Stretching the Plain View Doctrine to Unconstitutional Limits?

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(A)
An officer stops Jones for questioning and requests permission to do a body search. Jones consents. The officer pats down Jones' outer clothing and searches his waistband and pockets. The officer then asks Jones to open his mouth and lift his tongue. Jones opens his mouth but does not lift his tongue. Jones moves his tongue back and forth, and in doing so, enables the officer to see what he believes to be crack cocaine. Jones is arrested. Was the crack cocaine in plain view? Was it reasonable for the officer to be where he was in the first place (i.e. looking into Jones' mouth and under his tongue)? See State v. Jones, III, 1996 WL 537655 (Minn.App. 1996).
(B)
A pedestrian flags down two police officers on routine patrol. The pedestrian, who will not give his name, tells the officers that a black male in a white t-shirt and purple pants riding a bicycle is selling drugs on a nearby corner. The officers go to that corner and find the defendant, who meets the informant's description. The officers call him over, and he approaches them with a clenched fist. The officers ask the defendant to open his fist. He opens his fist, and they find that he is carrying a plastic bag of rocks, later proved to be crack cocaine. At trial, the officer testifies that the location was a high-drug trafficking area. Was the crack cocaine in plain view? Did the defendant have a reasonable expectation of privacy as to the contents of his hand? See State v. Parker, 645 So.2d 1309 (La.App. 1994), including the dissent.

Evelyn Dodt
Emory Law School

ANSWERS

(A)
Object must be in the plain view of an officer who has a right to be in the position to have that view.  To seize the item, the officer must already legally be in a place where he can touch the item, warrant requirement still applies.  In this case Jones consented to the search and the item came into the plain view of the officer during the legal consensual search.  Because he consented, the reasonableness of the officer looking under his tongue is not relevant.  Additionally, because of the consent the officer probably does not need to rely on the plain view doctrine.

(B)
Whether the officers were legally in a position to have the view into the defendant's hand is the operative question here.  Of course the cocaine was in plain view once the defendant opened his hand.  The first question is whether the officers were able to legally look into the defendant's hand.  The facts indicate that the defendant voluntary opened his hand when the officer's requested him to do so, this is a consensual act and therefore, not a search.  Additionally, the officers may have been permitted to request that the defendant unclench his fist as a safety precaution.  The second question is whether the officers' legally stopped the defendant, the information from the informant was probably sufficient for the officers' to form reasonable suspicion to briefly stop the defendant.  The defendant probably does have some expectation of privacy for items carried on his person.