People v Allen

[*1] People v Allen 2018 NY Slip Op 28016 Decided on January 25, 2018 County Court, Livingston County Wiggins, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on January 25, 2018
County Court, Livingston County

The People of the State of New York, Plaintiff,

against

Danielle M. Allen, Defendant.



2017-128



For the People:

GREGORY MCCAFFREY, Esq.

Livingston County District Attorney

2 Court Street

Geneseo, New York 14454

For Defendants:

JOEL L. DANIELS, Esq.

CHERYL MEYERS BUTH, Esq.

21 Princeton Place

Orchard Park, New York 14127
Robert B. Wiggins, J.

Defendant, Danielle M. Allen, stands charged with one count of Manslaughter in the Second Degree (Penal Law § 125.15 [1]) arising out of what appears to have been a domestic dispute with her one time paramour, the decedent, Marcus Postell, on November 21, 2016. In her omnibus motion, Defendant moved for, inter alia, suppression of statements she made to Sheriff's Deputies after she was brought to a hospital, as well as suppression of physical evidence. This Court scheduled an initial combined suppression hearing, during which testimony was taken primarily on the issue of suppression of Defendant's statements. The hearing was then adjourned several weeks; in the interim, this Court issued a decision holding that the search warrant issued by a local court judge was an invalid general warrant, because it failed to specify the "things to be seized" as required by the Fourth Amendment. The Court's decision specified, however, that this was not the end of the inquiry, and that the suppression [*2]hearing would be continued to consider whether the physical evidence the People seek to introduce at trial is admissible under the plain view exception to the Fourth Amendment warrant requirement.

Thus, the primary issue before the Court is whether physical evidence found initially in plain view during a valid sweep of Defendant's apartment pursuant to exigent circumstances is admissible despite the fact that police did not take actual physical possession of the evidence until several hours later, after an invalid warrant was procured. Under the circumstances presented here, the Court holds that the evidence in plain view was effectively seized in a reasonable period of time in relation to the underlying exigent circumstances and, accordingly, most, though not all, of the evidence that the People seek to introduce is admissible.

I.

The facts, particularly with respect to the suppression of physical evidence, are essentially undisputed. At approximately 10:15 p.m. on November 21, 2016, Village of Avon Police Officer Timothy Ferrara received a dispatch concerning a domestic dispute at Defendant's apartment on Fowlerville Road in the Town of York. Officer Ferrara arrived at the apartment within minutes, and initially saw a person, later determined to be Defendant, huddled on the ground under a blanket in the entranceway to the apartment. Upon approaching to determine whether Defendant was okay, Officer Ferrara could immediately see blood inside the apartment, as well as Mr. Postell lying prone on the floor against a sofa, blood on his body as well as pooled at his side. Officer Ferrara conducted a sweep of the premises to determine whether anyone else might be in the home who could be either a victim or potential suspect; during the course of this, he saw blood spattered all over the apartment, including on the carpet, walls, sofa and bathroom, and upon various objects within the home. Officer Ferrara went to Mr. Postell, who had a large stab wound to his upper right chest, to check for signs of life, and could not find a pulse in either his neck or ankle. In the course of attending to Mr. Postell, Officer Ferrara moved him to check his pulse, which revealed a large knife under his body. Officer Ferrara moved the knife, placing it on a nearby counter, because he knew emergency medical personnel would be arriving to attend to Mr. Postell, and he was afraid they might be injured by the knife.

Deputy Sheriff Brandon Flickner arrived at the scene shortly after Officer Ferrara. He asked Defendant, who appeared hysterical, what had happened, and she said that "she was not going to let him kill her," more than once. Defendant's left hand was lacerated and bleeding, and she had bruises on her neck and face. Officer Ferrara and Deputy Flickner attended to Defendant's injuries, holding a towel over the lacerations on her hand, until a medic arrived at approximately 10:40 p.m.. At that same time, Deputy Bryan Mann entered the home, and began taking pictures, documenting what was in plain view, until just after 11:00 p.m. During this time, other Officers and Deputies who had arrived on scene began securing the scene; Defendant was taken by ambulance to Strong Memorial Hospital, and police tape was placed around the premises, which was observed by Sheriff's Deputy Chad VanAuken when he arrived at the scene at 11:18. A Deputy was also posted near the entrance to secure the scene by that time, and a command center was set up in the roadway. Because it was snowing and he was afraid that evidence might be washed away, Deputy VanAuken instructed Deputy Mann to obtain swabs of the vehicles in the driveway of the home; otherwise, the officers awaited the issuance of a warrant before attempting to gather any further evidence. The warrant was issued sometime after 2:00 a.m. on November 22, 2016 — approximately four hours after Officer Ferrara first [*3]arrived on the scene — and Deputy VanAuken entered the premises to videotape the evidence in plain sight at 2:54 a.m.. The items were not actually removed from the home until early the following afternoon.

