October 26, 2026

On October 19, 2026, the Massachusetts Appeals Court held in Commonwealth v. Bennett, No. 25-P-1445, that a police officer seized a man when the officer took the man’s identification card and held it while calling in a warrant check. Because the officer did not have reasonable suspicion that the man had committed a crime when the seizure occurred, the court held that the seizure was unlawful and affirmed the suppression of the suspected fentanyl the police found afterward.

Bennett is an unpublished summary decision under Appeals Court Rule 23.0, so a court may cite it for its persuasive value but not as binding precedent. The decision still shows how a routine street encounter becomes a seizure under settled Supreme Judicial Court law.

What Happened

The police approached the defendant and asked whether he needed assistance or medical attention. The Appeals Court agreed with the parties and the motion judge that the officers were acting within their community caretaking function when they first approached and spoke with him. The officer then took the defendant’s identification card and held it while requesting a warrant check. The warrant check revealed a warrant, the police arrested the defendant, and a search of his backpack produced the suspected fentanyl.

The defendant moved to suppress the fentanyl, and a District Court judge allowed the motion. The Commonwealth appealed, and the Appeals Court affirmed the order suppressing the evidence.

When a Police Encounter Becomes a Seizure

A person is seized by the police when an officer, through words or conduct, communicates that the officer will use police authority to require the person to stay. Commonwealth v. Matta, 483 Mass. 357 (2019).

The Appeals Court held that the officer communicated exactly that when the officer took the defendant’s identification card and held it while running the warrant check, because a reasonable person would understand that he had to stay at least until the dispatcher answered. The court relied on Commonwealth v. Lyles, 453 Mass. 811 (2009), in which the Supreme Judicial Court held that an officer seized a person by requesting and taking the person’s identification and calling in a warrant check.

The court held that the calm tone and the brief length of the encounter did not change the result. The defendant was seized the moment the officer took the identification card and called in the warrant check. A seizure requires that the police have reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Commonwealth v. Palmer, 498 Mass. 117 (2026). The court held that the police did not have reasonable suspicion of any crime at the moment of the seizure, so the seizure was unlawful.

Community Caretaking Did Not Justify the Warrant Check

The police may approach a person and offer assistance as part of their community caretaking function without seizing the person. A community caretaking encounter becomes a seizure, however, when the officer’s words or conduct communicate that the person must stay. The Appeals Court held that the encounter became a seizure when the officer took and held the identification card to run the warrant check, and that the community caretaking function did not justify that seizure.

The Commonwealth argued that the warrant check furthered officer safety. The Appeals Court rejected that argument on this record because the Commonwealth presented no evidence that this defendant posed a specific danger to the officers. The court noted that the Supreme Judicial Court has refused to adopt a blanket rule allowing a patfrisk before transporting a person as community caretaking, and has required a reasonable basis for that more limited step. Because a warrant check is less connected to officer safety than a patfrisk, the Commonwealth needed at least the same justification for the warrant check, and the Commonwealth offered no evidence of one.

What the Decision Means for a Motion to Suppress

A person who hands an officer identification during a street encounter may already be seized once the officer keeps the identification and runs a warrant check. Where the police lack reasonable suspicion of a crime at that moment, a court can suppress the evidence the police find after the warrant check, including evidence found during a search that followed an arrest on a warrant the check revealed. The analysis depends on when the seizure occurred and what the police knew at that moment.

A defendant who wants to suppress evidence from this kind of encounter should establish, through the police reports and the officers’ testimony, the exact point at which the officer took the identification and called in the warrant check, and what facts the officer knew at that point. Because Bennett is a Rule 23.0 summary decision, counsel should cite the Supreme Judicial Court decisions it applies, Matta, Lyles, and Palmer, as the binding authority, and cite Bennett only as a persuasive application of those decisions.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and files motions to suppress in drug and firearm cases in the District Court, the Boston Municipal Court, and the Superior Court.

Key Takeaways

• In Commonwealth v. Bennett, No. 25-P-1445 (Oct. 19, 2026), the Appeals Court held that an officer seized a man by taking and holding his identification card to run a warrant check, and affirmed the suppression of the suspected fentanyl found afterward.
• A person is seized when an officer’s words or conduct communicate that the person must stay. Commonwealth v. Matta, 483 Mass. 357 (2019). Commonwealth v. Lyles, 453 Mass. 811 (2009).
• A seizure is unlawful unless the police have reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Commonwealth v. Palmer, 498 Mass. 117 (2026).
• A community caretaking encounter becomes a seizure when the officer requires the person to stay, and the Commonwealth must show specific facts to justify a warrant check as furthering officer safety.
• Bennett is a Rule 23.0 summary decision, so counsel should rely on the Supreme Judicial Court decisions it applies as binding authority and cite Bennett only for its persuasive value.

Related Serpa Law Office resources

• When a Police Chase Becomes a Seizure: Commonwealth v. Palmer
• A Practitioner’s Guide to the Motion to Suppress in Massachusetts Motor Vehicle Stops
• Search and Seizure Updates
• Massachusetts Traffic Stop FAQs: Exit Orders, Searches, and Your Rights
• Drug Distribution, Possession With Intent to Distribute, and Trafficking in Massachusetts

October 16, 2026

On September 30, 2026, the Massachusetts Appeals Court ordered the dismissal of gun charges against a juvenile whom Boston police had frisked after a 911 call reporting “three guys with guns” in a Dorchester backyard. The police ordered the juvenile out of a car at the scene, pat frisked him, and found a handgun in his waistband. The Appeals Court held that the officers had no specific facts showing that this juvenile was armed and dangerous. The frisk was therefore unlawful. The Juvenile Court judge should have suppressed the gun and the ammunition.

