Illegal Searches and Seizures in Massachusetts: Motions to Suppress

Article 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution protect people from unreasonable searches and seizures by the government. The defense may move before trial to suppress evidence that the police obtained in violation of Article 14 or the Fourth Amendment. A judge who allows the motion orders that the Commonwealth may not use the evidence at trial.

A prosecution may depend on the drugs found in the car, the firearm found in the apartment, or the data extracted from the phone. The Commonwealth may be unable to prove the charge if a judge excludes the evidence on which the prosecution depends. A judge who suppresses evidence does not automatically dismiss the case. The difference between suppression and dismissal is explained below.

This page sets out what the two constitutional provisions require, how the analysis differs at each stage of a police encounter, and how a motion to suppress is litigated. Detailed treatments of traffic stops, phones and computers, and the admission of digital evidence appear on their own pages and are linked where each subject arises.

Article 14 and the Fourth Amendment

Article 14 guarantees that every subject has a right to be secure from all unreasonable searches and seizures of his person, houses, papers, and possessions. Article 14 was adopted in 1780, nine years before Congress proposed the Fourth Amendment and eleven years before the states ratified it in 1791. Article 14 originated in the colonial objection to the writs of assistance that James Otis argued against in Boston in 1761.

The Supreme Judicial Court is not required to interpret Article 14 the same way the United States Supreme Court interprets the Fourth Amendment. Article 14 provides at least as much protection as the Fourth Amendment, and more protection in several recurring situations. Commonwealth v. Delgado-Rivera, 487 Mass. 551 (2021). Defense counsel therefore raises Article 14 expressly in a Massachusetts motion to suppress and does not rely on federal law alone. The recurring differences between Massachusetts law and federal law are listed near the end of this page.

Encounters, Stops, Searches, and Seizures

A judge deciding a motion to suppress first asks what the police did, because different police conduct requires different justification.

• A consensual encounter. An officer may approach a person and ask questions. The officer needs no constitutional justification for an encounter in which a reasonable person would feel free to leave. The person is free to decline to answer the officer’s questions.
• A stop. A police pursuit or detention of a person is a seizure that requires reasonable suspicion. Under Article 14, a pursuit undertaken in order to make a forcible stop is itself a seizure that must be justified from the moment it begins. Commonwealth v. Stoute, 422 Mass. 782 (1996). Under federal law, a pursuit becomes a seizure only later, when the police physically restrain the person or the person submits to the officer’s show of authority. California v. Hodari D., 499 U.S. 621 (1991). As a result, a Massachusetts judge may suppress evidence that a person discards while being chased if the police lacked reasonable suspicion when they began the pursuit.
• An arrest. An arrest requires probable cause.
• A search. A search intrudes on a reasonable expectation of privacy and ordinarily requires a warrant.
• A seizure of property. Taking property is a separate act that requires its own justification. The defense can therefore challenge, as an independent issue, the length of time the police hold a seized item before applying for a warrant.

Reasonable Suspicion and Probable Cause

Reasonable suspicion requires specific and articulable facts, together with rational inferences from them, that the person is committing, has committed, or is about to commit a crime. Reasonable suspicion requires more than a hunch. Probable cause is a higher standard than reasonable suspicion. Probable cause requires facts sufficient to warrant a person of reasonable caution in believing that an offense has been committed and, for a search, that evidence of the offense will be found in the place to be searched.

A stop founded on a hunch or on an uncorroborated anonymous tip is unlawful. The Appeals Court has held that a stop based on a traffic law the officer misread is generally unconstitutional, even when the officer’s mistake was reasonable and made in good faith. Commonwealth v. Jones, 100 Mass. App. Ct. 600, 605 to 606 (2022).

Under the Fourth Amendment, however, an officer’s reasonable mistake of law can justify a stop. Heien v. North Carolina, 574 U.S. 54 (2014). Evidence the police obtain as a result of an unlawful stop is subject to suppression. Commonwealth v. Silva, 366 Mass. 402 (1974).

Search Warrants and the Supporting Affidavit

A valid search warrant is issued by a neutral magistrate on a sworn affidavit establishing probable cause. The warrant must describe with particularity the place to be searched and the items to be seized.

