Pop Quiz--

Police investigating sexual assault of a child. Police get search warrant for bad guy's place to look for bodily fluids, etc.

While searching, police find a gun in plain view in bedroom. Bad guy is a felon and child said bad guy showed him gun previously to coerce him into sexual acts.

Police seize gun as "personal property" out of caution since a gun was not listed in the search warrant.

I want to tell the judge that the gun is contraband, found in plain view, and it corroborates the child's story so it's relevant. Does anybody see a potential problem with hopes of placing this gun infront of the jury?

Check date of felony conviction - felon MAY be able to possess in his residence if sufficient time has passed (5 years? - not in my office right now, so not certain), thus NOT contraband, and not listed in warrant. Could be an issue.

You can seize items in plain view not listed in the search warrant if it's immediately apparent that it's contraband or evidence. Here, your officers knew going in that the guy was a felon, so they immediately recognized the gun as contraband. Also, if the officers knew about the child's statements that the defendant threatened him with the gun to cooperate, then it would've been immediately apparent as evidence of the crime as well. I think that you'd be okay with it. Just be prepared to have your officers explain exactly why they believed it was contraband or evidence, and that they found it while searching the areas they were entitled to search under the warrant.

The most recent case on plain view is State v. Dobbs, 323 SW3d 184.

Got the gun in. Thanks for the quick responses!