A Juvenile Court judge tried the juvenile, whom the Appeals Court calls Vihaan V., without a jury on charges of carrying a firearm without a license under G.L. c. 269, § 10(a), and possessing ammunition without a firearms identification card under G.L. c. 269, § 10(h). A Juvenile Court judge who finds that a juvenile committed an offense adjudicates the juvenile delinquent instead of finding the juvenile guilty. The judge adjudicated Vihaan V. delinquent on both charges. The Appeals Court set aside both findings and ordered the complaint dismissed. The decision is Commonwealth v. Vihaan V., No. 25-P-500 (Mass. App. Ct. Sept. 30, 2026).

The 911 Calls in Dorchester

At 6:33 P.M. on May 16, 2021, a woman called the Boston police, gave her name and telephone number, and reported that many people were on her Dorchester property playing dice, smoking marijuana, and riding mopeds. She was not at home, but her children were. Seven minutes later she called 911 again and reported that someone at her home had said that “three guys with guns” were in her backyard.

The caller’s son was watching from a window and describing the men to her. According to the son, all three men were Black and skinny. One wore a black Nike sweater, black jeans, and black Nike Air Force shoes, and another wore all black. Some of the people were in a gray Mercedes-Benz. The dispatcher called her back a few minutes later. The caller then reported that the men were still in the backyard, that one of them had left on a moped with a gun, and that the police should look inside the bag of the man in the orange sweater.

The Frisk of the Juvenile

Two Boston police officers responded and found a large group of people who were “pretty upset and hostile” toward the police, including a man in an orange sweatshirt. The gray Mercedes-Benz was empty. One of the officers had responded to a report of shots fired in the same area three days earlier. The police pat frisked several people and found nothing.

One officer then noticed four people sitting in a green Honda Accord. The back seat passenger on the driver’s side wore black Nike Air Force shoes and all black clothing, which matched one of the descriptions. The officer did not notice anyone else in the Honda who matched a description. The juvenile sat in the front passenger seat, wearing a navy blue Nike hoodie and a red face mask. The police ordered all four occupants out of the car. An officer pat frisked the juvenile and found a handgun in his waistband.

The Standard for an Exit Order and the Stricter Standard for a Patfrisk

Massachusetts courts apply one standard when police order a passenger out of a car and a stricter standard when police pat frisk a person. Under Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020), police may order a passenger out of a car during a traffic stop when they reasonably believe that the safety of the officers or others is threatened, when they have reasonable suspicion of criminal activity, or when they are searching the car on other grounds.

Police need more to justify a patfrisk than an exit order. The Supreme Judicial Court held in the same case that the police must have “a reasonable suspicion, based on specific articulable facts, that the suspect is armed and dangerous.” Torres-Pagan, 484 Mass. at 38-39. The police must have reasonable suspicion that the particular person they frisk is armed and dangerous. At a hearing on a motion to suppress, the Commonwealth must prove that the officers had a lawful basis for the exit order and the frisk.

The Juvenile Court judge denied the juvenile’s motion to suppress. The judge ruled that once the back seat passenger matched a description, the police could reasonably order the other occupants out of the car to see whether they matched as well. The Appeals Court did not decide whether the exit order was lawful. The court held that, even if the exit order was lawful, the Commonwealth had not met the stricter standard for the frisk.

The Officers’ Testimony About the Juvenile

Neither officer described any fact at the suppression hearing suggesting that the juvenile was armed. One officer testified that the juvenile “was pretty calm” and “didn’t act in any particular way that was kind of alarming.” The Appeals Court contrasted Commonwealth v. Karen K., 491 Mass. 165 (2023), in which officers saw a juvenile angle her body away from them, change direction suddenly to avoid them, and adjust her waistband. The court also contrasted Commonwealth v. Johnson-Rivera, 104 Mass. App. Ct. 533 (2024), in which an officer testified that the juvenile wore a cross-body bag, appeared nervous, and had open criminal charges.

The Appeals Court rejected two other facts as reasons for the frisk. The juvenile was sitting in the Honda with the back seat passenger who matched a description. The court held that the juvenile’s presence in the car did not give the police reasonable suspicion that the juvenile was armed and dangerous, even if the police had reasonable suspicion about that passenger. One officer had also responded to a shots-fired report in the area three days earlier. Under Commonwealth v. Sertyl, 101 Mass. App. Ct. 836, 843 (2022), an unconnected report of shots fired in the area does not show that a particular person is armed and dangerous.

The Commonwealth’s Three Arguments for the Frisk

A Report of Guns

The Commonwealth argued that the 911 report involved guns, which are inherently dangerous. The Appeals Court answered with the rule stated in Commonwealth v. D.M., 100 Mass. App. Ct. 211 (2021), that “a tip suggesting a concealed firearm, with nothing more, [cannot] provide reasonable suspicion for a stop.” At oral argument, the Commonwealth also relied on the officer’s testimony that a handgun can easily pass from one person to another. The court held that the police could not rely on the hypothetical possibility of a transfer, because nothing indicated that anyone had passed a gun to the juvenile.