Three Livingston County Sheriff's Investigators and Deputy Flickner met Defendant at the hospital, where she received stitches for the lacerations on her hand, had a CT scan to rule out possible vascular injury, and photographs were taken of bruises on her neck and other marks. She appeared to be under the influence of alcohol, having been drinking Jack Daniel's with Mr. Postell (the empty bottle was found in the living room); she also was given Percocet for pain. Investigators remained with Defendant for the next 7-8 hours, recording their conversations with her. Once discharged from the hospital, Investigators drove her to the Sheriff's Department at about 7:00 a.m. before eventually taking her to her parents' home later that morning.

II.

Turning first to the more difficult issue before the Court, the Fourth Amendment prohibits "unreasonable searches and seizures" (US Const 4th Amend). Warrantless searches, as a general rule, "are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well delineated exceptions" (Thompson v Louisiana, 469 US 17, 20 [1984]). The mere fact that officers may have probable cause to search the premises does not allow them to conduct such a search without a warrant, unless the search "fall[s] within one of the narrow and specifically delineated exceptions to the warrant requirement" (id. at 21). The two exceptions at issue here are the emergency, or exigent circumstances, exception, and the plain view exception, the latter of which often flows from the first. The Supreme Court has consistently recognized that " 'the exigencies of the situation [may] make the needs of law enforcement so compelling that the warrantless search is objectively reasonable' " and one such exigency is " 'the need to assist persons who are seriously injured or threatened with such injury' " (Michigan v Fisher, 558 US 45, 48 [2009]).

As counsel for Defendant, to their credit, have conceded, when Officer Ferrara and Deputy Flickner first arrived at Defendant's apartment, they were clearly confronted with an emergency situation that justified their entry into the home. Officer Ferrara was told by dispatch that Defendant had called 911 saying that "she was being attacked, the attacker was in the house, and she was covered in blood." When he arrived, Officer Ferrara saw Defendant under a blanket, near blood-soaked carpeting, and Mr. Postell lying on the floor propped against the couch. When he entered the house, Defendant "popped up" and she was "covered in blood." He tried to ascertain whether there was anyone else in the house and whether Defendant was okay, but she was "hysterical," "crying" and generally not communicative. Officer Ferrara saw blood various places throughout the house, particularly around Mr. Postell, who was unresponsive with no discernible pulse. Clearly this was an emergency situation, and Officer Ferrara, and the Sheriff's Deputies who arrived shortly after him, had every right to enter both to provide obviously needed medical attention, and "to see if there [were] other victims or if a killer [was] still on the premises" (Mincey v Arizona, 437 US 385, 392 [1978]).

Once lawfully on the premises, the officers had clear authority to seize any incriminating items that were in plain view. The plain view doctrine "serves to supplement the prior justification—whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused—and permits the warrantless seizure" of evidence (Coolidge v New [*4]Hampshire, 403 US 443, 466 [1971]). Our Court of Appeals first delineated a tripartite test for determining whether items are properly seized pursuant to the plain view doctrine in People v Diaz (81 NY2d 106 [1993]):

"Under the plain view doctrine, if the sight of an object gives the police probable cause to believe that it is the instrumentality of a crime, the object may be seized without a warrant if three conditions are met: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object's incriminating nature is immediately apparent" (id. at 110).

Clearly the incriminating nature of the evidence in this case was "immediately apparent," and the officers, as a result of the emergency 911 call from Defendant herself, clearly were in a lawful position to observe most of this evidence in the apartment. Defendant, nonetheless, argues that, because police did not begin collecting the evidence until approximately four hours after the initial police entry into the premises, and access was gained at that point based upon an invalid general warrant, the officers did not have "lawful access" to the evidence when it was actually seized.

III.

