Fact Sheet: Search and Seizure Law, MA
Submitted by Kelsey Linscomb, 2L, WNEC

The rights of your body, home, automobile, place of business and property are protected from unreasonable searches and seizures by the Fourth Amendment of the U.S. Constitution and Article 14 of the Massachusetts Declaration of Rights. No local, state or federal law enforcement officer or official is permitted to search you or your property without a court-issued search warrant unless they have probable cause to think that a crime is taking place.  PROBLEM: Probable cause is not defined expressly in the Fourth Amendment; therefore, judicial interpretation determines what justifies probable cause. Generally, probable cause refers to: That amount (open to interpretation) of trustworthy evidence that would lead a reasonable and prudent person to believe that a crime is being, has been, or is about to be committed.

***Without a warrant, probable cause or consent, any search, seizure of property or arrest is unconstitutional!!!!!***

To be valid, a search warrant MUST:

  • Designate AND describe the vessel, building, house, place or vehicle to be searched
  • Particularly describe the property or articles to be searched for
  • Be executed at the time directed in the warrant (daytime/nighttime, specifically)

    ***ANY property (including books, papers, documents, records and all other tangible objects) seized in violation of these provisions is inadmissible in criminal proceedings***

Search without a warrant:

  • If an individual freely and voluntarily consents to a search of his/her person, property, vehicle, etc., that individual has waived the Fourth Amendment requirement of either a valid search warrant or probable cause.
  • Any person who possesses “common authority over or other sufficient relationship to the premises or effects sought to be inspected” may consent to the search.
  • In the absence of a warrant or probable cause, an individual has the right to refuse to give consent and may (in most cases) revoke consent at any point once it has been granted. (Exceptions to revocation: airport screening and prisoner visitation)
  • Refusal to give consent, on its own, is not sufficient for the officer to develop reasonable suspicion or probable cause to perform a search
  • Consent may be withdrawn by statements, actions, or a combination of statements and actions
  • If an officer has probable cause based on contraband or evidence of a crime that is in “plain view”, the officer MAY NOT have moved objects in order to place such items in “plain view”
  • During or following a LAWFUL arrest, an officer is permitted to perform a warrantless search: limited to the arrested individual and his/her IMMEDIATE surrounding area ONLY (in attempt to prevent access to a weapon or destruction of evidence)
 
  • United States Constitution: 4th Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
 
  • Constitution or Form of Government for the Commonwealth of Massachusetts: Art. XIV states:  “Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.”