Articles Posted in Search and Seizure

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mobile-in-hand-1239462-300x200In a recent case – Commonwealth v. Jones – the Supreme Judicial Court reversed the denial of the Commonwealth’s motion to compel the defendant to enter his cell phone’s password into the device in order to enable the police to search its contents.

The background was as follows. “A grand jury returned indictments charging the defendant … with trafficking a person [Sara] for sexual servitude … and deriving support from the earnings of a prostitute…. At the time of his arrest, the Commonwealth seized [an LG brand] cell phone from the defendant. During its investigation of the defendant, the Commonwealth [received] information leading it to believe that the contents of the cell phone included material and inculpatory evidence.” Specifically, (1) Sara told the police that she regularly communicated with the defendant by contacting the LG phone; and (2) one month prior to his arrest, the defendant made a “statement to police [in connection with a different matter] characterizing the LG phone’s telephone number as his telephone number.” The Commonwealth procured a warrant to search the cell phone. The search warrant [could not] be executed, however, as the Commonwealth was … unable to [gain access to] the cell phone’s contents because they [were] encrypted. The contents [could] only be decrypted with the entry of a password.” The Commonwealth filed a motion to compel the defendant to decrypt the cell phone by entering the password into the device. “The central legal issue [in the motion] concerned whether compelling the defendant to enter the password [into] the cell phone would violate his privilege against self-incrimination guaranteed by both the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. The Commonwealth argued that under [the SJC’s] decision in Commonwealth v. Gelfgatt, 468 Mass. 512 (2014), the act of entering the password would not amount to self-incrimination because the defendant’s knowledge of the password was already known to the Commonwealth, and was therefore a ‘foregone conclusion’…. [The] judge denied the Commonwealth’s motion, concluding that the Commonwealth had not proved that the defendant’s knowledge of the password was a foregone conclusion…. Several months later, the Commonwealth renewed its motion and included additional factual information that it had not set forth in its initial motion. The judge denied the renewed motion.” The Commonwealth then filed a petition for relief pursuant to G.L. c.211, §3, which the single justice reserved and reported to the full SJC. “The single justice asked the parties to address three specific issues,” two of which were “What is the burden of proof that the Commonwealth bears on a motion like this in order to establish a ‘foregone conclusion,’ as that term is used in Commonwealth v. Gelfgatt?” and “Did the Commonwealth meet its burden of proof in this case?”

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black-car-1450351-300x200The Supreme Judicial Court affirmed the allowance of the defendant’s motion to suppress incriminating statements that he made to the police after he was arrested for receiving a stolen motor vehicle in Commonwealth v Pridgett. The decision was based on the ground that the arresting officer’s belief that the defendant knew the vehicle was stolen was not supported by probable cause.

The basic facts were as follows. “While working undercover, the officer observed the defendant, who was leaning on a motor vehicle, talking on a cellular telephone[,] … and looking around. Upon investigating the vehicle’s license plate, the officer learned that the vehicle had been reported stolen. The officer further observed the defendant open the vehicle’s front passenger’s side door to toss something into the vehicle…. [Later,] the officer observed the defendant open the front passenger’s side door and sit in the front passenger’s seat. At that point the officer” decided to arrest the defendant. After receiving “Miranda warnings, the defendant made incriminating statements[,] including that he knew the motor vehicle was stolen.” After the issuance of complaints charging him with receiving a stolen motor vehicle and a related offense, the defendant filed a motion to suppress his postarrest statements on the basis that the officer lacked probable cause to arrest him. The motion was allowed and the Commonwealth filed an interlocutory appeal. Continue reading →

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black-car-1450351-300x200The Appeals Court reversed the denial of the defendant’s motion to suppress items seized pursuant to a warrantless search of his motor vehicle in Commonwealth v. Darosa.