As this court noted in its prior decision, the Second Department in People v Neulist (43 AD2d 150, 154 [2d Dept 1973]) permitted the warrantless seizure of items in plain view from a defendant's apartment, where "the initial police intrusion was for the purpose of investigating the scene and the cause of a death" and "the subsequent search [an hour later], once criminality had been established, was but an extension or continuation of the initial investigation." In so holding, the Court noted, among other things, that a police guard had continually been present on the premises (see id. 154-155; see also People v Paul, 15 Misc 3d 1128(A), 2007 WL 1238604 [Sup. Ct. Queens Co. 2007] ["After entering the house in response to an emergency situation, the police were entitled to seize evidence in plain view, without obtaining a search warrant. The subsequent entry and seizure of that evidence by the evidence collection unit was proper 'even through the crime scene, by that time, had been secured by the police and the emergency had abated, because a continued police presence was maintained, the items seized were in plain view, and the seizure was within several hours of the initial entry' "] [internal citations omitted]).

Defendant contends that Neulist was effectively overruled by Mincey v Arizona because it was based upon a faulty "murder scene exception" analysis that was rejected by Mincey (437 US at 394-395). In Mincey, a drug buy and bust gone wrong resulted in an officer being shot and killed in an apartment occupied by, among others, the defendant, Mincey, who was also shot. Immediately after the shooting, narcotics agents checked the apartment for other victims, and found a woman wounded in the bedroom closet, Mincey unconscious in the bedroom, and three others, one of whom had been wounded in the head, in the living room. After requesting emergency assistance, the officers "neither searched further nor seized any evidence; they merely guarded the suspects and the premises" (id. at 388). Ten minutes later, however,

"homicide detectives arrived and took charge of the investigation. They supervised the removal of Officer Headricks and the suspects, trying to make sure that the scene was disturbed as little as possible, and then proceeded to gather evidence. Their search lasted four days, during which period the entire apartment was searched, photographed, and diagrammed" (id at 389).

The Arizona Supreme Court upheld the extensive, four-day warrantless search in Mincey by holding that the exigencies inherent in homicide investigations created an additional, "murder scene exception" to the Fourth Amendment warrant requirement. In rejecting such an exception, the United States Supreme Court initially did "not question the right of the police to respond to emergency situations," noting that "[n]umerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid" (id. at 392). The Court further recognized the right of police who "come upon the scene of a homicide [to] make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises" (id.) The Court noted, however, that "a warrantless search must be 'strictly circumscribed by the exigencies which justify its initiation,' " and held that "it simply cannot be contended that this search was justified by any emergency threatening life or limb. All the persons in Mincey's apartment had been located before the investigating homicide officers arrived there and began their search. And a four-day search that included opening dresser drawers and ripping up carpets can hardly be rationalized in terms of the legitimate concerns that justify an emergency search" (id. at 393).

The Court in Neulist did not apply any "crime scene exception" of the kind at issue in Mincey to uphold the seizure of items in plain view, nor does this Court in this case. At issue here is not a days long, extensive search of the Defendant's apartment, but the seizure only of evidence that was immediately visible in plain view upon the officers' initial entry onto the premises. Indeed, this evidence was so readily apparent upon simply entering the apartment that to call the it the product of a "search" at all seems like an overstatement. Notably, the Court in Mincey actually held that such plain view evidence would be admissible in that case, despite the invalidity of the more extensive search. The Mincey Court did not suppress all of the evidence obtained by police; rather, the Court remanded the case to the Supreme Court of Arizona to ascertain "[t]o what extent, if any, the evidence found in Mincey's apartment was permissibly seized under established Fourth Amendment standards" (id. at 395, n. 9). Justice Rehnquist, in his concurring opinion, wrote

"to emphasize that the question of what, if any, evidence was seized under established Fourth Amendment standards is left open for the Arizona courts to resolve on remand. . . . Much of the evidence introduced by the State at trial was apparently removed from the apartment the same day as the shooting. App. 40. And the State's brief suggests that some evidence—for example, blood on the floor—required immediate examination. Brief for Respondent 70—71. The question of what evidence would have been "lost, destroyed, or removed" if a warrant had been obtained . . . otherwise required an immediate search, or was in plain view should be considered on remand by the Arizona courts" (id at 406 [Rehnquist, J., concurring] [emphasis supplied]).

