NARROW VICTORY

A police officer who observes potentially illegal drug activity from a
public vantage point should not be stopped from searching more closely,
even on private residential property, according to a split New Jersey
Supreme Court decision.

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 the hole
of a front porch on Race Street where Drew Johnson, 20, allegedly hid a
stash of crack-cocaine four years ago.

The Trenton Police Department's case against Johnson had previously been
thrown out before it got to trial in Mercer County Court in April 2000
after Judge Andrew Smithson upheld a defense motion to suppress the
evidence seized in the case and dismissed the charges.

According to police and court documents, Johnson was arrested on June 11,
1998 in the 600 block of Martin Luther King Jr. Boulevard by Officer Steve
Wilson and charged with cocaine possession and distribution.

Wilson's partner, Officer Timothy Thomas, had been approached earlier by a
nearby residentwho refused to give his name but said a black man known as
Drew was selling crack cocaine in small zip-lock baggies from a porch in
the area for about an hour.

The area is known for high drug activity, and when Wilson arrived at the
location with Thomas, he heard the standard police cry of "Five-O." The
officers saw Drew Johnson sitting on the top step of a nearby porch in the
process of hiding a "light-colored" object inside a hole by the porch's
post support.

When Wilson retrieved the object, along with $381 in cash, after shining a
flashlight on the stash, he realized it was crack-cocaine. Known to the
officers from prior drug investigations, Johnson was arrested and charged
with possession of cocaine with intent to distribute the drug in a school zone.

Smithson ruled that police had no basis to search Johnson since he was just
sitting on his porch and that the two officers hadn't seen suspicious
activity themselves before arresting and searching him. Mercer County
Prosecutor Dan G. Giaquinto eventually appealed the suppression.

Two state appeals court judges, Howard Kestin and Dorothea Wefing, backed
up Smithson's ruling.

Both judges cited a U.S. Supreme Court decision which ruled that police do
not have the right to use anonymous tips as the basis for stopping and
searching people.

But Judge Isaiah Steinberg disagreed, saying Wilson had a well-grounded
suspicion that Johnson either had been selling drugs, according to the
informant's tip, and was attempting to hide whatever drugs he may still
have had.

Steinberg's lone dissension paved the way for Giaquinto to appeal the
ruling to the state Supreme Court, which he did.

Supreme Court Justice James Coleman Jr. said Wilson was just getting a
closer look at what he observed in plain view.

"There is no reason why a diligent police officer should not be allowed to
observe something which he or she could have observed as a private
citizen," Coleman said. "Any object in the hole could have been observed by
inquisitive passers-by or any other member of the public."

Justice Virginia Long sided with Johnson.

"This case would be entirely different if the officer 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," she wrote.

"It would also be different if the officer had testified 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 in transporting their wares."