A General Description

The Commonwealth argued that the juvenile was one of a group of young men roughly matching the reported age range, and that his navy blue clothing was close to the “all black” clothing of the second man the son described. The Appeals Court quoted the Supreme Judicial Court’s statement in Commonwealth v. Palmer, 498 Mass. 117, 127 (2026), that “[t]he fact that an individual matches a broad, general description does not alone amount to reasonable suspicion, particularly if that description could fit many people in the area where the stop takes place.”

The descriptions in the 911 calls were vague, and the clothing they described was common. The officer who conducted the frisk testified that he noticed no one else in the Honda who matched a description. On that record, the Appeals Court concluded that the police knew little more than that the juvenile was “a random [B]lack male in dark clothing,” the phrase the Supreme Judicial Court used in Commonwealth v. Warren, 475 Mass. 530, 540 (2016), when it held that the police in that case lacked reasonable suspicion for a stop.

Frisks of Other People

The Commonwealth argued that the frisks of several other people had turned up no gun, which gave the police reason to keep frisking people, including the juvenile. The Appeals Court rejected that argument as one that “comes perilously close to saying that everyone in the area should be subject to police search.” The court pointed to the Supreme Judicial Court’s statement in Commonwealth v. Johnson, 454 Mass. 159, 163 (2009), that the many law-abiding people who live in, work in, or visit so-called high crime areas are entitled to protection against being stopped and frisked just because of the neighborhood.

Suppression of the Gun and Dismissal of the Complaint

The Juvenile Court judge should have suppressed the firearm and the ammunition, because the Commonwealth did not prove that the police had reasonable suspicion that the juvenile was armed and dangerous. The Appeals Court set aside both findings of delinquency and ordered the complaint dismissed. The court decided the appeal on the frisk alone and did not decide two other questions. The first is whether the police lawfully ordered the juvenile out of the Honda. The second is whether the 911 information was reliable, given that the caller was away from home and her son never identified himself to the police.

Frisk Cases in Massachusetts After Vihaan V.

The armed and dangerous standard applies to adults as well as juveniles. Before any patfrisk, the police must know specific facts about the person, such as the person’s movements, conduct, or statements, that give them reasonable suspicion that the person is armed and dangerous. A report of guns in the area, a companion who matches a description, an earlier shooting nearby, and frisks of other people that found nothing are not enough by themselves. The defense can move to suppress the gun, the ammunition, and any other evidence the police found during a frisk that was not based on facts about the person frisked.

A motion to suppress in a frisk case depends on what the police knew at the moment of the frisk. The record of what the police knew includes the 911 recordings, the dispatch information, the officers’ reports and testimony, and any body-worn camera video. In Vihaan V., the Appeals Court reviewed the body-worn camera video itself. The court also relied on an officer’s own testimony that the juvenile was calm. An adult charged after the same kind of frisk in Dorchester would ordinarily face arraignment in the Dorchester Division of the Boston Municipal Court, where Serpa Law Office defends firearms charges.

Key Takeaways

• Police may pat frisk a person only when they have reasonable suspicion, based on specific articulable facts, that the person is armed and dangerous. Commonwealth v. Torres-Pagan, 484 Mass. 34, 38-39 (2020).
• The standard for a patfrisk is stricter than the standard for ordering a passenger out of a car.
• The police need facts about each person they frisk. A 911 report of guns, a companion who matches a description, an earlier shooting nearby, and frisks of other people that found nothing are not enough by themselves.
• Matching a broad description that could fit many people in the area does not, by itself, give the police reasonable suspicion.
• In Commonwealth v. Vihaan V., No. 25-P-500 (Mass. App. Ct. Sept. 30, 2026), the Appeals Court held that the Juvenile Court judge should have suppressed the gun and the ammunition, set aside the findings of delinquency, and ordered the complaint dismissed.

Related Serpa Law Office resources

• Carrying a Firearm Without a License in Massachusetts: G.L. c. 269, § 10(a)
• Possession of a Firearm or Ammunition Without an FID Card in Massachusetts: G.L. c. 269, § 10(h)
• Illegal Searches and Seizures in Massachusetts: Motions to Suppress
• Massachusetts Traffic Stops, Exit Orders, and Pretext Searches: Your Rights Under Article 14
• When a Police Chase Becomes a Seizure: Commonwealth v. Palmer
• What to Do When Your Child Is Arrested or Charged in Massachusetts: Juvenile Delinquency and Youthful Offender Defense
• Massachusetts Criminal Defense of Firearms Offenses
• BMC Dorchester: A High-Volume Division, Immigration Stakes, and Firearms Defense
• Gunshot Residue Evidence in a Massachusetts Murder Trial: Commonwealth v. Williams

September 28, 2026

At about 1 A.M. on September 2, 2024, Boston police officers on patrol in Dorchester saw that the registration on an Acura sport utility vehicle had expired. The officers confirmed through their database that the registration was expired and non-renewable, activated their lights, and stopped the vehicle. The driver, Lorenzo Beechman, was the only person in the vehicle, and he pulled off the road into a gasoline station as directed. The vehicle belonged to his girlfriend. One officer testified that he intended to tow the vehicle the moment he stopped it, because his commanding officer had instructed him to impound, tow, and inventory any vehicle with an expired registration. The officers had the vehicle towed and searched the passenger compartment. Under the front passenger seat they found a loaded firearm. The Commonwealth then charged Beechman with unlawful possession of a firearm and related offenses under G. L. c. 269.

