THE POLICE HAD TO “MANIPULATE” THE CHECKS TO DETERMINE THEY WERE FORGED; THEREFORE THE “PLAIN VIEW” EXCEPTION TO THE SEARCH WARRANT REQUIREMENT WAS NOT APPLICABLE; INDICTMENT DISMISSED (FOURTH DEPT). ​

The Fourth Department, suppressing evidence seized under the “plain view” exception to the warrant requirement, held the police had to “manipulate” the checks which were in plain view to determine they were forged. Because the nature of the checks was not apparent until they were “manipulated,” the “plain view” exception was not applicable:

… [W]e conclude that the People did not meet their burden of establishing the third element of the plain view exception—i.e., that the incriminating nature of the seized items was immediately apparent. In making such a determination, we must consider whether “the facts available to the [police] officer would warrant a [person] of reasonable caution in the belief . . . that [the] items may be contraband or stolen property or useful as evidence of a crime” … . This is a probable cause standard—i.e., there need not be “certainty or near certainty” about the incriminating nature of the seized items … . That element is not satisfied, however, “where the object [to be seized] must be moved or manipulated before its illegality can be determined” … . Indeed, “[s]uch a search or seizure may not be upheld without proof that the [police] officer who moved or manipulated the object had probable cause to believe that the object was evidence or contraband at the time that it was moved or manipulated” … . Still, “[a] truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a search” … . People v Howard, 2024 NY Slip Op 05733, Fourth Dept 11-15-24

Practice Point: Here the fact the checks were forged was not apparent until the police “manipulated” them. Therefore the “plain view” exception to the search-warrant requirement was not applicable and the checks should have been suppressed.