Criminal Law Blog - Update on The Plain View Law in New Jersey By Adam Brown Esq. on March 08, 2023

The New Jersey Constitution echoes the United States Constitution, granting individuals the right to remain free of unreasonable search and seizure. Legal protection extends to any property a person possesses and would have a reasonable expectation of privacy. The Plain View law in New Jersey presumes that if an individual leaves something out in the open or "plain view," that person does not expect it to remain private, and as a result, it is not protected against a search.

On February 13, 2023, the New Jersey Superior Court – Appellate Division made a nationally recognized facet of the Plain View doctrine part of the prevailing case law of New Jersey. This decision provides clear guidance on questions related to grey areas related to apparently abandoned buildings and searches of the property in plain sight.

Relevant Facts

A police officer walked onto a home's driveway without permission or a warrant. The police officer, a detective, thought the house was abandoned; it was a dilapidated building with an overgrown lawn and broken windows.

Prior to walking onto the property's driveway, the detective saw a man holding a glass vial with a yellow liquid inside (in plain view). Based on years of experience and the sketchy behavior of the man, such as suddenly turning his back to the detective upon realizing the detective saw him, the detective decided to investigate further.

When the detective told the man to stop, the man was standing on the driveway of the apparently abandoned home. In fact, the detective saw a hole near the house's porch with the glass vial clearly inside. As it was in plain view, the detective took the vial out of the hole, and it was later determined that it contained PCP.

Pertinent Laws

Despite evidence being in plain view, various laws protect individuals' privacy.

  1. Fourth Amendment of the United States Constitution - It guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . and no warrant shall issue, but upon probable cause." U.S. Const. amend. IV. Article I, Paragraph 7 of the New Jersey Constitution contains similar language.
  2. Further clarity of the Fourth Amendment regarding curtilage of a property - The United States Supreme Court has found in both Collins v. Virginia, 584 U.S. ___, 138 S. Ct. 1663 (2018); Florida v. Jardines, 569 U.S. 1 (2013) that a driveway and porch are "curtilage" of a home. As such, they implicate the same constitutional protections as the rest of the house. Either a warrant, permission, or license to walk onto the driveway is required to be in a lawful viewing area where the officer stood on the property.
  3. The Burden of Proof - “'[T]he State bears the burden of showing that defendant has no proprietary, possessory, or participatory interest' in the property searched." Shaw, 237 N.J. at 617. A defendant is not obligated to show that he had a reasonable expectation of privacy in the area searched. Ibid.; Randolph, 228 N.J. at 58


The Verdict

Because the State failed to show that the property was abandoned or that the man charged with possession was a trespasser, the man on the property had constitutionally protected rights in the home. When the detective stepped off the sidewalk and walked onto the driveway, the officer was immediately in the house's curtilage without permission, an implied license, or a warrant. Anything seen at that point was from an unlawful vantage point, and he required a warrant absent one of the exceptions. The court granted the defendant's motion to suppress the evidence found by the police officer was granted.

Plain View Law in New Jersey - Legal Help

Law enforcement often relies on the Plain View law in New Jersey as the basis for not obtaining a warrant. Do you or someone you know face charges due to this doctrine? It is critical that you have counsel with the knowledge and experience in search and seizure law to ensure fair treatment and unbiased consideration. Contact A.Brown Esq. LLC., or call 973-281-2388 and schedule a consultation.

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Law Offices of Adam C Brown Esq. PC

Law Offices of
Adam C Brown Esq. PC

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