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Plain View Rule Applies to Drug Stashed in Hole in House


March 1995

A majority of the New Jersey Superior Court, Appellate Division, ruled Jan. 3, 1995 that drugs hidden inside a hole in the side of a house found in a warrantless search of the hole after police officers saw the drugs being hidden should not be excluded at trial in an application of the doctrine that a search conducted under the plain view rule is a permissible exception to the warrant requirement (State v. Ford, No. A-6018-93T5, 651 A.2d 103 (NJSuper.Ct. 1995); 1995WL6257; 56 CrL 1387, Feb. 1, 1995).

Camden police officers observed Michael Pratt ask a stopped driver "how much he needed." Pratt then relayed the driver's request to another man, Dwain Ford. Ford walked to a house, where the officers testified he pulled a bag out of a gap in the side of the house. He took items from the bag and replaced it, then gave the items to Pratt who exchanged the items with the driver for money. The police stopped the driver and found the items to be cocaine. The police arrested Pratt and Ford and searched the hole in the house. They found 37 bags of cocaine.

The bag found in the house was suppressed at trial. The trial judge agreed that there was probable cause but there was no exigency permitting a warrantless search and that since the bag was concealed from the general public, it was not in plain view. The search was a warrantless entry inside the house unjustified by any of the exceptions permitting warrantless searches.

The Appellate Division reversed that decision. It ruled that since the defendants were committing their acts on the street in view of the general public, and those acts included the hiding of the bag with the cocaine (an instrumentality of the crime) in the hole, they had no expectation of privacy, and thus the principle of the plain view search applies.

Appellate Division Judge Conley, in a dissenting opinion, wrote that the plain view rule should not apply in this case because the bag was well-hidden. The fact that the defendant's acts were observed does not permit the police to go where they may not normally go without a warrant. Relying exclusively on a privacy analysis eliminates the property concept of curtilage and thus limits the Fourth Amendment only to the interior of the home. [Curtilage refers to the zone of property that is outside of a building but that is considered part of a home, i.e. a front porch, a yard, or a fenced-in area.]