A judge reviewing a Massachusetts warrant considers only the affidavit. The inquiry into the sufficiency of a warrant application “always begins and ends with the four corners of the affidavit.” Commonwealth v. O’Day, 440 Mass. 296, 297 (2003), quoting Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995).

The judge does not consider facts the officer knew but left out of the affidavit, or information the officer told the magistrate orally but did not write down. The judge reads the affidavit in an ordinary, commonsense way rather than parsing it hypertechnically. Commonwealth v. Perez-Baez, 410 Mass. 43, 46 (1991).

Particularity, Nexus, Staleness, and Overbreadth

Most challenges to a warrant are based on four requirements.

Particularity. The warrant must identify the place and the items with enough precision that the executing officer is not left to decide what to search and take.

Nexus. The affidavit must connect the alleged criminal activity to the specific place to be searched. Showing that a person is selling drugs is not enough. The affidavit must give the magistrate reason to believe that evidence of that selling will be found in the particular home or unit named.

Staleness. Facts that established probable cause months ago may no longer show that evidence is presently in the place to be searched.

Overbreadth. A warrant is invalid to the extent that it authorizes a search broader than the probable cause shown in the affidavit. Overbreadth problems arise most often in warrants to search digital devices. A search of a device under a warrant for evidence of one offense can become an unlimited review of everything stored on the device.

Informants and the Two-Part Massachusetts Test

A large share of home and drug warrants are based on a tip from a confidential informant. For warrants based on informant tips, Article 14 gives Massachusetts residents considerably more protection than federal law.

In Illinois v. Gates, 462 U.S. 213 (1983), the United States Supreme Court abandoned the structured informant test of Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969). The Supreme Court replaced the structured informant test with a totality of the circumstances standard.

The Supreme Judicial Court declined to adopt the totality of the circumstances standard under Article 14. The Supreme Judicial Court found the federal approach “unacceptably shapeless and permissive” and held that the two-pronged test continues to apply under Article 14. Commonwealth v. Upton, 394 Mass. 363, 373 to 376 (1985).

An affidavit that relies on an unnamed informant must tell the magistrate the underlying circumstances from which the informant concluded that the contraband was where the informant said it was, which is the basis of knowledge.

The affidavit must also tell the magistrate the underlying circumstances from which the affiant concluded that the informant was credible or the information reliable, which is veracity. Commonwealth v. Upton, 394 Mass. at 374 to 375; Commonwealth v. Byfield, 413 Mass. 426, 429 (1992). The two prongs are independent. A convincing showing on one prong does not excuse a failure on the other. Commonwealth v. Robinson, 403 Mass. 163, 164 to 165 (1988).

Basis of knowledge is satisfied most cleanly by the informant’s firsthand observation, with specific detail about what was seen and where. Commonwealth v. Parapar, 404 Mass. 319, 322 (1989).

Veracity is the prong on which affidavits most often fail. A recital that the informant “has provided reliable information in the past” is not enough to establish veracity. An assertion that a prior tip led to an arrest, without more, does not establish veracity, because an arrest is not a conviction. Commonwealth v. Rojas, 403 Mass. 483, 486 (1988).

Veracity is properly shown where a prior tip led to the seizure of contraband, or to arrests and convictions, with some supporting detail. Commonwealth v. Perez-Baez, 410 Mass. 43, 46 (1991); Commonwealth v. Mejia, 411 Mass. 108, 111 (1991).

Corroboration can supplement a deficient prong. Independent police confirmation of detailed, non-obvious information can establish the veracity of a first-time informant with no history at all. Commonwealth v. Carrasco, 405 Mass. 316, 321 to 322 (1989). Corroboration of innocent and easily predicted detail does little to supplement a deficient prong.

Testing the Truth of the Affidavit

Under the four corners rule, the judge assumes that the affidavit is truthful. The defense can use two procedures to challenge an affidavit that is not truthful.

Under Franks v. Delaware, 438 U.S. 154, 155 to 156 (1978), a defendant is entitled to an evidentiary hearing after making a substantial preliminary showing on two points. The first point is that the affiant included a false statement knowingly and intentionally, or with reckless disregard for the truth. The second point is that the false statement was necessary to the finding of probable cause. A judge who finds the falsity proved strikes the false material and tests the affidavit again without it.

