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Articles Posted in Search and Seizure defenses in criminal cases

The Massachusetts Supreme Judicial Court heard oral arguments on December 5, 2022, in a case that discussed searches and seizures from a vehicle at one’s workplace based on anonymous tips. The defendant filed a motion to suppress the evidence found as a result of the search of his vehicle on the basis it was unlawful, and the court denied it. The defendant had two arguments as to why the previous court erred in ruling the Commonwealth did not violate Guardado’s 4th and 14th amendment rights and protection under Article 14 of the Massachusetts Declaration of Rights. First, the Commonwealth failed to demonstrate either the credibility of their informant or the credibility of the information, thus violating the Aguilar-Spinelli test, and also that the Commonwealth refused to instruct the jury about the exemption from liability that occurs when individuals have a firearm “in or on their place of business.”

Under the Aguilar-Spinelli test established by the US Supreme Court, police are required to demonstrate that an informant is credible or that their information is credible when they use that info to conduct a search warrant or warrantless arrest. Although this standard was abandoned by the Supreme Court in Illinois v. Gates and replaced by a “totality of the circumstances” approach, Massachusetts is one of the few states that has adopted this standard based on their own state constitution. In Guardado’s case, the officers searched the glovebox of his vehicle at his place of work based on an anonymous informant telling them a firearm was in a backpack within his vehicle. There were four reasons the search was improper:

  1. The evidence didn’t establish the informant’s veracity or if he had firsthand knowledge of the info, as required under Aguilar-Spinelli

A defendant convicted on a drug possession charge challenged the legality of using drug-sniffing dogs for probable cause for a strip search. The Massachusetts Appeals Court affirmed the conviction of the defendant and the use of the drug-sniffing dog alert as probable cause to strip search in Commonwealth v. Elijah Judge.

Defendant was spotted by police with a group of people in a downtown Hyannis hotel parking lot. Police considered this spot a “problem property,” and knew it to be a location where police had previous narcotics investigations. Police watched the defendant for about an hour, and approximately 3 AM, the officer saw a woman and the defendant standing by the trunk of his car and looking around as if they were “conducting counter surveillance.”  The officer also saw the defendant and the woman took something out of the trunk and put into the front of the car.

Believing he witnessed a drug transaction, the police officer called for backup. While waiting for backup, the police officer went to the car and turned on his lights. When approaching the car, he saw a “white powdery substance” on the center console of the car.

Under the Fourth Amendment, police cannot search a person’s home with a warrant, with limited exceptions. When there is a warrant issued, it must be particularized and specific. Officers are typically not allowed to search outside the limits of the warrant. The Massachusetts Appeals Court recently looked at the case of Commonwealth v. Campbellwhere police ventured outside the scope of their warrant. 

What happened in the Campbell case?

The police obtained a warrant to search the defendant’s home. At the time of the search, there were three cars parked in the gravel parking lot in front of the detached three-car garage located ten feet away from the house. The search warrant made no reference to the vehicles in the parking lot. While in the home executing the warrant, the police located the keys to the defendant’s car. The car was parked the furthest from the house, about twenty feet away. The officers searched the car and found thirty-two small bags containing a total of approximately fifteen grams of crack cocaine. 

Massachusetts Appellate Court Decides Stop and Frisk Case 

The controversial police method of stop and frisk had been heavily debated since its inception. However, some courts have held stop and frisks to be legal so long as there is a reasonable justification. The Massachusetts Appellate Court looked at this issue in Commonwealth v. Privette

What happened in the Privette case?

Many cities across the country use unreliable measures to justify racially motivated, unconstitutional, stops and searches disguised as a traffic stop. In Commonwealth v. Bailey-Sweeting, the Supreme Judicial Court has the opportunity to make one of these incidents right.

Despite the Black population of New Bedford making up just 7% of the city’s population, Black people accounted for 46% of those subjected to police field incidents since 2020. New Bedford has cracked down on suspected gang activity in recent years, and the racial disparities appear here as well. Nearly 1 in 10 Black males living in New Bedford are labeled as verified gang members by the city.

What happened in the Bailey-Sweeting case?

The Massachusetts Court of Appeals held that pretextual inventory searches do not comport with the Fourth Amendment in the case of Commonwealth v. Lek. In the Lek case from Lowell the police detective conceded that he was using traffic infractions in order to detective gang activity.  In other words, traffic stops were being made not to enforce the traffic laws but with the hopes that guns, drugs or other evidence of gang activity would be discovered during the stop.

What happened in the Lek case?  

The Detective and his partner were in plainclothes in an unmarked police car. According to the Detective, he and his partner were looking for motor vehicle violations to address gang suppression through motor vehicle stops. the Detective testified that he was not required to do traffic enforcement that night and was doing it by his own free will.

Do You Have A Reasonable Expectation of Privacy in the Basement of a Multifamily Home That You Do Not Own?

The Fourth Amendment protects against places in which they have a subjective reasonable expectation of privacy. But when is this expectation unreasonable? The Appeals Court of Massachusetts, Bristol answered this question in Commonwealth v. DeJesus.

What happened in the DeJesus case?

The Fourth Amendment protects people from unreasonable intrusion and promises that citizens will not have their “persons, houses, papers, and effects, against unreasonable searches and seizures.” 


Carlisle v. Kentucky asks the question of whether courts can adopt a categorical rule allowing law enforcement to prolong every traffic stop by performing a criminal records check, or on the other hand, whether the Fourth Amendment requires an individualized, case-by-case approach that allows checks only when the government offers some evidence that the check related to the officer’s safety. The circuits are split concerning this issue.  This case is current pending a petition for certiorari before the Untied States Supreme Court.  


Five courts allow law enforcement to perform a criminal record check in every traffic stop in theory and agree that these checks are inherent to officer safety. On the other hand, two courts have adopted a case-by-case basis for officers searching a criminal record. These courts adopt the approach where the court will evaluate the specific circumstances of the particular stop to determine whether the officer’s safety was so at the risk that the search of criminal records was appropriate. 

The case of Commonwealth v. Josiah Zachery that is current before the Massachusetts Supreme Judicial Court raises the issue of whether there is a reasonable expectation of privacy in data from the Charlie Card, which is used to ride the commuter rails in Boston. This issue is likely to reoccur as all cards now track location, from CVS cards, to cards to reflect tolls paid in the highway.  The Massachusetts SJC heard oral argument on November 6, 2020 and a decision should follow within three to four months.

What happened in the Zachery Case?  

In February of 2015, Donte Henley and the defendant were allegedly shoveling snow with the ROCA, a non-profit program for high-risk youth that provides job training. Henley told the defendant to shoot another member of the crew, Lamour, who was a member of a rival gang. The defendant still denies the shooting and contends that there is a lack of forensic evidence against him. The shooter was described as a young, black, male wearing all black with a grey sweater. The defendant matched this description, and he was walking on the side of the road carrying a shovel. The officers determined that he matched the description and decided to check him out. He was searched for weapons, none were found, and they placed him inside the police vehicle. 

The Fourth Amendment precludes police officers from entering a home without a warrant; one of the exceptions to this requirement is when consent to search is given.  The Massachusetts Appeals Court addressed the issue of who can consent to a search in the case of Commonwealth v. Richard Santos decided in June of 2020.


In Santos, the defendant lived in one apartment with her daughter living in the apartment next door.  The mother told the police that she owned both apartments.  The mom told the police that she sometimes lets her son stay in her daughter’s apartment.  the police asked the mother to consent to a search of her daughter’s apartment.  The mother granted permission.  The Appeals Court addressed the issue of whether the mother had apparent authority to consent to the search of her daughter’s apartment.

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