Indeed, on remand, the Arizona courts determined that an extensive amount of the evidence was in plain view and properly seized by police (see People v Superior Court, 204 Cal. App. 4th 1004, 1020, n.4 [2012] [noting that the Arizona Supreme Court, on remand, found that "the close-in-time entry of the detective and technicians was a continuation of the initial emergency entry and therefore the seizure of evidence observed in plain view was valid," despite the fact that the evidence was actually seized over a four day period]). Defendant's reliance on Thompson v Louisiana (469 US 17 [1984]) is likewise misplaced, as that case simply re-[*5]enunciated the Mincey holding that there is no "murder scene" exception to the Fourth Amendment, and explicitly noted that the plain view doctrine was not at issue, inasmuch as "the evidence at issue here was not discovered in plain view" (id at 22).

IV.

Defendant further contends that the officers' right of "access" under the second prong of the Diaz test ended as soon as the emergency was abated — i.e. the moment that police ascertained that there were no further victims or potential suspects on the premises. This is a misreading of the tripartite test, and far too narrow a reading of the time frame in which police who view contraband in plain sight are allowed to seize it. Initially, to the extent that the "lawful access" prong is separate from the "lawfully in a position to view" prong,[FN1] this analysis has been employed mainly, if not exclusively, in cases where the police observed contraband from a vantage point where they did not, at the time of the observation, have lawful access to it (see generally State v Grice, 367 N.C. 753, 758-759 [2015] and cases cited therein). That is clearly not the case here. Officer Ferrara, Deputy Flickner, Deputy Mann, and the other officers and emergency responders who first arrived on scene had access to the evidence within the apartment when they made their plain view observations.

In any event, numerous courts have upheld the right of law enforcement officers to enter premises to seize evidence found in plain sight long after its discovery. In Neulist (43 AD2d at 154) the officers were allowed to re-enter the premises to seize evidence that had been discovered an hour before. In People v George (7 AD3d 810 [2d Dept 2004]) the Second Department flatly rejected the argument that Defendant makes here - that the right to seize evidence in plain view ends at the moment that the emergency situation allowing the initial entry abates. In Gorge, as here, "the initial warrantless entry into the apartment by the police fell within the emergency doctrine exception to the warrant requirement" (7 AD3d at 811). Thereafter, "[t]he subsequent entry and seizure were proper, even though the crime scene, by that time, had been secured by the police and the emergency had abated, because a continued police presence was maintained, the items seized were in plain view, and the seizure was within several hours of the initial entry" (id.). Similarly, in People v Desmarat (38 AD3d 913, 915 [2d Dept 2007]), the Court upheld the seizure of evidence found in plain view after a warrantless entry into a motel room pursuant to the emergency doctrine, even though the evidence was not seized immediately by the first responders to the scene, but by evidence technicians who arrived hours later. The court held that "the crime scene unit's subsequent recovery of evidence from the motel room did not exceed the scope and duration of the emergency, inasmuch as Room 210 was secured while officers waited for the crime scene unit, which arrived within several hours and then seized the ripped currency, ripped sheet, and blood evidence that was in plain view (id. [internal citations omitted]). Courts in other jurisdictions have uniformly recognized the right to seize evidence found in plain view pursuant to the emergency exception long after the initial [*6]emergency has been abated.[FN2]

Here, the initial gathering of evidence in plain view occurred even more quickly than was the case in George and Desmarat, as the initial photographing of the scene began less than half an hour after Officer Ferrara was first called to the scene. Within an hour of Officer Ferrara's initial arrival, the scene had been secured with crime scene tape, and officers were posted outside the entrance to the apartment. It has been held that such securing of the crime scene itself constitutes "seizure" of the evidence in plain view within. In State v Jolley (312 N.C. 296, 300-301 [1984]) the Supreme Court of North Carolina held that:

"when a law enforcement officer enters private premises in response to a call for help and thereby comes upon what reasonably appears to be the scene of a crime, and secures the crime scene from persons other than law enforcement officers by appropriate means, all property within the crime scene in plain view which the officer has probable cause to associate with criminal activity is thereby lawfully seized within the meaning of the fourth amendment. Officers arriving at the crime scene thereafter and while it is still secured can examine and remove property in plain view without a search warrant."