Massachusetts law provides an additional procedure for affidavits that rely on confidential informants, because a defendant who does not know the informant’s identity may be unable to meet the Franks standard. A defendant may submit an affidavit that casts reasonable doubt on the truth of material representations about a confidential informant.

In Commonwealth v. Amral, 407 Mass. 511, 520 to 522 (1990), the Supreme Judicial Court held that a judge should then conduct a preliminary in camera hearing. The judge may question the affiant and, if necessary, the informant, in order to decide whether the defendant has made the showing Franks requires.

Execution of a Warrant

Even with a valid warrant, the police must ordinarily knock, announce their identity and purpose, and give the occupants a reasonable opportunity to respond before forcing entry. An unannounced entry requires a specific justification, such as a genuine risk to safety or of the destruction of evidence. The defense can challenge how the police executed a warrant even if the magistrate properly issued the warrant.

Massachusetts does not follow the federal rule that a knock and announce violation can never support exclusion. Under Massachusetts common law and Article 14, suppression may be required where the violation materially undermines the protections the rule exists to provide and where exclusion will deter unlawful entries. Commonwealth v. Gomes, 408 Mass. 43 (1990).

An officer executing a warrant that authorized an unannounced entry must also reassess at the threshold whether the facts still justify one. Commonwealth v. Jimenez, 438 Mass. 213 (2002). A judge does not suppress evidence for every technical violation, because the judge also weighs the seriousness of the violation and the good faith of the officers.

The Exceptions to the Warrant Requirement

A warrantless search is presumptively unreasonable. The Commonwealth must prove that the search fits a recognized exception. Massachusetts courts recognize a limited set of exceptions, including voluntary consent, a search incident to a lawful arrest, the automobile exception, plain view, exigent circumstances, emergency aid, and an inventory conducted under a standard written policy. Most warrantless-search litigation is a dispute about whether the facts genuinely fit a recognized exception.

Exigency is the exception the Commonwealth asserts most often. The exigency exception generally depends on a real risk that a suspect will flee or that evidence will be destroyed, or on a genuine danger to a person. The exigency exception also generally requires a showing that there was no time to obtain a warrant. An emergency the officers created themselves, or one that left time to seek a warrant, does not justify the search.

Consent and Its Scope

Consent must be voluntary. The Commonwealth bears the burden of proving that the consent was voluntary. Submission to a claim of authority is not consent. A person who consents may limit the search and may withdraw consent. A person may also refuse consent altogether.

The police must obtain valid consent and must also stay within the scope of that consent. Consent to look in a bag is not consent to search a car, and consent to search a phone for one category of message is not consent to review the entire device.

A judge reviewing a third party’s consent asks whether that person had common authority over the area searched, meaning mutual use together with joint access or control. Ownership of the property, or a general right to enter it, is not enough to establish common authority. Commonwealth v. Porter P., 456 Mass. 254 (2010). Consent may also be based on apparent authority, where the facts known to the officers made a belief in that authority reasonable. Commonwealth v. Santos, 465 Mass. 689 (2013). A cohabitant may consent to a search of shared space and of an unsecured container within it.

A parent with unrestricted access may consent to a search of an adult child’s bedroom. A landlord, a hotel manager, or a shelter director, however, is not a cohabitant. A judge decides a motion challenging third-party consent on the evidence about residence, access practices, locks, rent or ownership, whether a container was secured, and any restriction the defendant imposed.

Searches Incident to Arrest

The police may search a lawfully arrested person and the area within that person’s immediate control, for the safety of the officers and to prevent the destruction of evidence. The United States Supreme Court has narrowed the authority of the police to search a vehicle incident to an arrest. Police may search the passenger compartment incident to an arrest only in two situations.

The first situation is when it is reasonable to believe that the arrestee could access the vehicle at the time of the search. The second situation is when it is reasonable to believe that the vehicle contains evidence of the offense of arrest. Arizona v. Gant, 556 U.S. 332 (2009).

The exception for searches incident to arrest does not apply to the digital contents of a phone found on an arrestee. The police generally need a warrant to search the contents of the phone. Riley v. California, 573 U.S. 373 (2014).

