Getting touchy-feely: Application of the plain view doctrine to plain touch, plain smell, and plain hearing situations by the United States Courts of Appeal and District Courts

The plain view doctrine allows police officers to seize contraband they see without first obtaining a search warrant. It is one of many exceptions to the warrant requirement. Since the exception was first announced in 1971, the Supreme Court and lower federal courts and state courts have attempted to apply its rationale to situations involving the use of senses other than sight - such as the senses of touch, smell, and hearing. In this paper, we review the development of the plain view exception and its expansion to 'plain touch,' 'plain smell,' and 'plain hearing' situations. We analyze and categorize the decision of the lower federal courts - both the Court of Appeals and the District Court - in an effort to provide an overview of the status of the law.