法律英語導(dǎo)讀(43)

    Case Example 2: Same case, except that the traffic stop occurs at night and Officer Mendoza sees the packet of drugs on the front seat only after shining a flashlight into the interior of the car.

　　Question: Is the officer’s seizure of the packet still legal?

　　Answer: Yes. As long as police officers are standing where they have a right to be, objects that they see with the aid of a flashlight are in plain view.

　　Case Example 3: Officer Tanaka pulls a car over for running a red light. When the driver rolls down the window, Officer Tanaka detects a strong odor of marijuana emanating from inside the car. The officer orders the driver out of the car and conducts a search. Underneath the driver’s seat, the officer finds a pouch filled with marijuana.

　　Question: Did the officer legally find the marijuana?

　　Answer: Yes. Smelling the marijuana gave Officer Tanaka probable cause to believe that the car contained illegal drugs （under what has come to be called the "plain smell" doctrine）. The officer could therefore conduct an immediate search, without having to obtain a search warrant first.

　　30. If a Police Officer Illegally Enters a House and Observes Evidence in Plain View, Can the Officer Seize the Evidence?

　　No. A police officer can seize objects in plain view only if the officer has a legal right to be in the place from which the objects can be seen or smelled. If an officer has no legal right to be where he or she is when the evidence or contraband is spotted, the "plain view" doctrine doesn’t apply.

　　Case Example: Two police officers in a helicopter fly over the backyard of a home as they are returning from the scene of a highway collision. Aided by binoculars, one of the officers sees a large number of marijuana plants growing in a greenhouse in the backyard. The officers report what they have seen, a search warrant is obtained and the occupant of the house is arrested and charged with growing illegal drugs for sale.

　　Question: Was the officers’ aerial search of the backyard legal?

　　Answer: Yes. The police officers had a right to be in public airspace, and the occupant had no reasonable expectation of privacy for what could be seen from public airspace. （Maybe this is an example of "plane view."） The outcome might be different if the police officer had spotted the plants from a space station by using advanced technology spying equipment. The homeowner might reasonably expect that the backyard would not be subjected to that type of surveillance.

　　"Dropsy" Cases

　　"Dropsy cases" are a familiar setting in which police officers are often accused of misleading courts about how they got hold of illegal drugs. In dropsy cases, police officers find drugs or other incriminating evidence through searches that might not withstand judicial scrutiny. To eliminate the Fourth Amendment problem, the officers testify that the defendants dropped the contraband on the ground just before they were arrested. Voila, the contraband was in plain view. Over the years, an amazing number of defendants have developed ’’dropsy" problems!