Plain View Abuse

An interesting search and seizure case. A man is arrested before he enters his house. Two officers sweep the house to make sure there's no danger and find it's clear. Then a detective enters the house and spots a gun in "plain view" but lifts a couch cushion to make sure.

The defendant, Juan Lemus, motioned that the evidence be suppressed. Chief Judge Alex Kozinski writes a spirited dissent (PDF) in which he points out that the police did not arrest Lemus inside his house and so other than making sure there were no other people that may present a danger, the police had no legitimate right or need to be in Lemus' house.

While the officers were finishing their room-to-room sweep of Lemus’s apartment, apparently finding no one and nothing suspicious, the detectives entered as well. Yet Buie permits only a sweep for people who might be dangerous. Once the officers found no one in the living room, what authorized entry by the detectives? There was absolutely no reason for the detectives to enter except to try to find contraband in “plain view.” So, the detectives went in and, while there, Diaz thought he saw “something sticking out from the couch” that “looked like the butt of a weapon.” Lemus, 582 F.3d at 960. Longoria then lifted the couch cushion “to make sure” and found a gun. Id. at 961. Under what theory of “plain view” may police lift cushions off a couch to make sure something is contraband? Why weren’t the officers required to get a warrant—if they could—based on what they saw, before rummaging through the couch?
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Plain view encourages the police to find every possible loophole to get themselves into a place where they can take a good look around, discover some evidence and then get a warrant to seize what they already know is there. This tiresome two-step is the new dropsy evidence. As often as not, the chance of hitting the plain-view jackpot is what drives the police into a man’s house, his doctor’s office or his ISP. Carefully drawn limitations in a warrant and narrow justifications for exceptions to the warrant requirement are becoming afterthoughts. “Police officer safety,” the narrow justification in Buie, had nothing to do with this search. Gathering evidence did. We should not abet such skirting of the Fourth Amendment by the police; it only encourages them to do worse.

For more detail about the arrest, read the original appellate opinion (PDF) that affirms the district court's denial of Lemus' motion to suppress incriminating evidence discovered during a warrantless search.

It's a close call, but for what it's worth I agree with Kozinski on this. The later testimony that Lemus "broke the threshold"--never mentioned in the original police report--even though he never entered his house leads me to believe the cops pushed the envelope on this one--and won.