Read the full decision: Commonwealth v. Beechman, No. 25-P-1082 (Mass. App. Ct. Sept. 21, 2026).

The motion to suppress and what the Superior Court judge decided

A motion to suppress asks a judge to exclude evidence that the police obtained in violation of the Fourth Amendment to the United States Constitution or Article 14 of the Massachusetts Declaration of Rights. Beechman filed a motion to suppress the firearm, and a Superior Court judge held an evidentiary hearing. The judge allowed the motion and ordered the firearm excluded from evidence. The judge found that impounding the vehicle was not reasonably necessary and that the officers had acted against their own department policy. The judge found that the vehicle was not obstructing traffic, was not on a public way, and could have been parked to await a tow truck in a number of locations. The judge also found that the officers never asked Beechman or his girlfriend whether either of them wished to arrange an alternative to a police tow.

What the Appeals Court decided

The Appeals Court affirmed the Superior Court judge’s order allowing the motion to suppress. The court decided the appeal through an unusual procedure. The appeal began before a three-justice panel, and after the panel circulated a proposed majority opinion and a proposed dissent, all of the justices of the Appeals Court decided to participate under G. L. c. 211A, § 11. The justices then split evenly. When the Appeals Court divides equally, the court affirms the lower court’s order in the case before it, but the decision does not create binding precedent that other courts must follow. Eleven justices, in an opinion by Justice D’Angelo, concluded that the firearm was properly suppressed. Eleven justices, in an opinion by Justice Meade, would have reversed the suppression order and allowed the firearm into evidence.

Because the appeal was an interlocutory appeal, meaning an appeal the Commonwealth took before trial, the Superior Court will now try the case without the suppressed firearm.

When Massachusetts law allows the police to impound and inventory a vehicle

An inventory search is a warrantless search that the police conduct to catalog the contents of a vehicle they have taken into custody. The lawfulness of an inventory search depends on whether the police lawfully impounded the vehicle in the first place. Impoundment happens when the police take custody of a vehicle and arrange to have it towed and stored.

The Supreme Judicial Court has held that an impoundment must serve a legitimate, non-investigatory purpose, and it must be reasonably necessary based on the totality of the circumstances. See Commonwealth v. Goncalves-Mendez, 484 Mass. 80, 83 (2020). See also Commonwealth v. Oliveira, 474 Mass. 10, 13 (2016). The concurring justices identified the recognized purposes that can justify impoundment. The police may impound a vehicle to protect the vehicle and its contents from theft or vandalism, to protect the public from dangerous items inside the vehicle, to protect public safety where the vehicle as parked creates a dangerous condition, or to spare a private property owner the burden of a vehicle left behind after the driver is arrested. See Oliveira, 474 Mass. at 13-14.

The concurring justices held that the Commonwealth did not meet its burden to justify the impoundment under any of these purposes. Beechman was not under arrest when the officers decided to impound the vehicle. The vehicle sat in a gasoline station lot, not on a public way, and it created no hazard. Under Goncalves-Mendez, when a passenger or another person is available to take custody of a vehicle, the police must consider that practical alternative before impounding the vehicle. The officers here never asked Beechman or his girlfriend whether she wished to retrieve her own vehicle. On these findings, the concurring justices concluded that the impoundment was not reasonably necessary, so the inventory search that produced the firearm was unlawful.

What the decision means for a driver stopped in Massachusetts

A traffic violation, including an expired registration, does not by itself give the police authority to impound and search a vehicle. The Commonwealth must prove that the impoundment served a legitimate, non-investigatory purpose and that impounding the vehicle was reasonably necessary under the circumstances. Where the driver is not under arrest, where the vehicle is parked safely off the roadway, and where another person is available to take the vehicle, a Massachusetts judge can find the impoundment unreasonable and suppress whatever the inventory search produced.

The equal division of the Appeals Court also shows that experienced judges disagree about how these rules apply to a stopped vehicle. A defendant charged after a vehicle search should expect the Commonwealth to defend the impoundment, and the specific facts of the stop, the location of the vehicle, and the available alternatives to a police tow will shape the outcome of a motion to suppress.

Key Takeaways

• An inventory search of a vehicle is lawful only when the police lawfully impounded the vehicle first.
• The Commonwealth must prove that an impoundment served a legitimate, non-investigatory purpose and was reasonably necessary under the totality of the circumstances.
• When another person is available to take custody of the vehicle, the police must consider that alternative before impounding it. See Commonwealth v. Goncalves-Mendez, 484 Mass. 80 (2020).
• In Commonwealth v. Beechman, an equally divided Appeals Court affirmed the suppression of a firearm found during an inventory search after officers impounded a lawfully parked vehicle without asking whether the owner wished to retrieve it.
• A decision by an equally divided Appeals Court affirms the order in that case, but it does not create binding precedent for later cases.

Related Serpa Law Office resources

• Illegal Searches and Seizures in Massachusetts: Motions to Suppress
• Massachusetts Criminal Defense of Firearms Offenses
• Massachusetts Criminal Law Updates

Massachusetts police departments operate a growing network of automatic license plate readers, and prosecutors use the data these cameras collect as evidence in criminal cases. The cameras photograph passing vehicles, convert each plate to text, and store the plate number with the time, date, and location of the sighting. Officers query the stored records to place a specific car at a specific location on a specific day. That record can become central to the Commonwealth’s case.

