On March 21, 2025, the Eleventh Circuit Court of Appeals decided the United States v. Gilmore[i], which is instructive regarding the application of the plain view doctrine. The relevant facts of Gilmore, taken directly from the case, are as follows:
On February 9, 2022, Gilmore was the passenger in a vehicle that fled from an attempted traffic stop. During the high-speed pursuit that followed, Gilmore discarded from the passenger window about five pounds of marijuana, 191 grams of high-purity methamphetamine, and a handgun. A helicopter unit followed the car to a Tampa residence, where Gilmore and the driver, Elvis Martin, fled inside. Officers obtained a warrant to search the residence and took Gilmore and Martin into custody. In the search, officers seized cash, drugs, guns, and surveillance-related equipment, in the form of two digital video recorders (“DVRs”) and two SD memory cards containing surveillance footage of inside and outside the home.
A grand jury returned a superseding indictment charging Gilmore with conspiracy to possess and possession with intent to distribute methamphetamine (50 grams or more) and marijuana (less than 50 kilograms), see 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (D) & 846 (Counts One & Two); possession of a firearm in furtherance of a drug-trafficking crime, see 18 U.S.C. § 924(c) (Count Three); and possession of a firearm as a convicted felon, 18 U.S.C. §§ 922(g)(1) & 924(a)(2) (Count Four).
Gilmore moved to suppress evidence of the contents of the DVRs and SD cards. He argued that these items were not described in the search warrant presented at the time of the search, and that their incriminating nature was not immediately apparent because officers had to review any data they contained.
The district court held a suppression hearing, where testimony established the following. Using an electronic warrant system, Detective Taylor Hart applied for a warrant to search the house for marijuana, methamphetamine, and “items described in Exhibit A.” The items described in Exhibit A included “electronic equipment,” such as “surveillance equipment,” as well as “SD cards and any contents therein.” A county judge approved the warrant, authorizing a search for “MARIJUANA/METHAMPHETAMINE and items described in Exhibit A, which is incorporated by reference and made a part hereof as if repeated in full.”
In executing the search warrant, Hart presented to the residents a copy of the warrant, but not the underlying affidavit or Exhibit A. Inside the residence, officers observed surveillance equipment in plain view. That equipment included two cameras—one in the living room angled toward the front door and one on top of the kitchen cabinets facing the back door—and two DVRs connected to monitors that showed live surveillance of inside and outside the house. The officers seized the DVRs and the cameras’ SD cards, which they believed would help identify the persons involved in the high-speed chase. Officers obtained a second warrant to view the contents of these storage devices.
At the conclusion of the hearing, the district court orally denied the motion to suppress. In doing so, the court made two key findings: (1) Exhibit A was presented to the judge who authorized the warrant, so “it was part of the warrant” and covered the “digital stuff” at issue; and (2) even assuming officers were required to present a copy of Exhibit A to the residents at the time of the search, which the court doubted, that “technical violation” did not warrant suppression because the surveillance items were subject to seizure under the plain-view doctrine.
At a two-day jury trial in March 2023, the government’s witnesses testified about the events on February 9, 2022. As relevant here, the evidence showed that Gilmore was the passenger in a Dodge Charger that fled at high speeds from a traffic stop for running a stop sign. Tracking the Charger in a police helicopter, officers observed, using a thermal camera, items being thrown from the passenger window after the Charger briefly pulled to the side of the road, partially hidden by a tree.
Minutes later, officers responded to the scene of the discarded items and found the following: (a) a cardboard box with six bags of marijuana, some vacuum sealed and some not, totaling around five pounds; (b) a Gucci satchel containing 191 grams of methamphetamine, a loaded .45 caliber handgun, and a small brown bag labeled “Dempsey”; and (c) a small digital scale. In the Gucci bag, the methamphetamine was divided among ziplock bags. One ziplock bag held 19 mini blue bags containing amounts consistent with street-level sales (roughly 0.5 grams), while seven other ziplock bags held larger quantities in bulk (between 24 and 30 grams each).
A government witness testified that the smaller blue bags were “street users’ quantities of methamphetamine,” while the larger bags were for “potentially selling to somebody else that’s going to distribute further.” The drugs, gun, and scale together, the witness testified, were indicative of someone involved in the distribution of marijuana and methamphetamine. Gilmore’s fingerprint was found on the exterior of the passenger side front door of the Charger, but no usable fingerprints were found on the other items.
Meanwhile, the helicopter unit continued pursuing the Charger and watched it park in a residential backyard. Wearing a fishing vest, Gilmore fled the Charger on foot with Martin, jumping a fence and running towards a nearby house, where they entered the back door. During the execution of the search warrant, officers found Gilmore’s vest in a bedroom dresser drawer. The vest’s pockets contained three bags of marijuana, totaling 67 grams.
