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A police officer who observes possible illegal activity from a public vantage point should not be precluded from searching more closely, even on private residential property, a split New Jersey Supreme Court ruled March 20. In an expansion of the plain-view doctrine, the justices ruled 4-3 that there was no basis for suppression of drug evidence discovered in a hole on the porch of a Trenton, N.J., home after a police officer got a tip that the resident was selling drugs. State v. Johnson, A-50-00. As the officer approached the house, he heard someone shout “Five-O” and then saw Drew Johnson, whom he recognized from previous investigations, place a “light-colored” object near a support post on the porch. The officer walked onto the porch and, with his flashlight, found a package of crack cocaine and $381 in cash in a hole at the base of the post. Johnson was arrested and charged with controlled dangerous substance crimes. Superior Court Judge Andrew Smithson granted Johnson’s motion to suppress, saying the search was not a proper exception to the warrant requirement. A divided Appellate Division panel affirmed, but the justices reversed and remanded. Justice James Coleman Jr. said that the officer was just getting a closer look at what he observed in plain view. “In short, the conduct that enabled [the officer] to observe the object in the hole was not a search within the meaning of the Fourth Amendment,” wrote Coleman, joined by Chief Justice Deborah Poritz and Justices Jaynee LaVecchia and James Zazzali. “Any object in the hole could have been observed by inquisitive passers-by or any other member of the public. There is no reason why a diligent police officer should not be allowed to observe that which he or she could have observed as a private citizen,” Coleman continued. Justice Virginia Long wrote for the dissenters, saying “it is inescapable that what occurred on the porch did not satisfy the probable cause prong of the plain view doctrine. [The officer] could not see what was in the bag before he seized it. Thus, while he was on the porch, he had no more evidence in hand than he had had when he was on the street — at which point the majority has conceded no probable cause existed,” she wrote. “This case would be entirely different if the officer had testified that when he got a closer look at the light colored object, he could see that it contained vials of pills or glassine envelopes of powder. It would also be different if the officer had testified that from his training or experience he knew, when he shined his flashlight on the light colored object, that it was of a type used by drug sellers transporting their wares,” wrote Long, joined by Justices Gary Stein and Peter Verniero.

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