The prior subjective inadvertence requirement of the plain view doctrine is rejected prospectively only. State v. Gonzales, 2016 N.J. LEXIS 1177 (Nov. 15, 2016) (summary by the court):
The Court now excises the inadvertence requirement from the plain-view doctrine. Because it is setting forth a new rule of law, the Court will apply the reformulated plain-view doctrine prospectively. Nevertheless, the Court holds that the trial court’s finding of inadvertence is supported by credible evidence in the record. The Court therefore reverses the judgment of the Appellate Division and reinstates the trial court’s denial of the motion to suppress.
1. The Court notes that both the New Jersey and Federal Constitutions protect against “unreasonable searches and seizures” and forbid the issuance of a warrant absent “probable cause.” N.J. Const. art. I, ¶ 7; see U.S. Const. amend. IV. Warrantless searches are prohibited unless an exception to the warrant requirement applies such as the plain-view doctrine, which authorizes an officer to seize evidence or contraband that is in plain view. (pp. 15-16)
2. The United States Supreme Court established the factual predicates necessary to satisfy the plain-view exception in Coolidge v. New Hampshire, 403 U.S. 443, 465-72, 91 S. Ct. 2022, 2037-41, 29 L. Ed. 2d 695, 582-87 (1984). …
3. In Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990), the United States Supreme Court interred the inadvertence requirement as a predicate for a plain-view seizure of evidence. The majority of the Court found that other aspects of search-and-seizure jurisprudence protect against the concerns that the inadvertence requirement aimed to address. The Court also rejected the inadvertence requirement because it necessitated a subjective inquiry into the officer’s state of mind. The Court thus explicitly stated that inadvertence was not a necessary predicate to a plain-view seizure, a position that a majority of states have since adopted. (pp 20-23)
4. Before Horton was decided, this Court adopted the Coolidge plurality’s formulation of plain view in Bruzzese. Even in espousing the three-prong plain-view standard, however, the Court expressed the view that the standard of objective reasonableness governs the validity of a search or seizure. This Court continued to apply the three-part test in the post-Horton era, but without occasion to assess whether a plain-view seizure would pass muster in the absence of inadvertence. (pp. 23-26)
5. The Court stresses the preference for objective standards over subjective inquiries in both federal and New Jersey search-and-seizure jurisprudence. (pp. 27-29)
6. The Court now excises the inadvertence requirement from the plain-view doctrine. The Court finds subjective inquiry into an officer’s motives to be at odds with the standard of objective reasonableness that applies to a police officer’s conduct under the New Jersey Constitution. The Court notes that the constitutional limiting principle of the plain-view doctrine is that the officer must lawfully be in the area where he observed and seized the item, and that it must be immediately apparent that the seized item is evidence of a crime. Because the Court sets forth a new rule of law, the Court will apply the reformulated plain-view doctrine prospectively. (pp 29-32)
7. Thus, the Court applies the now-defunct three-part plain-view test to the facts of this case. The Court concludes that all three parts of the test were met. The motor-vehicle violations gave the officers a reasonable and articulable suspicion to stop Gonzales’s car, and Officer Perez’s training made the nature of the spilled items “immediately apparent.” Finally, the trial court’s finding that the discovery was inadvertent was supported by sufficient credible evidence in the record, and the appellate panel should have deferred to that finding. (pp 32-35)
8. The Court observes that the appellate panel also erred in finding that the police lacked exigent circumstances to act, stressing that the officers were not required to watch helplessly as Gonzales drove away with what the authorities reasonably believed was a cache of drugs. Here, again, the plain-view observation of the spilled heroin provided the basis for the seizure of the contraband. (pp 35-36)
9. The Court provides guidance as to the limits of the plain-view exception and the continuing need to obtain a warrant when there is sufficient time to do so. (pp 36-37)
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)