MA: “Immediately apparent” means related to the ongoing investigation

In a homicide investigation, officers also got a search warrant. They found Post-It Notes around the house which they seized because they related to the divorce proceedings between defendant and the victim. The plain view doctrine permitted their seizure, and “immediately apparent” means logically related to the subject of the investigation. Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 930 N.E.2d 91 (2010):

Although the warrant for the defendant’s home did not authorize the officers to search for or seize documents or writings, it would be unrealistic to require officers to ignore what is immediately in front of them. See, e.g., United States v. Crouch, 648 F.2d 932, 933 (4th Cir.), cert. denied, 454 U.S. 952 (1981) (during search pursuant to warrant that did not authorize search for documents or writings, officers discovered incriminating letters; court attached no significance to “the fact that some cursory reading of the letters was necessary in order to establish their nature”); United States v. Ochs, 595 F.2d 1247, 1257 n.8 (2d Cir.), cert. denied, 444 U.S. 955 (1979) (“A number of courts … have upheld without much discussion the seizure of documents during an otherwise valid search as in ‘plain view’ notwithstanding the fact that some perusal, generally fairly brief, of the documents was clearly necessary in order for the police to perceive the relevance of the document to crime”). See also 2 W.R. LaFave, Search and Seizure § 4.11(d), at 793 (4th ed. 2004).

The defendant further argues that the plain view doctrine was inapplicable here because the letter and the notes did not have an immediately apparent incriminating character, the third requirement of the doctrine. See D’Amour, 428 Mass. at 730. Trooper Frydryk, who was in charge of videotaping the crime scene, was the first to see the letter on the kitchen counter. He was able to view the phrases “Howard Safford,” “Joe has,” “verbally and emotionally,” “divorce,” and “take everything.” The trooper knew Safford to be an assistant district attorney, knew the victim had died in the house, and knew the victim’s first name was Joseph (or Joe). Additionally, the officers executing the search warrant for 56 Bear Hole Road knew that the victim and the defendant were in the midst of an impending divorce. While we do not agree with the motion judge that the incriminating nature of the letter was “immediately apparent,” in light of what was known at the time, the trooper could permissibly conclude that the letter was “plausibly related … to criminal activity of which [he was] already aware.” Commonwealth v. Bond, 375 Mass. 201, 206 (1978) (“[m]ere evidence” may be seized under plain view doctrine only if police recognize plausible connection to criminal activity known to them). See D’Amour, 428 Mass. at 731; Commonwealth v. Accaputo, 380 Mass. 435, 447-448 (1980).