New Jersey Criminal and DWI Lawyer & Attorney : John Marshall Law Firm : Drunk Driving, DUI : Monmouth County, Middlsex County, Union County, New Jersey

As I said in my previous article, New Jersey has yet to drop the inadvertence requirement from the plain view analysis as was done by the United States Supreme Court in Horton v. California, 496 U.S. 128 (1990). This issue was first presented to the Appellate Division in State v. Damplias, 282 N.J. Super 471 (1995). However, the court declined to rule on whether the inadvertence requirement (the second prong of the test) is still an essential element under Article I, Paragraph 7 of the New Jersey Constitution. The court simply noted that the test for inadvertence has two prongs: 1) Did the police know in advance where the evidence was located? 2) Did the police intend beforehand to seize the evidence? If the answer to both questions is yes, then the discovery of the evidence is not inadvertent and the plain view exception does not apply. However, if the answer to the first prong is yes and the answer to the second prong is no, the the inadvertence requirement is satisfied. Seven years later, the New Jersey Supreme Court had an opportunity to clarify the issue but declined to do so. In State v. Johnson, 171 N.J. 192 (2002), the Court avoided the question and declined to rule on whether the inadvertence prong is still a requirement under the State Constitution. The Court simply held that, to the extent that the inadvertence requirement still exists in the wake of the Horton decision, it was satisfied in the Johnson case. Accordingly, it appears that the inadvertence prong is still part of the analysis in New Jersey with regard to the plain view exception to the warrant requirement.  

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In a drinking and driving prosecution, almost all evidence discovered during a lawful, warrantless search of a motor vehicle is legally admissible against the defendant under the plain view exception to the warrant requirement. The plain view doctrine was established by the United States Supreme Court in the case of Coolidge v. New Hampshire, 403 U.S. 443 (1971). The original plain view exception required proof of three elements: 1) the police officer had to be lawfully in the viewing area. Basically, the officer must have a legal right to be in the place from which he or she makes the observations. 2) the officer was required to discover the evidence inadvertently, meaning that the officer did not know where the evidence was in advance. 3) the criminal nature of the item must be immediately apparent.

The original test has been modified by the United States Supreme Court in subsequent decisions. In Texas v. Brown, the immediately apparent requirement was modified as the police must have probable cause to associate the item seen in plain view with criminal activity. Texas v. Brown, 460 U.S. 730 (1983). In 1990, the Court again modifed the test as the inadvertent aspect of the discovery of evidence was not a necessary condition. Basically, they did away with the second prong of the test.

As modified, the New Jersey Supreme Court has accepted the three requirements governing the plain view exception as described in Brown. As modified, the plain view exception in New Jersey will require proof that:

1) at the time of the viewing of the evidence, the officer was in a location where he or she had a right to be.

2) the officer discovered the evidence inadvertently, meaning that he or she did not know in advance where the evidence was located and did not intend beforehand to seize it; and

3) there was probable cause to associate the items seen in plain view with the evidence of criminal activity.

Interestingly enough, New Jersey has yet to drop the inadvertent requirement from plain view analysis as was done by the United States Supreme Court in Horton v. California, 496 U.S. 128 (1990).

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