Illegal Searches and Seizures

Can the Police Search me, my car or my Home Without a Search Warrant?

The United States Constitution’s Fourth Amendment and the Massachusetts Declaration of Rights’ Article 14 each protect us from unlawful searches and seizures. These are sacred parts of our law that protect our freedom from police misconduct. This is one of the most heavily litigated areas of criminal defense law and our Boston criminal attorney’s office has deep expertise and experience in illegal motor vehicle stops, illegal searches and illegal arrests.

In Massachusetts, the “exclusionary rule” requires that a judge throw out, or “suppress,” evidence against you if the police obtains that evidence when he stops you illegally, searches you illegally, searches your car illegally or enters your home illegally. Once suppressed, the evidence cannot be used against you at trial. In the Federal courts, the exclusionary rule exists but is a bit less powerful due to some United States Supreme Court decisions. In Massachusetts state courts, however, the exclusionary rule for illegal police stops and illegal police searches remains powerful.

Our experienced Boston criminal defense attorney’s office has litigated hundreds of motions to suppress for illegal police searches and illegal police motor vehicle stops. Our clients have had cases their Massachusetts cases dismissed or severely weakened in OUI/DUI cases, in drug possession and drug distribution cases, in cases charging carrying or possession of a firearm and in cases charging computer crimes, for example. Judges have thrown out evidence of breathalyzers or breath tests, have thrown out evidence of firearms themselves, have thrown out evidence of drugs or narcotics and have thrown out alleged “confessions” by our clients.

What is a Search Warrant and how do the Police Obtain Them?

The Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights each require that the police obtain a search warrant before searching a person’s property, whether it be one’s home, one’s car or even a cellphone, iPhone or computer. As discussed below, there are exceptions to this rule in Massachusetts. The police obtain search warrants by presenting sworn affidavits to judges or clerk magistrates. If the affidavits allege enough information for “probable cause,” a court will order a search warrant and the police will be permitted to search that property.

There is an enormous body of law in Massachusetts regarding what a search warrant affidavit must say to sufficiently support a valid search warrant. First, there must be an allegation that evidence of a crime is likely to be discovered. There must be a “nexus” in time and place to the location to be searched. That simply means that the affidavit must be supported with allegations that criminal acts have occurred recent to the application for the search warrant and at the location where the search is to be conducted.

Also, in Massachusetts there must be allegations in the affidavit that the alleged criminal conduct is likely to produce evidence of a crime in that particular location. For example, drug distributors typically keep their products, earnings and other tools, like scales and packaging, in their homes. A typical search warrant affidavit will describe recent drug dealing activity in that home, and will describe that the activity alleged has been known to be include things in the home that are typical of that type of drug dealing.

A Massachusetts search warrant is not the last word, however. An experienced criminal defense lawyer can attack a search warrant affidavit later if the evidence is going to be used in court. If a second judge agrees that the search warrant affidavit lacked probable cause, the evidence recovered during the execution of that search warrant will be excluded, or thrown out. Our Boston criminal defense attorney’s office has successfully obtained dismissals of cases demonstrating to a judge that a judge or clerk had erroneously issued a search warrant.

Do the Police Always Need a Search Warrant?

Massachusetts criminal courts have built several exceptions to the search warrant requirement depending on the circumstances and the place or thing to be searched.

These exceptions generally deal with a concept called an ‘exigency” or an emergency. In Massachusetts, such exigencies ordinarily deal with the risk that a suspected person may flee or destroy the evidence the police are looking for, or that there is some danger to a specific person or the public. Courts will examine the facts of each case to determine whether such an exigency exists. If it does, and if the prosecution can show that there would have been no time to apply for and obtain a search warrant, the courts will find that a warrantless search was legal.

Whether there is such an exigency depends on the kind of property to be searched. A person’s house or apartment, or even a hotel room, is a fixed location. It is the least likely to create a risk of flight or destruction of evidence. Therefore, fewer exceptions to the search warrant requirement exist regarding fixed places.

Cars and other motor vehicles are, by definition, mobile. There are more exceptions to the search warrant requirement for cars or for people outside of their homes, and police very often may stop and search a person or a motor vehicle based on their own observations without having to stop the investigation to obtain a search warrant.

Once again, the police officer’s opinion is not the last word. As described above, our Boston criminal law office has successfully argued that a police officer’s opinion that there was probable cause was incorrect. As a result, our clients’ cases have often been dismissed.

Contact Serpa Law Office for a free consultation about your illegal stop or your illegal search.