State v. Johnson

793 A.2d 619, 171 N.J. 192, 2002 N.J. LEXIS 132
CourtSupreme Court of New Jersey
DecidedMarch 19, 2002
StatusPublished
Cited by112 cases

This text of 793 A.2d 619 (State v. Johnson) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Johnson, 793 A.2d 619, 171 N.J. 192, 2002 N.J. LEXIS 132 (N.J. 2002).

Opinions

The opinion of the Court was delivered by

COLEMAN, J.

The issue raised in this appeal is whether the police, under the plain view doctrine, were lawfully in a viewing area and whether they had probable cause to believe that a “light-colored” object which they observed in defendant’s hand as defendant placed the object into a hole beside a post on the porch of a multi-family dwelling was contraband. The object was ultimately determined to be a clear plastic bag containing narcotics. On defendant’s motion, the evidence taken from the porch was suppressed. The State appealed, and a divided Appellate Division affirmed in an unpublished opinion. The dissenting member of the panel found that the police officer’s conduct was reasonable under the totality of the circumstances. The State appealed as of right based on the dissent. We hold that all of the elements of the plain view doctrine were satisfied. Hence, we reverse the order suppressing the evidence.

I.

At 11:00 p.m. on June 11, 1998, Officer Steven Elliot Wilson, a member of the Trenton Police Department’s Pro-Active Unit, was on patrol in a marked police vehicle in the 600 block of Martin Luther King Boulevard in the City of Trenton. The assignment for the Pro-Active Unit was to target drug violations, prostitution and violations of city ordinances. A black male in his 30s approached Officer Wilson, identified himself as an “area resident,” and said he wanted to remain anonymous. That individual told Officer Wilson that for approximately one hour he had personally observed a black male named “Drew” in the area of 695 Martin Luther King Boulevard “selling crack cocaine in small rip-lock baggies.”

[200]*200Officer Wilson knew that the particular area of Martin Luther King Boulevard described by the informant was a “high drug area.” It was also designated as a “zero tolerance” zone, which is an area designated by the Trenton Chief of Police as an area in which there is a high volume of both drug and city ordinance violations. The address, 695 Martin Luther King Boulevard, was an attached row house with multiple apartments and a porch. The steps leading up to the porch had posts on either side.

Within one or two minutes after speaking with the citizen informant, Officer Wilson arrived at the house. As Officer Wilson and his partner pulled their marked patrol car up in front of 695 Martin Luther King Boulevard, they heard someone shout, “Five-0,” a signal used to alert people to police presence. Officer Wilson illuminated the porch area of 695 Martin Luther King Boulevard with the patrol car’s right-side alley light. His partner simultaneously shined a hand-held spotlight on the same porch. Officer Wilson was able to see defendant seated on the top steps and four other people on the porch. Officer Wilson recognized defendant from a past narcotics investigation.

After someone shouted “Five-O”, Officer Wilson observed the people on the porch slowly move toward the entrance to the house. By the artificial illumination, he also observed defendant slowly place an object with his right hand near a support post for the overhanging porch roof that was immediately to defendant’s right. Officer Wilson described the object as “light-colored.” Officer Wilson then exited the patrol car and ordered defendant to come down the steps and assume the frisk position by the police car. Whether defendant was actually frisked or just ordered to assume the frisk position is unclear from the record. In any event, at that point Officer Wilson did not intend to permit defendant to leave the area. He believed that defendant was attempting to conceal narcotics when he placed the light-colored object beside the post.

Officer Wilson then climbed the steps and used his flashlight to further illuminate the porch and the area where he had seen defendant place the light-colored object. With the illumination [201]*201provided by the alley light and the hand-held spotlight, Officer Wilson saw that there was a hole a few inches deep at the base of the post where the wood had rotted away. While directing the beam of his flashlight into the hole beside the post, Officer Wilson retrieved the “light-colored” object from the hole beside the post. From the time Wilson walked up the steps he never lost sight of the post where the object was seized. After retrieving the object, but before opening the container, he believed it to be “crack cocaine packaged” apparently for street distribution. Wilson formally placed defendant under arrest following seizure of the object. In a search of defendant’s person incident to the arrest, Officer Wilson found $381 “in assorted U.S. currency.”

Defendant was indicted for possession of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-10a(1), possession of a controlled dangerous substance with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1), and possession of a controlled dangerous substance with intent to distribute within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-7.

Prior to trial, defendant filed a motion pursuant to Rule 3:5-7 to suppress the evidence seized from beside the post and from his person. At the suppression hearing, the motion judge asked Officer Wilson: “When you shined your flashlight, what did you see with the beam of the flashlight illuminating?” Wilson answered: “I saw the package of suspected CDS right there.” The motion judge further asked: “Is that what it appeared to you?” Wilson answered: “Yes.” The prosecutor also asked Wilson: “Based on all of the circumstances that you were faced with at the time that you saw Mr. Johnson stuffing an unknown object into the hole, what did you believe was going on?” Wilson answered: “I believed he was attempting to conceal narcotics.” In response to a question propounded by defense counsel, Officer Wilson stated that a zip-lock baggie is often used as a container for crack cocaine.

The trial court found Officer Wilson’s testimony completely credible and adopted his testimony as the factual underpinning for [202]*202the court’s decision. In finding the officer’s testimony to be credible, the trial court stated he “was direct, to the point, and very factual____He appeared to be testifying from his recollection, without embellishing, giving it in a very straightforward, direct maimer. He was responsive to questioning, and indeed he was very thoughtful in his responses, in a very credible way.”

The trial court considered and rejected the plain view exception to the warrant requirement. The court stated:

I do not believe ... this is a plain-view case. It seems like it is, or should be, or could be, but the more I think about it, and I thought about it a lot, I don’t see it to be that. I don’t see it to be similar, either, to a case cited by the State, and that is the matter of State v. Ford, 278 N.J.Super. 351, 651 A.2d 103, a 1995 Appellate Division decision. There is a fair amount of language in Ford that appears to apply to this case, but based upon my analysis of Ford, I don’t think so.
Unlike the Ford case, there was no police observation of the defendant engaging in narcotics transactions alone or with others, as was the situation in Ford. There was no observation or recognition of the object, it was simply a white object, a white object that could be anything. It wasn’t even plastic.

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Cite This Page — Counsel Stack

Bluebook (online)
793 A.2d 619, 171 N.J. 192, 2002 N.J. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-johnson-nj-2002.