inadvertence requirement in Massachusetts

2002“The inadvertence requirement . . . lends credibility to the [plain view] doctrine by ensuring that only evidence which the police did not anticipate or know to be at the locus of a search will be seized without a warrant.’ ” Commonwealth v. D’Amour, 428 Mass. 725, 732 (1999), quoting Commonwealth v. Moynihan, 376 Mass. 468, 473 (1978).

2002In short, although there may have been certain items that stood out in his mind as a result of his review of many suspicious invoices, he lacked “probable cause before entering the room to believe the items would be there,” Commonwealth v. D'Amour, supra at 732 , quoting Commonwealth v. Cefalo, 381 Mass. 319, 331 (1980), thus satisfying the inadvertence requirement.

2002“The inadvertence requirement . . . lends credibility to the [plain view] doctrine by ensuring that only evidence which the police did not anticipate or know to be at the locus of a search will be seized without a warrant.’ ” Commonwealth v. D’Amour, 428 Mass. 725, 732 (1999), quoting Commonwealth v. Moynihan, 376 Mass. 468, 473 (1978).

1999The purpose of the inadvertence requirement is to “lend[ ] credibility to the [plain view] doctrine by ensuring that only evidence which the police did not anticipate or know to be at the locus of a search will be seized without a warrant.” Commonwealth v. D'Amour, supra at 732; Commonwealth v. Moynihan, 376 Mass. 468, 473 (1978), citing Commonwealth v. Walker, 370 Mass. 548, 557 , cert. denied, 429 U.S. 943 (1976).

1984By contrast, chemical analysis of a small portion of a powder erroneously believed to be a controlled substance is unlikely to impinge significantly on any expressive interest. 8 In Coolidge v. New Hampshire, 403 U.S. 443 (1971), a plurality of four Justices concluded that the “plain view” exception to the warrant requirement is inapplicable “where the police know in advance the location of the evidence,” id. at 470 , but suggested that this inadvertence requirement is inapplicable to contraband, id. at 471, 472 .

1984By contrast, chemical analysis of a small portion of a powder erroneously believed to be a controlled substance is unlikely to impinge significantly on any expressive interest. 8 In Coolidge v. New Hampshire, 403 U.S. 443 (1971), a plurality of four Justices concluded that the “plain view” exception to the warrant requirement is inapplicable “where the police know in advance the location of the evidence,” id. at 470 , but suggested that this inadvertence requirement is inapplicable to contraband, id. at 471, 472 .

2013See, e.g., Commonwealth v. Balicki, 436 Mass. 1, 9 (2002) (declining to abandon the inadvertence requirement of the plain view exception to the warrant requirement under Article 14 as the Supreme Court did under the Fourth Amendment); Commonwealth v. Gonsalves, 429 Mass. 658, 663 (1999) (under Article 14, unlike under the Fourth Amendment, a police officer may not order the occupants of a lawfully stopped vehicle out of the vehicle as a matter of course); Commonwealth v. Stoute, 422 Mass. 782, 789 (1996) (person is seized under Article 14 when police pursue the person with the obvious intent o

2012The Supreme Judicial Court has on many occasions interpreted Article 14 to provide greater protections than the Fourth Amendment to the United States Constitution in the area of searches and seizures. 14 See, e.g., Commonwealth v. Balicki, 436 Mass. 1, 9 (2002) (declining to abandon the inadvertence requirement of the plain view exception to the warrant requirement under Article 14 as the Supreme Court did under the Fourth Amendment); Commonwealth v. Gonsalves, 429 Mass. 658, 663 (1999) (under Article 14, unlike under the Fourth Amendment, a police officer may not order the occupants of a lawf

2013See, e.g., Commonwealth v. Balicki, 436 Mass. 1, 9 (2002) (declining to abandon the inadvertence requirement of the plain view exception to the warrant requirement under Article 14 as the Supreme Court did under the Fourth Amendment); Commonwealth v. Gonsalves, 429 Mass. 658, 663 (1999) (under Article 14, unlike under the Fourth Amendment, a police officer may not order the occupants of a lawfully stopped vehicle out of the vehicle as a matter of course); Commonwealth v. Stoute, 422 Mass. 782, 789 (1996) (person is seized under Article 14 when police pursue the person with the obvious intent o

2012The Supreme Judicial Court has on many occasions interpreted Article 14 to provide greater protections than the Fourth Amendment to the United States Constitution in the area of searches and seizures. 14 See, e.g., Commonwealth v. Balicki, 436 Mass. 1, 9 (2002) (declining to abandon the inadvertence requirement of the plain view exception to the warrant requirement under Article 14 as the Supreme Court did under the Fourth Amendment); Commonwealth v. Gonsalves, 429 Mass. 658, 663 (1999) (under Article 14, unlike under the Fourth Amendment, a police officer may not order the occupants of a lawf

2013See, e.g., Commonwealth v. Balicki, 436 Mass. 1, 9 (2002) (declining to abandon the inadvertence requirement of the plain view exception to the warrant requirement under Article 14 as the Supreme Court did under the Fourth Amendment); Commonwealth v. Gonsalves, 429 Mass. 658, 663 (1999) (under Article 14, unlike under the Fourth Amendment, a police officer may not order the occupants of a lawfully stopped vehicle out of the vehicle as a matter of course); Commonwealth v. Stoute, 422 Mass. 782, 789 (1996) (person is seized under Article 14 when police pursue the person with the obvious intent o

2012The Supreme Judicial Court has on many occasions interpreted Article 14 to provide greater protections than the Fourth Amendment to the United States Constitution in the area of searches and seizures. 14 See, e.g., Commonwealth v. Balicki, 436 Mass. 1, 9 (2002) (declining to abandon the inadvertence requirement of the plain view exception to the warrant requirement under Article 14 as the Supreme Court did under the Fourth Amendment); Commonwealth v. Gonsalves, 429 Mass. 658, 663 (1999) (under Article 14, unlike under the Fourth Amendment, a police officer may not order the occupants of a lawf

2013HodariD., 499 U.S. 621 (1991)); Commonwealth v. Upton, 394 Mass. 363, 373 (1985) (“We conclude that art. 14 provides more substantive protection to criminal defendants than does the Fourth Amendment in the determination of probable cause”).

