July 25, 2011
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
SHAWN WILLIAMS, DEFENDANT-RESPONDENT.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-05-893.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 5, 2011 --
Before Judges Axelrad and Lisa.
By leave granted, the State appeals from an order suppressing evidence, namely drugs, that were seized from a parked motor vehicle. The State argues that the trial court erred in its application of the plain view doctrine. The State also argues that the trial court erred in rejecting the State's alternative justification for the seizure of the drugs, namely, that exigent circumstances obviated the need for a search warrant. We agree with the State's plain view argument and reverse. We accordingly find it unnecessary to address the exigent circumstances argument.
These are the pertinent facts developed at a suppression motion hearing that spanned several court sessions. The Jersey City Police received complaints from residents at the Marion Gardens Housing Complex that individuals were selling drugs during the morning hours, beginning at about 6:00 a.m. A surveillance was established on January 22, 2010, beginning at about 5:00 a.m., by Officers James Lisi and Paul Aloi, backed up by three perimeter units. At about 5:30 a.m., Lisi observed an individual, later identified as defendant, park a black Ford Explorer in a parking lot at the housing complex. Defendant walked into the complex courtyard and, after looking around, returned to the parking lot. Using a key he removed from his pocket, he unlocked a green Buick Century that was parked there and removed a clear bag containing multiple small objects. Based upon his training and experience, Lisi believed the objects consisted of drugs.
Defendant returned to the courtyard and began flagging down pedestrians as they walked by. Over the next several hours, the police observed what they believed to be several hand-to-hand drug sales by defendant to other individuals.
At about 11:20 a.m., defendant got into the black Ford Explorer and drove away from the housing complex. Members of one of the perimeter units stopped him at a nearby intersection, arrested him, and took him into custody. The officers parked the Ford Explorer in a legal parking place on the street.
It was then determined that defendant had on his person a key to a General Motors vehicle. The officers who had arrested defendant were directed to bring that key back to the Marion Gardens Housing Complex.
Before one of those officers arrived with the General Motors key, the officers who remained at the housing complex contended in their testimony that a hostile crowd was beginning to gather around them. The trial judge rejected that testimony as incredible, noting that the officers had not mentioned it in their police reports and did not express fear for their safety. Nevertheless, the officers at the housing complex approached the green Buick Century and, as they did so, one of them, Officer Michael Galvez, observed through the car window objects protruding from a plastic bag on the driver's side rear seat.
Based on his training and experience, Galvez immediately identified the items as illegal drugs. The car door was unlocked. Galvez opened the door and removed the drugs he had seen through the window. The items seized consisted of heroin, cocaine, and crack cocaine.
While being cross-examined at the suppression hearing, Galvez described his plain view observation, and was then asked what happened next. He said he informed Sergeant Michael Redmond, who was standing nearby. The following colloquy then occurred:
Q. What's the next thing that happens?
A. As he comes around the car and observes what I'm observing, I test the door and the door is unlocked.
Q. Why don't you test the door right away before you do it?
A. Because that's not what I was there for. I was there securing the car, looking inside of it.
Q. You were there to look inside the car. That was your orders to look inside the car?
A. No, we were there to stand by the car and secure the car.
The plain view exception to the warrant requirement has three prongs: (1) the officer must be lawfully in the viewing area; (2) the officer must discover the evidence "inadvertently," meaning that the officer did not know in advance where the evidence was located nor intend beforehand to seize it; and (3) it had to be immediately apparent to the officer that the items viewed were evidence of a crime, contraband, or otherwise subject to seizure. State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
After correctly setting forth these principles, the trial court found that the first and third prongs were satisfied. However, the judge found that the second prong was not satisfied. The judge reasoned "that an inference can be made that Sgt. Redmond and Officer Galvez were aware that narcotics were located within the green Buick, and as such, believed they would find evidence of drug related activity within the green Buick Century." The judge therefore concluded that when Redmond and Galvez approached the vehicle, "they did so with the intent to find evidence of narcotics." Accordingly, the judge concluded "that the narcotics were not inadvertently found within the vehicle."*fn1
The judge misapplied the second prong of the plain view doctrine. The purpose of the inadvertence prong is to prevent law enforcement officers from surreptitiously using the plain view doctrine as a pretext for a warrantless search. State v. Johnson, 171 N.J. 192, 211 (2002). The Court explained in Johnson that there are important differences between the interests of citizens protected from unlawful searches and those protected from unlawful seizures that are relevant to the plain view doctrine. A search threatens a citizen's personal privacy interest while a seizure threatens a citizen's interest in retaining possession of his or her property. Frequently a seizure is preceded by a search. . . . An object is considered to be in plain view if it can be seized without compromising any interest in personal privacy. [Id. at 206 (citation omitted).]
