Search & Seizure
You’ve Been Searched. Was it Legal?
Both the U.S. Constitution and the Massachusetts Declaration of Rights protect people from unlawful and unreasonable searches and seizures. This means that law enforcement officials are prohibited from conducting a search and seizure of your body, home, or property unless:
1. They have probable cause to believe an illegal activity is occurring, or
2. They have a court-issued search warrant.
These rights protecting against unreasonable searches and seizures apply when a government entity, usually law enforcement, conducts a search in a Constitutionally protected area in which you have an expectation of privacy.
Search and seizure laws can be very nuanced and there are often many exceptions to the general principals and protections. Every case is different and it is necessary to have the assistance of an experienced criminal defense lawyer who can effectively investigate and analyze the circumstances of a search, and then challenge the search in court.
If a law enforcement official searches you or your property without a valid search warrant or without probable cause, any evidence he/she collects can be “suppressed”, meaning it will be excluded from evidence in court.
If you have been arrested after a law enforcement official conducted a search and seizure of your home, body, or property, and you were consequently arrested, it’s important to contact an experienced criminal defense lawyer as soon as possible. The circumstances of the search are critical to the analysis of the legality of the search, and it is important to begin the collection of evidence regarding the search right away.
How does evidence obtained in an illegal search get suppressed?
Read on . . .
Motions to Suppress: The Way to Attack an Illegal Search and Seizure in Massachusetts
One of the best ways to attack the prosecution’s case against you is with a motion to suppress evidence. Anytime there is a stop, or a search, or a seizure that first thing a defense lawyer looks at is the legality of the police actions.
If there was a warrant allowing the search, he looks for ways to attack the affidavit that was filed to obtain the search warrant.
If there was no warrant, then the search was only legal if the prosecution can demonstrate that the police had probable cause for the search.
A motion to suppress the “fruits” of a search requires the prosecutor to demonstrate either that the police had probable cause for the search, or that the affidavit in support of the warrant application was valid and truthful. Successful motions to suppress result in the exclusion of evidence obtained as a result of the search. Often, without that evidence the district attorney cannot proceed with his case, and the case will be dismissed.
A Word About “Consent” Searches
Many searches are justified by the police based on consent of the person searched or owner of the vehicle or home searched. Often during a motor vehicle stop, the police will ask the driver if they can search the car, or the trunk. People often feel that if they say no, they will be seen as hiding something. But many, many criminal cases begin with someone consenting to a search.
Consenting to a search means answering “yes” when the police ask if they can search your car, or “take a look” at your cell phone, or “walk through” your home.
If you have consented to a search, the search is legal, regardless of the rest of the circumstances.
So, don’t consent. Don’t say “yes”, no matter what.
Search & Seizure FAQs
Can the police search my home?
The home is regarded as one of the most highly protected areas under the Constitution. Generally speaking, the police may not search your home without a warrant. However, there are a number of exceptions to this requirement. For instance, if a person legally authorized to do so provides consent to allow the police to search the property then a search may be conducted without a warrant. A search incident to a lawful arrest and the “plain view doctrine” may also represent exceptions to the warrant requirement. Even within these exceptions, the police are often limited in the scope of the search and the areas that they can lawfully search.
Can the police search my vehicle?
It depends on the situation. Usually this issue arises when you have been pulled over for a traffic stop and the police search your vehicle. Such a search may only be appropriate under very limited circumstances. Massachusetts allows the police to search your vehicle without a warrant only when they have probable cause to believe that contraband or evidence of a crime will be found in the vehicle and when the vehicle is in a public place. Even under this exception these searches often must be limited in scope and the police may only be permitted to search certain areas of the vehicle. Additionally, there may be other exceptions that would allow a search of the vehicle without a warrant such as a search incident to arrest or an inventory search. If you have been charged with a crime and your vehicle was searched it is critical to contact a defense attorney who may be able to help you challenge these types of warrantless searches
What is a seizure?
A seizure occurs when a reasonable person in the presence of police and based on all objective circumstances would feel that they are not free to leave. Not every encounter with the police is a seizure. The police may approach people in public or even knock on doors without the interaction being a seizure, so long as you are free to leave or decline to speak with them. There are a variety of factors that the court will consider in determining whether or not a seizure has occurred, including the duration of the encounter, where the encounter took place, any use of force, etc. A seizure can take different forms such as an investigative stop or an arrest.
