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Search and seizure laws arise often in the discussion of criminal charges. If you were searched by police and then charged with the crime, the question of whether or not they had the right to search you is an important one – and one on which a solid case often hinges for the prosecution.

You are protected from illegal search and seizure under the Fourth Amendment of the United States Constitution. However, there are intricacies to this right that must be understood. One of those intricacies is the idea of the plain view doctrine.

What if the drugs you were arrested for possessing were in plain view of the police? Can the police legally search you? What does that mean for your case? Read on to find out more about the plain view doctrine and how it can ultimately impact charges against you.

What Is the Plain View Doctrine?

The plain view doctrine can be used when the police are lawfully on the premises. It allows authorities to seize any sort of contraband, items used in a crime, and other things that are illegal to possess as evidence without a warrant.

In the Colorado Constitution, warrantless search and seizure is allowed in situations where police can plainly see evidence when conducting searches that are legally legitimate.

A Closer Look at the Plain View Doctrine

The plain view doctrine isn’t a free-for-all. Police have to abide by the rules even if evidence appears in plain view. They can seize this evidence to be used against you as long as:

They Were Legitimately on the Premises

The law allows police to be somewhere under emergency circumstances. If that emergency exists and probable cause does, as well, then this is appropriate under the plain view doctrine. Basically, do the police have a right to be where they have seen this incriminating evidence?

Police are lawfully present if they’re executing a search warrant, of course, but also if:

  • They have received the consent of the person who owns the property to enter the property
  • They are at the scene for an emergency
  • They were in a common hallway and spotted contraband inside of a dwelling when the door was opened
  • They lawfully stop a motor vehicle and see inside the car

They Had a Reasonable Belief the Evidence was Illegal

For this to be satisfied, the police must have probable cause to believe that anything they see in plain view is incriminating evidence and that it could be used in prosecuting criminal charges. Basically, the police have to have probable cause that what they are taking is evidence of a crime.

A Closer Look at the Plain View Doctrine

The bottom line is this: If police lawfully stop your car, enter your home in an emergency, or enter your home with your consent, and they see illegal drugs or drug paraphernalia in plain view – then they have a right to search your property and seize that evidence.

If you find yourself at the mercy of the plain view doctrine in your case involving drugs, don’t forget that you have rights. You need to consult with an experienced attorney who can help you to navigate the law and mount a robust defense on your behalf. That is also what you are entitled to receive under the United States Constitution.


About the Author:

Kimberly Diego is a criminal defense attorney in Denver practicing at The Law Office of Kimberly Diego. She obtained her undergraduate degree from Georgetown University and her law degree at the University of Colorado. She was named one of Super Lawyers’ “Rising Stars of 2012 & 2019” and a “Top 100 Trial Lawyers in Colorado” for 2012-2020 by The National Trial Lawyers. Both honors are limited to a small percentage of practicing attorneys in each state.  Additionally, Expertise names her to its lists of the 25 Best Denver DUI Lawyers and 21 Best Denver Criminal Defense Lawyers, both in 2020. Ms. Diego has also been recognized for her work in domestic violence cases.


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