Search and Seizure
This short legal guide seeks to offer insight into the current state of Massachusetts law regarding search and seizure. Specifically, this guide examines the search incident to arrest exception to the prohibition to unreasonable warrantless searches and seizures in relation to automobile stops.
OverviewUnder the Fourth Amendment to the United States Constitution, warrantless seizures and searches are "per se unreasonable." Katz v. United States, 389 U.S. 347, 357 (1967). When a seizure or search are conducted without a warrant, the burden is on the Commonwealth to show that the seizure or search "falls within the narrow class of permissible exceptions" to the warrant requirement. Commonwealth v. Antobenedetto, 366 Mass. 51, 57 (1974). If the Commonwealth cannot show that the seizure or search falls within an exception to the warrant requirement, all evidence obtained as a result of the seizure or search must be suppressed. See Mapp v. Ohio, 367 U.S. 643, 655 (1961); see also Commonwealth v. Perkins, 465 Mass. 600, 603 (2013).
Search Incident to ArrestAn arrest made with or without a warrant, requires probable cause to believe the individual arrested has committed a crime. See Commonwealth v. Fernandez, 57 Mass. App. Ct. 562, 566-67 (2003). "Among the exceptions to the warrant requirement is a search incident to a lawful arrest." Arizona v. Gant, 556 U.S. 332, 338 (2009), citing Weeks v. United States, 232 U.S. 383, 392 (1914). "The purpose, long established, of a search incident to arrest is to prevent an individual from destroying or concealing evidence of the crime for which the police have probable cause to arrest, or to prevent an individual from acquiring a weapon to resist arrest or to facilitate an escape." Commonwealth v. Santiago, 410 Mass. 737, 743 (1991). Thus, police may search an automobile incident to the arrest of a recent occupant only where the arrestee "is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest." Arizona v. Gant, supra, at 351. "When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies." Id.
Exit OrderThe propriety of an exit order given to a person in an automobile to facilitate a search of the auto incident to an arrest of a third party, depends entirely on the lawfulness of the search itself. Commonwealth v. Young, 78 Mass. App. Ct. 548, 552 (2011). To the extent police may lawfully conduct a vehicle search incident to arrest, they are not required to do so with occupants inside the vehicle. See Commonwealth v. Correia, 66 Mass. App. Ct. 174, 177-79 (2006). "Conversely, to the extent that the police lacked lawful grounds to conduct a vehicle search incident to [the arrestee's] arrest, their order to the defendant to exit [his] vehicle [will] amount to a prolonging of the stop and seizure of the defendant's person that the defendant may challenge under Article XIV." Young, 78 Mass. App. Ct. at 552; see also Commonwealth v. Washington, 449 Mass 476, 479 n.3 (2007).
"Recent Occupant"As detailed in Arizona v. Gant, supra, an automobile may only be searched incident to the arrest of a recent occupant of the vehicle. In Gant, a recent occupant was defined as someone whom had been in the vehicle within mere seconds of his arrest. In Gant, 556 U.S. 332 (2009), police observed Rodney Gant, whom they knew had a suspended driver's license, operate a motor vehicle, and then park and exit the vehicle. Mr. Gant had walked about ten feet from the vehicle before he was placed under arrest by police. Id. at 336. The Gant Court found that Mr. Gant was a recent occupant of the vehicle, but that the search was unreasonable because there was not reason to believe evidence of the crime of arrest would be found in the vehicle. Id. at 335.
Likewise, in Thornton v. United States, 541 U.S. 615, 618 (2004), the Supreme Court defined a "recent occupant" as someone police observed operate and exit a motor vehicle immediately before encountering police outside the vehicle. The "recent occupant" requirement to the search of an automobile incident to arrest exception may be rooted in the spatial limitation of the exception. See Commonwealth v. Pierre, 72 Mass. App. Ct. 580, 584 (2008). For example, "[A]s the search moves spatially further away from the physical person, the search is less likely to be within the permissible scope. The case law reflects a tendency to afford more leeway for a search for weapons, as opposed to a search for evidence of the crime." J. Grasso & C. McEvoy, Suppression Matters Under Massachusetts Law, sec. 12-3[a] (2016 Ed).
"Reasonable to Believe"New York v. Belton, 453 U.S. 453 (1981) set forth a bright line rule that, "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Id. at 454. In Gant, the Court sought to narrow searches of automobiles incident to the arrest of a recent occupant by striking down the Belton rule, which the Court explained, had led police to conduct exploratory searches contrary to the protections afforded to citizens by the U.S. Constitution. The Gant Court stated, "[A]lthough we have recognized that a motorist's privacy interest in his vehicle is less substantial than in his home... the former interest is nevertheless important and deserving of constitutional protection." Gant, 556 U.S. at 345. Thus, the Court limited a permissible search of an auto incident to the arrest of a recent occupant only where either the arrestee was within reach of the interior of the auto at the time of her arrest, or where it was "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Id. at 343.
The 'reason to believe' standard enunciated in Gant, is likewise echoed - and potentially bolstered - by MGL c. 276. s. 1, which only permits a search of a place incident to arrest where that place is in reach of the arrestee or where there is reason to believe evidence of the crime of arrest will be found. However, whereas Gant requires a "reasonable belief" to search, MGL c. 276 s. 1, is subject to Article XIV, which may require that police have probable cause to search for evidence of the crime of arrest. See Commonwealth v. Madera, 402 Mass. 156, 159 (1988); see also Commonwealth v. Starkweather, 79 Mass. App. Ct. 791, 797 n.3 (2011) (discussing statute and Article XIV as applied to search of automobile incident to arrest).
In addition, under MGL c. 276 s. 1, a search of an auto for identification of the arrestee is not permissible under the Massachusetts law because, "[T]he defendant's identity [is] not the type of 'evidence' encompassed by GL c. 276 s. 1; if it were, the statutory limits on a search incident to arrest would be rendered meaningless, and the police could rifle through papers, glove compartments, briefcases, and elsewhere seeking documents identifying a subject. The statute forbids such a roving, intrusive, search for information." Commonwealth v. Blevines, 438 Mass. 604, 610 (2003).
ConclusionThe warrantless seizure of an operator of an automobile and search of his vehicle may be unreasonable under the law if the court finds that the operator was not a recent occupant of the vehicle. The chances of a finding of unreasonablness will rise if the court likewise finds no probable cause existed to believe evidence of criminal activity would have be found in the seized automobile. See Young, 78 Mass. App. Ct., supra. To further argue that the search incident to arrest exception does not apply to your case consider arguing the warrantless seizure and search of the automobile were based on a hunch. Note that the "vice in interrogations and searches based on a hunch is their essentially random and arbitrary nature, a quality inconsistent with the United States Constitution and Massachusetts Declaration of Rights and a free and ordered society." Commonwealth v. Bartlett, 41 Mass. App. Ct. 468, 472 (1996). In such an instance, all evidence seized from the automobile would be traceable to an unlawful search and seizure without taint, and therefore must be suppressed as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471 (1963).