D.Kan.: Plain view doesn’t apply to a cell phone where the officers had to turn it on to make their view

Plain view doesn’t apply to a cell phone where the officers had to turn it on to make their view. United States v. Ramirez, 2013 U.S. Dist. LEXIS 190665 (D.Kan. March 26, 2013):

The government contends that even though the search and seizure of the phone was outside the scope of the warrant it was lawful under the plain view doctrine. The doctrine provides that a “police officer may properly seize evidence of a crime without a warrant if: (1) the officer was lawfully in a position from which to view the object seized in plain view; (2) the object’s incriminating character was immediately apparent—i.e., the officer had probable cause to believe the object was contraband or evidence of a crime; and (3) the officer had a lawful right of access to the object itself.” Id. There is no claim, however, that the phone’s incriminating character was immediately apparent. Indeed, how could it be? The officers had to turn on the phone and look through the files before they obtained incriminating evidence. Therefore, the plain view doctrine is not applicable.