police Misconduct: Law and Litigation s 2:28, Denial of First Amendment rights (2009)
* Smolla & Nimmer on Freedom of Speech s 3:11, Viewpoint discrimination--Cross-burning reprised: Commonwealth of Virginia v. Black--Heavy presumption against viewpoint discrimination (2010)
* Smolla & Nimmer on Freedom of Speech s 10:22.50, Brandenburg v. Ohio: Intent and imminence standard--Bond and Watts decisions--"True threats" (2010)
* CHAKER V. CROGAN, 5 Cardozo Pub. L. Pol'y & Ethics J. 425, 444+ (2007)
My case is active, living and breathing—forever helping people who once felt oppressed.