Motor Vehicle Searches

Police who stop a car may not search it on the basis of the stop alone. A warrantless search of a vehicle requires probable cause to believe it contains evidence of a crime or contraband.

Massachusetts adds a protection that applies in many drug and firearms stops. After the decriminalization of small amounts of marijuana, the odor of burnt marijuana alone no longer supplies probable cause to search a vehicle, although it may contribute to reasonable suspicion. Commonwealth v. Cruz, 459 Mass. 459 (2011); Commonwealth v. Overmyer, 469 Mass. 16 (2014).

The marijuana possession limits discussed in Cruz and Overmyer changed on April 19, 2026. Chapter 65 of the Acts of 2026 raised the lawful adult amount to two ounces outside the home and made simple possession through three ounces a civil offense. A judge reviewing a vehicle search therefore weighs an odor or a visible amount of marijuana against the 2026 limits, not against the one-ounce limit that Cruz and Overmyer discuss.

An inventory search following a lawful impoundment is valid only where it is conducted according to a standard written police policy and not as a means of looking for evidence.

The authority to stop a vehicle for a civil motor vehicle infraction also expires after an unreasonable delay. The Commonwealth bears the burden of justifying the delay on the totality of the circumstances, including its length, the reason for it, and the nature of the violation. No fixed time limit applies, but the Supreme Judicial Court held a delay of twenty four hours unreasonable under Article 14. Commonwealth v. Arias, 497 Mass. 425 (2026).

The stop that precedes the search has its own rules, including how long it may last, when an exit order is permitted, when a patfrisk is authorized, and what rights a passenger has. The rules for the stop are set out at Massachusetts traffic stops, exit orders, and pretext searches. The questions drivers ask most often are answered in the traffic stop questions and answers.

Inventory Searches

Police conduct inventories in two settings. The first setting is the lawful impoundment of a vehicle. The second setting is the booking of an arrested person, when the police take the person’s belongings for safekeeping. An inventory is a caretaking procedure rather than an investigative one.

The police do not need probable cause to conduct an inventory. Under both the Fourth Amendment and Article 14, a court reviewing a vehicle inventory answers two distinct questions. The court asks whether the impoundment met constitutional requirements and whether the conduct and scope of the search met those requirements as well. Commonwealth v. Ellerbe, 430 Mass. 769 (2000).

The court first decides whether the police lawfully impounded the vehicle. Impounding a vehicle for noninvestigatory reasons is generally justified by public safety concerns or by the danger of theft or vandalism to a vehicle left unattended.

The test is whether the impoundment was reasonable on the particular facts. Commonwealth v. Eddington, 459 Mass. 102 (2011). The court considers whether an owner at the scene proposed turning the car over to a licensed companion who was able to drive it.

Removal of the car from a public way and the inventory conducted afterward are constitutional if no practical alternative to towing exists. See Ellerbe. Defense counsel challenging an impoundment first asks why the car could not have been locked and left where it was, or released to someone at the scene.

Officers may conduct the inventory before the car is towed to the storage lot. In Commonwealth v. Torres, 85 Mass. App. Ct. 51 (2014), the officer inventoried the car at the roadside, in accordance with the town’s written policy, while the defendant was still at the scene awaiting the tow.

The Appeals Court upheld the search. An inventory concerns what will remain in the vehicle when it is towed. Officers therefore do not have to inventory property removed from the car and given to a responsible person at the scene.

The police must choose a practical and available alternative for the property if one exists and the defendant expressly or impliedly approves it. Commonwealth v. Nicoleau, 90 Mass. App. Ct. 518 (2016).

The inventory search itself is valid only when officers follow standard police procedures. Under Article 14, those procedures must be in writing. The Supreme Judicial Court announced the exclusion rule for storage searches in Commonwealth v. Ford, 394 Mass. 421 (1985).

In Commonwealth v. Bishop, 402 Mass. 449 (1988), the Court held that the procedures must from that point forward be in writing. In Commonwealth v. Garcia, 409 Mass. 675 (1991), the Court confirmed that procedures are considered standard only if they are set forth in writing.

A written policy exists to remove discretion. Officers making an inventory are expected to proceed mechanically, according to a set routine. A departure from the routine supports an argument that the search was investigative rather than administrative.

