Many criminal cases are won or lost before trial, on one question: did the police have the right to stop, search, or seize what they found? If they did not, the evidence can be thrown out. In a drug, gun, or OUI case, losing that evidence often means the Commonwealth cannot go forward at all.
Challenging a search is one of the most important tools a defense lawyer has. This guide explains, in plain English, how search-and-seizure law works in Massachusetts, where these challenges come up most, and how a motion to suppress actually moves through court.
Two Sources of Protection: The Fourth Amendment and Article 14
The Fourth Amendment to the U.S. Constitution protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and requires that warrants issue only “upon probable cause” and “particularly describing” what is to be searched and seized.
Massachusetts has its own version, which is older than the federal one. Article 14 of the Massachusetts Declaration of Rights says every person “has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions.” It also requires sworn support and a “special designation” of what a warrant covers.
The two are not identical. The Supreme Judicial Court (SJC) has read Article 14 to give more protection than the Fourth Amendment in particular areas. A few examples:
- Exit orders. Federal law lets police order a driver or passengers out of a car during any lawful traffic stop. The SJC rejected that rule under Article 14: an officer needs a reasonable belief that someone’s safety is at risk before ordering people out. Commonwealth v. Gonsalves, 429 Mass. 658 (1999).
- Informant tips and warrants. When the U.S. Supreme Court loosened the test for warrants based on informants, the SJC kept the stricter test, which looks at the informant’s basis of knowledge and reliability, under Article 14. Commonwealth v. Upton, 394 Mass. 363 (1985).
- Standing. Under Article 14, a person charged with a crime in which possession of the seized item is an element automatically has standing to challenge the search. Commonwealth v. Amendola, 406 Mass. 592 (1990). Federal law no longer has that rule.
- Cell phone location data. The SJC held in 2014 that police needed a warrant under Article 14 to get historical cell site location information from a phone company. Commonwealth v. Augustine, 467 Mass. 230 (2014).
- When you are “seized.” Under Article 14, a person can be seized when police begin a pursuit with the obvious intent of stopping and questioning them, not only once they are caught. Commonwealth v. Stoute, 422 Mass. 782 (1996).
Because of these differences, a good Massachusetts motion argues both the Fourth Amendment and Article 14. Sometimes the state claim is the stronger one.
What “Suppression” Means
When a judge allows a motion to suppress, the Commonwealth cannot use the challenged evidence against you at trial. Depending on the ruling, that can include the physical evidence itself, other evidence police found because of the illegal search, and statements that followed it.
Warrantless searches start at a disadvantage for the prosecution. The SJC has said that a search or seizure without a warrant is “presumptively unreasonable,” and the Commonwealth must show it falls within a “narrow class of permissible exceptions” to the warrant requirement. Commonwealth v. White, 475 Mass. 583, 588 (2016). Common exceptions include consent, a frisk based on reasonable suspicion, the automobile exception, a search incident to arrest, and genuine emergencies. When police did get a warrant, the challenge focuses instead on whether the warrant was valid and whether police stayed within it.
Common Situations Where Searches Are Challenged
Car stops. Police need a valid reason to stop a car, such as a traffic violation or reasonable suspicion of a crime, and what happens after the stop is often where the case turns. Massachusetts also allows a defendant to challenge a stop as racially motivated under the equal protection provisions of the Declaration of Rights, and the SJC made those claims easier to raise in Commonwealth v. Long, 485 Mass. 711 (2020). See our post on police stops and profiling.
Exit orders. Under Gonsalves, an order to get out of the car requires a reasonable safety concern. If the exit order was improper, evidence found as a result can be suppressed.
Pat frisks. A stop does not automatically allow a frisk. Police need reasonable suspicion that the person is armed and dangerous. In Commonwealth v. Torres-Pagan, 484 Mass. 34 (2020), the SJC upheld suppression where the traffic stop was proper but the frisk was not, and the car search that followed the frisk fell with it. More on pat frisks by police.
Street stops. Police need individualized reasonable suspicion to stop someone. In Commonwealth v. Warren, 475 Mass. 530 (2016), a vague description of suspects and the defendant’s efforts to avoid police were not enough, and the denial of his motion to suppress a firearm was reversed. The Court also said judges may, in appropriate cases, consider that a Black man in Boston might flee police to avoid being racially profiled rather than to hide a crime.
