holding that criminal nature of container is 10 A-1678-15T2 immediately apparent where "outward appearance of the clear plastic bag gave the officer a degree of certainty that was functionally equivalent to the plain view of crack-cocaine itself"
How later courts described this case
- holding that criminal nature of container is 10 A-1678-15T2 immediately apparent where "outward appearance of the clear plastic bag gave the officer a degree of certainty that was functionally equivalent to the plain view of crack-cocaine itself"
- holding that criminal nature of container is immediately apparent where “outward appearance of the clear plastic bag gave the officer a degree of certainty that was functionally equivalent to the plain view of crack-cocaine itself’
- holding that probable cause existed under totality of circumstances because of facts known to police officer and reasonable inferences drawn thereof
Written by the judges who cited it.
The opinion
LONG, J.,
dissenting.
I would affirm the suppression of evidence substantially for the reasons expressed by the Appellate Division. Like the Appellate Division, I would hold that the trial court properly concluded that the police lacked probable cause to arrest Drew Johnson thus defeating the State’s claim that the search was incident to that arrest. I part company from my colleagues in connection with their additional determination that the plain view doctrine was a justification for the search.
*221 I
The facts are straightforward. Based on an anonymous tip, from a person who identified himself as a local resident, that a black male named “Drew” was selling crack cocaine in small ziplock baggies at 695 Martin Luther King Boulevard, the police went to that location, which they characterized as being in a “high drug area.” When they pulled up in front of the multi-family house, someone shouted, “Five-O”, a well-known alert that police are present. The police shined a light on the porch of the house where they saw Johnson seated. One officer knew him from a prior drug'investigation. As the people on the porch began to move toward the entrance of the house, the police observed Johnson slowly place a light colored object near a support post for the porch roof in what the trial court found was “not a furtive movement.” (Emphasis added). Officer Wilson ordered Johnson off the porch and directed him to assume the frisk position next to the police ear. The officer then went onto the porch with his flashlight, shined it on the “light colored object” and retrieved it. The majority acknowledges that Officer Wilson did not testify that he could see the drugs inside the bag before he seized it.
II
The majority has not taken issue with the Appellate Division’s conclusion that the police lacked probable cause to arrest Drew Johnson prior to the seizure of the drugs. It seems clear that at best, the police had a “reasonable suspicion” of Johnson’s criminality, based on all the circumstances. Thus their brief detention of him was justified. Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968); State v. Thomas, 110 N.J. 673 , 542 A.2d 912 (1988). I have doubts about the validity of the warrantless entry onto Johnson’s porch after he was secured in the street. But even assuming, as the majority does, that such entry was lawful, if prior to that entry the police lacked probable cause to arrest Johnson based on the totality of the circumstances, it is inescapable that what occurred on the porch did not satisfy the probable cause *222 prong of the plain view doctrine. Officer Wilson could not see what was in the bag before he seized it. Thus, while he was on the porch, he had no more evidence in hand than he had had when he was on the street — at which point the majority has conceded no probable cause existed. To suggest that the probable cause prong of the plain view doctrine was met is logically out of synchronicity not only with the facts but with the remainder of the majority’s holding.
This case would be entirely different if the officer had testified that when he got a closer look at the light colored object, he could see that it contained vials of pills or glassine envelopes of powder. It would also be different if the officer had testified that from his training or experience he knew, when he shined his flashlight on the light colored object, that it was of a type used by drug sellers transporting their wares. In those circumstances, a new fact would have been added to the probable cause calculus to change it from what it had been on the street. No such new fact is present here.
According to his own testimony, what the officer saw on the porch was essentially nothing more than what he had seen from the street — a closed container whose contents were hidden from his eyes. If he lacked probable cause to arrest Johnson, that closed container, which did not reveal its contents, could have provided no additional evidence to satisfy the probable cause prong of plain view and justify the seizure.
Separate and apart from probable cause, I disagree with the majority’s holding that the inadvertency prong of the plain view doctrine was satisfied. Officer Wilson went onto the porch specifically to retrieve what he saw Johnson put down. No definition of inadvertency encompasses such a scenario. However, in light of the fact that it appears that in Horton v. California, 496 U.S. 128 , 110 S.Ct. 2301 , 110 L.Ed.2d 112 (1990), the Supreme Court eliminated the requirement of inadvertency under the Fourth Amendment, U.S. Const. amend. IV, that error is of no consequence. It would be important, however, if the gravamen of the majority *223 opinion is to reserve the inadvertency issue for resolution under the New Jersey Constitution. N.J. Const. art. I, ¶ 7.
For those reasons, I dissent.
For reversal and remandment — Chief Justice PORITZ, and Justices COLEMAN, LaVECCHIA and ZAZZALI — 4.
For affirmance — Justices STEIN, LONG and VERNIERO — 3.
Opposed — None.