Brown v. State

Moylan, J., delivered the opinion of the Court. A review of the convictions for storehouse breaking and larceny of the appellant, Willie Lee Brown, Jr., in the Circuit Court for Dorchester County by a jury, presided over by Judge C. Bumam Mace, poses squarely the question, “When is ‘open view’ not ‘Plain View’ ?” The “Plain View Doctrine” is simply that it is constitutionally reasonable for the authorities to seize objects come upon by inadvertence during a valid prior intrusion. The Emergence of a “Plain View” Doctrine Although Justice Stewart’s references to a “plain view ⁵⁸⁶ doctrine” seem to imply something of reasonably venerable lineage, historical analysis reveals that the doctrine, as a recognized doctrine, sprang full-blown from his plurality opinion in Coolidge v. New Hampshire, 403 U. S. 443 .* 1 There had been, to be sure, intimations but nothing resembling a body of doctrine. The “Plain View Doctrine” is a newly recognized exception to a fundamental proposition.

That proposition is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357 ; Coolidge v. New Hampshire, supra, at 454-455. In referring to the “few specifically established and well-delineated exceptions,” the Supreme Court has been careful not to close the category but had, prior to Coolidge , spe ⁵⁸⁷ eifically listed only the “automobile search” 2 and the “search incidental to a lawful arrest,” 3 with the very late addition of “exigent circumstances” 4 5 to the roster. Katz , at 857, n. 19. See also Landynski, Search and Seizure and the Supreme Court (1966), Chapter IV, “Constitutional Searches without Warrant”; Landynski, “The Supreme Court’s Search for Fourth Amendment Standards: The Warrantless Search,” .45 Conn.

Bar Journal 2 (1971). Although now apparently an autonomous “exception” in its own right the “Plain View Doctrine” had obscure beginnings as a marginal factor in the “search incident” law and its early growth went largely unnoticed. 6 Its seedtime cannot be understood apart from the “search incident” context that generated it initially and was its sole early nutrience. It was a mere descriptive phrase— sometimes “plain view”, sometimes “plain sight”, sometimes “open view”, sometimes “visible and accessible”, and always in lower case — in the recurring ebb and flow of “search incident” law. It was generally resorted to during the ebb tides to distinguish away and to minimize the significance of the preceding flood tides.

Its tactical utility and its growth can only be understood by looking to the larger fortunes of that “search incident” war. Fourth Amendment law generally attracted little at ⁵⁸⁸ tentión until the exclusionary rule made it a factor in criminal litigation. 6 Even then, the Supreme Court had infrequent occasion to concern itself with search and seizure questions until the adoption of laws in and immediately preceding the 1920’s proscribing the sale and possession of narcotic drugs and of alcoholic beverages. 7 Landynski, Search and Seizure and the Supreme Court, 87-88; Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937). With the coming of the Prohibition cases, however, the deluge began. The common law right to search an arrestee as an incident of lawful arrest, be that arrest warrantless or pursuant to warrant, was early accepted as compatible with American concepts of reasonable search and seizure.

See Judge Cardozo in People v. Chiagles, 237 N. Y. 193, 196 (1923) ; United States v. Rabinowitz, 339 U. S. 56 (1950), 72 (dissenting opinion by Frankfurter, J.). The controversy that raged in the Supreme Court from 1927 through 1969 was over the permissible scope — the range in space — the search perimeter — of an admittedly proper “search incident.” Five times in forty-two years, the Court reversed its field, producing six sharply juxtaposed phases of permitted scope to a “search incident.” Three periods of broad scope — 1927 to 1931, 8 1947 to 1948 9 and ⁵⁸⁹ 1950 to 1969 10 — alternated with three periods of narrow scope — 1931 to 1947,* 11 1948 to 1950 12 and 1969 to present. 13 The very concept of “Plain View” is a by-product of that controversy, a notion that gradually evolved to help fill the interstice between the otherwise rigidly bipolar positions of “broad scope” and “limited scope.” The reasons of necessity which underlay the right to search an arrested person incidental to the arrest were 1) to protect the arresting officer and to deprive the prisoner of potential means of escape, Closson v. Morrison, 47 N. H. 482 (1867), and 2) to avoid the destruction of evidence by the arrested person, Reifsnyder v. Lee, 44 Iowa 101 (1876) ; Holker v. Hennessey, 141 Mo. 527 (1897). See Rabinowitz , at 72-73 (dissenting opinion by Frankfurter, J.). Without analyzing the purpose of the rule, the Supreme Court, in a passing dictum, first acknowledged its existence in Weeks v. United States, supra, 14 at 392: “What, then, is the present case?

Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the government, always recognized under English and American law, to search the person of the accused when legally arrested, to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases.” (Emphasis supplied) Eleven years later, the Supreme Court again made passing reference to the “search incident” rule in a dictum in Carroll v. United States, supra. 15 It cited its ear- ⁵⁹⁰ Her dictum in Weeks but after the words “upon his person” added the words “or in his control.” The added words, however, were in accord with the common law tradition and were but an explicit statement of what was implicit in Weeks. The Court said, at 158: “When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have, and which may be used to prove the offense, may be seized and held as evidence in the prosecution.” (Emphasis supplied) The germ of later controversy appeared seven months thence as an uncritical dictum in Agnello v. United States, supra.

Citing only Weeks and Carroll as authority, the Court loosely added to the proposition the words “and to search the place where the arrest is made.” It said, at 30: “The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits, or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. See Carroll v. United States, . . . Weeks v. United States.” (Emphasis supplied) A close reading of the obvious purpose of the Court in referring to “the place where the arrest was made” would have precluded undue significance being given to that phrase. Agnello was not dealing with the question of the permitted scope of a “search incident” at the place where the actual arrest was made.

Its clear holding, rather, was that an arrest at one place (whatever “search incident” was there permitted) could in no event justify a “search incident” at another place some blocks away. In such a factual and legal posture, the Court’s use of ⁵⁹¹ the word “place” should not have been read overbroadly. Two years later, however, the Court did read Agnello overbroadly in Marron v. United States, supra. 16 In Marrón, Prohibition agents were executing a warrant authorizing the search for and seizure of intoxicating liquors and articles used in their manufacture. They went to execute the warrant in a second-floor establishment containing six or seven rooms.

While executing the warrant, they found violations of the liquor laws being perpetrated in their presence. In searching a closet for liquor, they noticed and seized a ledger which significantly inculpated the defendants. The government advanced two rationales to justify the seizure of the ledger. The Supreme Court rejected the first, but accepted the second.

It specifically held that a proper search under a warrant could not justify the seizure of the ledger which had been inadvertently discovered in the course of the legitimate search because the ledger had not been particularly described. It went on, however, to assert a second and legitimate rationale. The discovery by the agents of violations being perpetrated in their presence justified arrests, which were made. The ledger, which was not seizable under the warrant, was seizable as an incident of the lawful arrest.

In asserting a broad scope for a “search incident,” the Court relied on Agnello, Carroll and Weeks and said, at 199: “The authority of officers to search and seize the things by which the nuisance was being maintained extended to all parts of the premises used for the unlawful purpose.” (Emphasis supplied) No mention was made of “plain view.” It was the clear holding of the Court, rather, that the scope of a “search ⁵⁹² incident” extended to the entire premises in which an arrest is made. 17 Four years later, the Court turned a sharp “about face” in Go-Bart Importing Company v. United States, supra, and remained steadfast a year later in United States v. Lefkowitz, 285 U. S. 452 (1982). In both cases, arrests were made in places of business. Searches were made of the premises as incidents of the lawful arrests. In Go-Bart, defendants were compelled to open a desk and a safe, from which incriminating papers were seized.

In Lefkowitz , two desks were searched which yielded incriminating evidence. Although both searches would appear to have been legitimate under Marrón, they were held to be unconstitutional. Rather than frankly overrule Marrón, the Court attempted to distinguish it in two respects. 18 It pointed out first that the ledger in Marrón was an “instrumentality” of the crime, whereas the seized papers in Go-Bart and Lefkowitz were “mere evidence.” 19 It then essentially rewrote the rationale of Marrón by injecting for the first time the notion of “plain view” into Marron’s reasoning. It condemned the “general exploratory search,” “the ransacking,” and “the rummaging” of the Go-Bart and Lefkowitz searches and posited that, by way of contrast, Marrón had not, in fact, authorized such general searches.