Home searches. The home gets the strongest protection. Absent consent or exigent circumstances, police generally need a warrant to enter a home, even to make an arrest. Payton v. New York, 445 U.S. 573 (1980). Consent is a frequent battleground, and the prosecution must prove it was actually and voluntarily given.
Search warrants. A warrant must be supported by a sworn affidavit showing probable cause, and it must describe the place and items to be searched with particularity. Challenges focus on whether the affidavit really shows probable cause, whether an informant’s information was reliable, and whether police went beyond the warrant. See search warrants and confidential informants and search warrants.
Phones. The U.S. Supreme Court held in Riley v. California, 573 U.S. 373 (2014), that police generally may not search the data on a phone seized from an arrested person without a warrant. The SJC has also required particularized information that evidence is likely to be on a specific phone before police may seize it. White, 475 Mass. at 587–592. In the same case, the Commonwealth’s nearly ten-week delay in seeking a warrant after seizing the phone was another reason the evidence was suppressed. Id. at 592–596. More on cell phone privacy.
How a Motion to Suppress Works, Step by Step
A strong motion is built on facts, not just law. The typical process looks like this:
- Investigation. We get the police report, any body-camera or cruiser video, dispatch recordings, and the warrant and affidavit if there is one. Details such as the timing of a radio call or where a car was parked often matter.
- Visiting the scene. Seeing the street, the lighting, the sight lines, or the layout of a building can show that an officer could not have seen what the report says.
- Interviewing witnesses. Passengers, family members, neighbors, and bystanders may describe the encounter very differently than the report does.
- Filing the motion. Under Mass. R. Crim. P. 13, the motion must state its grounds with particularity and include an affidavit, signed by someone with personal knowledge, detailing the facts relied on. Grounds that reasonably could have been raised but were not can be waived. A memorandum of law is required for motions to suppress other than warrantless-search motions, and in practice we file one in nearly every case.
- The evidentiary hearing. The officers involved usually testify. The prosecutor questions them first, and then we cross-examine. This is often the first time the officer’s account is tested under oath, and inconsistencies with the report, the video, or the scene can be decisive.
- Argument and ruling. After the testimony, both sides argue. The judge may rule from the bench, but often takes the matter under advisement and issues written findings at a later date.
Timing matters. Rule 13 sets deadlines for pretrial motions, which usually come into play around the pre-trial conference. A suppression issue that is spotted late can be lost.
What Happens If the Motion Is Allowed
If the judge suppresses key evidence, the Commonwealth has to decide whether it can still prove the case. In many drug and firearm cases, the suppressed evidence is the case, and the charges are dismissed or dropped. In others, the prosecution may go forward with what remains, or the ruling may lead to a much better resolution.
Either side can seek an early appeal. Under Mass. R. Crim. P. 15(a)(2), the defendant or the Commonwealth may apply to a single justice of the SJC for leave to appeal an order on a motion to suppress before trial. If a motion is denied, the issue is also preserved for appeal after a conviction.
Statements can be challenged too. If police questioned you without proper Miranda warnings, or a statement was not voluntary, a separate motion may seek to suppress it. Our guide to police interrogations in Massachusetts covers those rules.
Frequently Asked Questions
If the search was illegal, will my case automatically be dismissed?
No. You have to file a motion and win it. Even then, the case continues unless the Commonwealth cannot prove the charge without the suppressed evidence, though that is often what happens.
Does it matter that I agreed to the search?
Yes. Voluntary consent is an exception to the warrant requirement. But the prosecution must prove consent was freely given, and whether someone truly consented is often disputed.
Is Massachusetts law really more protective than federal law?
In specific areas, yes, including exit orders, informant-based warrants, standing, and cell phone location records. That is why Massachusetts motions should raise Article 14 as well as the Fourth Amendment.
Talk to a Lawyer About the Search in Your Case
If you were stopped, searched, or arrested and think the police crossed a line, the details matter, and they are easiest to gather early. The Law Office of William J. Barabino in Medford has over 23 years of experience defending people in Massachusetts courts, handles search and seizure issues in criminal cases, and represents clients throughout Greater Boston.
Call 781-393-5900 for a confidential consultation.
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Disclaimer
This article is for general educational purposes only and is not legal advice. Search-and-seizure law is highly fact-specific and continues to develop in both the Supreme Judicial Court and the United States Supreme Court. Reading this page does not create an attorney-client relationship. If you are facing a criminal charge, consult a licensed Massachusetts criminal defense attorney about your situation.