Closed containers are treated separately. A written policy directing an inventory of a vehicle’s contents authorizes entry into both the passenger compartment and the trunk, but it does not authorize opening a closed container found inside.

A judge must suppress whatever police discover in a closed container opened during an inventory search unless a specific written procedure required the police to open the container. Garcia, 409 Mass. at 684 to 685.

In Bishop, the written policy said nothing about closed containers, so the search of a gym bag found in the car was unlawful. The defendant’s statement about the bag was also suppressed as the fruit of the unlawful search.

Booking is the second setting in which police conduct inventories. At the station, officers may remove and list the belongings of a person who will be held.

The United States Supreme Court has held that officers may open any container or article in the person’s possession as part of the booking routine, in accordance with established inventory procedures. Illinois v. Lafayette, 462 U.S. 640 (1983). The purposes of a booking inventory are administrative.

An itemized inventory deters false claims of loss, protects property against theft or careless handling, and identifies items that could cause injury in a cell. In Massachusetts, officers conducting a booking inventory, like officers inventorying a car, must follow written procedures, apply them mechanically, and conduct no investigation. Commonwealth v. Mauricio, 477 Mass. 588 (2017).

Every inventory search produces written records. The written policy ordinarily requires an itemized inventory report. At booking, the person receives a receipt for the property taken. The inventory report and the receipt establish what the police took, the condition of the property, and the date the police took custody of it.

Separate statutes apply to property that the police seize under a search warrant rather than hold for safekeeping. M.G.L. c. 276, § 3 requires the officer to keep that property safely under the direction of the court for as long as it is needed as evidence.

M.G.L. c. 276, § 3A requires the officer to return the warrant to the issuing court within seven days with a return of the officer’s doings. Defense counsel obtains the inventory report, the tow slip, the booking property sheet, the receipt, and the written policy itself, and compares what the policy requires with what the officers did.

A difference between the written policy and the officers’ conduct supports suppression. The Appeals Court has held, however, that an after-the-fact failure to complete the required inventory form does not by itself invalidate an otherwise valid inventory search. See Torres.

Police who hold property for safekeeping have no authority to investigate it. During an inventory conducted according to the written policy, officers may seize an item that is incriminating on its face, with no closer examination needed. A closer examination for investigative ends requires a warrant.

In Commonwealth v. White, 469 Mass. 96 (2014), an officer used the imprint number on inventoried pills to identify the pills on a website. The Supreme Judicial Court held that the officer’s investigative use of the imprint number converted a lawful inventory seizure into an unlawful investigatory search that required a warrant.

In Commonwealth v. Mauricio, an officer activated a digital camera found in an arrestee’s backpack and viewed the stored images on the suspicion that the camera was stolen. The Supreme Judicial Court suppressed the images because the viewing was an investigatory search outside the inventory exception. Officers may record what is obvious from an item’s exterior.

Officers may not sift and read materials taken from an arrestee in order to hunt for information. White, 469 Mass. 96, quoting Commonwealth v. Sullo, 26 Mass. App. Ct. 766, 770 (1989). The same limit applies to digital contents. Without a warrant, officers may not examine data on a phone, camera, or computer that is lawfully held in an inventory.

Article 14 requires suppression of evidence seized during an inventory search that was not conducted according to standard written procedures. A judge also suppresses statements that are the fruit of an unlawful inventory search. An inventory undertaken in order to search for evidence is outside the exception.

Home Searches

The home receives the greatest protection the law provides. Absent voluntary consent or genuine exigent circumstances, the police need a warrant to enter and search a residence. The same protection applies to the curtilage, which is the area immediately surrounding the home and associated with it. A warrantless entry is presumptively unreasonable. The Commonwealth has a heavy burden to justify a warrantless entry.

Police who have probable cause but need time to obtain a warrant should secure the premises while the application is prepared, rather than enter first and apply afterward.

A dormitory room is a student’s residence for purposes of search and seizure law. A student has a reasonable expectation of privacy in a dormitory room, so a police search of the room generally requires a warrant or a recognized exception. A judge applies a different analysis when a school official, rather than a police officer, conducts the search.

A private university is not a state actor, although its staff can still give the police evidence they find. A judge’s ruling on a dorm search depends on whether the person who searched was acting as an agent of the police and whether valid consent was given. A student whose dorm room is searched may face both a criminal case and a university proceeding, so defense counsel considers both proceedings in analyzing the search. See college and university student criminal defense.

