Articles Posted in Search and Seizure

In Commonwealth v. Goncalves-Mendez, the Supreme Judicial Court affirmed the allowance of the defendant’s motion to suppress, because the impoundment of his vehicle was unreasonable in light of his “passenger’s availability to drive and the failure by police to ask the defendant whether the passenger taking custody of the vehicle would be a preferred alternative.”

The basic facts were as follows. “[T]wo Boston police officers on patrol in a marked police cruiser observed a Honda Accord [being driven] with what appeared to be a defective brake light…. From the vehicle’s registration number, the officers discovered that its registered owner, the defendant, had an outstanding misdemeanor default warrant…. The officers then stopped the vehicle…. The defendant was the driver of the vehicle, and he was accompanied by one front seat passenger. The officers asked both the defendant and his passenger for identification. Upon conducting computer checks on the information provided, the officers learned that the passenger’s driver’s license was valid, he had no outstanding warrants, and he was not a suspect in any other crimes; further, he did not appear to be under the influence of any intoxicating substances. The passenger was polite and cooperative with police. One of the officers informed the defendant that, due to the default warrant, he was under arrest, and his vehicle would be towed. The officers ordered both men out of the vehicle. The defendant did not request that his passenger assume custody of the vehicle, and the officer did not offer this alternative. As required by Boston Police Department policy, in preparation for impoundment, one of the officers [conducted an inventory search of] the vehicle. The officer found a firearm under the driver’s seat…. [T]he defendant said that the firearm was his. The defendant was taken to the police station in a police cruiser…. The passenger … was allowed to leave the scene.”

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In Commonwealth v. Tavares, the Supreme Judicial Court reversed the denial of the defendant’s motion to suppress evidence obtained from the search and seizure of a motor vehicle in which he was a passenger, because the police officer improperly extended the duration of the stop of the vehicle.

The basic facts were as follows. “On the evening of May 21, 2007, John Lima was driving [a] Nissan Altima automobile, along with his friend Jorell Archer … in Brockton…. [A]nother car sped up and began to ‘tail’ them…. Lima became ‘aggravated’ and applied his brakes, giving the car behind him a ‘brake job’ as it followed them. The other car then drove up to the passenger’s side of the Altima, and someone fired seven or eight gunshots at them,” killing Lima. “The other car quickly sped away before Archer could determine the type of car or the number of people inside it.” “At the scene, the police interviewed an eyewitness, Nicholas Melo,” who reported that moments after he heard gunshots, he “witnessed a car [a Chevy Malibu] round the corner near his house, hit the curb, and speed down the street…. The day after the shooting, a police officer” on patrol was driving in Brockton when he passed a Chevy Malibu…. [B]elieving that he recognized an individual with an active arrest warrant [Correia] in the back seat,” the officer stopped the Malibu. “As he approached the vehicle, the officer quickly realized that the individual … in the back seat” was not Correia. “Instead, he found Christopher Hanson in the driver’s seat, the defendant in the front passenger’s seat, and [another man] in the back seat. The officer made brief conversation with the three occupants before learning that Hanson was not on the rental agreement for the vehicle. The officer then advised Hanson that … the vehicle would have to be towed. All three occupants left on foot.” The police towed the Malibu to the police station and brought Melo there to view the vehicle. Melo identified it as “the same car he had seen the night before and stated that it should have scrape marks underneath the front driver’s side quarter and the rear passenger’s side quarter — where the car had gone over the curb.” A detective “looked under the Malibu” and “observed what appeared to be fresh scrape marks in the area where Melo said they would be.” Continue reading →

In a recent decision – Commonwealth v. Torres-Pagan – the Supreme Judicial Court affirmed the suppression of evidence that was seized as a result of an improper patfrisk of the defendant.

