Plain view is killing the Fourth Amendment. Because our plain-view case law is so favorable to the police, they have a strong incentive to maneuver into a position where they can find things in plain view, or close enough to lie about it.
... There was absolutely no reason for the detectives to enter [Lemus's house] except to try to find contraband in "plain view." So, the detectives went in and, while there, Diaz thought he saw "something sticking out from the couch" that "looked like the butt of a weapon." Longoria then lifted the couch cushion "to make sure" and found a gun. Under what theory of "plain view" may police lift cushions off a couch to make sure something is contraband? Why weren't the officers required to get a warrant — if they could — based on what they saw, before rummaging through the couch?
February 19, 2010
"[I]nvasion of the home has been approved based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes."
"No other circuit allows entry into the home on less than reasonable suspicion," writes 9th Circuit Chief Judge Alex Kozinski, in United States v. Lemus (PDF)