Roth Davies, LLC

7500 College Blvd.
Suite 700
Overland Park, KS 66210

Call For A Free Consultation

(913) 451-9500

Roth Davies, LLC

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

U.S. v. McLevain, 310 F.3d 434 (6th Cir. 2002).

This case answers the following questions:

Can an officer use the “plain view” exception to seize evidence unrelated to the execution of a warrant where the items seized are not immediately apparent to be contraband?

In most cases, a warrant supported by probable cause is required to search a person or place and to seize evidence found. Id. at 438. An exception to that is when evidence of criminal activity is in plain view, then it may be sized without a warrant. Id. The plain view exception requires officers to be legally present, see something that immediately appears to be evidence. Id. Additionally, the “items seized must actually be in plain view, and the officer ‘must also have a lawful right of access to the object itself.” Id. at 439. For an object to be immediately apparent of criminality, it must have a nexus to the search warrant, the intrinsic nature of the object be associated with criminal activity, and upon discovery be determined to be of incriminating nature by the officers. Id. at 441.

In this case, officers were searching for a person named Gary Cauley that was presumed to be located at the defendant’s residence. Id. at 437. A valid warrant was obtained to search the premises for both men. Id. The defendant had a criminal record with a narcotics offense, so a narcotics officer participated in the execution and search. Id. at 437-38. During the search, the narcotics officer saw a twist tie and cut cigarette filter while looking under a bed for Cauley. Id. at 438. Shortly thereafter, the narcotics officer located a pill bottle with no label and spoon with residue on it in the garage. Id. He then field tested the spoon, which tested positive for methamphetamine. Id. Using those items as probable cause, which he suspected to be drug paraphernalia, he obtained a second warrant to search the premises. Id. During the subsequent search, officers found cash and drugs located inside a kerosene heater. Id. The Court reasoned that the search warrant for the two men at the defendant’s house was valid and thus the officers there were lawfully present. Id. at 440. The Court then reasoned that the drug paraphernalia, more specifically the twist tie and cigarette filter, “was not intrinsically incriminating and it was not immediately apparent to provide probable cause that it was contraband.” Id. at 443. In this case, the Court concluded that a warrant to search for drugs should have been obtained prior to the officer seizing and field testing the spoon as he had no lawful right to access the items. Id.

Roth Davies, LLC.

Get your questions answered - call for a free,
20-minute phone consultation (913) 451-9500.