NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

13-P-932 Appeals Court

COMMONWEALTH vs. AARON M. TARJICK.

No. 13-P-932.

Hampshire. December 3, 2014. - May 18, 2015.

Present: Kantrowitz, Green, & Meade, JJ.

Practice, Criminal, Motion to suppress, Warrant. Constitutional 

Law, Search and seizure. Search and Seizure, Warrant, 

Plain view. Evidence, Digital image, Photograph, Prior 

misconduct.

Indictments found and returned in the Superior Court 

Department on September 22 and December 17, 2010. 

A pretrial motion to suppress evidence was heard by MaryLou Rup, J., and the cases were tried before C. Jeffrey Kinder, 

J. 

Elaine Fronhofer for the defendant.

Joseph A. Pieropan, Assistant District Attorney, for the 

Commonwealth.

KANTROWITZ, J. This matter involves the interplay between 

twenty-first century technology and twentieth century search and 

seizure principles. We hold that the police, while executing a 

search warrant for nude images of the defendant's thirteen year 
2

old stepdaughter on a video camera, cellular telephone (cell 

phone), and computer, were justified in seizing three memory 

cards from digital cameras that they came across.1

The defendant challenges the propriety of the order denying 

his motion to suppress the contents of a memory card removed

from one of the digital cameras. He also challenges the 

admission at trial of enlarged photographs of one young female 

victim at various ages, the Commonwealth's references to the 

defendant's status as a prisoner, and the playing of two 

recordings of telephone calls that he made from jail. We 

affirm. 

Background.

2 Carla was the defendant's stepdaughter. She 

lived with her biological mother and the defendant, who were 

living together and were married when Carla was about seven or 

eight years old. Carla testified that in 2006, the defendant 

began sexually abusing and raping her. At one point, she 

indicated that the defendant took at least one sexually explicit 

photograph of her using his cell phone and made sexually 

explicit video recordings of her with a video camera. The 

 

1 As it turns out, the only nude pictures that were 

discovered were those of the defendant and his young sons. At 

trial, the defendant was found not guilty of the single charge 

that arose from that discovery, which involved nude images of 

one son that were taken from one of the memory cards.

2 The names of the child victims, Carla and Nina, are 

pseudonyms.
3

police suspected that the defendant transferred or copied the 

images to the family computer because Carla told authorities 

that her mother had said that the defendant was viewing sexually 

explicit images of young girls on the computer. After Carla 

disclosed the abuse, she went to live with her biological 

father. The second victim, Nina, was Carla's ten year old

friend from school. The defendant sexually abused Nina on 

multiple occasions when she visited.

Members of the State police obtained a warrant to search 

the defendant's home after Carla disclosed the abuse and

information about the sexually explicit recordings. The warrant

listed the defendant's cell phone, the family computer, and the 

family video camera as items to seize. The police "seized three 

memory cards that were in the camcorders or digital cameras."

The memory cards were not included in the warrant. A second 

warrant was obtained to search the contents of the memory cards. 

From one particular memory card, introduced at trial as the 

ADATA card, eight photographs were retrieved, some of which 

included images of the defendant posing partially nude with his 

young son, who was two or three years old. No sexually explicit 

photographs or video recordings of Carla or Nina were found.

The defendant was charged with numerous counts related to 

his abuse of Carla and Nina, and one count related to his son 
4

and the nude photographs.

3 On May 18, 2012, a judge denied the 

defendant’s motion to suppress the memory cards.

4 The 

Commonwealth introduced three nude images of the defendant and 

his son as exhibits at trial and placed poster-size 

reproductions of the images in front of the jury.

5

 

3 The defendant was indicted by a Hampshire County grand 

jury of aggravated rape of a child (Carla), three counts of 

indecent assault and battery on a child under age fourteen 

(Carla), and one count of open and gross lewdness and lascivious 

behavior (Carla). A Berkshire County grand jury indicted the 

defendant on three counts of rape of a child with force (Carla), 

eight counts of indecent assault and battery on a child under 

age fourteen (Carla), one count of rape of a child with force 

(Nina), and one count of posing a child in a state of nudity 

(defendant's son). The Berkshire County charges were 

transferred to Hampshire County. The defendant was found not 

guilty on the count of posing his son in a state of nudity. He

was found guilty of the lesser included offense of rape without 

force for the count involving Nina, and he was convicted of all 

other charges.

