Exception to the Search Warrant Requirement, Plain View

While some people may have heard of the term “plain view”, the concept is not as simple as the name suggests. Like most legal issues, the circumstances that define plain view can become somewhat confusing. Under specific circumstances police may seize evidence without a warrant that is in plain view. However, there are a couple criteria that must be met for a plain view search to be legal.

In New Jersey, for a plain view search to be legal (1) the observation of the item must be made from a permissible vantage point and (2) it must be immediately apparent to the police that the item in question is contraband or evidence of a crime.

Originally in the case of Coolidge v. New Hampshire, 403 U.S. 443 (1971), a three prong test was established to evaluate the validity of a plain view seizure. (1) the observation of the item must be made from a permissible vantage point; (2) its discovery must be inadvertent; and (3) it must be immediately apparent to the police that the item in question is contraband or evidence of a crime. However the second requirement in Coolidge v. New Hampshire that “its discovery must be inadvertent” was eliminated in New Jersey through the recent case of State v. Gonzales, 227 N.J. 77, 99 (2016). See also Horton v. California, 496 U.S. 128 (1990). The Gonzales ruling, however, only applies to subsequent cases. The Coolidge standard still applies to plain view cases that occurred in New Jersey before the 2016 ruling in State v. Gonzales.

Going forward, the first requirement in New Jersey for plain view searches is that (1) the observation of the item must be made from a permissible vantage point. For the police to justify a search under the “plain view exception” to the warrant requirement, they must be lawfully in the viewing area. Normally, the police must have a traditional search warrant established upon probable cause to search an area. Plain view applies when, during a lawful search, they observe some other incriminating object. The main issue with plain view is that the police must have a lawful reason to be in the viewing area. The police either need to have a valid warrant based on probable cause or exigent circumstances or some other valid warrant exception to justify a permissible vantage point for a plain view seizure.

However, in the case of a motor vehicle stop, as long as the police can establish that the stop was valid, then the plain view exception will apply. Nonetheless, the police must be within a valid viewing area, typically outside of the car. Even poking a head inside the vehicle could be considered a warrantless search and invalidate any subsequent plain view claims.

The important factor is that there has already been a legal intrusion into reasonable privacy expectations through a warrant or a warrant exception. Plain view alone does not justify a prior illegal intrusion to make a warrantless seizure of the evidence. The first requirement is especially important in the context of a home or private residence. Police who lawfully enter a private residence or other dwelling may seize contraband or evidence observed in plain sight. See State v. Cope, 224 N.J. 530, 550 (2016) ; State v. Josey, 290 N.J. Super. 17 (App. Div. 1996); State v. O'Donnell, 408 N.J. Super. 177, 185-187 (App. Div. 2009), aff'd o.b. 203 N.J. 160 (2010). The plain view doctrine will not apply when a cop has no right to enter a private residence. See State v. Lewis, 116 N.J. 477 (1989) See also State v. Wright, 221 N.J. 456, 478 (2015); State v. Earls, 214 N.J. 564, 592 (2013); State v. Jefferson, 413 N.J. Super. 344, 360-362 (App. Div. 2010).

However, there are plain view cases in which there has been no prior intrusion. These usually apply to searches when the police view something from the outside looking in. The question is whether they were lawfully in the viewing area? For example, in the case of State v. Mann, 203 N.J. 328, 341 (2010), evidence was deemed admissible because the officer was standing outside a parked vehicle and saw baggies he suspected to contain drugs as he looked through the vehicles open window. The Court reasoned that the cop "was lawfully in the viewing area and, when he observed the drugs, he had probable cause to associate the bags of suspected drugs with criminal activity." Although plain view observations made from outside may give the police the probable cause to search, they still need a warrant or exigent circumstances to intrude lawfully on to someone’s property to make a seizure. See State v. O'Herron, 153 N.J. Super. 570 (App. Div. 1977), where the police received a tip that there was a marijuana garden. The police made plain view observations from outside the home, but immediately entered and seized the plants. Because they had probable cause and did not go through the proper procedure of getting a warrant first, the court suppressed the evidence.

Also, evidence may be considered valid if observed in plain view while opening a door to a home. If someone opens a door and the police view contraband inside that would justify exigent circumstances, then they might attempt to seize any evidence in their view. In the case of State v. Stanton, 265 N.J. Super. 383 (App. Div. 1993), the police drove to the defendant’s motel to investigate a tip. The tip alone was insufficient to justify probable cause for a warrant, but when the police knocked on defendant's door, the defendant pulled back the drapes which revealed illegal drugs in plain view of the cops. The court ruled that observing the drugs in plain view established sufficient probable cause as well as exigent circumstances to conduct a warrantless search. The court reasoned that if the police had taken the time to obtain a warrant, the defendant would have immediately disposed of the drugs after seeing the police at the door. This is a common excuse for the police to justify a seizure. They will sometimes claim to have seen contraband in plain view when they didn’t.

The second requirement in New Jersey for plain view searches is that (2) it must be immediately apparent to the police that the item in question is contraband or evidence of a crime. This “immediately apparent” terminology used in Coolidge v. New Hampshire was modified in Texas v. Brown, 460 U.S. 730 (1983). According to the United States Supreme Court, the "immediately apparent" language should not be taken to mean that the officer "knows" that certain items are contraband or evidence of a crime. Rather, it is sufficient if the police officer, from a permissible vantage point, has probable cause to believe that the item observed is contraband or evidence. See also See also State v. Johnson, 171 N.J. 192, 206, 213 (2002); State v. Pineiro, 369 N.J. Super. 65, at 74 (App. Div. 2004); State v. Bruzeeze 94 N.J. 210 (1983).

Yet, even though the police may meet these two requirements for a plain view search in New Jersey, the areas searched must still adhere to the “scope of the search” for the original contraband sought in the justification for the initial search. See See Florida v. Jimeno, 111 S. Ct. 1801, 500 U.S. 248 (U.S. Fla. 1991) and State v. Younger,305 N.J. Super. 250, (App. Div. 1997). “Plain view” items found outside the “scope of the search” may still be inadmissible.