So you got arrested for drugs the police found laying out in the open. You’re sunk, right? Maybe not. You might have a highly technical legal defense.

The Constitution limits police rights to search and charge you, even for evidence that’s obviously criminal, like drugs. Before the police can do that, the Fourth Amendment requires them to have a warrant or prove a legal exception to it. 

One of those exceptions involves criminal evidence police find laying around. It’s called the “plain view” exception, but it’s not a handout. Let’s look closer.

How Police Prove It

Meeting the exception sounds simple:

  1. The police have a right to be where they see the evidence, and
  2. The illegal nature of the evidence is obvious.

Proving the right to be there can get really murky for the police, and that can help get your case dismissed or reduced in a plea deal you can live with.

Here’s How Hard it Can Be for the Police

A South Carolina Supreme Court case called State v. Wright shows the hoops police might have to jump through to qualify for the exception.

In Wright, police pulled behind a mobile home at night to find a host of criminal evidence including a dogfighting pit, drugs, and syringes. 

To qualify for the plain view exception to get the evidence in, police had to prove: 

  1. Police got wind of the dogfighting accusation from an anonymous tip. The prosecutor admitted that wasn’t enough. But police verified the tip by driving past the house using a public road. From there, they saw a lot of cars parked at the home, plus spotlights shining next to it. They did not need a warrant to view this because the area was exposed to the public.
  2. Police had the right to go to the front door to investigate, so they had the right to pull in the driveway.
  3. When police turned into the driveway, people and dogs ran from the house. This created a warrant exception called an “exigent circumstance” or emergency. Specifically, the emergency was fleeing suspects and dangerous dogs. Thus, police could make a protective sweep to search the property for suspects, loose dogs, or other dangers.
  4. During the protective sweep, police found the illegal evidence lying around the property. 

That’s a lot of hoops. Why did the police work so hard to prove they jumped through them? Because if they didn’t, the case would be dismissed.

That’s exactly what happened in a case I wrote about before, called State v. Bash. The South Carolina Supreme Court ruled officers had no right to be on a drug suspect’s property, and the Court dismissed the case. 

For Technical Defenses, You Need a Professional

To the inexperienced, untrained eye, the violation of a constitutional right goes completely unnoticed. That’s a real threat to your freedom and reputation. 

Don’t get taken advantage of because you don’t know any better. Hire a professional to protect your rights—and make sure they police obey the law, too. Call toll free at  888-230-1841 for a free strategy session with an experienced criminal defense attorney to start laying the groundwork for your defense.


Rob Usry
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Rob is a Spartanburg personal injury lawyer. Rob also practices as a workers' compensation attorney.