Officer\u2019s plain view of a \u201cchunk\u201d of drugs the size of a pinky fingernail seen from outside the car looking in to a messy floorboard could not be \u201cimmediately apparent\u201d for plain view. United States v. Williams, 2010 U.S. Dist. LEXIS 88850 (N.D. Ohio August 27, 2010):<\/p>\n
Trooper Greene testified that he was standing outside the car with the door closed looking inside when he observed the “chunk.” [Doc. 26 at 25.] He further testified that the “chunk” was “slightly smaller than [a] pinky fingernail.” [Doc. 26 at 20.] Other testimony showed the interior of the vehicle was messy with torn carpeting and that discarded items were scattered throughout the car. [Exhibit DX3.] The Court finds that from Trooper Greene’s vantage point, standing outside of a sport utility vehicle with the door closed and peering in through the window into a messy vehicle, the incriminating character of a fingernail-sized piece of plant matter could not be “immediately apparent.” From the distance of a few feet it would be impossible for even an experienced officer to determine that a “chunk” of plant matter on the floorboard of a vehicle only a few millimeters in size was in fact marijuana, and not a piece of soil, grass, or other material.<\/p>\n
Because the incriminating nature of the “chunk” could not have been immediately apparent to Greene at the time it was in his “plain view,” Greene did not have the authority to seize it under the plain view exception. See McLevain, 310 F.3d at 442 (reversing trial court’s denial of motion to suppress because incriminating nature of a twist tie, a cigarette filter, a spoon with residue, and a bottle, which experienced officers believed to be associated with methamphetamine use, was not immediately apparent); see also Arizona v. Hicks, 480 U.S. 321, 324-26, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987) (police, whose entry into home was premised on exigent circumstances related to gunfire, violated Fourth Amendment by moving stereo to read and record its serial numbers because moving stereo was “unrelated to the objectives of the authorized intrusion,” and incriminating character of stereo was not immediately apparent).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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