Are the police allowed to stop and question me if I am not under arrest?
Yes, the police may approach you in public under what is sometimes referred to as a community caretaking function. However, if this encounter rises to the level of a seizure - if you are not free to leave - they must have good reason to do so. The police may conduct an investigative stop or seizure, also sometimes referred to as a Terry stop, if they have a specific reason to believe that you are committing, have committed or are about to commit a crime. This is a low standard, even lower then the probable cause standard required to search, however it does require more then a mere hunch or suspicion of an officer. During such a stop they may make limited inquiry and conduct a pat frisk for weapons.
Can the police search my person?
As with searches of vehicles and property, the police generally need probable cause or a warrant to search your person. However, there are a number of exceptions to this rule. For instance, if an officer has reason to believe that you may be carrying a weapon the officer may conduct a limited search for weapons, referred to as a pat frisk. If you are lawfully under arrest the police may also conduct a search incident to arrest.
Can the police conduct a search without a search warrant?
Theoretically, the law prefers that searches be conducted pursuant to a valid warrant. However, the theory doesn’t mean that much in the real world. There are so many recognized exceptions to the warrant requirement that most searches occur without a warrant. Some of these exceptions include consent, exigent circumstances, plain view, inevitable discovery, inventory searches and many others. It is essential if you, your property, or your automobile have been subject to a warrantless search that you contact an attorney who can help you challenge this search and protect your rights.
What does it mean if the police have a search warrant?
In some instances the search may be conducted pursuant to a search warrant. What this means is that the police prepared an affidavit and sought the approval of a neutral and detached magistrate to conduct their search, and the magistrate found that the affidavit was sufficient to support permission to search. In order to issue a search warrant the magistrate must find that there is probable cause to believe that a person has committed a crime and that evidence of that crime will be found in the place to be searched.
Is a search always proper when the police have a warrant?
No. Just because a search warrant has issued does not mean that a search was proper. There are many requirements for the issuance of a valid search warrant, including the probable cause requirement as well as particularity (warrant has to be specific) and nexus (connection) between the crime and the place to be searched. Additionally there are time parameters on the information contained within the warrant affidavit and a warrant may be invalid if it relies upon “stale” or out dated information. There are additional requirements that must be met if the warrant relies upon information obtained through a confidential informant. Finally, there are numerous requirements that the police must adhere to in the way they conduct a search pursuant to a warrant including limitations in the scope and timing of the search. So, even if a search was conducted with a warrant, there are numerous opportunities for challenging this search in court.
Can the police search my cellphone?
A common issue that arises today is the search of cell phones. This issue is being continuously addressed by State and Federal courts in order to develop law that reflects our constant usage and expectation of privacy in our cellphones. Cellphones today are much more then just devices used to make and receive phone calls. They are a wealth of information for law enforcement. The law requires that police obtain a search warrant in order to search the contents of your cellular device. To be valid, this warrant must be supported by probable cause and limited in scope.
What can I do if the police conducted an illegal search?
In any case where there is a stop, search or seizure the way to challenge the legality of these actions will be a motion to suppress. A motion to suppress can be used for challenging both search warrants and warrantless searches. Through a motion to suppress your attorney can raise challenges to probable cause, warrantless search exceptions, reasonable suspicion and a variety of other issues associated with unlawful searches and seizures. Filing a motion to suppress allows the judge to review the actions of the police and determine their validity and then to exclude any improperly obtained evidence at your trial.
Contact Us if You Have Been Charged After A Search
Ernest Stone has nearly three decades of experience successfully defending good people charged with crimes in Massachusetts. Many of those people were subjected to a search that led to the charges against them. We have been successful in cases at suppressing evidence obtained as a result of a search of people, cars and trucks, boats, houses and apartments, cell phones, and other locations.
If you or a loved one has been charged with a criminal offense in Massachusetts, having a highly skilled and experienced defense attorney by your side is important. Contact us today for a free consultation.
Being accused is traumatic. We understand. We will get you through the storm.
Schedule a free case review online or by calling (978) 705-4537.