The basic facts were as follows. Detective Donahue and other detectives were on patrol in a high crime area when they saw a minivan in front of them pulled alongside a Mercedes sport utility vehicle parked on the side of the road. “The detectives observed an arm come out of the minivan and hand a plastic grocery bag to someone in the Mercedes…. No person in either vehicle made an attempt to conceal the transfer of the bag, and none of the detectives testified [at the hearing on the defendant’s motion to suppress] that it was consistent with a drug sale. When the minivan began moving again, the detectives followed it and observed the driver abruptly change lanes without signaling, as a result of which Donahue effectuated a traffic stop…. The defendant was the driver and only occupant of the minivan. Upon Donahue’s request the defendant could produce a registration but not a license. He told Donahue that he did not have his license with him, but continued to search the headboard and middle console area of the driver’s compartment. When Donahue asked what he was looking for, the defendant replied, [my] license, prompting Donahue to ask, [W]hy are you looking for it if you already told me you don’t have it with you? The defendant then stopped looking around. Donahue conducted a computer query, which revealed that the defendant’s license was revoked and that he had a criminal record for narcotics violations. Nothing until this point caused Donahue or the other detectives to perceive the defendant as armed and dangerous. To the contrary, Donahue [indicated] that the defendant was cooperative throughout the encounter. Nonetheless, because the defendant did not have a valid license, Donahue ordered him out of the minivan, pat frisked him, and told him to sit on the curb at the rear of the minivan. The defendant remained there, guarded closely by one of the detectives, while the other two searched the front driver and passenger compartments. During the search Donahue smelled fresh marijuana‖ and a colleague discovered a large package of money under the front passenger seat. Based on these discoveries, Donahue requested that a K-9 unit respond to the scene. The canine led the detectives to the rear compartment of the minivan, where they discovered a bag containing a large amount of marijuana. At this point Donahue placed the defendant under arrest for the license being revoked. Subsequently, upon being charged with possession with intent to distribute marijuana, the defendant moved to suppress the items seized from his vehicle. The judge denied the motion on the ground that the officers could have released the defendant and summonsed him to court to answer to the charge at a later date. Accordingly, the defendant could have regain[ed] access to the vehicle. The search of the front [driver] and passenger compartment was an appropriate step for the police as a protective sweep prior to allowing the defendant to return to his vehicle. The defendant was convicted as charged. Continue reading →

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gavel-2-1236453-300x200In Commonwealth v. Alexis , the Supreme Judicial Court affirmed the allowance of the defendant’s motion to suppress.  The Court ruled that under art. 14 of the Massachusetts Declaration of Rights “the police cannot avail themselves of the exigency exception to the warrant requirement when it was foreseeable that their actions would create the exigency, even if their conduct [approaching the front door of the defendant’s house] was lawful.”

The basic facts were as follows. Police officers responded to a report of a home invasion. At the scene, Detective Pohle spoke with the victim, Garcia, who stated that three men “forced their way into [his] apartment” and “took his jewelry and wallet.” In the course of the incident, one of the men struck both Garcia and his six month old baby in the face with a silver handgun. Later that day, after looking through a large set of photographs at the police station, “Garcia saw a photograph of the defendant and stated with [one hundred] percent certainty that” it depicted the intruder “who had hit him and his baby. Pohle wrote an incident report and filled out an arrest warrant application. Because it was late in the afternoon and his shift had ended,” he did not seek action on the application at that time, but rather, placed it in “the court box for the next day.” The next morning, Pohle informed the supervisor of the police department’s warrant task force (Sergeant Kenny) “that he was in the process of getting an arrest warrant” against the defendant. Kenny was acquainted with the defendant and knew where he lived. “Without an arrest warrant, but believing that there was probable cause to arrest the defendant and that exigent circumstances existed, Kenny and four other members of the warrant task force proceeded to the defendant’s address.” “Kenny and two officers approached the front door, while two other officers went to the side of the house to secure a perimeter…. As Kenny ascended the front porch steps, the defendant saw the officers through the glass front door.” The defendant ran toward the rear of the house and began to climb out a window, but when he saw the officers setting up a perimeter outside, he “retreated into the house…. Because of the volatile situation …, the officers forced their way through the front door” and arrested the defendant. Continue reading →

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house-1177416-225x300In Commonwealth v. Owens, the Supreme Judicial Court agreed with the dissenting justice on the Appeals Court panel below and ordered suppression of “evidence discovered when police officers ‘froze’ a house while they obtained a warrant.”