Two developments in September 2026 drew attention to who controls this data. On September 14, 2026, the Boston Globe reported that outside law enforcement agencies were able to access Boston Police Department license plate reader data during a 2025 pilot program. The city’s contract with the vendor had required that access to be disabled. A bill pending in the Legislature would bar police from sharing the data with another agency except as required in a judicial proceeding. It would also bar them from obtaining another entity’s license plate reader data without a search warrant. A defendant facing charges built on license plate reader evidence can use these developments to test how the data in the case was collected and controlled.

How Automatic License Plate Readers Work

An automatic license plate reader is a camera paired with software that reads license plates. Some units are fixed to poles, bridges, and traffic signals. Others are mounted on police cruisers and read plates as the cruiser moves through traffic.

Each read creates a record. The record contains the plate number, a photograph of the vehicle, and the time, date, and location of the sighting. Vendors store these records in searchable databases. A single camera generates thousands of reads each day, and a regional network combines reads from many departments into one system.

Aggregation is what makes the stored data revealing. One read shows a car at one place. Thousands of reads across several weeks show a pattern of movement, including a driver’s home, workplace, and regular destinations.

Use of the Data in a Criminal Case

Prosecutors use license plate reader data to establish location and movement. In a case that depends on whether the defendant was present at a scene, a read that places the vehicle nearby at the relevant time supports the Commonwealth’s theory. In a case built on travel between two points, a series of reads can show a route.

Officers also use the data during investigations before charges issue. An officer queries a plate to learn where a vehicle has traveled, then builds the rest of the case from those leads. When the case reaches court, the reads may appear as exhibits, and the officer who ran the query may testify about what the database showed.

The evidence appears objective because it comes from a machine. That appearance of precision is a reason to examine the data closely. The reliability of a read and the lawfulness of the search that produced it are separate questions from the number on the screen.

The Constitutional Standard After Commonwealth v. McCarthy

The Supreme Judicial Court addressed license plate readers in Commonwealth v. McCarthy, 484 Mass. 493 (2020). The Court held that a person has a constitutionally protected expectation of privacy in the whole of their public movements under Article 14 of the Massachusetts Declaration of Rights. Widespread license plate reader surveillance can invade that interest.

On the facts before it, the Court found no search. The police used four fixed cameras at the ends of two bridges connecting Cape Cod to the mainland. Those cameras showed only whether the defendant was passing onto or off of the Cape at a given moment. The Court held that this limited surveillance did not permit the Commonwealth to monitor the whole of the defendant’s public movements, and it affirmed the denial of the motion to suppress.

The Court also described when the result would change. With enough cameras in enough locations, the historic location data from a license plate reader system would invade a reasonable expectation of privacy and would require a warrant, the same authority police must obtain to search a phone or computer. The Court explained that camera placement governs how invasive the surveillance becomes. Cameras near a home or a place of worship produce more revealing data than cameras on a highway. The Court declined to fix a bright line for how detailed the picture must be, which leaves the question open for litigation in each case.

The result is a fact-specific inquiry. The defense examines how many cameras contributed to the data, where those cameras stood, how long the records were kept, and how completely the combined reads mapped the defendant’s movements. The more complete the picture, the stronger the argument that the surveillance required a warrant.

Recent Massachusetts Developments

Two connected problems surfaced in 2026: unauthorized access to the data and misuse of the systems by officers.

On the access side, the Boston Globe reported on September 14, 2026 that outside law enforcement agencies were able to access Boston Police Department license plate reader data during a 2025 pilot program. The city’s contract had required that access to be disabled. Over the following five months the department received 77 requests for its data from other agencies. The department and the city have committed not to use the vendor going forward.

On the misuse side, reporting in 2026 has documented officers in Massachusetts departments, including Stow and New Bedford, using the databases to search for former partners. Reporting in 2025 described a Texas law enforcement agency searching the vendor’s nationwide network, including Massachusetts data, for a woman believed to have had an abortion. The sponsor of the pending House bill has cited out-of-state searches for people seeking reproductive or gender-affirming care as one reason for the bill.

On the local-control side, twenty-five Massachusetts municipalities have canceled contracts with the vendor Flock Safety or discontinued pilot programs over eighteen months, according to the American Civil Liberties Union of Massachusetts. The town of Boylston suspended its cameras in September 2026. A Suffolk County Superior Court judge has also ordered the Massachusetts State Police to release the audit logs of its license plate reader system and records of its camera locations.

These developments give the defense concrete facts to investigate. Where a department cannot show who accessed the data or under what authority, both the chain of custody and the lawfulness of the search come into question.

Proposed Legislation, House Bill 3755

Representatives Steve Owens and Lindsay Sabadosa filed House Bill 3755, An Act establishing driver privacy protections, in January 2025. The bill would regulate how law enforcement uses automatic license plate readers in Massachusetts.

The bill would prohibit anyone acting under color of state law from obtaining license plate reader data from another entity, governmental or private, without a valid search warrant. It would also prohibit disclosing the data or permitting access to it except as required in a judicial proceeding. It would bar the sale, lease, or purchase of the data. It would limit retention to fourteen days unless the records connect to a specific criminal investigation based on articulable facts linking the data to a crime. It would bar use of the technology to track or monitor activity protected by the First Amendment or by Articles II and XVI of the Massachusetts Declaration of Rights.

The House members of the Joint Committee on Transportation voted eleven to zero to report the bill favorably. The bill was referred to the House Committee on Ways and Means on March 23, 2026, where it remains. The provisions may be folded into a broader data privacy bill.

