Search and Seizure

Illegal Search and Seizure

Under the Fourth Amendment of the U.S. Constitution, and Article 14 of the Massachusetts Declaration of Rights, your body, home, automobile, place of work, and your belongings are protected from unreasonable searches and seizures. Any search by a law enforcement agent is presumed unreasonable if the law enforcement agent did not obtain a search warrant beforehand. A search, under the Fourth Amendment, has occurred if an individual’s reasonable expectation of privacy has been intruded upon and society is prepared to recognize this as an intrusion of privacy.

This area of the law has become a battleground between citizens and the law enforcement community. When the line is crossed, you need a Massachusetts Drug Crimes Lawyer who knows Constitutional law, understands how the law is used in the “real world” and will aggressively protect your rights.

Search Warrants

For a search warrant to be issued lawfully, there needs to be (1) a neutral, detached and impartial magistrate and (2) probable cause that the search warrant will produce evidence of a crime. The magistrate determines there is probable cause if there is a reasonable ground or fair probability to suspect that a person has committed, is committing a crime or will commit a crime. The information used to determine whether there is probable cause to issue a search warrant can come from many different sources- civilians, police informants, police observations, etc. Also, when police execute a search warrant there are many rules which they have to follow such as- how long the law enforcement agency has to execute the search after the warrant was issued, knock and announce and the prohibition on unreasonable destruction of property.

However, there are many exceptions that courts have recognized as reasonable even without a warrant. One well known exception is the plain view doctrine. Under the plain view doctrine, a law enforcement officer may seize property if (1) they made their observation from a lawful place (i.e. not a search) and (2) they have probable cause to believe it is evidence of a crime or contraband. Additional exceptions to the warrant requirement include the motor vehicle exception, emergency situation exception, special needs exception, search incident to a lawful arrest and the open fields doctrine.

Seizure of Persons

A seizure of an individual occurs if a reasonable person, based on all the objective circumstances, would not feel free to go about their business or leave the presence of police. When courts look at if a seizure occurred under the Fourth Amendment, they look at all the circumstances surrounding the seizure such as- whether or not there was physical force, the area or neighborhood where the incident occurred (i.e. high crime neighborhood), what was said between the law enforcement agent and the suspect, if the law enforcement showed a badge, gun, etc., and how long the incident occurred, among other factors.

Also, there are different types of seizures which can occur such as an arrest or an investigatory stop. An arrest is the apprehending or restraining of one's person, in order to be forthcoming to answer an alleged or suspected crime. A person is under arrest when an objective person would find that this is the beginning of the criminal justice process. For an arrest to be lawful, it needs to be based upon probable cause.

However, police can search for evidence based on reasonable suspicion during an investigatory stop (i.e. stop and frisk or Terry stop). This is only lawful if the law enforcement agent has reason to believe that the individual he is dealing with is armed and dangerous. To determine if the seizure at issue was an arrest or an investigatory stop, courts will look at various factors such as the length of the incident, if the individual was physically moved from a location, if handcuffs were used, if Miranda warning was given, among other factors.

Time is critical when you have been arrested because your memory of the arrest and the circumstances need to be carefully documented by a lawyer who is working to protect you. Do not wait to call Massachusetts Criminal Drugs Defense Attorney Stephen Neyman.

Massachusetts Search and Seizures

The Fourth Amendment of the U.S. Constitution protects all citizens of the country from unreasonable search and seizures and no state government can circumvent what is considered unreasonable under the Fourth Amendment. However, states can give their own citizens more protections under their own laws. In Massachusetts, Article 14 of the Massachusetts Declaration of Rights provides these further protections.

An example of how the state of Massachusetts gives its citizens more rights than the Federal Government does, was discussed in Commonwealth v. Stoute, 422 Mass. 782 (1996). Under Federal law, according to the United States Supreme Court, a person is considered seized when a law enforcement officer physically lays hands on the suspect or that there has been physical force to restrain the suspect’s movement. California v. Hodari D., 499 U.S. 621 (1991). However, in Stoute, the Massachusetts Supreme Judicial Court held that an individual is considered seized, under Article 14 of the Massachusetts Declaration of Rights, when a law enforcement officer begins to pursue a suspect with the obvious intent of requiring that suspect to stop and submit to questioning. Both cases involved a suspect who was being chased by police and during the chase tossed away cocaine before the police officer could tackle the suspect. Therefore, under Federal law, a suspect is only considered seized in this circumstance when the police officer actually tackles the suspect, compared to Massachusetts law, where a suspect is considered seized when the law enforcement officer begins their pursuit of the suspect.

If you have been arrested for any crime that involved a search and seizure, you need to speak with a Massachusetts Criminal Drug Crimes Lawyer immediately. Call Stephen Neyman 617-263-6800 or click here to send an email. Call at any time of the day or night, weekends, holidays, 24/7 or send an email and he will respond promptly. Time is critical in an illegal search and seizure violation, and you need to speak with an attorney right away.