Plain view of a gun found in a car — What is “plain view”?

STATE OF NEW JERSEY v. LEE M. TRAVERS,  Decided January 2, 2019 New Jersey Appellate Divsion

Issue in this case to be addressed:  Plain view of a gun found in a car—— What is “plain view”?

FACTS:   The facts here are key— because the police were called to the Toms River Ocean County scene and were told about the events and the gun!

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

In 2009, defendant and Linda had been married twenty-two years and lived in a house in Toms River with their son and daughter. Their relationship had deteriorated, and the couple slept in separate rooms. On a morning in February, after an argument between the two, Linda told defendant he had two days to move out of the house. That evening, Linda took their daughter out for dinner, returning home at approximately 10:00 p.m. Linda heard defendant on the telephone saying he was “going to put an end to this” and that “he’d take everybody out.” He said not to “believe everything you read tomorrow in the newspaper.” Linda woke her son.

Defendant came upstairs, where his daughter was at the door of the bedroom and his son and Linda inside. He told Linda, “you’re done, I’m gonna kill you.” Defendant raised his hand, aiming a gun at Linda and pulled the trigger at least six times, but the gun did not fire. Their son grabbed and lowered defendant’s hand, while Linda ran downstairs. Linda fled the house, crossed the street, and called 9-1-1. As defendant and his son were struggling over the gun, defendant said “let me go or I’ll shoot you, too.” Defendant then ran out of the house.

After leaving the house, defendant drove to the home of an acquaintance, Joseph Lee, who lived twenty to twenty-five minutes away. Inside Lee’s home, defendant told Lee he “he fired some shots at his wife and [his son] got in between it and he shot at him and the gun didn’t work.” Defendant collapsed, and Lee called 9-1-1 because he thought defendant was having a stroke or heart attack. The police and an ambulance arrived in response to Lee’s call. They found defendant unresponsive and unconscious on the floor. Defendant did not have a gun on him.

Once defendant was in custody, the police located defendant’s car in Lee’s driveway. They looked through the window of the locked car and saw an old revolver on the front seat. The gun was in poor condition. Concerned that the gun could discharge because it was cocked and loaded with six rounds, the police unlocked the car, removed the gun, and rendered it safe. Defendant did not have a permit to carry a gun.

The State’s firearms expert examined the gun and found it to be “fireable,” although it had a “cylinder timing” problem. In order to fire the gun, the expert had to turn the cylinder by hand several degrees to align the firing pin and the hammer. All of the bullets showed impressions from the firing pin, indicating that the trigger was pulled at least six times.

Issue:  The Gun and the police — Plain View!

A:   Review of the trial court judge’s decision to suppress (or not suppress) on appeal !

“The Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution require that police officers obtain a warrant before conducting a search, unless that search falls into a recognized exception to the warrant requirement.” Id. at 32. “A search without a warrant is presumptively invalid” unless it falls within an exception to the warrant requirement, Mann 203 N.J. at 340, and the State “bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure ‘falls within one of the few well-delineated exceptions to the warrant requirement.'” State v. Elders, 192 N.J. 224, 246 (2007) (quoting State v. Pineiro, 181 N.J. 13, 19-20 (2004)).

“Those exceptions include, among others, plain view . . . .” Sencion, 454 N.J. Super. at 32 (quoting State v. Pena-Flores, 198 N.J. 6, 11 (2009)). Probable cause is required to invoke the “plain view” doctrine. State v. Johnson, 171 N.J. 192, 208 (2002). Probable cause has been defined as “a well-grounded suspicion that a crime has been or is being committed.” State v. Moore, 181 N.J. 40, 45 (2004) (quoting State v. Nishina, 175 N.J. 502, 515 (2003)).

Under the plain view doctrine at the time this case was decided,1 three elements were required:

1) a police officer “must be lawfully in the viewing area”;  

2) the officer “has to discover the evidence ‘inadvertently'”; and  (The New Jersey Supreme Court eliminated the second prong, “inadvertence,” from the plain view test, but made clear that the ruling was prospective only. State v. Gonzales, 227 NJ. 77, 82 (2016).)

3) it must be “‘immediately apparent’ to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.”

Mann, 203 N.J. at 341 (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983)). The “inadvertence” prong of the plain view test “is satisfied if the police did not ‘know in advance the location of the evidence and intend to seize it.’” Johnson, 171 N.J. at 211 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 470 (1971)).

Defendant concedes the police were lawfully in the viewing area of the gun and the officers reasonably believed at the time of the seizure that the gun may be evidence of a crime. Defendant challenges, however, the State’s claim that recovery of the gun was “inadvertent,” as was required by the plain view standard then in effect. Defendant posits that because the police responded to a   9-1-1 call concerning defendant having a gun, the State cannot claim that the police’s discovery of the gun was inadvertent.

The trial court found the testimony of the State’s witnesses credible, and the photographs moved into evidence supported the State’s witnesses’ testimony as it “related to the condition and position of the handgun and the debris in and condition of the interior of the vehicle.” The court found that the gun in defendant’s car was in plain view and that the condition of the gun posed an imminent danger, creating exigent circumstances permitting the officers to enter the car to retrieve the weapon. “Because the seizure of the firearm . . . was proper under the plain view doctrine, it was not necessary for the State to establish exigent circumstances under the automobile exception.” State v. Reininger, 430 N.J. Super. 517, 537 (App. Div. 2013).

The officers did not know in advance the location of the gun and did not intend to seize it. The search, therefore, met the standard under the plain view test. Mann, 203 N.J. at 341. The trial court did not err in denying defendant’s motion to suppress based on the plain view exception to the warrant requirement.

Analysis:  The facts here are pretty simple, straight forward and clear!  That is why I included all of them.  The police were called to the location based on the 911 call, and then once they heard the events that had transpired they then went to the immediate areas and looked for the car.  Once they found the car, the police merely flashed their flashlight inside and saw the gun on the seat!  SO, the court found the police were lawfully in the area investigating the actual crime, and the observation was ‘immediately apparent’ to the observer.  Remember, the 911 call was for a gun, and that is what they observed on the seat!  Now, of they received a call for a drug transaction, and observed the same gun, arguably they could have also seized that gun under the same circumstances.


Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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