House Bill 3755 has not become law. The current rules for challenging license plate reader evidence come from Article 14 and McCarthy. The bill is relevant because its warrant and retention standards match the arguments the defense already makes under existing constitutional law.

Challenging License Plate Reader Evidence

The defense attacks license plate reader evidence on two fronts: the constitutionality of the search and the reliability of the data.

The constitutional challenge proceeds by motion to suppress. Counsel develops the extent of the surveillance, the number and placement of the contributing cameras, and the period the combined reads cover. Where the reads together show a detailed picture of the defendant’s movements, counsel argues under McCarthy that the collection was a search that required a warrant, and that the absence of a warrant requires suppression. Counsel also examines the lawfulness of any traffic stop that followed a read, and points to any outside agency that obtained the data without authority.

The reliability challenge tests the data itself. Automatic plate readers misread plates. Software can drop or transpose a character, so that the stored text shows a different plate than the vehicle photographed. Counsel compares the stored text against the photograph, examines the vendor’s error rate, and cross-examines the officer about the query and the database. Counsel also probes the chain of custody, because a record accessed and shared outside proper channels may be unreliable or inadmissible.

Where the motion to suppress succeeds, the location evidence leaves the case. Where the reliability challenge succeeds, the fact finder gives the evidence less weight at trial.

Obtaining the Records in Discovery

A person charged with an offense that rests on vehicle location should assume that license plate reader data may be part of the file. Counsel obtains the underlying records in discovery, including the reads, the photographs, the query logs, and the records of who accessed the data. Those materials determine whether a motion to suppress is available and whether the data can be challenged for accuracy. The same suppression practice governs a warrantless search of a vehicle and a motion to suppress in a motor vehicle stop.

Attorney Joe Serpa reviews the discovery in each case for evidence of this kind and litigates the constitutional and reliability questions the records present.

Key Takeaways

• Massachusetts police use automatic license plate readers, and prosecutors use the reads as evidence of a vehicle’s location and movement.
• In Commonwealth v. McCarthy, 484 Mass. 493 (2020), the Supreme Judicial Court held that a person has an Article 14 privacy interest in the whole of their public movements, and that a dense enough camera network can be a search requiring a warrant.
• The defense challenges this evidence by motion to suppress and by testing the accuracy of the reads.
• Reports in 2026 of unauthorized access to Massachusetts license plate reader data give a defendant new facts to investigate in a suppression motion.
• House Bill 3755 would require a search warrant before police obtain license plate reader data from another entity and would limit retention to fourteen days. It would also bar disclosure of the data except as required in a judicial proceeding. It has not become law.

Related Serpa Law Office Resources

• Illegal Searches and Seizures in Massachusetts: Article 14 and the Motion to Suppress
• Phone, Computer, and Digital Searches in Massachusetts
• Massachusetts Traffic Stops, Exit Orders, and Pretext Searches
• The Modern Massachusetts Traffic Stop: Phones, GPS, License Plate Readers, and the Fruit of the Poisonous Tree
• A Practitioner’s Guide to the Motion to Suppress in Massachusetts Motor Vehicle Stops
• Can Police Search My Car in Massachusetts Without a Warrant?
• Digital Search Warrants in Massachusetts

The court reversed both suppression orders. It did not establish a 109-day rule, a 123-day rule, or any other numerical deadline. The court applied a totality-of-the-circumstances test and held that the Commonwealth’s interests outweighed each defendant’s possessory interest on the records before it.

The limits of the decision are as important as the result. The court expressly disapproved of delay and directed law enforcement to treat applications for digital-device search warrants as a priority. Solis permits a court to uphold a lengthy delay when strong facts favor the Commonwealth. It does not give police permission to leave a seized phone in an evidence room while ordinary workload takes precedence.

The Two Seized Phones

The first case arose from allegations that Jose Solis sexually assaulted a thirteen-year-old child and attempted to photograph the child with a phone. Police arrested Solis on March 24, 2023, and seized the phone he handed to them. A later forensic interview described a phone of a different color and manufacturer. The assigned detective applied for a search warrant on July 11, 2023, 109 days after the seizure.

The detective attributed much of that delay to court hearings, trials, training, illness, other investigations, and staffing constraints. The warrant affidavit was eighteen pages long, but the SJC found that relatively little of it concerned the specific facts needed to establish probable cause to search Solis’s phone.

The second case involved Michael Diaz, who was accused of sexually abusing two children in his foster family and using a phone in connection with that conduct. When police arrived to arrest Diaz, a detective called his number and saw him come outside holding the phone that officers then seized. The detective had approximately eighty active investigations and placed the phone warrant work behind other cases. The application was filed 123 days later.

The trial judges suppressed the evidence found during both searches. They relied on Commonwealth v. White, 475 Mass. 583, 595 (2016), which held a 68-day delay unreasonable on the circumstances presented there. The SJC concluded that the trial judges placed too much weight on the number of days and too little weight on the remaining circumstances.

The Article 14 Standard

Article 14 of the Massachusetts Declaration of Rights protects against unreasonable searches and seizures. A lawful initial seizure does not resolve whether police may continue holding property. The continued seizure must remain reasonable while officers seek judicial authority to search the device.