Phones, Computers, and Cloud Accounts

The police generally may not search the digital contents of a phone seized during an arrest without a warrant. Riley v. California, 573 U.S. 373 (2014). Historical cell site location information that maps a person’s movements is likewise protected and generally requires a warrant. Carpenter v. United States, 585 U.S. 296 (2018). Article 14 requires a warrant on probable cause for historical cell site location information, independently of federal law. Massachusetts courts do not apply the third party doctrine mechanically to revealing location data. Commonwealth v. Augustine, 467 Mass. 230 (2014).

The acquisition of Google Location History data is a search under the Fourth Amendment. Chatrie v. United States, 146 S. Ct. 2193 (2026). In Chatrie, the United States Supreme Court did not decide whether a particular multistep geofence warrant satisfies the probable cause and particularity requirements.

No Massachusetts appellate decision has yet addressed geofence warrants. Augustine is the closest Massachusetts authority on location privacy, but it is analogous rather than controlling on geofencing. The Supreme Judicial Court applied the same aggregation analysis to historical records from automatic license plate readers in Commonwealth v. McCarthy, 484 Mass. 493 (2020).

A warrant to search a device does not authorize the police to review everything on it. The particularity and nexus requirements apply strictly to device warrants, because a phone holds more private material than a house.

A seizure that was lawful when it began can become unreasonable if the police do not diligently pursue the warrant. After a warrantless seizure of a device, the police must make the warrant application a priority within a relatively short period.

A general investigative workload does not by itself establish diligence as to the device the police are holding. Commonwealth v. White, 475 Mass. 583 (2016). A judge decides whether a particular delay was reasonable by weighing the owner’s possessory interest, the degree of the intrusion and the length of the delay, and the Commonwealth’s justification. The judge does not measure the delay against a fixed time limit. The judge may not excuse the delay solely because the device has evidentiary value. Commonwealth v. Solis and Commonwealth v. Diaz, SJC-13823 and SJC-13835 (Mass. Aug. 12, 2026).

Compelling a person to unlock an encrypted device raises the privilege against self-incrimination rather than the search and seizure provisions. Massachusetts law requires more proof than federal law. The Commonwealth must prove beyond a reasonable doubt that the person knows the passcode before a court may compel the person to enter it. Commonwealth v. Jones, 481 Mass. 540 (2019). Compelled unlocking of a device is treated at your right to remain silent in Massachusetts. The complete framework for device searches is set out at phone and computer searches in Massachusetts.

The question whether a search was lawful is different from the question whether the resulting messages, screenshots, or extraction reports may be shown to a jury. The Commonwealth must separately satisfy the rules on authentication, authorship, hearsay, and completeness, which are addressed at digital evidence in Massachusetts criminal cases.

Standing to Challenge the Search

Federal law requires a person charged with a possessory offense to assert a personal privacy interest in the place searched in order to challenge the search. The federal requirement can force a defendant to make an incriminating admission simply to be heard.

Massachusetts retains automatic standing, so a defendant charged with a crime of possession may contest the search without first conceding a possessory connection to the item seized. Commonwealth v. Amendola, 406 Mass. 592 (1990). Automatic standing allows a Massachusetts defendant to bring challenges that federal law would not permit.

Racially Motivated Stops

Under federal law, a stop with an objective basis is lawful whatever the officer’s actual motive, which permits police to use a minor traffic violation as a reason to investigate something else. Whren v. United States, 517 U.S. 806 (1996).

The Supreme Judicial Court has departed from the federal approach in cases where a defendant claims that a stop was based on race. In Commonwealth v. Long, 485 Mass. 711 (2020), the Supreme Judicial Court revised the equal protection framework under articles 1 and 10 of the Massachusetts Declaration of Rights for challenging a stop as racially motivated. Under the revised framework, a defendant can obtain relief more readily where the totality of the circumstances supports a reasonable inference that the stop was based on race.

What a Suppression Order Excludes

The remedy for an unconstitutional search is exclusion. Mapp v. Ohio, 367 U.S. 643 (1961). Article 14 independently requires the suppression of illegally seized evidence.