Go-Bart pointed out that the seized ledger in Marrón had been “visible and accessible;” 20 Lefkowitz characterized ⁵⁹³ the seized ledger in Marrón as having been “in plain view” 21 — this visibility was now offered as the j ustification for the seizure. 22 In 1947, the Court moved back into forward gear with its 5-4 decision in Harris v. United States, 331 U. S. 145 . It there permitted the most extensive and intensive “search incident” in the history of Fourth Amendment interpretation. FBI Agents executed an arrest warrant for mail fraud in the living room of an apartment. As an incident of that arrest, the agents fanned out over the four-room apartment and conducted a painstaking five-hour search for two cancelled checks.

They recovered from a bedroom bureau drawer a sealed envelope marked “George Harris, personal papers.” They tore open the envelope and inside a smaller envelope recovered a number of Selective Service documents in no way related to the crime for which the arrest had been made. Agnello and Marrón were cited as authority for the proposition that a “search incident” may extend to the entire premises wherein the arrest is made. 23 The “plain view” limitation placed upon Marrón’s broad scope by Go-Bart and Lefkowitz was ignored. Instead of candidly overruling Go-Bart and Lefkowitz , the Court reinterpreted them as condemning simply a general rummaging for evidence as opposed to a search directed toward specific objects. The inadvertent recovery of the Selective Service documents in the course of the search for the cancelled checks was held to be legitimate.

Any consideration of “plain ⁵⁹⁴ view” was superfluous under the “broad scope” approach of Harris . Justices Frankfurter, Murphy, Rutledge and Jackson dissented in three separate opinions. Justice Murphy, in the course of a discussion of the scope of a “search incident”, made reference to “plain sight” seizure, at 186: “Seizure may be made of articles and papers on the person of the one arrested. And the arresting officer is free to look around and seize those fruits and evidences of crime which are in plain sight and in his immediate and discernible presence.” As violent a swing as Harris represented in the one direction, it was followed a year later by a correspondingly violent swing in the opposite direction in Trupiano v. United States, supra. 24 Internal Revenue Agents arrested a violator in a barn which was then being used as an illicit distillery.

The distilling equipment which was seized was not merely on the premises, but was 1) in “plain view” of the arresting officers and 2) in the immediate physical reach and control of the arrestee. The seizure would have been constitutional even under the more restrictive approach of the earlier Go-Bart and Lefkowitz decisions. In ruling it unconstitutional, however, the Court engrafted onto the search and seizure law a new requirement of “inadvertence.” It held that all exceptions to the warrant requirement grew only out of necessity and that, therefore, those exceptions would not apply where there had been an opportunity for the agents to obtain a search warrant. 25 The majority did contor ⁵⁹⁵ tions to avoid having to overrule Harris . It reasoned that the finding of the Selective Service documents in Harris had been inadvertent, conveniently ignoring that the five-hour search for the cancelled checks (which led to the discovery of the Selective Service documents) had been the very antithesis of inadvertence. 26 It added, almost apologetically, at 709: “These factual differences may or may not be of significance so far as general principles are concerned.

But the differences are enough to justify confining ourselves to the precise facts of this case, leaving it to another day to test the Harris situation by the rule that search warrants are to be obtained and used wherever reasonably practicable.” The dissent of Chief Justice Vinson, joined by Justices Black, Reed and Burton, twice referred to the distilling equipment as having been “in open view” and twice referred to it as having been “in plain sight.” It articulated its rationale for the legitimacy of the seizure, at 714: “The validity of the search and seizure as incident to a lawful arrest has been based upon a recognition by this Court that where law-enforcement agents have lawfully gained entrance into premises and have executed a valid arrest of the occupant, the vital rights of privacy protected by the Fourth Amendment are not denied by seizure of contraband materials and instrumentalities of crime in open view or such as may be brought to light by a reasonable search.” The swing of the constitutional pendulum continued unabated in United States v. Rabinowitz, supra. 27 Gov- ⁵⁹⁶ eminent agents arrested the defendant at his place of business for forging and altering postage stamps. As an incident of that arrest, they searched his one-room office for an hour and one-half. They recovered inculpatory postage stamps from a desk, a safe and file cabinets. The search would clearly have been unconstitutional under Trupiano.

