Courts today are faced with applying traditional Fourth Amendment search and seizure doctrines to twenty-first century digital technology. In one such case, the Massachusetts Appellate Court upheld a lower court’s holding in Commonwealth v. Tarjick, 87 Mass. App. Ct. 374 (App. Ct. 2015) denying a motion to suppress memory cards that were seized during a warrant search but were not listed on the warrant. Police were executing a search warrant for nude images of the defendant’s minor stepdaughter on a video camera, cellphone and computer, when they encountered the digital cameras at issue.
The decision held that police were justified in seizing three memory cards from digital cameras under the plain view doctrine. The plain view doctrine applies:
(1) where the police are lawfully in a position to view the object
(2) where the police have a lawful right of access to the object; and
(3) in cases concerning (a) contraband, weapons, or other items illegally possessed, where the incriminating character of the object is immediately apparent; or (b) other types of evidence (‘mere evidence’), where the particular evidence is plausibly related to criminal activity of which the police are already aware.
The Court held that the memory cards were “plausibly related to criminal activity” because the police officers were aware that data could be transferred from one device to another through the memory cards, and thus, the memory cards could have contained the images detailed in the search warrant. It noted that “[c]onsidering the constantly evolving nature of technology, we do not reach the issue whether the police in this case could have included in their application for the original warrant, any memory cards capable of storing digital images or recordings.”