Talbott, J.c.c., Temporarily Assigned.
Defendant moves to suppress evidence and for the return of property wrongfully seized. The Camden County Narcotics Strike Force acting under a valid search warrant for controlled dangerous substances and related paraphernalia, seized from defendant's home three rifles and a pistol. Information produced by a pre-entry wire-tap was sufficient to give the officers probable cause to believe defendant possessed controlled dangerous substances allowing them to obtain a search warrant. Further, they reasonably believed the situation presented such danger that ten officers were sent for the search. The pistol was found in the bedroom under the mattress after the only occupants of the house, defendant and a companion, had been secured under police guard in the kitchen. The location of the three rifles was voluntarily disclosed by defendant. All four guns were taken to police headquarters. A check with the National Crime Information Center the next day revealed the pistol was stolen, and charges were subsequently brought against defendant for possession of stolen property.
Defendant contends that the seizure of the guns cannot be justified as incident to an arrest, as necessary to insure the safety of the officers, or under the "plain view" doctrine. The State contends that the seizure is justified since the rifles were voluntarily surrendered and the pistol was found in plain view in a place reasonably searched for controlled
dangerous substance. The State also contends lifting of the mattress was not an expansion of the permissible scope of the search. Harris v. U.S. , 331 U.S. 145, 67 S. Ct. 1098, 91 L. Ed. 2d 1399 (1947); State v. Harris , 143 N.J. Super. 314 (Law Div. 1976).
This court agrees that the seizure was not incident to an arrest. No controlled dangerous substance was found on the premises and defendants were not arrested until the next day. However, this court finds that the pistol was discovered in plain view while the police carried out the valid purposes of the search warrant, and the seizure was necessary for the safety of the officers.
Defendant challenges the State's contention that the "plain view" doctrine justified the seizure of the guns. He cites the case of Coolidge v. New Hampshire , 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), in which that doctrine is explained:
What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification -- whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some legitimate reason for being present unconnected with a search directed against the accused -- and permits the warrantless seizure.
Defendant contends that the present case does not fall within the "plain view" doctrine because of the following proviso set out by the Coolidge court:
Of course, the extention of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them. [403 U.S. at 466, 91 S. Ct. at 2038; emphasis supplied by defendant]
Defendant argues that it was not "immediately apparent to the police that they [had] evidence before them" because the guns were not contraband and there was no nexus between
firearms and the possession for sale of controlled danerous substance. That raises the question of when may a gun be considered contraband. In Warden, Maryland Penitentiary v. Hayden , 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967), contraband was defined as property, the possession of which is a crime. Ordinarily, defendant's possession of a loaded gun in his home would be lawful under N.J.S.A. 2A:151-42, which gives a person permission to keep "any firearm" about his dwelling house. Further, the officers had no reason to ...