In articulating a new “total atmosphere” standard for Fourth Amendment reasonableness, the Court overruled Trupiano. It held that the relevant test is “not whether it is reasonable to procure a search warrant, but whether the search was reasonable.” The Court boldly reasserted the proposition that an entire premises under the control of a person arrested may be searched as an incident of the arrest. It cited as its authority Agnello, Carroll and Weeks as well as Marrón, which it characterized as not having been “drained of contemporary vitality by Go-Bart Importing Company v. United States . . . and United States v. Lefkowitz,” and Harris , which it characterized as not having been “overruled.” Although not central to its holding, the Court at one point carelessly referred to the desk, the safe and the file cabinets as being “within plain view,” apparently not grasping that what significantly needs be “in plain view” is the thing to be seized, not the thing or place to be searched. 28 If the birth of the “Plain View” Doctrine had to await Coolidge , its Annunciation came through Justice Frankfurter in his series of dissents in Rabinowitz, Harris and Davis v. United States, 328 U. S. 582 (1946). What had theretofore been at best inchoate was now formulated into a coherent rule.

Justice Frankfurter first cut the Gordian knot of alternating and intertwining citation of precedent by looking pre-Weeks to the original justifying rationale of a “search incident.” He showed historically that it was ⁵⁹⁷ necessary “first, in order to protect the arresting officer and to deprive the prisoner of potential means of escape . . . and, secondly, to avoid destruction of evidence by the arrested person.” Rabinowitz , at 72. “From this it follows that officers may search and seize not only the things physically on the person arrested, but those within his immediate physical control.” Rabinowitz , at 72. “Immediate physical control” and “immediate physical surroundings” were defined as that “which may fairly be deemed to be an extension of his person.” Rabinowitz , at 72-73. Justice Frankfurter then demonstrated that the root of the present controversy lay in the “loose use of language” — the imposition of property law connotations onto such words as “possession” and “control” irrelevantly to the necessities of the Fourth Amendment — the use of language “not with fastidious precision.” Rabinowitz , at 72. He reasoned in Harris , at 164: “For some purposes, to be sure, a man’s house and its contents are deemed to be in his ‘possession’ or ‘control’ even when he is miles away. Because this is a mode of legal reasoning relevant to disputes over property, the usual phrase for such non-physical control is ‘constructive possession.’ But this mode of thought and these concepts are irrelevant to the application of the Fourth Amendment and hostile to respect for the liberties which it protects.

Due regard for the policy of the Fourth Amendment precludes indulgence in the fiction that the recesses of a man’s house are like the pockets of the clothes he wears at the time of his arrest.” Justice Frankfurter’s statement of the necessity under-girding the common law right of “search incident” found voice in Preston v. United States, supra, at 367. His total formulation of a “search incident” rationale received the official imprimatur of the Court in Chimel v. California, supra. The majority opinion in Chimel reads like a re ⁵⁹⁸ statement of the Frankfurter dissent in Rabinowitz , to which Chimel gives full credit. Chimel recognized the necessities which gave rise to the law of “search incident” and recognized further that the “scope of [a] search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry v. Ohio, 392 U. S. 1, 19 .

Having thus constricted the search perimeter from an arrestee’s total premises (that which is under his proprietary control) to the area within the arrestee’s reach or grasp (that which is under his physical control), Justice Frankfurter then proceeded to fill the interstice. He provided the conceptual sine qua non for the later “Plain View” Doctrine by pointing out that, “It is important to keep clear the distinction between prohibited searches on the one hand and improper seizures on the other.” 29 He reasoned in Davis , at 612: “Another factor enters. This language is sometimes used in cases involving the seizure of items properly subject to seizure because in open view at the time of arrest. But this last confusion is due to a failure to distinguish between the appropriate scope of a search on arrest and the very different problem as to the right of seizure where no search is in question.” Justice Frankfurter demonstrated that the Court’s doctrinal confusion had been caused in large measure by its own bipolarity between a “limited scope” view and a “broad scope” view of “search incident” law — not recognizing the middle ground of “broad seizure” not tied to a “broad search.” He cut the seizure rationale loose from the search rationale.

