State v. O'Herron

• Decision Date: 04 November 1977
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Edward O'HERRON, Jr., and Kathleen O'Herron, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 570

153 N.J.Super. 570

380 A.2d 728

STATE of New Jersey, Plaintiff-Appellant, v. Edward O'HERRON, Jr., and Kathleen O'Herron, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued Sept. 15, 1977.

Decided Nov. 4, 1977.

Daniel Louis Grossman, Deputy Atty. Gen., for plaintiff-appellant (William F. Hyland, Atty. Gen., attorney).

Paul A. Sherman, Long Branch, for defendants-respondents.

Before Judges BISCHOFF, KOLE and GAULKIN.

The opinion of the Court was delivered by

GAULKIN, J. S. C., temporarily assigned.

The State appeals, by leave granted, from an order entered prior to trial suppressing two marijuana plants seized without a warrant from the rear yard of defendants' home. Based upon that seizure defendants have been indicted for possession of marijuana. N.J.S.A. 24:21-20 a(4).

The record before the trial court consisted of a brief account by the State of the circumstances of the seizure, which defendants stipulated they would be unable to dispute. The uncontroverted facts are that on July 20, 1976 the Hazlet Police Department received an anonymous call that marijuana plants were growing in a vegetable garden at 169 8th Street, West Keansburg. Two officers were dispatched to that address, where they saw a garden and determined that it should be further investigated by detectives.

At about 11:15 the next morning Detectives Allen and Mulligan went to the address and observed the garden. From the roadway they were able to see "large green plants growing in the garden." In order to get a closer look Detective Allen went around the back and came through the property behind defendants' house. From that vantage point off defendants' property, the detective observed two plants growing at the rear of the property which, from past experience, he identified as marijuana.

The detectives notified headquarters and additional officers were dispatched to the scene. The officers entered defendants' garden, further examined the plants and gathered them as evidence. The record indicates no attempt made at the time of the seizure to identify the owners or occupants of the premises, or to locate them for interrogation, arrest or otherwise.

In the trial court the State, which had the burden to justify the warrantless seizure (State v. Allen, 113 N.J.Super. 245, 273 A.2d 587 (App.Div.1970)), advised that it was "relying on the plain view doctrine" as enunciated in Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). Defendants principally relied on what they urged were limitations on the doctrine set forth in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), reh. den. 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971). Following argument, and principally in reliance upon Coolidge, the trial judge suppressed the evidence upon findings that the observing of the plants by the police was not inadvertent and that no exigent circumstances excused the requirement of a warrant to seize.

In this court the State again contends that the seizure was justified under Harris, which holds that "objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." 390 U.S. at 236, 88 S.Ct. at 993, 19 L.Ed.2d at 1069. Defendants respond, as they did in the trial court, that under Coolidge the "plain view" exception requires both "inadvertent" discovery of evidence and "exigent circumstances" to justify a warrantless seizure and that neither appears here. In rebuttal the State contends that those requirements of Coolidge represent the views of only a plurality of the United States Supreme Court and are therefore not binding on this court and ought not to be followed. Further, the State argues that inadvertence and exigent circumstances are both established by the stipulated facts.

Consideration of the scope and application of the "plain view" doctrine here must proceed with the recognition that the term "plain view" is imprecise and has been used to describe a variety of circumstances having quite different legal implications. As Justice Stewart noted in Coolidge,

* * * it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the "plain view" doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal. (403 U.S. at 465, 91 S.Ct. at 2037, 29 L.Ed.2d at 582).

"Plain view" is sometimes used to describe situations in which items are exposed to public view in a public place or in an otherwise constitutionally unprotected location; their observation and seizure are authorized without a warrant. See, e. g., State v. McKnight, 52 N.J. 35, 243 A.2d 240 (1968). A second application of "plain view" is to situations in which officers have lawfully intruded into a constitutionally protected place where they observe the items in question; such "plain view" observation and subsequent seizure require no warrant, as where the initial lawful intrusion is by consent (e. g., State v. Braeunig, 122 N.J.Super. 319, 300 A.2d 346 (App.Div.1973); State v. Mark, 46 N.J. 262, 216 A.2d 377 (1966)), to effect an arrest (e. g., State v. Jordan, 115 N.J.Super. 73, 278 A.2d 223 (App.Div.1971), certif. den. 59 N.J. 293, 281 A.2d 806 (1971)), or in hot pursuit (e. g., State v. Canola, 135 N.J.Super. 224, 343 A.2d 110 (App.Div.1975), mod. 73 N.J. 206, 374 A.2d 20 (1977)).

On the other hand, objects may come into "plain view" only after and as a result of an unlawful intrusion into a constitutionally protected zone; evidence of such observation and any warrantless seizure resulting must be suppressed. See, e. g., State v. Rice, 115 N.J.Super. 128, 278 A.2d 498 (App.Div.1971) ; State v. Allen, supra; State v. Baker, 112 N.J.Super. 351, 271 A.2d 435 (App.Div.1970); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

Simply describing an object as being in "plain view," then, is not sufficient to justify its warrantless seizure. The common strand in the cases cited is that a warrantless seizure may be made of items in "plain view" in a location where the officer has a right to be; but that the presence of the items cannot alone supply justification for a police officer's presence at that location. As Justice Stewart said in Coolidge,

* * * the doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure. (403 U.S. at 466, 91 S.Ct. at 2038, 29 L.Ed.2d at 583).

This case presents yet a different kind of "plain view." Here the marijuana plants were located in defendants' backyard but were observed from adjoining property, and the officers' intrusion onto defendants' property is sought to be justified solely on the basis of the antecedent observation. ¹ The State urges in essence that whatever is lawfully observed without a warrant may be seized without a warrant, regardless of its location. We find that position to be without the support of reason or persuasive authority.

In the kind of "plain view" situation presented here the observation itself is not in issue, for a mere visual observation without physical intrusion generally does not constitute a "search" within the meaning of the Fourth Amendment. See State v. Smith, 37 N.J. 481, 181 A.2d 761 (1962); United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed 1202 (1927); United States v. McMillon, 350 F.Supp. 593 (D.D.C.1972). But the Fourth Amendment by its terms protects against both "unreasonable searches and seizures"; that protection "is prima facie equatable with the obtaining of a valid search warrant and the mere existence of probable cause does not alone confer legality upon a warrantless search. State v. Hannah, 125 N.J.Super. 290, 294, 310 A.2d 512 (App.Div.1973), certif. den. 64 N.J. 499, 317 A.2d 712 (1974). A "plain view" observation made, as here, without intrusion can surely furnish probable cause for a seizure. That it does not alone justify a warrantless intrusion to seize was stated with simple clarity by Justice Stewart in Coolidge :

* * * plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent "exigent circumstances." Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure. ² (403 U.S. at 468, 91 S.Ct. at 2039, 29 L.Ed.2d at 584).

A number of cases have applied those principles to facts similar to those presented here. In United States v. Coplen, 541 F.2d 211 (9 Cir. 1976), cert. den. 429 U.S. 1073, 97 S.Ct. 810, 50 L.Ed.2d 791 (1977), officers made a warrantless seizure from a private airplane after making observations from outside of marijuana debris inside. The court found that the visual observation was not a "search," that observation did not violate any reasonable expectation of privacy and that the viewing of the debris constituted adequate probable cause for the issuance of a warrant. But the court went on to hold that the warrantless seizure was not justified by that observation alone, and that the warrant requirement would be excused only if "exigent circumstances" existed; analyzing that question, the court found the circumstances, including particularly the mobility of the...