The basic facts were as follows. “While on patrol …, two officers observed a motor vehicle with a cracked windshield and an inspection sticker that had expired.” The officers stopped the vehicle, which was being driven by the defendant. “The officers got out of their cruiser and approached the vehicle. As they did so, the defendant got out of his vehicle and stood between the open door and the front seat, facing the officers. He then turned to look inside the vehicle on more than one occasion…. The officers placed the defendant in handcuffs and conducted a pat frisk of his person. When a knife was found in the defendant’s pants pocket, the defendant was asked if he had other weapons in his vehicle. The defendant indicated that he did, and the officers subsequently seized a firearm from the floor in front of the driver’s seat.” After the issuance of a complaint charging the defendant with various crimes, he filed a motion to suppress, contending that the evidence was discovered as a result of an unlawful patfrisk, in violation of the 4^th Amendment. The judge allowed the motion and the Commonwealth filed an interlocutory appeal.

In its decision in favor of the defendant, the SJC stated, “During a stop for which there is constitutional justification, … a patfrisk is permissible only where an officer has reasonable suspicion that the suspect is armed and dangerous.” The Court noted that its “articulation of the patfrisk standard has not always been clear. On occasion we have not been as precise with our language as we could have been, specifically when discussing the patfrisk standard as it relates to the [less stringent] standard for exit orders.” “[I]n isolated instances we have [mistakenly] conflated the [two] standard[s].” “Accordingly, we clarify today that an exit order,” which “is considerably less intrusive than a patfrisk,” is “justified during a traffic stop where (1) police are warranted in the belief that the safety of the officers or others is threatened; (2) police have reasonable suspicion of criminal activity; or (3) police are conducting a search of the vehicle on other grounds. See [Commonwealth v.] Amado, 474 Mass. [147,] 151-152 [2016].

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In Commonwealth v. Hart, the Appeals Court affirmed the suppression of evidence discovered during the execution of a search warrant.  In its decision, the Court opined that “a single observation of a firearm in [the defendant’s] residence sixty days prior to the application for [the] warrant [did] not establish probable cause that firearms, ammunition, and related materials would be found at that residence.”

The basic facts were as follows. A police officer “submitted a warrant application to search the residence and person of the defendant…. Because the officer suspected that the defendant possessed a firearm in violation of G.L. c.269, §10(h), the warrant application requested permission to search for firearms, ammunition, and other gun-related materials. The central evidence in the affidavit came from a reliable confidential informant …, who had spoken with the officer within twenty-four hours of the submission of the application. The informant told the officer that the defendant ‘was in possession of a black semi-automatic firearm which [the defendant] kept in his hand and stored on the floor in a bedroom area within the last 60 days while inside the [defendant’s residence].’… The affidavit then recited the extensive criminal background of the defendant and the defendant’s brother, who was also reported to be living at the residence to be searched. Though the defendant’s record was lengthy, his most recent arrest involving a firearm occurred in 2009…. His brother’s most recent armed offense took place in 2015…. The brother was also subject to an active warrant related to a shooting” in January, 2017. “The search warrant issued. Upon its execution at the defendant’s residence four days later, the police discovered, amongst other items,” numerous rounds of ammunition, “$52,540 in cash, and a diamond ring. No firearm was found.” After the return of indictments against the defendant, he moved to suppress the fruits of the search. The judge allowed the motion, concluding “that the information regarding the observation of the gun at the defendant’s residence was stale because there was ‘insufficient timely evidence of a continuous illegal presence of weapons [there].’” On appeal, “[t]he Commonwealth assert[ed] that because a firearm is a valuable, durable item, it is likely to be retained in the same place for more than sixty days, and the information supporting the search warrant application was consequently not stale.” Continue reading →

In Commonwealth v. Almonor, which “raises an issue of first impression in Massachusetts,” the Supreme Judicial Court opined that the warrantless “police action causing [the defendant’s] cell phone to reveal its real-time location constitute[d] a search in the constitutional sense under … art. 14 of the Massachusetts Declaration of Rights.” Ultimately, however, the Court concluded that suppression was not required because the search “was reasonable under the exigent circumstances exception to the search warrant requirement.”

