Question

After seizing the iPhones and removing them from the home, Officer Huynh phones in the serial numbers and waits for a response. Meanwhile, you continue to talk with those present in the home. As you do so, you glance out the window and look directly into the window of the neighbor’s home just across the alley. There you notice a large, potted marijuana plant in the window. Marijuana is illegal in your state.

Let’s review two more concepts before you make another decision about this scene.

What is the relationship between seeing and seizing?


The officer must either have a warrant or consent to enter a location in order to seize the item unless there are exigent circumstances.

The officer must, without exception, either have a warrant or consent to enter in order to seize the item.

Seizing automatically follows seeing.

Seizing automatically follows seeing but only when the item to be seized is clearly illegal.

Answer 1

Answer: The officer must either have a warrant or consent to enter a location in order to seize the item unless there are exigent circumstances.

Explanation: Seeing something (even contraband) does not automatically authorize a seizure or a warrantless entry. The plain‑view doctrine allows seizure without a warrant only if (1) the officer is lawfully in the place from which the item is seen, (2) the incriminating nature of the item is immediately apparent, and (3) the officer has lawful access to the object. Otherwise the officer needs a warrant or consent to enter, unless exigent circumstances exist.

Applied here: observing the plant across the alley from your lawful vantage point may give probable cause, but you would still need a warrant or consent to enter and seize it (absent exigency).