Search & Seizure FAQs

Article 14 of the Massachusetts Declaration of Rights and the 4^th Amendment of the United States Constitution protect you against unreasonable searches and seizures. These rights apply when a government entity, usually law enforcement, conduct 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 attorney who can zealously protect your rights.

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 legal 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. With all such exceptions the police are often limited in the scope of the search and the areas that they can lawfully search.

It depends on the situation. Often times this issue arises in cases where you have been pulled over for a traffic stop and the police end up searching your vehicle. Such a search may only be appropriate under very limited circumstances. Massachusetts recognizes what is often referred to as the automobile exception to the warrant requirement, which 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

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.

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 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.

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.

While it is always the preference that searches be conducted pursuant to a valid warrant, this is not often the case as a practical matter. There are so many recognized exceptions to the warrant requirement under the law that most searches usually 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.

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. 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.

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 and nexus 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. Further, 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 execution of a search warrant including limitations in the scope and timing of the search. As such, even if a search was conducted with a warrant there are numerous opportunities for challenging this search in court.

A common issue that arises in today’s society 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, as such 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.

In any case where there is a stop, search or seizure your best tool for challenging the legality of these actions will be through a motion to suppress prepared by an experienced attorney. 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.