Plain View and Lawful Vantage Points (Part 2)

The New Jersey Supreme Court continued in relevant part: Estevez proceeded to knock on two interior doors, one on the first floor and one on the 2 second floor, both of which were answered by female residents who denied having any male roommates. Estevez then went to the second floor’s middle room door. As he approached that room, Estevez heard movement and smelled marijuana through the door. He knocked on the door, announced that he was a police officer, and told the individual to answer the door. Defendant opened the door, which swung inward toward a room Estevez stated was approximately eight feet by eight feet. According to Estevez, the smell of marijuana drastically increased when defendant opened the door, and defendant was sweating and breathing heavily. Estevez stated that while he was standing in the doorway, still in the common hallway, he looked into defendant’s room as defendant went to get his wallet to provide identification. Estevez testified that, in light of safety concerns, he was closely watching defendant’s hands and thus saw a small bag of marijuana next to the wallet, at which point he concluded defendant would be placed under arrest.

Estevez testified that he stepped into defendant’s room as defendant turned to provide the identification. Estevez saw on defendant’s driver’s license that defendant’s name was Louis Williams. He then placed defendant under arrest for possession of marijuana, conducted a protective sweep of the bedroom, and applied for a warrant to search defendant’s room for drugs, weapons, and other items. After obtaining the warrant, other police officers searched defendant’s bedroom and seized a bag of marijuana and a gun. The trial court denied defendant’s motion to suppress the drugs and weapon. The court accepted Estevez’s testimony as fact and determined that defendant did not have a privacy right as to the common hallway and that, in light of Estevez’s plain-view observation from that lawfully accessed area, there was no unlawful search or seizure.

The smell of marijuana is probably the most common basis for a search to occur without a warrant. It will be interesting to see what basis takes its place once marijuana is recreationally legal in New Jersey.