On appeal from the Superior Court, Law Division, Union County.
Milmed, Joelson and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D. Joelson, J.A.D. (concurring). Milmed, P.J.A.D. (dissenting).
The State appeals by leave granted (R. 2:2-4) from an order suppressing a pair of boots seized as evidence upon the arrest of defendant at his home.
The operative facts are not disputed. During the early course of an investigation into an apparent burglary at Madan Plastics, Inc. in Cranford on November 12, 1980, the Cranford police received information which led them to regard defendant as a suspect in the crime. The investigation had also produced a rear door panel from the property entered, which bore what Cranford Detective Hicks described as the impression of a shoe sole bearing a unique diamond pattern. Armed with that information, Detective Hicks did "some checking on the defendant to check on his past history," which uncovered "an active warrant in Cranford for contempt of court." Since defendant resided in the adjoining municipality of Roselle Park, Hicks called the Roselle Park police and told them that "I'd like to go to his residence . . . and pick the defendant up on the warrant itself."
On November 14 Hicks, together with another Cranford officer and two Roselle Park officers, went to defendant's home. Two of the officers went to the back door and two presented themselves at the front door, which was opened by defendant's aunt. The officers told her that "we wanted to speak to Joe," whereupon she went upstairs and shortly thereafter defendant came downstairs. Hicks told defendant that he was from the Cranford Police Department and that he "held a contempt warrant out of the Cranford Municipal Court and that I was there to pick him up on that particular warrant." Defendant said he needed to get dressed and proceeded upstairs. Without invitation or request, Hicks and another officer "accompanied him up to his bedroom," where defendant put on a shirt and a pair of shoes. In the bedroom Hicks "noticed a pair of black work boots below the dresser"; he picked up one of the boots and examined it:
And to me at that time I felt that that was the same sole impression that I had seen on the door panel up at Madan Plastics.
I picked the boots up, and I told Joe at the time I was taking the boots with me, and he wanted to know why. And not to aggravate anything at that particular time, I just told him that when we got into our headquarters I would explain to him why I seized the boots.
At the hearing of the suppression motion, Detective Hicks said his intent in proceeding as he did was "two fold; one, that we had a warrant for his arrest, and the other was I wanted to speak to him about the burglary due to the fact that he was a suspect." When later asked whether he went to defendant's house "to see whether or not you could find any shoes to match up with the investigation," Hicks frankly acknowledged "that was in the back of my mind, yes, it was." He continued that "I needed to speak to him" and that making the arrest on the contempt warrant "was the easiest way for us to pick him up and talk to him, yes." But Hicks conceded that his work did not normally entail "contempt followups"; that defendant's criminal record check had shown only "minor disorderlies" and, furthermore, that "normal" procedure in handling contempt warrants is not to arrest but to call the person by telephone and ask him to appear at headquarters.
In the trial court counsel for defendant relied principally on State v. Seiss, 168 N.J. Super. 269 (App.Div.1979), and argued that Hicks resorted to the contempt warrant with the "ulterior motive" to "go in there and look around and perhaps get lucky." The State acknowledged the authority of Seiss, but argued that there was a "substantial police need" to accompany defendant to his bedroom in connection with the arrest. The State also sought to justify the seizure as the product of a search incident to the arrest. The trial judge found Seiss essentially dispositive. Although he accepted that the officers had gone to defendant's home "for the purpose of arresting the defendant," he found that "they were hopeful of finding some evidence to add to whatever they had in connection with the burglary at Madan
Plastics." The trial judge framed the "plain view" issue in terms of "whether this was the result of an inadvertent viewing by the police" or whether "it was a purposeful inspection for investigative purposes." His conclusion was that
Accordingly, the trial judge ordered the suppression of the boots as evidence.
