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Friday, February 27th, 2015


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Smells, too, fall under ‘plain view’ doctrine

Dear CO-STAR,

I have a question about searches. Last weekend some friends and I were drinking and smoking pot in my apartment when a campus police officer knocked on the door (at our school we have a commissioned police force-my apartment is on campus).

I opened the door and talked to him for a moment. Then he asked if he could come in and look around. So I said no. Then he said, “OK then, you’re under arrest” and he cuffed me, then came into the room and searched for things. I thought that unless a police officer had a search warrant or permission they couldn’t come in. And can they just arrest me if I say “no”? I don’t get it.

- Jared, Sophomore, Public College or University, Indiana

Jared:

First things first: You’re right about searches. Unless the cops have a search warrant or your permission, they can’t come in to your dorm room. But there are exceptions and caveats to that rule.

The one I’m pretty sure you’re dealing with here is something called the “plain view” doctrine. Here’s the deal. If something is in your dorm room or your apartment, it’s private. But that doesn’t apply to things that can be seen from public space. Legally, they’re considered to be in plain view and the police need no warrant or permission to observe those things that act (i.e. make an arrest) based on them.

Think about it in its simplest iteration. Imagine that you’re doing something patently illegal in your apartment, like growing pot. Now, if that pot is in your closet under a grow lamp, the police need to get a warrant or have your permission to come look at it. But if you put your plants on the sill of the first floor, street-side window, where passersby can see clearly what’s going on, you’ve taken the Fourth Amendment out of the game. The cops need no permission or a warrant because they can observe illegal activity from the sidewalk. Based on that alone they can come in and arrest you.

And here’s the kicker that brings this all around to your situation. SMELLS can be in plain view too. So if the police smelled marijuana coming from your place, they had the right to act on it. I’m betting that’s why they showed up in the first place, someone smelled weed and called them in. Which means they had the right to arrest you before they even knocked on the door.

The other possibility is that they looked over your shoulder when you were talking to them and saw either drugs or paraphernalia. If you open the door, what can be seen from the hallway (public space) is in plain view. That’s why we always advise students to step outside of their homes and close the door behind them when they speak with the authorities.

So sorry, it sounds like what went on was within the limits of the Constitution. Next time remember that your privacy only extends to things (and smells) that you actually keep private. Otherwise, they’re open game.

___

C.L. Lindsay III is the founding executive director of CO-STAR, the Coalition for Student & Academic Rights, and author of the book “The College Student’s Guide to the Law: Get a Grade Changed, Keep Your Stuff Private, Throw a Police-Free Party and More!” in bookstores now. CO-STAR is a network of lawyers, professors and students who work to protect academic freedom and constitutional rights at college campuses nationwide. If you have a question for CO-STAR, log on to their Web site at www.co-star.org.

The material in this column addresses general legal issues only; is not legal advice and should not be relied on as such; and may or may not be appropriate to a specific situation. Laws and procedures change frequently and are subject to differing interpretations. This column is not intended to create, and does not create, a lawyer-client relationship and is not intended to be a substitute for legal counsel in the relevant jurisdiction.

© 2006, Knight Ridder/Tribune News Service

Distributed by Knight Ridder/Tribune Information Services.

 

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