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State v. O''Herron

Decided: November 4, 1977.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
EDWARD O'HERRON, JR., AND KATHLEEN O'HERRON, DEFENDANTS-RESPONDENTS



Bischoff, Kole and Gaulkin. The opinion of the court was delivered by Gaulkin, J.s.c., Temporarily Assigned.

Gaulkin

The State appeals, by leave granted, from an order entered prior to trial suppressing two marijuana plants seized without a warrant from the rear yard of defendants' home. Based upon that seizure defendants have been indicted for possession of marijuana. N.J.S.A. 24:21-20a(4).

The record before the trial court consisted of a brief account by the State of the circumstances of the seizure, which defendants stipulated they would be unable to dispute. The uncontroverted facts are that on July 20, 1976 the Hazlet Police Department received an anonymous call that marijuana plants were growing in a vegetable garden at 169 8th Street, West Keansburg. Two officers were dispatched to that address, where they saw a garden and determined that it should be further investigated by detectives.

At about 11:15 the next morning Detectives Allen and Mulligan went to the address and observed the garden. From the roadway they were able to see "large green plants growing in the garden." In order to get a closer look Detective Allen went around the back and came through the property behind defendants' house. From that vantage point off defendants' property, the detective observed two plants growing at the rear of the property which, from past experience, he identified as marijuana.

The detectives notified headquarters and additional officers were dispatched to the scene. The officers entered defendants' garden, further examined the plants and gathered them as evidence. The record indicates no attempt made at the time of the seizure to identify the owners or occupants of the premises, or to locate them for interrogation, arrest or otherwise.

In the trial court the State, which had the burden to justify the warrantless seizure (State v. Allen , 113 N.J. Super. 245 (App. Div. 1970)), advised that it was "relying on the plain view doctrine" as enunciated in Harris v. United States , 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968). Defendants principally relied on what they urged were limitations on the doctrine set forth in Coolidge v. New Hampshire , 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), reh. den. 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971). Following argument, and principally in reliance upon Coolidge , the trial judge suppressed the evidence upon findings that the observing of the plants by the police was not inadvertent and that no exigent circumstances excused the requirement of a warrant to seize.

In this court the State again contends that the seizure was justified under Harris , which holds that "objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." 390 U.S. at 236, 88 S. Ct. at 993, 19 L. Ed. 2d at 1069. Defendants respond, as they did in the trial court, that under Coolidge the "plain view" exception requires both "inadvertent" discovery of evidence and "exigent circumstances" to justify a warrantless seizure and that neither appears here. In rebuttal the State contends that those requirements of Coolidge represent the views of only a plurality of the United States Supreme Court and are therefore not binding on this court and ought not to be followed. Further, the State argues that inadvertence and

exigent circumstances are both established by the stipulated facts.

Consideration of the scope and application of the "plain view" doctrine here must proceed with the recognition that the term "plain view" is imprecise and has been used to describe a variety of circumstances having quite different legal implications. As Justice Stewart noted in Coolidge ,

"Plain view" is sometimes used to describe situations in which items are exposed to public view in a public place or in an otherwise constitutionally unprotected location; their observation and seizure are authorized without a warrant. See, e.g., State v. McKnight , 52 N.J. 35 (1968). A second application of "plain view" is to situations in which officers have lawfully intruded into a constitutionally protected place where they observe the items in question; such "plain view" observation and subsequent seizure require no warrant, as where the initial lawful intrusion is by consent (e.g., State v. Braeunig , 122 N.J. Super. 319 (App. Div. 1973); State v. Mark , 46 N.J. 262 (1966)), to effect an arrest (e.g., State v. Jordan , 115 N.J. Super. 73 (App. Div. 1971), certif. den. 59 N.J. 293 (1971)), or in hot pursuit (e.g., State v. Canola , 135 N.J. Super. 224 (App. Div. 1975), mod., 73 N.J. 206 (1977)).

On the other hand, objects may come into "plain view" only after and as a result of an unlawful intrusion into a constitutionally protected zone; evidence of such observation and any warrantless seizure resulting must be suppressed. See, e.g., State v. Rice , 115 N.J. Super. 128 (App.

Div. 1971); State v. Allen, supra; State v. Baker , 112 N.J. Super. 351 (App. Div. 1970); United States v. Chadwick , U.S. , 97 S. ...


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