Jun 15

Plain View Searches


The plain view doctrine was initially articulated in Coolidge v. New Hampshire, 403 U.S. 443 (1971), and, while it is one of the most often cited, it is probably the least understood doctrine in the law of search and seizure. Justice Stewart, in an opinion joined by a plurality of the Supreme Court, cautioned the legal community about the indiscriminate use of the term Plain View:

It is well-established that under certain circumstances the
Police may seize evidence in plain view without a warrant.
But 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
the normal concomitant of any search legal or illegal.

Coolidge at 443.

In order for the Plain View Doctrine to apply, the observation of the item must be made from a permissible vantage point, its discovery must be inadvertent, and it must be immediately apparent to the police that the item in question is contraband or evidence of a crime. Id. Plain View alone does not justify an initial intrusion to make a warrantless search of evidence. Probable cause may be established by Plain View, but before police can intrude on the reasonable expectation of privacy, they must either have a warrant or exigent circumstances.

Plain view alone is never enough to justify the warrantless
seizure of evidence. This is simply a corollary of the familiar
principles discussed above, that no amount of probable
cause can justify a warrantless search or seizure absent
exigent circumstances. Incontrovertible testimony of the
sense that an incriminating object is on premises belonging
to a criminal suspect may establish the fullest 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

Id. at 468.

A review of the case law clearly shows that when officers seize contraband in Plain View the items seized are recognizable as contraband, meaning that the items seized serve no other purpose such as baggies of marijuana or foils used to contain heroin. See, State v. Mann, 203 N.J. 328 (2010); State v. Johnson, 171 N.J. 192 (2002); State v. Harris, 384 N.J. Super. 29 (App. Div. 2006); and State v. Herron, 153 N.J. Super. 570 (App. Div. 1977). In Texas v. Brown, 460 U.S 730, 741 (1983) the Court retracted the terminology of the Coolidge decision of “immediately apparent” reasoning that the phrase “was very likely an unhappy choice of words, since it can be taken to imply that a unduly high degree of certainty as to the incriminatory character of the evidence is necessary for an application of the plain view doctrine”. In State v. Bruzzese, 94 N.J. 210 (1983) the New Jersey Supreme Court followed suit and held that probable cause exists by objective facts interpreted by a reasonable person.

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