The basic facts presented at the hearing on the defendant’s motion to suppress were as follows. “A team of Boston police officers believed … that a particular house … was being used for prostitution. The building was at least a two-family dwelling, and the owner, Farhad Ahmed, lived in an apartment on the first floor. The police officers were informed that a woman known as ‘Cinnamon’ worked there as a prostitute. One of the officers, posing as a prospective customer, made contact with Cinnamon, who … described the services she offered, arranged to meet him, and gave him the address of the house. The officer arrived at the house and entered. Ahmed was present in the first-floor common hallway. The … officer was aware that Ahmed rented out one or more of the rooms on the second floor for twenty dollars per two hours.” The police did not have probable cause to believe that drugs or alcohol were being sold at the house. “Cinnamon asked the officer for twenty dollars. On the pretext of getting his wallet from his motor vehicle, the officer opened the door and signaled other police officers to enter. They arrested Cinnamon and Ahmed.  Continue reading →

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A divided panel of the Appeals Court reversed the denial of the defendant’s motion to suppress cocaine and other items seized from his vehicle in Commonwealth v. Barreto on the ground that the police did not have reasonable suspicion to issue the exit order that led to the discovery of the seized items.

The evidence presented at the hearing on the defendant’s motion to suppress was as follows. The police received a tip “from an undisclosed source” “that a green Volvo station wagon containing a ‘large’ amount of drugs would be near a certain intersection [at an unspecified time]…. No other information regarding the tip [and none about the tipster] was provided at the … hearing” because “the prosecutor … did not want to risk identifying the informant.” The prosecutor sought to demonstrate that the search of the defendant’s vehicle was justified solely on the basis of the observations of the police officers who responded to the tip. According to the police testimony at the suppression hearing, four officers “set up surveillance at the intersection mentioned by the informant.” At some point, the officers “saw a green Volvo station wagon turn at the intersection” and park nearby. Then “one of the officers observed the vehicle’s operator, subsequently identified as the defendant, lean down toward his right side ‘as if he [were] reaching toward the floor of the passenger side with both hands.’…. [T]he officer could not see the defendant’s hands…. Observing from a distance, the officers saw a man approach the parked vehicle from an adjacent building[,] interact with the defendant at the driver’s side window for approximately half a minute[,]” and then walk away. While the judge found that the police observed the unidentified man … lean toward [the vehicle] ‘in a manner consistent with that man placing his hands on the Volvo door or reaching inside the Volvo,’ [the judge] also found that the police did not observe the defendant and the unidentified man actually ‘reach their hands toward each other … or exchange any object.’…. [Nonetheless,] the judge found that their interaction was ‘consistent with the two men exchanging something.’ After the man walked away, the defendant drove … to an adjacent street, where the police pulled his vehicle over.” “The defendant cooperated with the police after the stop.” “Although [he] appeared nervous, he produced his driver’s license and vehicle registration when requested to do so…. [One of the officers] ordered the defendant out of the vehicle. As [he] was stepping out …, the officer saw a roll of cash in a clear plastic bag on the inside of the driver’s door. After … a patfrisk of [the defendant] revealed nothing, the police initiated a thorough search of the vehicle,” which revealed “a large amount of cocaine,” $11,050 in cash, and other items. The judge denied the defendant’s motion to suppress those items, “conclud[ing] that the police had reasonable suspicion to stop the vehicle and to order the defendant out of it based on the brief interaction [purportedly consistent with a drug transaction] … between the defendant and the unidentified man who had approached his vehicle. Then, according to the judge, once the police observed the wad of bills in the driver’s door while the exit order was being executed, they gained probable cause that justified their subsequent search of the vehicle.” The defendant appealed.   Continue reading →

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mobile-in-hand-1239462-300x200In Commonwealth v. Arthur, the Appeals Court reversed the suppression of the contents of cell phones seized by the police, because the judge erroneously ruled that “the police unreasonably delayed obtaining a warrant to search the contents of” the phones.