He reasoned in Rabinowitz , at 75: “This progressive distortion is due to an uncritical confusion of (1) the right to search the per ⁵⁹⁹ son arrested and articles in his immediate physical control and (2) the right to seize visible instruments or fruits of crime at the scene of the arrest with (3) an alleged right to search the place of arrest. It is necessary in this connection to distinguish clearly between prohibited searches and improper seizures. It is unconstitutional to make an improper search even for articles that are appropriately subject to seizure when found by legal means. . . . Thus, the seizure of items properly subject to seizure because in open view at the time of arrest does not carry with it the right to search for such items.” The intellectual spadework had been done for the “Plain View” Doctrine.

A “Plain View” seizure was not a search. The seizure perimeter was broader than the search perimeter. Before the official birth of the Doctrine in Coolidge , however, a dimension was to be added. Until 1967, “plain view” had been discussed or alluded to exclusively within the framework of “search incident” law.

Beginning in 1967, two cases arguably suggested and one squarely held that the notion of “plain view” had a utility even beyond the confines of “search incident” situations. In Warden v. Hayden, supra, policemen were in “hot pursuit” of an armed and fleeing holdup man. They followed into the house which he was seen to enter. It turned out to be his own.

They fanned out over all three floors. Hayden was arrested in an upstairs bedroom, feigning sleep. Meanwhile, an officer searching the cellar turned up an inculpatory jacket and a pair of trousers in a washing machine. The Supreme Court held that the warrantless entry of Hayden’s house to search for him and the warrantless search of Hayden himself were valid since “the exigencies of the situation made that course imperative.” In recognizing for the first time, in a square holding, the “exigent circumstances” exception to the warrant requirement, the Court said, at 298-299: ⁶⁰⁰ “The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.

Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.” In legitimating the basement search, the Court eschewed reliance on a “search incident” theory, since “the seizures occurred prior to or immediately contemporary with Hayden’s arrest.” Independent of any “search incident” theory, the Court held that the basement search for the fugitive, for possible confederates and/or for weapons was an integral part of the “exigent circumstances” exception, reasoning that that search was “part of an effort to find a suspected felon, armed, within the house into which he had run only minutes before the police arrived. The permissible scope of search must, therefore, at the least, be as broad as may reasonably be necessary to prevent the dangers that the suspect at large in the house may resist or escape,” at p. 299. The Court further reasoned that when the search of the washing machine for weapons turned up the inculpatory clothing, the seizure thereof was constitutional. Although the Court’s opinion made no mention of “plain view,” Coolidge later read this case to be one involving “plain view.” 30 ⁶⁰¹ Within the year, Harris v. United States, 390 U. S. 234 (1968), invoked “Plain View” in explicit terms.

The defendant’s automobile had been seen leaving the scene of a robbery. The car was traced and the defendant was arrested as he was entering it, near his home. He was taken to the police station. The car was impounded as evidence and towed to the station.

When it arrived at the station, its windows were open and its doors were unlocked. It had begun to rain. A departmental regulation required the police to search an impounded vehicle thoroughly, to remove all valuables from it, and to attach to the vehicle a property tag listing certain information about the circumstances of the impounding. Pursuant to this regulation, an officer searched the car and placed a property tag on it.

He then proceeded to roll up the windows and to lock the doors. As he opened the front door on the passenger side in order to roll up the window, the officer saw an inculpatory registration card. The warrantless seizure was held to be constitutional. The Supreme Court held that the discovery of the card was not the result of an investigative search but rather of a legitimate measure taken to protect the car while it was in police custody.

It held, at 236: “Once the door had lawfully been opened, the registration card, with the name of the robbery victim on it, was plainly visible. It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” 31 ⁶⁰² The last of the intimations was Frazier v. Cupp, 394 U. S. 731 (1969). One co-defendant gave the police permission to search the duffel bag shared by him and Frazier for incriminating evidence. The consensual search was aimed at this co-defendant.

