Open View Versus Plain View

Today, I want to share the difference between open view and plain view—two legal concepts that often come up in law enforcement.

Open View

Open view occurs when you are in a non-protected area and observe incriminating evidence. It’s called “open view” because it typically happens in open fields. Now, what exactly is an open field? Open fields are areas where you can see the sky and are not within the curtilage of a home.

I like to say: if you look up and see the sky, you’re either in curtilage or an open field. If you look up and see a ceiling, you’re in a protected area. The level of protection depends on the location. For example, a home gets far more Fourth Amendment protection than the lobby of a Burger King—but that’s a topic for another day.

In essence, open view is when you see contraband or evidence while you’re in a non-protected area. You don’t need prior justification to be there because the Fourth Amendment doesn’t apply in such situations.

Plain View

Plain view, on the other hand, occurs when you are in a protected area and observe contraband or evidence. The key distinction is that in plain view, you must justify why you were in that protected area in the first place.

Let me clarify something: in practice, most officers refer to all observations as “plain view” in their reports, regardless of whether they were in a protected area or not—and that’s generally fine. However, as a legal instructor, I want to explain the specific legal distinction between these two terms.

Examples of Open View vs. Plain View

Open View Example:

Imagine you’re walking down a public sidewalk, which is considered an open field under the Fourth Amendment because it’s not curtilage. As you pass by a house, you notice a marijuana plant in the window. This is open view. You don’t need any prior justification for being on the sidewalk—the Fourth Amendment doesn’t apply. Whether it’s 2 a.m. or you’re just being nosy, it doesn’t matter.

Plain View Example:

Now imagine you’re called to a domestic violence incident. You enter the home (a protected area) and notice the same marijuana plant in the window. In this case, it’s plain view because you’re in a constitutionally protected area. However, for the plain view doctrine to apply, you must lawfully justify your presence in the home—whether through the emergency doctrine, consent from an occupant, or another judicially recognized exception.

Important Distinction: Justification in Plain View

Under the plain view doctrine, your lawful presence in the protected area is critical. For example, if you make a lawful arrest inside a home during a domestic violence call and your partner conducts a protective sweep of the house—going upstairs and into the basement without reasonable suspicion of additional suspects—any evidence found in plain view during that sweep would be deemed unlawful.

If the courts determine that the protective sweep was unjustified, your partner had no legal reason to be upstairs, and anything observed in plain view would be inadmissible. Of course, there are exceptions, such as implied consent from an occupant, but for the purposes of this example, let’s assume the search was unjustified.

Final Thoughts

I hope this explanation clarifies the difference between open view and plain view. Remember, this is more of an academic discussion. In your reports, if you refer to all observations as plain view, the courts will generally understand what you mean. However, it’s always good to understand the legal terminology and distinctions.

Until next time, stay safe out there!