Courts have repeatedly instructed that law enforcement officers are not obliged to turn away from suspicious evidence in plain view. See Johnson, supra, 171 N.J. at 208 ("It cannot be denied that 'a police officer lawfully in the viewing area [is not required to] close his eyes to suspicious evidence in plain view.'" (quoting Bruzzese, supra, 94 N.J. at 237)).
The United States Supreme Court has abolished the inadvertence requirement under its Fourth Amendment jurisprudence. See Horton v. California, 496 U.S. 128, 141, 110 S. Ct. 2301, 2310, 110 L. Ed. 2d 112, 126 (1990). This court has explained that the purpose of the inadvertence requirement is to insure that a "'plain-view seizure will not turn an initially valid (and therefore limited) search into a general one [.]'" State v. Damplias, 282 N.J. Super. 471, 478 (App. Div. 1995) (quoting Horton, supra,, 496 U.S. at 137-38, 110 S. Ct. at 2308, 110 L. Ed. 2d at 123). It follows that if a plain view observation is made from a lawful viewing area, in the absence of a search, the concerns underlying the inadvertence prong of the plain view doctrine are lacking. Our Supreme Court explained this in Johnson, setting forth the important distinction between the interests protected from unlawful government searches on the one hand and interests protected from unlawful government seizures on the other. A plain view observation, in and of itself, is not a search. Therefore, a citizen's personal privacy interest is not implicated. Additionally, it is only when the evidence is seized that his or her possessory interest is involved.
In State v. Padilla, we considered circumstances in which police officers responded to a motel upon a report that one of the individuals entering a room was seen carrying a handgun. 321 N.J. Super. 96, 102-03 (App. Div.), certif. denied, 162 N.J. 198 (1999), aff'd o.b., 163 N.J. 3 (2000). Thus, the only reason the police went to the motel, and to that particular room, was to investigate the reported presence of a handgun.
Id. at 103, 107. The occupants voluntarily allowed the police into the room, and in the course of looking around, the police saw not only the handgun, but other items of contraband. Id. at 103-04. We were careful to point out that "once inside the room, the officers did not conduct a search. They merely made visual observations as they continued their inquiry." Id. at 108.
We were satisfied that the inadvertence prong of the plain view exception was satisfied, because "[w]hile the police had a reason to investigate the report that someone in the room had a gun, they did not know its precise location let alone that it would be in plain view." Id. at 109. It did not matter that the sole purpose for the police entering that motel room was to investigate the tip that there might be a handgun present. Ibid. No search was being conducted, and therefore the plain view exception was not being used as a pretext to validate what otherwise would have been an unlawful search.
The same rationale was applied in Johnson, where the police, acting on a report from a neighborhood resident that an individual was selling crack cocaine in small zip-lock baggies from a particular address, went to that location, saw an individual hide an item in a hole near a support post on the porch, and, using a flashlight, found the item in the hole and seized it. Johnson, supra, 171 N.J. at 199-201. The officer clearly believed that the defendant "was attempting to conceal narcotics." Id. at 201. Nevertheless, the Court was satisfied "that whatever remains of the 'inadvertence' requirement of plain view since Horton was satisfied in this case because the police officers did not know in advance that evidence would be found in a hole beside one of several posts on the porch." Id. at 213. This conclusion followed the Court's analysis of the defendant's privacy interests in the porch under these circumstances and its conclusion that there was not a sufficient expectation of privacy to preclude a finding that the officer was in a place he was lawfully authorized to be when he shined his light in the hole and observed the drugs. Id. at 208-11.
Similarly, in analyzing the inadvertence prong in Bruzzese, the Court noted that "[t]he 'hope' nestled in the back of Detective Hicks's mind that he might learn something about the burglary in the course of defendant's arrest does not defeat the notion that his discovery of the boots was an inadvertent fortuity." Bruzzese, supra,, 94 N.J. at 238 (citing United States v. Johnson, 707 F.2d 317, 321 (8th Cir. 1983) (holding plain view discovery of firearms in defendant's residence "inadvertent," notwithstanding that police expected to find weapons there and may have been able to obtain a warrant to search for them)).
The officers in this case did not know there were drugs in the Buick or, if so, their exact location or that they would be in plain view. Further, in the circumstances of this case, defendant had no expectation of privacy in the Buick. It was parked in a public place in broad daylight and easily accessible to and viewable by any passerby. Indeed, it was not even locked. When Galvez looked through the window and saw the drugs, he was in a place he was lawfully authorized to be, he was not conducting a search, and his conduct did not violate any privacy interest of defendant or the owner of the vehicle. Indeed, Galvez's testimony established his intention in approaching the car, namely to secure it. Whether he had a hope or expectation that, based upon the nature of the surveillance and investigation that had been transpiring that morning, the car might contain drugs, does not defeat the inadvertence requirement of the plain view doctrine.
Accordingly, we reverse and remand for further proceedings.