2012The Supreme Judicial Court has on many occasions interpreted Article 14 to provide greater protections than the Fourth Amendment to the United States Constitution in the area of searches and seizures. 14 See, e.g., Commonwealth v. Balicki, 436 Mass. 1, 9 (2002) (declining to abandon the inadvertence requirement of the plain view exception to the warrant requirement under Article 14 as the Supreme Court did under the Fourth Amendment); Commonwealth v. Gonsalves, 429 Mass. 658, 663 (1999) (under Article 14, unlike under the Fourth Amendment, a police officer may not order the occupants of a lawf

2002In short, although there may have been certain items that stood out in his mind as a result of his review of many suspicious invoices, he lacked “probable cause before entering the room to believe the items would be there,” Commonwealth v. D'Amour, supra at 732 , quoting Commonwealth v. Cefalo, 381 Mass. 319, 331 (1980), thus satisfying the inadvertence requirement.

1999Common wealth v. Santana, 420 Mass. 205 , 211 & n.6 (1995); Commonwealth v. Cefalo, supra at 331.

2002The Supreme Court, which initially required that the seizure of items in plain view be inadvertent, Coolidge v. New Hamp shire, 403 U.S. 443 (1971), abandoned that requirement in Horton v. California, 496 U.S. 128 (1990).

2001We also note that the Supreme Judicial Court has not decided whether to retain the inadvertence requirement relative to plain view seizures following its rejection by the United States Supreme Court in Horton v. California, 496 U.S. 128, 130 (1990).

1980Coolidge, supra at 466 . 9 We have sometimes referred to the inadvertence requirement of Coolidge, supra, in terms of “unanticipated” or “unexpected.” See Commonwealth v. Accaputo, 380 Mass. 435, 450 (1980); Commonwealth v. Bond, 375 Mass. 201, 206 (1978); Commonwealth v. Walker, 370 Mass. 548, 557 , cert, denied, 429 U.S. 943 (1976).

1978Commonwealth v. Bond, 375 Mass. 201, 206 (1978).

1999Commonwealth v. D' Amour, supra; Commonwealth v. Accaputo, supra. The inadvertence requirement is satisfied if police lacked probable cause to believe that they would find the items at issue prior to entering the apartment to be searched.

1980Coolidge, supra at 466 . 9 We have sometimes referred to the inadvertence requirement of Coolidge, supra, in terms of “unanticipated” or “unexpected.” See Commonwealth v. Accaputo, 380 Mass. 435, 450 (1980); Commonwealth v. Bond, 375 Mass. 201, 206 (1978); Commonwealth v. Walker, 370 Mass. 548, 557 , cert, denied, 429 U.S. 943 (1976).

2012The Supreme Judicial Court has on many occasions interpreted Article 14 to provide greater protections than the Fourth Amendment to the United States Constitution in the area of searches and seizures. 14 See, e.g., Commonwealth v. Balicki, 436 Mass. 1, 9 (2002) (declining to abandon the inadvertence requirement of the plain view exception to the warrant requirement under Article 14 as the Supreme Court did under the Fourth Amendment); Commonwealth v. Gonsalves, 429 Mass. 658, 663 (1999) (under Article 14, unlike under the Fourth Amendment, a police officer may not order the occupants of a lawf

1993Commonwealth v. Hason, 387 Mass. 169, 176 (1982).

1984See United States v. Bellina, 665 F.2d 1335, 1346 (4th Cir. 1981).

1976When the plain view doctrine is relied on to justify a warrantless seizure of evidence, attention must be paid also to seeing that the police, in full possession of probable cause to believe that incriminating evidence is present in a particular place, have not waited until an opportune moment to “place themselves in a position to gain a plain view of the evidence.” Commonwealth v. Forde, 367 Mass. 798, 809 (1975) (Hennessey, J., concurring in result).

1976When the plain view doctrine is relied on to justify a warrantless seizure of evidence, attention must be paid also to seeing that the police, in full possession of probable cause to believe that incriminating evidence is present in a particular place, have not waited until an opportune moment to "place themselves in a position to gain a plain view of the evidence." Commonwealth v. Forde, 367 Mass. 798, 809 (1975) (Hennessey, J., concurring in result).

1975The purported inadvertence requirement apparently flows primarily from Coolidge v. New Hampshire, 403 U.S. 443, 469-473 (1971), where Mr. Justice Stewart relying on the remains of Trupiano v. United States, 334 U.S. 699, 704-705 (1948), [5] proposed the rule that "the discovery of evidence in plain view must be inadvertent." 403 U.S. at 469 (1971).

1975The purported inadvertence requirement apparently flows primarily from Coolidge v. New Hampshire, 403 U. S. 443, 469-473 (1971), where Mr. Justice Stewart relying on the remains of Trupiano v. United States, 334 U. S. 699, 704-705 (1948), 5 proposed the rule that “the discovery of evidence in plain view must be inadvertent.” 403 U. S. at 469 (1971).