In White, the SJC rejected a bright-line time limit. It required courts to examine the totality of the circumstances. Solis preserves that rule and organizes the analysis around three related considerations:

1. The strength of the defendant’s possessory interest in the device.
2. The extent of the government’s interference with that interest.
3. The strength of the Commonwealth’s reasons for retaining the device while it prepares a warrant application.

The number of days remains important. It is not decisive by itself.

Other Massachusetts cases illustrate the same fact-specific approach. Commonwealth v. Cruzado, 480 Mass. 275, 283 to 284 (2018), upheld a ten-day delay where probable cause and exigent circumstances supported the seizure and the defendant’s possessory interest was minimal. Commonwealth v. Arthur, 94 Mass. App. Ct. 161, 165 to 166 (2018), upheld an 85-day delay in part because the seized devices had evidentiary value independent of their contents. A divided Appeals Court had affirmed suppression in Diaz’s case at Commonwealth v. Diaz, 105 Mass. App. Ct. 809, 822 (2025). The SJC’s new decision reverses that result and supplies the controlling analysis.

The Defendant’s Possessory Interest

A smartphone may be indispensable to work, family responsibilities, finances, medical care, travel, and ordinary communication. The SJC therefore rejected any assumption that a cell phone involves only a minor possessory interest. A person can have a powerful interest in recovering a seized device even though the police have not searched its contents.

The court identified facts that can strengthen or weaken that interest. They include whether the defendant requested the phone’s return, whether the defendant showed a concrete need for it, whether the defendant claimed ownership, whether another equivalent phone was available, whether there was an opportunity to copy or remove important material before the seizure, and whether the defendant acknowledged that the device contained evidence or contraband.

Neither Solis nor Diaz requested the return of his phone. Neither presented evidence that the device was necessary for a particular work, family, financial, or medical obligation. Those omissions did not eliminate their possessory interests, but they reduced the weight assigned to them.

The Government’s Justification for Continued Retention

The Commonwealth’s interest depends on more than the fact that police lawfully acquired the device. Relevant considerations include the probable cause supporting the seizure, whether the physical device has evidentiary value apart from its contents, the seriousness of the suspected offense, the complexity of the particular warrant application, investigative developments after the seizure, how securely police stored the device, and whether officers worked diligently.

The SJC gave significant weight to the independent evidentiary value of both phones. In Solis’s case, the phone was an alleged instrument used in an attempt to create a prohibited image. The discrepancy between the seized Nokia phone and the child’s later description of a Samsung phone weakened the connection, but it did not eliminate probable cause. A witness may also identify a physical object, so the device itself could be evidence even apart from anything found in its memory.

In Diaz’s case, officers called Diaz’s number and then saw him emerge holding the seized phone. That observation connected the particular device to him and to the allegations. Later interviews also strengthened the evidentiary basis for retaining the phone.

The seriousness of the alleged offenses strengthened the Commonwealth’s interests in both cases. The court emphasized that the cases involved sexual exploitation of children. The result therefore arose from a particularly strong governmental interest, not from delay alone.

Police Workload Did Not Excuse the Delays

The Commonwealth prevailed, but the court did not accept routine workload as an adequate explanation for delay. It described generalized caseload and staffing pressures as insufficient and found a lack of diligence in both investigations.

The Solis warrant application was not unusually complex. Much of the delay resulted from the detective’s other obligations, and much of the affidavit was not case-specific. Diaz’s investigation was more complicated because it involved two children, earlier agency investigations, and multiple interviews. Even there, the detective’s decision to place the warrant work behind other cases weighed against the Commonwealth.

This part of the opinion controls in future suppression litigation. Probable cause and independent evidentiary value can support retention, but they do not erase unreasonable police neglect. Article 14 requires a case-specific explanation, and the court refused to adopt a federal rule under which the physical item’s evidentiary value would make almost any delay immaterial.

Why Solis Differs From Commonwealth v. White

Commonwealth v. White, 475 Mass. 583 (2016), involved a shorter delay of 68 days, but the SJC found it unreasonable. The comparison demonstrates why counting days cannot resolve the constitutional question.

In White, police lacked probable cause to believe that the seized phone contained evidence when they took it. The device had no established evidentiary value independent of its contents. Officers did not treat the warrant as a priority, and the investigation did not supply a case-specific reason for waiting. Those circumstances left the defendant’s possessory interest with little on the other side of the balance.

In Solis and Diaz, by contrast, the court found probable cause tied to the particular phones. Each phone could serve as evidence apart from the data later extracted. The allegations involved serious offenses against children, and neither defendant documented a special need for the phone or requested its return. Those combined facts outweighed the substantial intrusion caused by the lengthy retention.

Solis does not overrule White. It confirms that a delay shorter than 109 days can be unreasonable and a longer delay can be reasonable, depending on the complete record.

The Narrow Scope of the Holding

The decision does not establish a general period during which police may hold every seized phone. Several limits remain:

• A 109-day or 123-day delay is not automatically reasonable.
• Independent evidentiary value strengthens the Commonwealth’s position, but it does not excuse neglect.
• Ordinary workload and staffing constraints do not supply a sufficient case-specific justification.
• The defendant’s failure to request return of the phone is relevant, but it does not forfeit Article 14 protection.
• The seriousness of the alleged offense counts, and the court repeatedly identified the child-exploitation context of these cases.
• A court must examine the information available during the period of retention, including later investigative developments that are independent of any unlawful search.

The holding therefore concerns a particular combination of probable cause, independent evidentiary value, serious alleged offenses, diminished possessory claims, and continued investigative support.

