Plain Smell and Sight in New Jersey Gun/drug Cases

February 28, 2017

New Jersey Police departments claim they can see and smell everything. Using skills usually reserved for a Marvel superhero, law enforcement routinely claims they can see drugs through a closed container, smell marijuana through a brick house miles away, or detect the odor of marijuana from a vaporizer pen used solely for cigarettes.

 If you have been the victim of a superman cop stop, whereby plain smell or plain view was the basis for the search and subsequent seizure of contraband on your person, seasoned criminal defense attorneys can help.

 One of the most used exceptions to the warrant requirement is the plain view exception. In New Jersey, the plain view exception to warrant requirement rule can be applied to four different sensory perceptions including view, smell, sound, and touch. The plain view doctrine is used in cases involving guns and drugs routinely, but there are requirements that need to be fulfilled for the exception to be deemed reasonable.

 There are three requirements that a search using the plain view exception must show to prove its legality:

1)      The officer involved in the search must have the right to be where they are when they perceive the existence of evidence.

2)      The timeliness and intent of the original search must be reasonable in duration and nature.

3)      The item perceived to be evidence or contraband must be immediately apparent.  An officer must recognize the evidence or contraband in a reasonable amount of time. 

Questions that are often raised in these cases are:

·         Did the police know in advance location of the evidence discovered in plain view? 

·         Did the police intend to seize the evidence discovered in plain view?  The discovery of the evidence or contraband using the plain view exception must be inadvertent. 

 In plain view cases involving a car search the reasonableness of the search is key. Even if officers have executed a valid motor vehicle stop, their subsequent actions could result in an illegal search.

 For instance, police officers in New Jersey are permitted to request a driver to exit the vehicle, but the same rule does not apply for passengers. For police to sustain a search after asking passengers to exit the vehicle, police must point to “specific and articulable facts” that would warrant heightened caution. State v Smith 134 N.J. at 618. If police request that a passenger exit a vehicle, even though there is no danger or heightened caution present, and discover contraband upon the exit of the passenger, the evidence seized by police may be suppressed.

 In addition, in motor vehicle stops police must give a driver an opportunity to retrieve his driving credentials before executing a search. Police searching a car for proof of registration or insurance, without providing the driver with the opportunity to do so, will not meet the first requirement of the plain view exception; possessing the right to be present when they observe the evidence.

 In State v Padilla 321 N.J. Super 96, reasonableness of plain view was brought in to question when a gun was seized during a motel search.  Three officers were sent to a motel after receiving an anonymous call about two people entering the motel with a gun. Upon arrival the officers knocked on the door and were allowed in by the defendant.  One officer scanned the room for any evidence or contraband. The officer quickly discovered a gun in plain view and arrested the defendant. The officers were making reasonable observations in the room for a firearm after receiving the anonymous call. The reasonableness in totality of the search is what allowed the search to be upheld under the plain view doctrine.

In State v Taylor 81 N.J. Super 296, a case involving the search of a car, the court suppressed the evidence obtained, stating that the search was unduly intrusive. In the case the officer opened the car door, bent over into the vehicle, and seized an unidentified object from beneath the seat.  The seizure of the evidence was deemed unreasonable in the totality of the circumstances and not justified under the plain view doctrine.

 The plain view exception to the warrant requirement rule is used in many cases involving drugs and firearms.  Recently, four men were arrested in a hotel drug bust in Rochelle Park, New Jersey.  Officers observed suspicious activity outside the hotel, and when they approached the men they were given reason to believe there was illegal activity going on.  When the officers entered the hotel room they observed a firearm in plain view. They proceeded by arresting the four men on charges of distribution of heroin in the first degree, and possession of a firearm while engaging in criminal activity.

This arrest in Rochelle Park highlights the first and most important aspect of the plain view requirement. The officers must have had a right to be in the hotel room when they made the observation. Did they have that right? Were the observations made outside sufficient to provide them with a warrantless search of the hotel room? Were they able to use their superpowers to see through the door and detect the gun? If not, there is a very good chance the weapon seized was the product of an illegal search and could be suppressed.

The attorneys at Lubiner, Schmidt & Palumbo have extensive experience in search and seizure cases dealing with controlled dangerous substance/drugs and weapons charges as well as a host of other issues. Call for a consultation to discuss the merits of your case and different potential options to consider. Please call 1-908-709-0500 to speak with one of our associates.