The exclusionary rule covers not only the item seized but also any further evidence that the police found as a result of the illegality. Wong Sun v. United States, 371 U.S. 471 (1963); Commonwealth v. Fredericq, 482 Mass. 70 (2019). An unlawful stop can be followed by an unlawful search and then by a statement.

A judge may then be required to suppress both the evidence from the search and the statement, because both resulted from the unlawful stop. In a suppression motion, defense counsel identifies the first unlawful act by the police and traces each piece of evidence that resulted from it.

Suppression Is Not Dismissal

A suppression order excludes evidence. A suppression order does not dismiss the charge.

The case remains on the docket and proceeds on whatever admissible evidence is left. The Commonwealth may be unable to go forward if it cannot prove the charge without the suppressed evidence. The Commonwealth may then enter a nolle prosequi, or the judge may dismiss the case.

The nolle prosequi or dismissal, however, is a second step that does not happen by operation of the suppression order. The case continues on a changed record if the judge suppresses only part of the evidence. How a Massachusetts case is brought to an end is a separate subject, addressed at can a Massachusetts judge dismiss my case. The stages of a case are set out at Massachusetts criminal process.

Massachusetts Rules That Require More Than Federal Law

Article 14, other provisions of the Massachusetts Declaration of Rights, and Massachusetts common law differ from federal law in several recurring ways. A motion to suppress that relies only on the Fourth Amendment omits the arguments that Massachusetts law adds.

• A pursuit becomes a seizure earlier than under federal law. Stoute.
• An informant tip is measured prong by prong. Upton.
• An in camera hearing is available to test an affidavit that relies on a confidential informant. Amral.
• Physical evidence derived from an unwarned statement is presumptively excludable at trial. Martin.
• Marijuana odor alone no longer establishes probable cause to search a vehicle. Cruz; Overmyer.
• A knock and announce violation may support suppression in Massachusetts but generally not under federal law. Gomes; Jimenez.
• Historical cell site location information requires a warrant on probable cause. Augustine.
• A device seized without a warrant must be the subject of a diligent warrant application. White.
• Authority to stop a vehicle for a civil infraction expires after an unreasonable delay. Arias.
• A compelled passcode requires proof beyond a reasonable doubt that the person knows it. Jones, 481 Mass. 540.
• Automatic standing preserves the defendant’s ability to bring the motion. Amendola.
• A racially motivated stop may be challenged under a framework more favorable than the federal rule. Long.

How the Motion Is Investigated and Litigated

A motion to suppress is filed before trial and heard at an evidentiary hearing where officers testify and are cross-examined. The defense identifies the constitutional defect, whether in the pursuit, the stop, the exit order, the frisk, the search, the warrant affidavit, or the informant showing. For a warrantless search the burden is generally on the Commonwealth to justify what the officers did.

Before the hearing, defense counsel obtains the reports, the dispatch and radio records, any recording from a cruiser or a body-worn camera, the booking video, the warrant and its affidavit, and the return. Defense counsel then reconstructs the sequence of events minute by minute. A judge’s ruling on a motion to suppress depends on small facts. Such facts include when the cruiser lights came on, how long the stop had lasted when the officer gave the exit order, and what the affidavit said compared with what the officer knew.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and has litigated motions to suppress in operating under the influence, drug, firearms, and computer crime cases, in the District Court, the Boston Municipal Court, and the Superior Court.

Suppression Motions Across the Massachusetts Courts

A motion to suppress is heard in the court where the case is pending. Serpa Law Office files and argues motions to suppress throughout Greater Boston, including the Quincy, Dedham, Cambridge, Somerville, and Woburn District Courts, the Boston Municipal Court, and the Superior Courts of the surrounding counties. The Commonwealth prosecutes cases arising from highway interdiction stops on I-93, Route 128, I-95, I-90, and Route 3 in the District Courts along those corridors. The outcome of those cases frequently depends on whether the stop and any exit order were lawful.

The outcome of a case that began with a stop, a search, a warrant, or the seizure of a phone may depend on whether that police conduct was lawful. Call Serpa Law Office at 617.936.0201 for a free and confidential consultation. Boston office: 20 Park Plaza #400A. Quincy Office: 500 Victory Road, Suite 400A.