Visual Enhancement and the Fourth Amendment

What if an object only comes into plain view after an officer shines a flashlight or spotlight into an area, or looks through binoculars? Does this use of sense-enhancing devices make a difference in the Fourth Amendment calculation of reasonableness?

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One of the best-known exceptions to the Fourth Amendment's warrant requirement is the "plain view" doctrine. When law enforcement officers are in a place where they have a right to be and they see something in plain view that is immediately apparent as contraband or the fruits, instrumentalities, or evidence of a crime, they may seize the item (assuming no illegal entry is required to get access to it). (Harris v. U.S.)

But what if the object only comes into plain view after an officer shines a flashlight or spotlight into an area, or looks through binoculars or a telescope for a close-up view? Does this use of sense-enhancing devices make a difference in the Fourth Amendment calculation of reasonableness? The U.S. Supreme Court has addressed this issue at least four times.

U.S. V. Lee

Back in the days of prohibition (a phrase that has historically referred to the prohibition of alcohol, but which may someday refer to narcotics, given current legalization trends), Coast Guard officers on harbor patrol followed suspected smugglers who were in a motorboat outside the port of Boston. Before boarding the vessel, officers shined a searchlight on the decks, where they could then see in plain view 71 cases of grain alcohol. James Lee, the registered owner of the boat and one of three men on board at the time, was charged with federal violations, and he moved to suppress the evidence on grounds of unlawful search and seizure.

The Supreme Court ruled the evidence admissible as having been lawfully seized. As to the defense argument that the use of a searchlight negated application of the plain view doctrine, the court said this: "The testimony of the boatswain [officer] shows that he used a searchlight [to illuminate the area where the illegal cargo was stacked]. Such use of a searchlight is comparable to the use of a marine glass [telescope] or a field glass [binoculars]. It is not prohibited by the Constitution."

On Lee V. U.S.

On Lee sold opium from his laundry in Hoboken. Drug agents used a variety of surveillance and sense-enhancing devices to get evidence of his drug dealing. In rejecting On Lee's arguments that his Fourth Amendment rights were violated by this enhancement, the Supreme Court said the following:

"The use of field glasses or the telescope to magnify the object of a witness's vision is not a forbidden search or seizure, even if they focus without his knowledge or consent upon what one supposes to be private indiscretions. We find no violation of the Fourth Amendment here."

This language means that officers may use binoculars or telescopes to look into windows from a distant observation point in order to see whatever the criminal has carelessly exposed to plain view in the mistaken belief that his activities cannot be seen by anyone. As the court said in another case, "The mere fact that an individual has taken measures to restrict some views of his activities does not preclude an officer's observations from a public vantage point where he has a right to be and which renders the activities clearly visible. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." (California v. Ciraolo)

Texas V. Brown

Ft. Worth Police were running a driver's license checkpoint one night when a car driven by Clifford Brown was stopped. While the officer was waiting for Brown to find his license, he shined his flashlight into the car and saw a balloon of heroin and other drug-related items. Charged with possession of heroin, Brown sought suppression of the contraband that came into the officer's view through use of the flashlight. The Supreme Court, citing to 15 decisions from various state and federal courts rejecting the argument that illumination invalidates plain view, said this:

"It is beyond dispute that the officer's action in shining his flashlight to illuminate the interior of Brown's car trenched upon no right secured to the latter by the Fourth Amendment. Numerous other courts have agreed that the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection."

U.S. v. Dunn

Inside a barn on a 200-acre Texas ranch, Ronald Dale Dunn manufactured large quantities of phenalacetone and methamphetamine. DEA agents tracking his purchases of precursor chemicals and cooking equipment went onto the property one night to try to get a look inside the barn, in anticipation of getting a search warrant. One agent shined a flashlight into an opening in the barn door and saw what appeared to be a drug factory. This observation was included in an affidavit for a search warrant, under which agents returned to the barn and seized the evidence and instrumentalities of illegal drug manufacturing, as well as several bags of amphetamines.

Dunn was prosecuted in federal court on several charges. The trial court denied Dunn's motion to suppress the evidence seized under the warrant, but the U.S. Court of Appeals reversed. The appeals court held that the barn was within the protected "curtilage" of the ranch house and had been unlawfully entered by the agents, and also ruled that by peering into the barn the agents had violated Dunn's expectation of privacy. The government appealed, and the Supreme Court reversed.

The "curtilage" of a residence is the area surrounding the home where household and family activities take place. It typically includes the yard and patio, the garage and nearby out-buildings. The curtilage is entitled to the same degree of Fourth Amendment protection as the home itself, so the same rules on entry and search apply. Although it isn't always easy to determine how far the curtilage extends, the Supreme Court listed four factors that are to be considered.

1. Proximity to the house

2. Area enclosed by a residential fence or wall

3. Nature of the use made of the structure or area in question

4. Steps taken by residents to protect privacy

As for Dunn's barn, the Supreme Court found that it was not a part of the curtilage. It was 60 yards from the house; it was not within the fence surrounding the house; the barn was used for commercial purposes; and Dunn had taken no steps to prevent passersby from looking inside.

Next, the Supreme Court cited to its earlier rulings in Ciraolo, Lee, and Brown to hold that the agent's use of his flashlight to look through the opening in the barn door and to see what was then in plain view inside was not an unlawful search. Said the court, "The officer's use of the beam of a flashlight, directed through the essentially open front door of the barn, did not transform their observations into an unreasonable search within the meaning of the Fourth Amendment."

Check Local Rules

A few states base greater search and seizure restrictions on state constitutions. Check with local advisors to see that your jurisdiction applies the rulings of the U.S. Supreme Court to the effect that lights and other visual aids are allowable to facilitate plain view observations.

Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as special counsel to the Los Angeles County district attorney. He is the author of 12 books, including "Investigative Constitutional Law."

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