My understanding is that if the police have a search warrant and see clear evidence of an unrelated crime, then that evidence can be immediately seized and additional charges applied. For example, a policeman has a search warrant for a detached garage to look for stolen bicycles. Inside, the policeman sees several pot plants. The plants can be immediately seized the owner arrested.
I also believe that the police can use whatever they see in plain view as a basis for a second warrant. So if instead of plants the policeman sees empty boxes for grow tents, lights, etc., he can use that as a basis to apply for a warrant to search the house.
Is that generally correct?
If so, does that mean that in the course of their review of files, tapes, etc. — which will likely include the entirety of communications that took place during the time-frame of the evidence seized — every single crime or potential crime detected will be passed on for further investigation (which could trigger additional warrants to unrelated matters)?
Does the fact that it’s a ‘taint team’ doing the initial review (or the nature of the review) make any difference at all?
I realize that many articles have probably answered this, but I just haven’t seen it answered directly in those I’ve read.
You’re conflating two different things. Everything the Feds have right now from Cohen’s office has already passed the “plain view” test. They were looking for documents, and so they were allowed to look anywhere a document might be found (including, for instance, on computer drives), and anything they could see there (like, say, all of the computer files, and all of the documents they could see in any other place in the office) is fair game, and so they grabbed all of it. This is allowed, even though most of the documents they found probably aren’t the specific ones they were looking for (whatever those were), because the other documents were all in plain view (at least, once you’re looking in filing cabinets and on computers).
But the fact that Cohen is a lawyer adds an additional complication, that wouldn’t be present in searching some random person’s garage for stolen bikes. Legitimate communications with his clients are privileged, and can’t be used without the client’s consent, even if the police did legally get their hands on them. So to deal with that, someone else (the taint team) has to go through each document found, and decide whether it’s a communication with a client, and if so, whether it’s legitimate. If they decide that it is a legitimate client communication, then nobody else involved in the investigation is allowed to get their hands on it, even though the police who did the raid obtained it legally.
But presumably - having gotten their hands on unprivileged documents, presumably if they are leafing through those looking for evidence of payments or instructions to a Las Vegas thug, or obtaining hush money (lets hypothesize, no idea what they actually want) -and then find details of bribes paid to politicians to expedite building permits - then that becomes fair game for prosecution.
And I assume, any indication that lawyer-client communication displays intent by the lawyer to break the law, then that document is no longer privileged.
If evidence of a crime not specified in the search warrant is uncovered I would guess that that specific item would be O.K. but the smart thing to do would be to amend the application and get the new crime included. IANA lawyer but have executed many search warrants and that’s what we would do. Is it absolutely necessary? I don’t know but its trivially easy to do and why risk losing evidence? Plain view, I think, is limited to prima facie evidence. If it has to be examined or investigated to determine whether or not it is evidence, its not considered “plain view”.
How does it work if it’s the other way around? Suppose the police execute a search warrant against Chris Citizen for documents related to the Ponzi scheme Chris is suspected of running. In the course of the search, they find an email from Lee Lawyer, who represents Chris, that refers to an embezzlement Chris enacted.
Does the prosecution have any route to charging Chris with the embezzlement, or must they ignore it because it’s covered by attorney-client privilege? I’m thinking from my extensive watching of Law & Order reruns that the only recourse the prosecution has is to somehow be able to claim that they would have inevitably found out about the embezzlement from other sources, else it will be disallowed as “fruit of the poisonous tree.”
Plain view evidence can be used as evidence to convict in criminal court
Convicting is more demanding than obtaining a search warrant: beyond reasonable doubt vs probable cause
Plain view evidence should be able to provide probable cause for further warants. Although if you keep daisy-chaining search warrants like that while finding little else, a judge may think it’s starting to look like a fishing expedition.