This holding by the North Carolina Supreme Court does not conflict with Mincey's rejection of a general "crime scene" exception to the Fourth Amendment, as it would not justify a general search of the premises for objects not in plain view. But it is eminently sensible that, once officers observe evidence in plain view, that evidence should be deemed effectively seized once the premises are secure. "Once the privacy of the residence has been lawfully invaded, it is senseless to require a warrant for others to enter and complete what those already on the scene would be justified in doing" (State v Bell, 108 Wash. 2d 193 [1987]). A contrary holding would lead to absurd results, encouraging bad police work and potentially discouraging officers from [*7]obtaining warrants. In this day of specialization in the collection of forensic evidence, particularly blood evidence of the type mainly at issue here, collection of such evidence inevitably takes time. Moreover, in exigent circumstances, the initial police focus must be on dealing with the emergency at hand — if law enforcement officers in an emergency situation were more concerned with immediately collecting evidence, rather than immediately abating the emergency, they would not be doing their jobs. Thus, it is inevitable that the collection of evidence found in plain sight will extend beyond the exigency that justified its seizure in the first instance. This truism cannot be interpreted, as Defendant would seemingly have it, to disallow the collection of evidence found in plain view after the exigency has abated — otherwise, the plain view exception to the warrant requirement would be rendered meaningless in the context of the emergency exception. Moreover, if such evidence in plain view could not be gathered after a search warrant is later declared invalid by a court, as it was here, then officers would be discouraged from obtaining a search warrant until after the recovery of any evidence in plain view, which surely is not a policy to be encouraged.

People v Richardson (155 AD3d 1595 [4th Dept 2017]) is not to the contrary. There, police officers responding to a burglary conducted a protective sweep of the premises. One officer found what appeared to be dogfighting paraphernalia in plain view in the basement. The officers secured the premises and waited for a warrant to collect the evidence. In the interim, an officer from the Society for the Prevention of Cruelty to Animals (SCPA) took photographs, which the trial court suppressed. However, evidence procured later pursuant to the warrant was held admissible. The case is distinguishable for several reasons. First, and foremost, the Court ultimately held that, as here, the evidence originally found in plain view was properly admitted. Second, the SCPA officer in that case did not just photograph evidence in plain view; he manipulated the evidence that was in plain view (and unlike here, as discussed below, there was no exigency to justify such manipulation), and also found and photographed additional evidence that was not in plain view. Third, it does not appear from the Fourth Department decision that the "incriminating nature" of the evidence was so "immediately apparent" (Diaz, 81 NY2d at 110) to the police officer who initially discovered it that seizure would have been proper under the plain view doctrine. The Fourth Department's decision notes that, after seeing the evidence in question, "[t]he officer called a fellow officer to the basement for input." Clearly that additional officer was not called for the purpose of conducting a protective sweep for burglars, but for the purpose of investigating a new crime. And it was only after the officer "consulted with a lieutenant, a detective, and officers from the . . . SPCA" that a warrant was sought. It would seem that the expertise of the other officers, and particularly the SCPA officers, was key to the determination of probable cause to obtain a warrant. The officer who actually made the initial observations did not have such expertise, and the SCPA officer had no legitimate role in observing the evidence for the original purpose of the search — i.e. sweeping the premises for burglars. This, in turn, dovetails into yet another distinction — it is unclear what, if any, authority an SCPA officer would have had to seize evidence of animal fighting that had been found by police in the course of a burglary call. Finally, it must be noted that, to the extent that the decision casts doubt on the SCPA officer's authority to photograph evidence in plain view while a warrant was being obtained, it is pure dicta — that issue was not before the Fourth Department, because the trial court had suppressed the evidence, and the People could not appeal (see CPL 450.20 [8], 450.50).

V.

Defendant further argues that the search here was invalid, because the officers who conducted it believed that they were acting pursuant to the warrant, which, again, has now been held to be invalid. However, the officers' subjective belief as to what authority they were acting under is irrelevant to whether they actually had the authority to seize this evidence in plain view, which is strictly a legal issue for this Court to decide. Both the Court of Appeals "and the Supreme Court have 'rejected a subjective approach, asking only whether the circumstances, viewed objectively, justify the action' " of law enforcement officers (People v Garvin, 30 NY3d 174, 186 [2017]). As both courts have further explained, "[t]he touchstone of the Fourth Amendment is reasonableness — not the warrant requirement" and the Court of Appeals "has emphasized that the Fourth Amendment's concern with 'reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent" (id. [internal citations and quotation marks omitted]). Viewed through this prism, it is clear that the officers here acted not only reasonably and in complete good faith, but out of an abundance of caution in waiting for the arrival of a warrant to take custody of this evidence that they could have taken long before. To punish the officers for attempting to obtain a valid warrant would, again, be contrary to public policy. If, as the Court holds, the seizure of evidence in this case was justified without a warrant, the fact that an invalid warrant was obtained cannot invalidate it.

