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.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 96-CV-1181
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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this opinion should not be published and is not precedent except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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