S.D.N.Y.: Envelopes seen in plain view during arrest suggested drug proceeds and was valid plain view

Officers had an arrest warrant and took defendant into custody. A protective sweep was done and plain view observations were made, including cash in envelopes. The plain view, but without mention of the cash, was used to get a search warrant for the premises. The manipulation of the envelopes wasn’t unreasonable because their outward appearance for plain view purposes suggested drug proceeds. United States v. Sosunov, 2018 U.S. Dist. LEXIS 76796 (S.D. N.Y. May 7, 2018):

2. The Manipulation of the Envelopes

The evidence makes clear that at some point between the agents’ entry into the apartment and the application for a search warrant, the agents did handle the envelopes adjacent to the balcony door. However, the preponderance of the evidence supports that prior to any manipulation, sufficient evidence was observed to indicate that the envelopes related to drug transactions. Several photographs of the envelopes were introduced into evidence, including one before the envelopes were moved and one after they were moved. (See, e.g., GX 105, 103D, 103B.) GX 105 represents the arrangement of the envelopes before they were touched. In that photo, one can plainly see that the envelopes on the top of the pile have the writing referred to in the Turpin Affidavit (i.e., names, numbers, and at least one color (“orange”)). Accordingly, this directly contradicts Sosunov’s argument that “[t]here is no way the Agent could have seen ‘writing on the face of each envelope’ without manipulating and/or moving the envelopes.” (Mem. Supp. at 14.) Turpin also testified that the names on the envelopes in plain view were significant because he recognized them from other aspects of the investigation—namely, BNE records with which he had spent “days doing background checks confirming are these real people … [and] search[ing] for high amounts of oxy.” (Tr. at 25:1-27:4.) While it is true that the agents could not have seen the writing on every envelope, it is clear that the writing on some envelopes was in plain view before the envelopes were handled by any agent. Accordingly, the envelopes were properly used to support probable cause for the search warrant.