After the government’s case-in-chief, Gilmore moved for judgment of acquittal under Federal Rule of Criminal Procedure 29. He argued that there was no evidence that he “conspired with any person,” and that there was no forensic evidence tying him to the substances and gun discarded from the Charger. The district court denied the motion, and the defense called one witness. Then, after being instructed by the court, the jury found Gilmore guilty on each count.[ii]
Gilmore appealed his conviction to the Eleventh Circuit Court of Appeals and raised several issues. The issue upon which this article will focus involves the denial of Gilmore’s motion to suppress.
Specifically, during the motion to suppress, Gilmore argued that the search warrant authorized officers to search for “items described in Exhibit A” which was “incorporated by reference” in the search warrant, “as if repeated in full.”[iii] However, when the officers executed the search warrant at Gilmore’s residence, Exhibit A was not attached to the search warrant, and Gilmore was not provided with a copy of Exhibit A during the execution of the search warrant.
The items listed in Exhibit A that are relevant to the appeal were “surveillance equipment” and “SD cards and any contents therein.” During the search, officers observed DVRs and SD cards, which were seized pursuant to the warrant. These were seized because the officers believed the items would contain video that would help them identify the people that fled into the residence after the vehicle pursuit.
On appeal, Gilmore argued that, since Exhibit A was not attached to warrant, Detective Hart was “unilaterally deciding what items to seize without proper authorization.” The Fifth Circuit noted that their circuit did not have court precedent that decided the issue of whether a search warrant exhibit describing items to be seized must be present at the scene of the search for the seizure of those items to be valid under the warrant.
However, in Gilmore’s case, the court of appeals did not need to address the issue of whether the exhibit was required to be attached to the warrant and provided to Gilmore at the time of the search because the plain view exception to the search warrant requirement also justified the seizure of the DVRs and SD cards. The court discussed the requirements for the plain view seizure and stated
The ‘plain view’ doctrine permits a warrantless seizure where (1) an officer is lawfully located in the place from which the seized object could be plainly viewed and must have a lawful right of access to the object itself; and (2) the incriminating character of the item is immediately apparent.” United States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006). As the Supreme Court has explained, “[t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.” Texas v. Brown, 460 U.S. 730, 738, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983).[iv]
Gilmore acknowledged the officers were lawfully in his residence, therefore, the first requirement (lawfully being where the object could be seen and seized) was satisfied. Rather, Gilmore argued that the second requirement was not satisfied, particularly that “the incriminating nature of the DVRs and SD cards was not immediately apparent” because the officers would have to view the contents of the storage devices to determine if they contained evidence.
The court of appeals disagreed with Gilmore and explained
[T]he scope of the ‘plain view’ doctrine extends to the seizure of items that, while not contraband themselves, may be used as evidence against a defendant.” Smith, 459 F.3d at 1293; see United States v. Ladson, 774 F.2d 436, 439 (11th Cir. 1985) (“[I]t must have been immediately apparent that the item was evidence, contraband or otherwise subject to seizure.“) (emphasis added). In Smith, for instance, we held that an officer could seize a lockbox of photographs, without reviewing each of the photographs individually, because “he had probable cause to believe that among the photographs, some were illegal.” 459 F.3d at 1293.[v]
The court further explained that “immediately apparent” means that the officers had probable cause to believe that the items seized contained contraband or evidence of crime. The court stated
A police officer has probable cause to conduct a search when the facts available to him would warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.” Florida v. Harris, 568 U.S. 237, 243, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (2013) (cleaned up). Probable cause is a “practical and common-sensical standard,” evaluated under the “totality of the circumstances.” Id. at 244.[vi]
Applying the legal principles discussed above to the seizure of Gilmore’s DVRs and SD cards, the court explained that the officers executing the search warrant testified that they observed active video surveillance both inside and outside the house. This provided the officers probable cause to believe that the storage devices for the video equipment would contain video evidence that would help them identify the two men that entered the house after fleeing from the police. Further, the probable cause existed even though the DVRs and SD cards were not themselves “contraband”; rather, there was probable cause to believe the items contained evidence of a crime, specifically, video footage of men entering the house after fleeing the police.
The court then held
Because the “officers had probable cause to believe the items were connected to criminal activity without viewing their contents,” seizure was permitted under the plain-view doctrine. United States v. Wilson, 565 F.3d 1059, 1065 (8th Cir. 2009). For this reason, we affirm the denial of the motion to suppress.[vii]
Therefore, the court of appeals affirmed the denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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[i] No. 23-12062 (11th Cir. March 21, 2025 Non-Argument)
[ii] Id. at 2-6
[iii] Id. at 10
[iv] Id. at 11 (emphasis added)
[v] Id. at 12 (emphasis added)
[vi] Id. (emphasis added)
[vii] Id. at 13 (emphasis added)