The basic facts were as follows. “[T]he defendant and two accomplices [Williams and Richardson] participated in a coordinated attack on a home at 7 Morse Street in … Boston. Much of the attack was witnessed by various Boston police officers…. At approximately 4:30 p.m. two cars drove onto Brinsley Street, one street away from and parallel to the block of 7 Morse Street. The defendant was driving one of the cars and was alone. Williams was driving the other car, with Richardson in the front passenger seat. Both cars parked on Brinsley Street…. Shortly after parking, Williams and Richardson got out of their car … [and] walked briskly … in the direction of Morse Street…. [As they approached] Morse Street, the defendant got out of his car … and began peering through the yards toward the area of 7 Morse Street ‘as if he was waiting to see something occur.’ Shortly thereafter, shots were heard coming from Morse Street. Williams and Richardson then were observed running down Morse Street, with Williams holding a gun in his hand…. Williams [ran] to Brinsley Street and, after discarding his firearm, got into the passenger seat of the defendant’s car. The defendant had, by this time, returned to his car, but before he could drive away with Williams they were stopped and arrested by the police. Later, the police confirmed that multiple bullets had been fired into the home at 7 Morse Street…. An officer on the scene observed two cell phones in the defendant’s car — one on the driver’s seat and one on the front passenger’s seat. The officer observed three cell phones in the car initially driven by Williams — two on the driver’s seat and one in the passenger’s side door handle. The police impounded both cars. Three days [later], [they] sought and received [an initial] warrant to search both cars and to seize all the cell phones…. [T]he cell phones were seized[] and … were thereafter held as evidence. The Commonwealth did not seek to view the contents of the cell phones, however, until eighty-five days after the impoundment. On [that day], the Commonwealth sought [a] second warrant, this time specifically requesting to search the ‘electronic data’ of each of the seized cell phones…. The second warrant was issued on the same day, and the cell phones were searched. [Subsequently,] the defendant was indicted for two counts of armed assault with intent to murder,” and related offenses. The defendant filed a motion to suppress evidence found as a result of the search of the two cell phones found in his vehicle, on the ground “that the eighty-five-day delay in seeking the second warrant rendered the search unreasonable.” The judge granted the motion and the Commonwealth appealed.   Continue reading →

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balance-1172786-300x204In Commonwealth v. Jeannis, the Appeals Court reversed the denial of the defendant’s motion to suppress a bag of drugs seized from his rectum, because the police did not have a warrant to conduct the seizure.

The basic facts were as follows. In the booking area of a police station to which the defendant was transported after having been arrested, Lieutenant Callahan noticed that the defendant was sitting “oddly, leaning to one side.” Later, “Callahan noticed that the defendant had an unusual gait as he walked to [his] cell…. The defendant moved slowly, was rigid and tense, and was ‘clenching his buttocks area.’ Callahan believed that [the defendant] might have something secreted in that area, which could be a potential safety risk. Callahan asked Officer … Singer to accompany the defendant and Callahan to the … cell. Callahan ordered the defendant to remove his clothing….. [W]hile wearing only underwear, [the defendant] continued to clench his buttocks and attempted to shield his backside from Callahan’s and Singer’s view…. [When] [t]he defendant pulled down [the] waistband” of his underwear, Singer “saw a plastic bag protruding from the defendant’s buttocks. Singer ordered the defendant to remove the bag or have Singer remove it. The defendant agreed to remove it himself and then pulled down his underwear. Singer put his hand on top of the defendant’s hand as the defendant ‘removed the bag.’ The bag contained fifteen individually wrapped bags of cocaine and thirteen individually wrapped bags of heroin.” After the return of indictments charging the defendant with possession with intent to distribute cocaine and heroin, he filed a motion to suppress the drugs. The motion was denied and the defendant was convicted as charged. On appeal, he challenged the denial of the motion to suppress. He argued that under “the principles concerning manual body cavity searches articulated in [Rodriquesv.] Furtado, [410 Mass. 878 (1991)], … seizures from a body cavity may be made only on the authority of a warrant issued by a judge and supported by a high degree of probable cause.” Continue reading →

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gun-1517016-300x225In Commonwealth v. Santiago, the Appeals Court reversed the denial of the defendant’s motion to suppress items seized from the vehicle in which he was a passenger, because the show of force by the police during the stop of the vehicle “was sufficiently significant to convert the stop to an arrest,” for which there was no probable cause.

