Texas-Book-Gun Law Armed And Educated - Flipbook - Page 58
What does it take to abandon an object? In the unpublished Texas
case of Bernard v. State, the front seat occupant of a car stuffed
his bag containing drug paraphernalia as far into the back of the
car as he could manage, then told the officer the bag was not his.
Unfortunately for him, the acts were visible on the officer’s dash cam.
The court ruled that the man could not challenge the admissibility
of the contraband in his trial, because he had abandoned the bag!
D. Plain view
An officer may, without a warrant, seize contraband and evidence
of criminal activity that is in plain view. The plain view doctrine, as
courts have analyzed, has three requirements:
1) the officer must lawfully make an initial intrusion or be in a
lawful position to see the items;
2) the officer must make the discovery inadvertently and may not
use plain view as pretext; and
3) it must be immediately apparent that the items are contraband or
evidence of a crime.
See Horton v. California, 496 U.S. 128 (1990).
What does it mean to be in a “lawful position” to see the items? An
officer walks up to your front door, and through your living room
window, he sees your elaborate methamphetamine operation. He
may enter and seize the items because they are in plain view. By
contrast, if an officer suspects you have a meth lab somewhere in
your home and decides to jump your fence to look into your back
window, anything he sees from that vantage does not fall under the
“plain view” doctrine.
1. Can the police use sense-enhancing devices?
It depends. Law enforcement’s use of binoculars to peer into your
Know Your Rights: Part III | 47
