{"id":4455,"date":"2010-12-29T08:55:30","date_gmt":"2010-07-20T09:57:30","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-07-20T09:57:30","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4455","title":{"rendered":"MA: “Immediately apparent” means related to the ongoing investigation"},"content":{"rendered":"

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 \u201cimmediately apparent\u201d means logically related to the subject of the investigation. Commonwealth v. Sliech-Brodeur<\/a>, 457 Mass. 300, 930 N.E.2d 91 (2010):<\/p>\n

Although the warrant for the defendant\u2019s 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<\/a>, 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 \u201cthe fact that some cursory reading of the letters was necessary in order to establish their nature\u201d); United States v. Ochs<\/a>, 595 F.2d 1247, 1257 n.8 (2d Cir.), cert. denied, 444 U.S. 955 (1979) (\u201cA number of courts … have upheld without much discussion the seizure of documents during an otherwise valid search as in \u2018plain view\u2019 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\u201d). See also 2 W.R. LaFave, Search and Seizure \u00a7 4.11(d), at 793 (4th ed. 2004).<\/p>\n

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\u2019Amour<\/a>, 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 \u201cHoward Safford,\u201d \u201cJoe has,\u201d \u201cverbally and emotionally,\u201d \u201cdivorce,\u201d and \u201ctake everything.\u201d The trooper knew Safford to be an assistant district attorney, knew the victim had died in the house, and knew the victim\u2019s 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 \u201cimmediately apparent,\u201d in light of what was known at the time, the trooper could permissibly conclude that the letter was \u201cplausibly related … to criminal activity of which [he was] already aware.\u201d Commonwealth v. Bond<\/a>, 375 Mass. 201, 206 (1978) (\u201c[m]ere evidence\u201d may be seized under plain view doctrine only if police recognize plausible connection to criminal activity known to them). See D\u2019Amour<\/a>, 428 Mass. at 731; Commonwealth v. Accaputo<\/a>, 380 Mass. 435, 447-448 (1980). <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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