The basic facts were as follows. A “confidential informant told police that the defendant was selling cocaine and was ‘involved with firearms.’” The police ascertained that the defendant had a prior conviction of a firearm offense. “Based on the informant’s report that the defendant would be traveling to Lynn to pick up cocaine,” the police initiated surveillance of the defendant. “During the course of the surveillance, officers observed the defendant, along with three other men,” travelling in a GMC vehicle. “The defendant was seated in the right rear passenger’s seat. The surveillance team followed the GMC surreptitiously” in unmarked vehicles. At some point, the GMC “suddenly more than doubled its speed…. Believing that the GMC’s occupants had detected the surveillance, officers decided to stop the [vehicle].” After the GMC pulled over, four “police cars moved in around the [vehicle], effectively boxing it in. Four or five officers simultaneously approached the GMC’s four doors, yelling for the occupants to raise their hands. At least two of the officers had their guns drawn. As one officer neared the GMC, he observed the defendant … reach forward, pull open the seat-back pocket in front of him, and stuff an object into it. Suspecting that the defendant had attempted to conceal a firearm, the officer opened the left rear door…. He observed a firearm in the seat-back pocket in front of the defendant.” Officers seized the firearm, a loaded revolver. “The defendant was arrested and searched, and just under $5,500 in cash was found on his person.” After the return of indictments charging the defendant with firearm offenses, he filed a motion to suppress the items seized during the stop of the GMC. The motion was denied. The defendant was convicted as charged. On appeal, “[h]e maintain[ed] … that his motion to suppress was improperly denied because” “police conduct during the stop [of the GMC] — including boxing the vehicle in and approaching with guns drawn — escalated the encounter to an arrest, for which probable cause was lacking.” Continue reading →

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police-car-1515955-300x225In Commonwealth v. Bones (, the Appeals Court affirmed the defendant’s conviction of possession of a class A controlled substance with intent to distribute, ruling that the judge properly denied the defendant’s motion to suppress.

The basic facts were as follows. Chelsea police sergeant Dunn “responded to a call from a party reporting possible drug activity…. On Division Street, … Dunn observed a black male matching the caller’s description. From prior encounters, … Dunn recognized the man as the defendant….  Dunn observed the defendant ‘drinking out of a nip type bottle of alcohol’ while he was walking down the sidewalk…. Dunn stopped his cruiser and got out to speak with the defendant.” Upon seeing Dunn approaching him, “the defendant said, ‘I’m sorry, I didn’t see you. I’ll dump it out,’ and began dumping [the] contents of the bottle of alcohol onto the sidewalk…. Dunn did not order the defendant to stop drinking the alcohol or make any other show of authority.” As Dunn later “testified without objection[,] … ‘drinking alcohol in public is an arrestable offense in the [c]ity of Chelsea.’ He … detained the defendant to see whether he had any active warrants. After determining that the defendant did have an active warrant for his arrest, … Dunn and other officers who had arrived on scene arrested the defendant on the warrant and transported him to Chelsea police headquarters.” There, “the officers conducted an inventory of the defendant’s personal property.” Upon removing the defendant’s shoes, “[t]he officers noticed a bulge protruding from the defendant’s sock…. In [the] sock, [they] found a large plastic bag filled with fifteen individually wrapped smaller bags of heroin.” Upon the return of indictments against the defendant, he filed a motion to suppress the drugs on the ground that “Dunn was not justified in detaining him to check for warrants because drinking in public is not a crime under either the General Laws of the Commonwealth or the ordinances of the city of Chelsea.” The judge denied the motion and the defendant was convicted of possession of a class A controlled substance with intent to distribute. On appeal, he challenged the judge’s rejection of his argument for suppression of the drugs.

In its decision, the Appeals Court stated that “[t]he defendant’s argument fails for several reasons. First and foremost, the defendant overlooks the testimony by Sergeant Dunn, credited by the judge, that drinking an alcoholic beverage on the street or a sidewalk in the city of Chelsea is a criminal offense. In Massachusetts, the contents of a municipal bylaw or ordinance may be proved by oral testimony…. Here, … Dunn testified without objection that in the city of Chelsea, drinking alcohol in public is an arrestable offense. See G.L. c.272, §59 [] (providing that person who, in public, willfully violates ordinance ‘the substance of which is the drinking or possession of alcoholic beverage,’ is subject to arrest)…. The detention of the defendant for purposes of conducting a check for active warrants therefore was valid, because … Dunn had probable cause to arrest the defendant for violating the ordinance prior to his detention…. Accordingly, … Dunn’s subsequent arrest of the defendant based on an outstanding warrant was valid.”

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