“(P)lain view” seizures were recognized by the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443 (1971). The doctrine is true to its name: it permits warrantless seizures of illegal contraband that is in the “plain view” of law enforcement. This is the law in New Jersey too. State v. Bruzzese, 94 N.J. 210 (1983).
There is common sense at work here. If law enforcement finds evidence out in the open, it would be unduly burdensome and illogical to require the State to leave the evidence in place while it secures a warrant to support the necessary seizure.
But this exception to the Fourth Amendment’s warrant requirement requires a dash of kismet and a dollop of good luck: law enforcement must be in the right place, at the right time, to discover and seize the evidence. If they are not, then they cannot.
Yet, what if such a happy fortuity is more than luck, but is also the product of some prior planning or scheming? What if law enforcement’s actions are challenged as pre-textual? When and how is the subjective intent of the police to be considered in evaluating the validity of a “plain view” seizure?
If the State knew or had reason to know that incriminating evidence might be in a particular place at a particular time and thus arranged a “plain view” seizure, would not the very rationale for an exigent warrantless seizure then collapse?
All this gives rise to some knotty issues and, rather quickly, a “plain view” seizure becomes not all that “plain” after all. This brings us to the recent opinion of the Supreme Court of New Jersey in in State of New Jersey v. Xiomara Gonzales.
Ms. Gonzales was driving erratically and was pulled over. She happened to have many bricks of heroin in the back seat of her car. As is usual in such circumstances, a police officer approached her car and found what he/she believed to be heroin on the floor of the vehicle. This heroin had been in bags in the back seat, but had spilled out onto the floor as the car was braked to a stop. Ms. Gonzales was arrested.
At trial, the defense made a motion to suppress. This was denied as the trial court found that the police were properly in place for the traffic stop, that the heroin evidence was in plain view and that the arresting officer had sufficient expertise to make the visual identification.
The Appellate Division reversed finding that while the initial traffic stop may have been legal, the entire episode was a pretext since police were aware from wiretaps that the heroin was going to be in Ms. Gonzales’s car and that there had been, in fact, ample time obtain a warrant.
The case then went to the Supreme Court of New Jersey on the issue of whether a “plain view’’ seizure must be inadvertent or whether it is enough that the circumstances of the actual seizure be objectively reasonable.
If a “plain view” search is required to be inadvertent, then some analysis of the subjective motivations and actions of law enforcement would be necessary and a search found to be the product of a pretext or plan could well be challenged.
If, however, an objectively reasonable standard is used in New Jersey, then it would be enough to find that law enforcement was lawfully in place when the evidence was discovered and seized and that it was obvious to the viewer that the material was contraband.
This state law choice implicates another United States Supreme Court decision, Horton v. California, 496 U.S. 128 (1990). Horton post-dated the Supreme Court of New Jersey’s ruling in Bruzzese. Horton held that an inadvertence requirement was not required for evaluating plain view seizures and that use of the objectively reasonable criteria was preferred.
In Mr. Gonzales’ matter, the ultimate result reached was a bit of a hybrid. The Court agreed with Horton that inadvertence should be eliminated as a hard and fast requirement for future “plain view” searches, thus modifying the state of the law as reflected in Bruzzese. However, this change in the law was held to be prospective, so that notwithstanding the change, an analysis of inadvertence was required in Ms. Gonzales case.
In the end, Justice Albin, writing for the Court, reversed the suppression of the evidence finding that the officer had properly been next to the car, the nature of the spilled contraband was apparent and its discovery was “inadvertent”. Even though law enforcement knew of defendant’s drug history and had reason to believe she had drugs, the spillage of the heroin was found to have been accidental permitting its observation and seizure by the officer. This carried the day.
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