4 The defendant moved to suppress all evidence outside the 

scope of the warrant to search his home, including all the 

memory cards. In a supporting memorandum, while he specifically 

mentioned the ADATA card containing the nude images, he argued 

for suppression of all the memory cards.

5 Exhibits 26, 27, and 28 in the defendant's record appendix 

are the nude images. Each of those images contains white strips 

or markings that partially obscure the face and/or genital area

of the people in the photographs, apparently as an attempt to 

redact the sexually explicit nature of the images. The record 

and briefs of the parties are unclear on whether the poster-size 

versions used at trial contained similar markings to redact the 

images. Without explaining further, the defendant states in his 

brief that "'edited' versions were used" during Carla's direct 

examination. The defendant testified that his wife took the 

photographs and that he was making this particular pose, which 

involved the defendant tucking his penis between his legs, as a 

joke based on the movie "The Silence of the Lambs."
5

Motion to suppress. The defendant argues that his motion 

to suppress the memory cards, including the ADATA card, should 

have been allowed because the memory cards were not specified in 

the warrant to search his home.

6

Exhibit 26 shows a close-up of the defendant's naked groin 

with his penis tucked between his legs several inches from his 

son's face. Exhibit 27 shows the defendant in a similar pose 

while holding his own shirt above his waist and simultaneously 

lifting his son's shirt to expose his son's penis. Exhibit 28

shows the defendant leaning against a door frame and holding his 

shirt above his waist to expose his naked groin while his son 

stands nearby and stares.

We note at the outset that the defendant was found not 

guilty of the one charge involving the nude images of his son. 

The defendant also exploited this lack of evidence in crossexamination and in closing, by demonstrating that pictures that 

 

6 Other images taken from the ADATA memory card showed the 

defendant nude with his sons, also nude, in a child-size 

swimming pool outside his house. These images were not part of 

the charge against the defendant for posing a child in a state 

of nudity. The defendant apparently introduced the swimming

pool images to provide context for a telephone call with his 

wife wherein she informed him that the memory cards had been 

seized, and he responded, "I told you not to take those f-ing 

pictures." The Commonwealth played this telephone call for the 

jury and suggested that the defendant made this statement to his 

wife in reference to the nude images of his one son that were 

the basis of the single charge. The defendant suggested that 

his statement to his wife was in reference to the swimming pool 

images.
6

the victim indicated were taken were not recovered. While the 

matter under these circumstances might be considered moot, the

defendant argues that the images were prejudicial for various 

reasons, including that they bolstered Carla's testimony that he 

shaved his pubic area.

7 As we agree that the pictures in fact 

bolstered Carla's testimony, we address the issue raised.

Evidence may be seized without a warrant if it is found in 

plain view. Commonwealth v. Balicki, 436 Mass. 1, 8 (2002). 

The 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."

Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 306-307 (2010) 

(citations omitted). Under the plain view doctrine, the 

evidence must be discovered inadvertently, which "means only 

that the police lacked probable cause to believe, prior to the 

 

7 The defendant's genitalia was visible in the photographs, 

though the images that the Commonwealth introduced at trial were 

partially covered and masked to some extent. See note 5, supra. 

The defendant argues that in addition to bolstering Carla's 

testimony, these images suggested to the jury that he had a lewd 

character and made Carla's testimony more credible insofar as 

she made uncharged allegations that the defendant had taken nude 

photographs of her as well.
7

search, that specific items would be discovered during the 

search." Commonwealth v. Balicki, supra at 10.

