It turns out the "crack" was not in plain view, after all
An associate had a drug case pending in Marion County that was supposed to go to trial this week. The officers claimed that they came up on the defendant's car at a park and that they witnessed the defendant (male) and another person (male), in some degree of nakedness, scrambling from the back seat to the front (this was denied by the occupants).
The officers got everyone out of the car and then searched the interior of the car, eventually finding a small amount of cocaine inside a cigarette pack. Of course, my advice to the lawyer was that his first question on cross-examination of the officer should be, "now officer . . . was the crack in plain view?"
Beyond that, I pointed out that it appears the cocaine was not in plain view - it was inside a cigarette pack. This means that the officers had to have a reason to search the car - a reasonable suspicion at least that there was further evidence of criminal activity in there. If their intent was to arrest for indecent exposure (the officers did not charge anyone with indecent exposure, by the way), then as I read Arizona v. Gant the officers had no business searching the car unless they were searching for further evidence of indecent exposure. I'm not sure what further evidence of indecent exposure would look like, but I am pretty sure it would not be found inside a cigarette pack.
Further, it appears that the car was parked legally and so there would be no reason to tow the car - hence no justification for an inventory search. If there was no reasonable suspicion of drug activity, the drugs were not in plain view, there would be no evidence of indecent exposure concealed in a cigarette pack, and the car was parked legally, suppression of the drugs would be in order.
Tuesday the solicitor called the defense lawyer and said that they were trying the case Wednesday, and that the co-defendant would be testifying against his client. Later Tuesday evening the solicitor called back and said nevermind, the case would be dismissed as the co-defendant was going to plead guilty. Trial Chicken. It turns out the "crack" was not in plain view, after all.
