Executing Search Warrants - Alameda County District Attorney's Office

WHAT MAY BE SEIZED
The “plain view” rule
Officers who are executing a search warrant may, of course, seize any item listed in the
warrant. Under the so-called “plain view” or “nexus” rule, 109 they may also seize unlisted
items if both of the following requirements are met:
(1) LAWFUL SEARCH: The item was discovered while officers were conducting a lawful
search for listed evidence.
(2) PROBABLE CAUSE: When officers seized the item, they had probable cause to
believe it was evidence or would aid in the apprehension of a criminal.
Lawful search
The seizure of unlisted property in plain view is lawful only if officers discovered it
while searching places and things they were expressly or impliedly authorized to search.
For example, if a warrant authorized a search of an apartment for a shotgun and nothing
more, officers would have exceeded the permissible scope of the search if they opened a
cigar box. Consequently, the plain view rule would not apply, and any evidence
discovered in the cigar box would be suppressed. But if the warrant also authorized a
search for drugs, indicia, or some other object that could fit inside a small container, the
search of the cigar box would have been lawful and, consequently, any evidence inside it
would not be suppressed.
PICKING UP UNLISTED PROPERTY: Officers may pick up or move any items in order to
access or view a place or thing in which the listed evidence may be found. They may not,
however, pick up or move an item for a reason unrelated to the execution of the
warrant. 110
PRETEXT SEARCHES: As noted earlier, it sometimes happens that one or more of the
officers conducting the search will be interested in finding evidence that was not listed in
the warrant. This typically occurs when the officers have reason to believe the evidence is
on the premises but they could not list it on the warrant because they lacked probable
cause. Does this make the search unlawful?
No. A search is not unlawful merely because officers hoped or expected to find
unlisted evidence. As the U.S. Supreme Court explained, “The fact that an officer is
interested in an item of evidence and fully expects to find it in the course of a search
should not invalidate its seizure if the search is confined in area and duration by the
terms of the warrant . . . ” 111
109 NOTE: The term “nexus” is outdated. It was coined by the California Supreme Court to express
the requirement that there be a nexus or link between the unlisted evidence and criminal activity.
See People v. Superior Court (Meyers) (1979) 25 Cal.3d 67, 73. In 1987, however, the U.S.
Supreme Court ruled that something more than a link is required: there must be probable cause
to believe the item was contraband or other evidence of a crime. Arizona v. Hicks (1987) 480 US
321, 326.
110 See Arizona v. Hicks (1987) 480 US 321, 325 [“But taking action, unrelated to the objectives of
the authorized intrusion, which exposed to view concealed portions of the apartment or its
contents, did produce a new invasion of respondent’s privacy unjustified by the exigent
circumstances that validated the entry.”]; People v. McGraw (1981) 119 Cal.App.3d 582, 601 [“As
a warrant cannot authorize a general exploratory search by its own terms, neither can officers
make any kind of search they wish merely because a warrant has opened the door.”].
111 Horton v. California (1990) 496 US 128, 138. ALSO SEE People v. Williams (1988) 198
Cal.App.3d 873, 886 [“(T)he fact an officer may have knowledge of possible criminal activity of
the suspect, not necessarily connected with the criminal activity which is the subject of the
warrant, should not necessarily impugn the integrity of his search pursuant to a valid warrant.”];
People v. Gallegos (2002) 96 Cal.App.4 th 612, 625, fn.11; U.S. v. Ewain (9 th Cir. 1996) 88 F.3d
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