Here, Carla stated that the defendant, using his cell

phone, took sexually explicit photographs of her and, using his 

video camera, recorded her nude. Carla also stated that her 

mother told her that the mother had found the defendant viewing 

pornographic images of young girls on the family computer in 

their living room. An affidavit from a State police officer 

included this information and sought to retrieve the defendant's 

cell phone, the family computer that the officer suspected 

contained images of Carla, and the family video camera. In 

executing the warrant, the police came across various digital 

cameras, which contained memory cards. The officers seized the 

memory cards, but not the cameras from which the cards were 

removed, and prepared a second search warrant to view the images 

stored on the cards.

Although the original warrant did not include memory cards, 

the cards were "plausibly related to criminal activity" of which 

the officers executing the original warrant were already aware. 

The officers were also aware that data may be freely transferred 

from one device to another through memory cards, and they could 

reasonably have concluded that the memory cards might have 

contained the alleged recordings. See Commonwealth v. SliechBrodeur, 457 Mass. at 306-307. The inadvertence requirement is 
8

also satisfied because there is no indication that the police 

had probable cause to believe, prior to the search, that these 

specific memory cards or the cameras containing them would be 

found. See Commonwealth v. Balicki, 436 Mass. at 10.

The seizure was within the plain view doctrine because the

police acted on "knowledge of the facts and circumstances that 

would have warranted a person of reasonable caution in believing 

that the thing possessed is evidence of crime." Commonwealth v. 

Pierre, 71 Mass. App. Ct. 58, 64 (2008), quoting from 

Commonwealth v. Cullen, 62 Mass. App. Ct. 390, 402 (2004). 

Importantly, the police also obtained a second warrant before 

conducting a forensic examination of the contents of the memory 

cards.8 

Considering the constantly evolving nature of technology, 

we do not reach the issue of 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. We hold only that on these particular facts, the 

memory cards were plausibly related to the victim's allegations 

 

8 On discovery of the memory cards, the officers were also 

justified in recognizing the possibility that any evidence 

contained on them could be at risk of erasure or destruction, 

making it reasonable for the officers to seize the cards to

preserve the evidence while applying for the second warrant.

See Commonwealth v. Gentile, 437 Mass. 569, 573 (2002).
9

and were properly seized under the plain view doctrine. See 

Commonwealth v. Sliech-Brodeur, 457 Mass. at 306-307.

Photographs of victim. The defendant argues that school 

portraits of Carla should have been excluded from evidence 

because the images were inflammatory and created sympathy for 

the victim. The Commonwealth placed poster-sized versions of 

these various school portraits of Carla before the jury.

"Evidence is relevant if it has a rational tendency to 

prove an issue in the case, or render a desired inference more 

probable than it would be [otherwise]." Commonwealth v. 

Wallace, 70 Mass. App. Ct. 757, 764 (2007) (citations and 

quotations omitted). Mass. G. Evid. § 401 (2014). "Whether 

evidence is relevant in any particular instance, and whether the 

probative value of relevant evidence is outweighed by its 

prejudicial effect, are questions within the sound discretion of 

the judge." Commonwealth v. Dunn, 407 Mass. 798, 807 (1990).

Here, the judge did not abuse his discretion in ruling that 

the photographs of Carla had probative value as they depicted 

her at relevant times, particularly when she was younger and 

first knew the defendant. See Commonwealth v. Wallace, 70 Mass. 

App. Ct. at 764. As the judge noted, even if some of the 

photographs predated the defendant's abuse of Carla, the earlier 

images were relevant as they depicted her during the period when 

the defendant first met her. There was no abuse of discretion 
10

as the judge could have reasonably found that the danger of 

unfair prejudice did not substantially outweigh the probative 

value of the images. See Commonwealth v. Dunn, 407 Mass. at 

807; Mass. G. Evid. § 403.

9

References to imprisonment. Lastly, the defendant argues 

that the Commonwealth undercut his presumption of innocence by 

referring to his status as an inmate and playing audio

recordings of two telephone calls that he made from jail while 

awaiting trial.

