Myers v. City of West Monroe

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-30363 Summary Calendar

MARGARET ANN MYERS, Plaintiff-Appellant,

versus

CITY OF WEST MONROE; ET AL., Defendants,

ERNEST MCHENRY, Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Louisiana USDC No. 96-CV-1181 - - - - - - - - - -

August 23, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Margaret Ann Myers appeals from a judgment in favor of Officer

Ernest McHenry, dismissing her claims that Officer McHenry violated

her constitutional rights by allegedly searching her car and jacket

during a traffic stop. Myers argues that the jury instruction

regarding the plain view doctrine was erroneous. Specifically, she

challenges the inclusion of the following sentence in the jury

charge: “If an article is in plain view, its observation involves

no invasion of privacy and there is no search.” Myers maintains

that the disputed instruction constrained the jury to conclude that

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Officer McHenry’s conduct, which allegedly consisted of going

through Myers’ jacket pockets as the jacket lay upon the trunk of

her car and looking inside her car, could not constitute an

unreasonable search if the jacket and car were in plain view.

We find no merit in Myers’ argument because it is an

undisputed proposition that the mere observation of an item in

plain view does not constitute a search. The trial court’s

instruction on plain view did not constrain the jury in any way

beyond informing them that the observation of an article in plain

view did not constitute a search. See Horton v. California, 496

U.S. 128 (1990) (identifying several conditions that must be

satisfied before a plain view seizure (or additional search) of an

object is upheld). The language of the instruction is taken from

the Supreme Court’s decision in Horton, which provides the

following: “If an article is already in plain view, neither its

observation nor its seizure would involve any invasion of privacy.”

Horton, 496 U.S. at 133. This instruction was helpful, not

confusing. The question put to the jury was whether the officer

searched Myers’ car and jacket. The officer said he did not do so.

Myers says he did. The trial court left this factual dispute for

the jury by its interrogatory with the instruction that observation

of an article in plain view is not a search.

Accordingly, the judgment of the district court is AFFIRMED.

The City of West Monroe’s request for attorneys’ fees is DENIED.

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