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Sixth Circuit: Plain View Doctrine Does Not Apply Where Items Inside Vehicle Were Not Immediately and Apparently Incriminating When Viewed by Police Positioned Outside Vehicle

by Anthony W. Accurso

The U.S. Court of Appeals for the Sixth Circuit ruled the plain view doctrine does not apply to a warrantless search of a vehicle where the items visible inside the vehicle by police standing outside the vehicle were not immediately and apparently incriminating.

In 2020, Detective Donald Kopchak of the Cleveland Police Department was involved in a drug trafficking investigation when officers obtained a warrant to search a house located on East 221st Street, which was allegedly being used as a narcotics sales location by a suspected drug dealer.

While searching the property, Kopchak identified a Nissan Altima as having been previously used during drug deals and attempted to peer into its heavily tinted windows. Later, Kopchak testified as having seen a Black-and-Mild cigar wrapper, a folded piece of paper, and “a bag of dope” in the vehicle.

Officers located a set of keys while searching the house. After informing the occupants of the house of their Miranda rights, Kopchak asked who the keys belonged to, and Aaron Liones volunteered they were his. Kopchak then confirmed the keys were for the Nissan by sounding the car alarm.

The officers had the vehicle towed for an inventory search. During that search, they found a firearm, a baggie of alleged narcotics, a larger bag of purported narcotics, a press, and a scale. During the search, a photo was taken from the viewpoint of the driver’s seat while inside the vehicle, which “showed a small plastic bag underneath a cigar wrapper, with a lottery ticket placed beside it, on the center console.” Police did not obtain a search warrant for the vehicle at any time.

Liones was indicted under 28 U.S.C. §§ 841 and 846 for conspiracy and possession with intent to distribute a controlled substance and under18 U.S.C. § 924(c) for possession of a firearm in furtherance of a drug crime.

He moved to suppress, arguing that officers conducted an unlawful warrantless search of his vehicle. The Government argued that Kopchak had probable cause to search the vehicle based on the plain view doctrine since he saw the “bag of dope” by looking in the window. To support its position, it relied on Kopchak’s testimony that he saw the drugs in plain view by looking into the window, video of him and other officers walking around the vehicle and looking into the windows, and the photo taken from the viewpoint of the driver’s seat inside the vehicle. The U.S. District Court for the Northern District of Ohio denied Loines’ motion, so he took a plea deal, which preserved his right to appeal the denial. He was sentenced to 93 months’ imprisonment, and he timely appealed.

On appeal to the Sixth Circuit, Liones argued that the warrantless search of his vehicle is unconstitutional. The Government rebutted, claiming the plain view doctrine exception applies.

The Court began its analysis by reiterating governing bedrock principles of the Fourth Amendment and the law governing warrantless searches. “Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth amendment—subject to only a few specifically established and well-defined exceptions.” Katz v. United States, 389 U.S. 347 (1967). The Government, not the defendant, bears the burden of demonstrating that an exception to the warrant requirement applies. United States v Jeffers, 342 U.S. 48 (1951).

The Court noted that the interior of a vehicle is a constitutionally protected area that requires government officials to have probable cause to enter without a warrant. New York v. Class, 475 U.S. 106 (1986) (a vehicle’s “interior as a whole is … subject to Fourth Amendment protection from unreasonable intrusions by the police”); United States v. Chadwick, 433 U.S. 1 (1977) (a vehicle is an “effect” for purposes of the Fourth Amendment).

Police obtained the incriminating evidence against Liones by searching his vehicle without a warrant. Consequently, the Court observed that in order for the search to be lawful, the Government must establish that a recognized exception to the warrant requirement applies in this case. See Katz. The Government argued that Kopchak’s search of the vehicle was permissible under the plain view doctrine. See Maryland v. Dyson, 527 U.S. 465 (1999); Minnesota v. Dickerson, 508 U.S. 366 (1993).  

Under the plain view doctrine, four factors must be satisfied: “(1) the item seized must be in plain view, (2) the item’s incriminating character must be immediately apparent, (3) the officer must lawfully be in the place from where the item can be plainly seen, and (4) the officer must have a lawful right of access to the item.” United States v Mathis, 783 F.3d 719 (6th Cir. 2013) (citing Horton v. California, 496 U.S. 128 (1990)).

Turning to the first factor, the Court stated that the only evidence in support of the claim that the “bag of dope” was in plain view and observable from outside the vehicle was Kopchak’s uncorroborated testimony. While the Sixth Circuit recognizes that a police officer’s unsupported testimony may be “sufficient to establish that the [incriminating evidence] was visible from outside the car,” United States v. Galaviz, 645 F.3d 347 (6th Cir. 2011), this case is materially distinguishable from Galaviz, according to the Court. In Galaviz, the officer’s testimony was the only evidence that the incriminating evidence was visible from outside the vehicle, but there wasn’t any evidence contradicting the officer’s assertion. In the present case, there’s actually video and photographic evidence that contradicts Kopchak’s claim that he was able to see the “bag of dope” while standing outside the vehicle and peering through the tinted glass.

The Court concluded that the photographic evidence “directly contradict the officer’s testimony” and thus find that the District Court’s account of the evidence is not plausible. Thus, the Court reversed that court’s denial of Loines’ motion to suppress.

The Court then addressed the issue of whether the incriminating nature of the powder in the bag was immediately apparent. It then recounted the four factor test courts utilize in determining whether an object’s incriminating nature is immediately apparent: “(1) a nexus between the seized object and the items particularized in the search warrant; (2) whether the ‘intrinsic nature’ or appearance of the seized object gives probable cause to believe that it is associated with criminal activity; (3) whether the executing officers can at the time of discovery of the object on the facts then available to them determine probable cause of the object’s incriminating nature; . . . [and (4) whether the officer can] recognize the incriminating nature of an object as a result of his immediate or instantaneous sensory perception.” United States v. Garcia, 496 F.3d 495 (6th Cir. 2007).

The Court applied the Garcia factors to the facts of this case. As to the first factor, there was no search warrant for Loines or his vehicle, so there was no nexus between the vehicle and the items particularized in the search warrant for the residence, the Court stated. Turning to the second factor, the Court reiterated that Kopchak could not have seen the bag of dope from outside the vehicle. At best, he might have been able to see the Black and Mild cigar wrapper and a lottery ticket from outside the vehicle, the Court said for the sake of argument. But neither item is “intrinsically incriminating,” stated the Court. Police are not permitted to seize items “merely because [they are] in ‘plain view.’” United States v. McLevain, 310 F.3d 434 (6th Cir. 2002). The Court explained that lawful items may not be seized under the plain view doctrine “without an immediately apparent association between the items and the purported criminal activity.” Garcia. Innocuous items that can be used for unlawful purposes are not sufficient to establish probable cause, the Court further explained. See United States v. Beal, 810 F.2d 574 (6th Cir. 1987).   

The Court determined that there was nothing immediately and apparently incriminating about the items that may have been visible from outside the vehicle. It wasn’t until police entered the vehicle and closely inspected the center console that they saw the “bag of dope” and observed that it was apparently incriminating. But that close inspection from inside the vehicle constituted a further search that wasn’t supported by probable cause. See McLevain (when “an item appears suspicious to an officer but further investigation is required to establish probable cause as to its association with criminal activity, the item is not immediately incriminating”). Thus, the Court ruled that the officers lacked probable cause to search the vehicle.

Accordingly, the Court reversed the District Court’s denial of the suppression motion, vacated Loines’ conviction, and remanded the case for further proceedings consistent with its opinion. See: United States v. Loines, 56 F.4th 1099 (6th Cir. 2023).

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