Criminal Lawyer Update: Although Plain View Doctrine May Establish Probable Cause, its Not an Exception to the Warrant Requirement

by | Feb 13, 2008

We all know that the general rule is that police must have a valid search warrant to search or seize objects in a home. In a new case handed down by the Superior Court of Pennsylvania, Commonwealth v. Newton, 2007 Pa. Super. 409 (2007), in an opinion written by Judge Johnson, the Court reaffirms this valued right.

The case rules that a police officer, peering through a door opened by defendant, who sees illicit drug paraphernalia in a home in plain view, does not have the authority to enter the home absent a search warrant, exigent circumstances or consent. Although the officer had probable cause, the officer should have taken that probable cause and gotten a warrant with it. There were no exigent circumstances, i.e., that the evidence would have been destroyed or that the situation was dangerous, that would permit a warrantless entry onto the premises. The Court also reaffirms that where the Commonwealth asserts a consent to search, the burden of proving such consent is on the Commonwealth, who must establish the details of the circumstances surrounding the consent at the suppression hearing, and not merely provide presumptive testimony that the defendant “consented” to the search.

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