Accordingly, the Court holds that the evidence photographed, videotaped, and ultimately collected, that was in plain view, is admissible. This includes the knife. While that piece of evidence was not initially in plain view, it was uncovered inadvertently by Officer Ferrara in the legitimate and reasonable course of dealing with the exigent circumstances he encountered — i.e. attempting to render aid to Mr. Postell. As such, it was properly seized (see e.g. State v Dougherty, 930 S.W.2d 85 [Tenn. Crim. Apps. 1996] [where officer had legitimate reason to remove can of beer from driver's car, drugs found underneath were properly seized in plain view]; State v Young, 997 So. 2d 718 [La. App. 2008]; U.S. v Johnson, 2001 WL 1640041 [Dist. Ct. Minn. 2001]; State v Mitchem, 2014 WL 2565680 [Ohio App. 2014]). The handful of items that were not found in plain view, including the items found in Mr. Postell's pockets, must be suppressed. While the People make a vague assertion that these items are subject to the inevitable discovery doctrine, they do not offer any theory as to how such inevitable discovery would have occurred. No doubt they would have inevitably been discovered had a valid warrant been obtained — but such was not the case. Accordingly, those items not found in plain view are suppressed.

VI.

With respect to the suppression of Defendant's statements at the hospital, the Court does not believe that this issue requires extended discussion. "In determining whether a defendant was in custody for Miranda purposes, '[t]he test is not what the defendant thought, but rather what a reasonable [person], innocent of any crime, would have thought had he been in the defendant's position' " (People v Kelley, 91 AD3d 1318, 1318 [4th Dept 2012]; lv denied 19 NY3d 963). Here, Defendant was in the hospital no longer than necessary to deal with the injuries she apparently sustained in the altercation with Mr. Postell. She was not constrained, and an innocent person would not have believed that she could not leave the hospital whenever she wished (see People v Carbonaro, 134 AD3d 1543, 1547 [4th Dept 2015], lv denied 27 NY3d 994). Moreover, the tenor of the questioning was not accusatory; in fact, for the most part, it [*8]was precisely the opposite. Finally, while Defendant, especially at first, appears to have been under the influence of alcohol to some extent, "defendant's cognitive ability was not so impaired as to render [her] unable to make voluntary and trustworthy statements" (id at 1548). Accordingly, her statement is admissible.

The above constitutes the Decision and Order of the Court.

Dated: January 25, 2018

Geneseo, New York

_________________________________

Hon. Robert B. Wiggins

Livingston County Court Judge Footnotes

Footnote 1:While the Diaz court (81 NY2d at 110) cited Horton v California (496 US 128, 136-137 [1990]) and Arizona v. Hicks (480 US 321, 326-327 [1987]) in support of its tripartite test, neither case contains an analysis that separates the lawful access and lawful position elements.

Footnote 2:See e.g. State v Johnson, 413 A.2d 931, 933-934 [upholding warrantless entry by state police officer two hours after local officers found evidence in plain view; state police officer then processed the scene and collected evidence for five hours]; People v Amaya 93 Cal. App. 3d 424, 431 [1979] [upholding reentry of detectives to collect evidence observed in plain view about two hours earlier by the first responding officer because there was an uninterrupted police presence at the site, the first officer could have seized the evidence when he entered originally, and it was reasonable for police to wait for trained personnel before disturbing lawfully seizable evidence]); People v Reynolds, 672 P.2d 529, 531-533 [Colo. 1983] [upholding warrantless reentry by forensic unit 1 ½ hour after evidence found in plain view]; United States v Roberts, 619 F.2d 379, 381 [5th Cir 1980] [upholding warrantless entry of FBI officers called by state officers to residence in order to seize contraband found by the state officers in plain view]; State v. M.D.M., (2017 WL 1548701 [N.J. App. Div. 2017] ["Nor was it fatal to the admissibility of the evidence that Officer Mahon secured the scene and waited until a superior officer arrived before the police seized the evidence. Detective Lilavois' seizure of the evidence was simply a matter of protocol. But for that protocol, Officer Mahon would have seized the evidence. The slight delay in seizing evidence in plain view does not render the otherwise lawful seizure unconstitutional"]); see generally People v Superior Court, 204 Cal. App. 4th 1004, 1017-1019 [2d Dist Cal. 2012] [citing cases]).