The basic facts were as follows. “The police quickly identified the defendant as the person suspected of murdering the victim with a sawed-off shotgun.” After ascertaining the defendant’s cell phone number, “the police contacted the defendant’s cellular service provider … to request the real-time location of his cell phone…. The service provider … ‘pinged’ the defendant’s cell phone, an action that caused … [it] to transmit its real-time [GPS] coordinates to the service provider.” This information, “in combination with information from another witness, [enabled the police] to identify a single address in Brockton [the home of the defendant’s former girlfriend] as the defendant’s likely location…. [P]olice entered the home with the consent of the homeowner and located the defendant in [a] bedroom. After the defendant was arrested, police obtained and executed a search warrant for the bedroom and seized a sawed-off shotgun and a bulletproof vest as evidence of the defendant’s involvement in the victim’s shooting death.” The defendant filed a motion to suppress that evidence, arguing that it was the fruit of an unlawful search under art. 14. The judge allowed the motion on the grounds “that the ping of the defendant’s cell phone was a search under … art. 14 and that the search was not justified by the exigent circumstances exception to the warrant requirement.” The Commonwealth filed an interlocutory appeal. Continue reading →

In Commonwealth v. Judge, the Appeals Court affirmed the allowance of the defendant’s motion to suppress the fruits of a routine home visit by his parole officer.  The Court’s decision rested on the grounds that the officer “lacked reasonable suspicion to enter the [defendant’s] bedroom,” and that the entry could not be justified as an administrative search.

The basic facts were as follows. The defendant was released from incarceration in a house of correction and placed on parole…. The parole manual indicated that the defendant’s … parole officer would visit him ‘at home, work, school or other place in the community with or without notifying [him] in advance.’…. The manual is silent as to the frequency, duration, or scope of routine home visits.” On the day in question, “the defendant’s primary parole officer [Lyons] and another parole officer [Valenti] arrived at the defendant’s residence in order to conduct a routine home visit, and knocked on the front door. After a pause of between thirty seconds and one minute, Lyons heard the defendant say, ‘Hold on.’ After another minute, the defendant’s girlfriend, who appeared uneasy and confused, opened the door and the parole officers entered the home. The defendant emerged from the bathroom after about ten seconds, and Lyons escorted him back to the bathroom to provide a urine sample for drug testing.” “Valenti entered the [defendant’s] bedroom and observed razor blades, a digital scale, a white rock-like substance he believed to be ‘crack’ cocaine, and multiple small plastic bags of a substance he believed to be heroin, all in plain view on a dresser. The defendant was subsequently arrested.” After the return of indictments against him, he moved to suppress the seized items and the judge allowed the motion. The Commonwealth filed an interlocutory appeal. Continue reading →

The Supreme Judicial Court recently issued a decision – Commonwealth v. Johnson – which affirmed the denial of the defendant’s motion to suppress historical GPS location data recorded without a warrant by a device in the defendant’s ankle bracelet during his probation. A divided SJC ruled that the Commonwealth’s act of retrieving and reviewing the location data after the probation had expired was not a search in the constitutional sense because the defendant did not have an objective expectation of privacy in the data.

The background was as follows. “Between May and September 2012, while the defendant was on probation and subject to GPS monitoring, several break-ins occurred at homes in Hanson, Marshfield, and Pembroke. Approximately one year after these break-ins, … the defendant was arrested near the scene of a separate break-in in Randolph.” By that time, his probationary sentence had expired. When the “Randolph police became aware that the defendant had at one time been outfitted with a GPS device,” they “contacted a Marshfield police detective and suggested that she contact the probation department to review the defendant’s historical GPS location data records during the approximate times of the unsolved break-ins.” Marshfield police and probation officers “discovered that the defendant was at or near the scene of each break-in at approximately the same time that each home was broken into. The defendant was then indicted and charged with breaking and entering and larceny. Before trial, the defendant moved to suppress the historical GPS location data, arguing that the Commonwealth’s act of accessing and reviewing this data without a warrant [after the termination of his probation] was an unreasonable search in violation of the Fourth Amendment and art. 14 [of the Massachusetts Declaration of Rights]. The motion judge concluded that the Commonwealth’s conduct did not amount to a search in the constitutional sense … and denied the defendant’s motion.” In due course, the defendant was convicted as charged. On appeal, he challenged the denial of his motion to suppress. Continue reading →