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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
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Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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After lawful stop, If alcohol is seen in plain view of car,

Customer Question

After lawful stop, If alcohol is seen in plain view of car, can police arrest the perpetrator THEN seize alcohol as part of plain view exception to 4th amendment? Or once the arrest is made does the immediate area of search incident to arrest come into effect?
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 2 years ago.
Hi Jacustomer,

The order depends on the facts and circumstances, because either is a lawful exceptions to the 4th amendment warrant requirement.

For example, if it were illegal in the state for the person to be driving with alcohol, then after a lawful stop, the alcohol in plain view would be the basis of an arrest all by itself. So the plain view doctrine applies immediately, but it could also be seized as a search incident to the arrest.

If the alcohol in the car was not in and of itself a crime, the sight of it in plain view would likely still be probable cause to suspect that the customer might have been drinking and then get him out to breathalyze him. Then the alcohol could be seized as a search incident to the arrest if he was driving under the influence.

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