In the course of the search, the police came across certain clothing of Frazier’s, which was seized. Citing Harris v. United States, 390 U. S., and Warden v. Hayden, supra, as its authority, the Court said, at 740: “The officers therefore found evidence against petitioner while in the course of an otherwise lawful search. Under this Court’s past decisions, they were clearly permitted to seize it.” 32 The utility of the “Plain View” concept having thus outgrown its “search incident” origins, a broader formulation of its rule was called for. This was to be the. office of Coolidge .

The “Plain View” Doctrine Today The Prior Valid Intrusion Requirement In articulating the “Plain View” Doctrine, Coolidge recognized at the outset that the use of “plain view” as a descriptive phrase is not coterminous with its use as a legal concept, at 465: “It is well established that under certain cir ⁶⁰³ cumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the ‘plain view’ doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal.” It pointed out that the first condition precedent to a “Plain View” seizure is a justifiable prior intrusion. Although not purporting to exhaust the category, it listed four situations illustrating a prior valid intrusion: 1.

A “search incident” to a valid arrest inside a “constitutionally protected area” that is “appropriately limited in scope.” 33 In giving voice to the Frankfurter rationale, Coolidge stated, “The ‘plain view’ doctrine would normally justify as well the seizure of other evidence that came to light during such an appropriately limited search. . . . Where, however, the arresting officer inadvertently comes within plain view of a piece of evidence, not concealed, although outside of the area under the immediate control of the arrestee, the officer may seize it, so long as the plain view was obtained in the course of an appropriately limited search of the arrestee.” Coolidge , 465, n. 24. 2. The “exigent circumstances” which justify a warrantless entry into a “constitutionally protected area,” such as “hot pursuit.” 34 3. The valid presence inside a “constitutionally protected area” for some legitimate purpose other than the search for evidence against the accused. 35 ⁶⁰⁴ 4.

The warranted search of a “given area for specified objects ... in the course of [which] . . . [the searchers] come across some other article of incriminating character.” 36 Coolidge points out that the common denominator of all these situations is that there has been a prior valid intrusion. The “Plain View” Doctrine then supplements that valid intrusion by extending the seizure perimeter to those things which are in “Plain View” from that legitimate vantage point. It explains, at 466: “What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrant-less seizure.” In enunciating the rationale for the “Plain View” excep ⁶⁰⁵ tion, Coolidge sets out “the two distinct constitutional protections served by the warrant requirement.” It protects against “any intrusion in the way of search or seizure” which is not justified by “a careful prior determination of necessity.” It then mandates that even “those searches deemed necessary should be as limited as possible.” It reasons that the “Plain View” exception is not in conflict with the first objective because the plain view does not occur until after the valid intrusion has already been made and its purpose is already in progress.

It then reasons that the plain view exception is consistent with the second objective “since it does not convert the search into a general or exploratory one.” It becomes apparent that the “Plain View” Doctrine comprehends only one variety of the ocular “plain view’s.” It does not contemplate the non-intrusion visual observation, such as where evidence is in “open view” and therefore seizable in a “constitutionally non-protected area.” See Hester v. United States, supra, wherein evidence was seen and was validly seized in an “open field,” notwithstanding police trespass upon the field. Nor does the “Plain View” Doctrine contemplate the preintrusion visual observation of evidence in “open view” inside a “constitutionally protected area,” such as a house, garage, automobile, etc., from a vantage point outside the “constitutionally protected area.” Here the valid visual observation simply furnishes probable cause for 1) the issuance of a warrant, Steele v. United States, 267 U. S. 498 (1925); or 2) the warrantless entry of a vehicle or vessel, provided exigent circumstances are also present, United States v. Lee, supra; Scales v. State, 13 Md. App. 474 ; or 3) the warrantless entry to effect an arrest for a crime being committed in the officer’s presence, Agnello, at 30; Griffin v. State, 200 Md. 569 . As a non-search, the visual observation itself is legitimate; but it may never, standing alone, justify an intrusion. Taylor v. United States, 286 U. S. 1 (1932).

Thus, the formal “Plain View” Doctrine, as announced in Coolidge , is exclusively a post-intrusion phenomenon. ⁶⁰⁶ The chameleon-like quality of the phrase “plain view” stems from its loose employment to describe these visually similar but legally distinct