10 

"Evidence of a defendant's prior incarceration may be 

admitted if it is offered for a relevant purpose other than to 

show the defendant's criminal propensity or bad character, and 

if the probative value of its relevant purpose outweighs the 

 

9 The judge also instructed the jury to focus only on the 

evidence: "You must determine the facts solely on the evidence 

as you've heard it and seen it in this courtroom and on nothing 

else. You may not be influenced by any bias or prejudice for or 

against the Commonwealth or the defendant. You're not to be 

swayed by any personal likes or dislikes. Emotion or sympathy, 

passion or prejudice have no place in your deliberations. The 

Commonwealth and the defendant have a right to have the case 

judged by fair and impartial jurors."

10 In her opening statement, the prosecutor told the jurors 

that they would hear from a witness who would describe what the 

defendant said while they were "incarcerated" and "were 

cellmates." The prosecutor also told the jury that they would 

hear audio recordings of what the defendant said "while he was 

in jail." The jury later heard two telephone calls, made from 

jail, that included prerecorded language before the calls that 

identified the defendant as an inmate. While cross-examining 

the defendant, the prosecutor made reference to those 

conversations. The Commonwealth's closing argument also made a 

reference to calls that the defendant "made from the jail."
11

risk of unfair prejudice." Commonwealth v. Brown, 462 Mass. 

620, 628 (2012).

Here, the telephone calls made from jail each had 

independent relevance because each call had "a rational tendency 

to prove an issue in the case, or render a desired inference 

more probable than it would be [otherwise]." Commonwealth v. 

Wallace, 70 Mass. App. Ct. at 764 (citations and quotations 

omitted). See Mass. G. Evid. § 401. The telephone calls also 

had a "relevant purpose other than to show the defendant's 

criminal propensity or bad character." Commonwealth v. Brown, 

462 Mass. at 628.

In the first telephone call, the defendant spoke with 

another male and indicated that someone named "Joe" was with him 

in jail. "Joe" was a prisoner with the defendant and a witness 

whom the Commonwealth planned on calling to testify to 

conversations he had with the defendant. That the witness, at 

some later point during the middle of trial, became 

uncooperative and did not wish to testify does not detract from 

the fact that at the time the prosecutor made the statements in 

her opening and played the telephone call to the jury, she 

reasonably believed that the witness would be testifying. 

In the second telephone call, the defendant spoke with his 

wife, who told him that police had seized from a camera a memory 

card that contained nude pictures of the defendant and his sons 
12

in their pool. See note 6, supra. The defendant then told his 

wife, "I told you not to take those f-ing pictures." The 

Commonwealth introduced this second telephone call to show that 

the defendant had knowledge of the existence of the nude images 

of his sons, which related to the charge against him of posing 

one son in a state of nudity. See Commonwealth v. Wallace, 70 

Mass. App. Ct. at 764.

The prosecutor's references in the opening statement were 

necessary to place in context the evidence that the Commonwealth 

reasonably expected to produce at trial. They were neither 

unfairly prejudicial nor impermissibly reflective of bad 

character. See Commonwealth v. Brown, 462 Mass. at 628; 

Commonwealth v. Wallace, 70 Mass. App. Ct. at 764.

Regarding the prerecorded language before each telephone 

call that identified the defendant as an inmate, the 

Commonwealth concedes that the better practice would have been 

to remove that language before placing the evidence before the 

jury. The judge, however, delivered extensive instructions that 

the jury should consider only the facts and not become swayed by 

prejudice or emotion. The jury are presumed to have followed

these instructions and disregarded any biases or prejudice that 
13

may have arisen from the references to his inmate status. See 

Commonwealth v. Maynard, 436 Mass. 558, 571 (2002).

11

Judgments affirmed.

 

11 The defendant's observation that the Commonwealth made 

improper use of his prior convictions does not rise to the level 

of appellate argument. See Commonwealth v. O'Brien, 423 Mass. 

841, 851 n.17 (1996). Regardless, after a discussion at 

sidebar, the judge instructed the jury to consider the evidence 

solely for the purpose of evaluating the defendant's credibility 

as a witness. Defense counsel later stated that he was 

satisfied. There was no error.