In State v. Seiss, supra, this court suppressed evidence found in "plain view" when police officers entered defendant's home to arrest him for nonpayment of a fine on a motor vehicle charge. Judge Lynch noted that the police may enter a home to effect an arrest, but that such an entry "is to be measured by the rule of reasonableness." 168 N.J. Super. at 273. The rule of reasonableness, it was explained,
Finding that "the officers had no such reason to believe that he might escape," the court concluded that the "plain view" observation made within the house was improper because "there was no 'substantial necessity' to enter defendant's home in order to arrest him." Id. at 274. "Rather," the court found, "it appears the police invaded defendant's home merely for the purpose of conducting an exploratory search." Id. at 276.
On its face the Seiss holding would be dispositive here, as it was found to be by the trial judge. Here, too, the arrest effected was for a relatively minor offense unrelated to that for which the evidence was seized; defendant was cooperative and there was no showing that the police reasonably apprehended that he would seek to escape or arm himself when he went
upstairs to get dressed,*fn1 and therefore it was unnecessary for the effecting of the arrest to follow defendant through the interior of his home.
The State, however, argues that the holding of Seiss is substantially diluted, if not entirely negated, by the later decision of the United States Supreme Court in Washington v. Chrisman, 455 U.S. 1, 102 S. Ct. 812, 70 L. Ed. 2d 778 (1982), which held that regardless of "the nature of the offense" for which an arrest is made, an arresting officer has "a right to remain literally at [a defendant's] elbow at all times; nothing in the Fourth Amendment is to the contrary." We recognize and, of course, accept that ruling,*fn2 but we do not regard it as validating the asserted "plain view" seizure which occurred here.
We must start with the recognition that not every "plain view" observation permits the warrantless seizure of the item observed. See, generally, State v. O'Herron, 153 N.J. Super. 570 (App.Div.1977), cert. den. 439 U.S. 1032, 99 S. Ct. 637, 58 L. Ed. 2d 695 (1978). The rule is, rather, that
Whether an officer "has a right to be" where the items are observed turns, of course, on the manner in which the intrusion into that location was made. Thus, for example, if the intrusion is itself unlawful, any evidence seized in "plain view" as a result must be suppressed. Id. at 574; State v. Rice, 115 N.J. Super. 128 (App.Div.1971).
In Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), the court identified another kind of intrusion which will not support a seizure of "plain view" items. In his plurality opinion Justice Stewart said that to sustain a warrantless "plain view" seizure "the discovery of evidence in plain view must be inadvertent."*fn3 403 U.S. at 469, 91 S. Ct. at 2040. His stated concern was to deny validity to a " planned warrantless seizure," which he described as one effected by the police "maneuvering themselves within 'plain view' of the object they want." Ibid., n. 26. Observing that "this court has never permitted the legitimation of a planned warrantless seizure on plain view grounds" (Id. at 471, n. 27) 91 S. Ct. at 2041 n. 27, Justice Stewart found that an initial intrusion into a constitutionally protected area may be entirely lawful but will still not extend
The contrary view, Justice Stewart reasoned, would be to conclude that the "warrant requirement should be ignored whenever the seizing officers are able to arrange to make an arrest within sight of the object they are after." Ibid., n. 27.
We read the present record, and the conclusions of the trial judge, to establish that the seizure here was just such a "planned warrantless seizure." The police used a most anomalous procedure to effect an arrest in an adjoining town on a minor charge; an expressed reason for executing the contempt warrant by arrest was that defendant was a suspect in an entirely unrelated burglary and that "we wanted to talk to him"; the officer "had in the back of my mind" that he might find the footgear to match the only physical evidence he had from that burglary; at the time of the arrest there was no
suggestion that defendant was angry or exercised, likely to become violent or to escape, and the police, without advising defendant of their plan to "talk to him" concerning the burglary, followed him without invitation into his own bedroom where they made the hoped-for "plain view" observation. Those facts fully support the finding of the trial judge that the arrest and seizure went well beyond what could reasonably be attributed to an intent to arrest defendant on a contempt warrant; in these circumstances the conduct of the police in arresting defendant and remaining at his elbow must realistically be seen as a pretext to obtain a view of the interior of his house and, as it ...