Defense Issues After Solis

The defense record now counts even more when police retain a digital device. Several steps can affect the totality analysis.

Document the need for the device. A prompt written request for return can establish that the owner has not abandoned the possessory interest. The request should identify concrete consequences, such as lost access to employment, authentication applications, medical information, family communications, financial accounts, photographs, or data that cannot be restored from another device.

Examine the justification at each stage. The defense should determine what officers knew when they seized the phone, what they learned later, when they learned it, and whether the later information came from a lawful source independent of the phone’s contents.

Separate genuine complexity from ordinary workload. A lengthy affidavit does not prove that a warrant application required months of work. The relevant question is how much case-specific investigation and drafting were necessary, not how many pages resulted.

Challenge the claimed evidentiary value of the physical device. A phone does not become an instrumentality merely because most people own phones or because digital evidence might exist somewhere. The Commonwealth must connect the particular device to the alleged conduct. Identification discrepancies, uncertain ownership, multiple devices, and speculative assumptions can weaken that connection.

Review seizure, retention, warrant, and extraction separately. A lawful arrest does not necessarily justify taking the phone. A lawful seizure does not necessarily justify holding it for months. A lawful retention does not establish probable cause to search. A valid warrant does not authorize examination of every file and every date range. The office’s guide to phone, computer, and digital-device searches in Massachusetts explains those distinct issues, and the Massachusetts phone and computer search FAQs address common questions about warrants, passcodes, consent, and digital extractions.

Frequently Asked Questions

Key Takeaways

• Commonwealth v. Solis, SJC-13823, and Commonwealth v. Diaz, SJC-13835, were decided on August 12, 2026.
• The SJC reversed suppression orders involving delays of 109 and 123 days.
• Article 14 imposes no fixed numerical deadline for a warrant application after police seize a phone.
• Courts must balance the defendant’s possessory interest and the intrusion against the Commonwealth’s case-specific justification for continued retention.
• General workload does not excuse delay, and digital-device warrant applications must receive priority.
• The decision does not create a general 109-day or 123-day safe harbor.

Related Serpa Law Office Resources

• Phone, Computer, and Digital Device Searches in Massachusetts
• Massachusetts Phone and Computer Search FAQs
• Digital Search Warrants in Massachusetts
• Illegal Searches and Seizures in Massachusetts
• Your Rights and Legal Concepts in a Massachusetts Criminal Case

This article provides general information about Massachusetts law. It is not legal advice and does not create an attorney-client relationship. Legal outcomes depend on the facts and procedural history of each case.

This guide reviews the controlling standards at each stage of a motor vehicle stop, the timing and pretext decisions, the procedural requirements of Mass. R. Crim. P. 13, and the scope of the suppression remedy.

The Legal Basis for the Stop

A police stop of a moving vehicle is a seizure. The stop must be reasonable to be valid under art. 14. Commonwealth v. Buckley, 478 Mass. 861, 865 (2018), citing Commonwealth v. Rodriguez, 472 Mass. 767, 773 (2015). Two justifications recur. First, the police may stop a vehicle for an observed violation of the traffic laws. “Where the police have observed a traffic violation, they are warranted in stopping a vehicle.” Commonwealth v. Bacon, 381 Mass. 642, 644 (1980). Second, in the absence of an observed violation, the police must have “reasonable suspicion, based on specific, articulable facts and inferences therefrom, that an occupant . . . had committed, was committing, or was about to commit a crime.” Commonwealth v. Long, 485 Mass. 711 (2020), quoting Commonwealth v. Manha, 479 Mass. 44, 46 (2018). The police may stop a vehicle for a defective taillight or an unlit registration plate.

The review of a stop begins with the facts. The citation, the dispatch records, and cruiser camera footage often establish where the officer sat, what could be seen from that position, and whether the claimed infraction occurred at all. The same review should include the license plate reader evidence and the underlying query records when an alert from an automatic license plate reader prompted the stop.

The Timing of the Stop

An officer who observes a traffic violation may stop the vehicle to address that violation, but an observed civil infraction “cannot hang over a suspect indefinitely.” Commonwealth v. Daveiga, 489 Mass. 342, 350, 353 (2022). In Commonwealth v. Arias, 497 Mass. 425 (2026), the Supreme Judicial Court held that a stop for a civil traffic infraction violates art. 14 if it occurs after an unreasonable delay, judged on the totality of the circumstances.

The delay between the observed violation and the stop has no fixed time limit. The elapsed time must be reasonable. The Commonwealth bears the burden of justifying the delay. In Arias, officers conducting a drug investigation watched the defendant commit a traffic infraction, waited 24 hours, and then stopped the vehicle on that basis. The Commonwealth offered no reasonable justification for a 24-hour delay, so the Supreme Judicial Court held that the motion to suppress should have been granted. The court also vacated the judgment. Counsel should assemble a timeline from the reports, radio transmissions, and citation timestamps whenever the stop did not immediately follow the violation.

Pretextual Stops and Equal Protection

Under art. 14, the validity of a stop does not depend on the officer’s subjective motives. Massachusetts follows the authorization test. Under the authorization test, a traffic stop is reasonable “so long as the police are doing no more than they are legally permitted and objectively authorized to do.” Buckley, 478 Mass. at 865, quoting Commonwealth v. Santana, 420 Mass. 205, 209 (1995). An officer who observes an infraction may stop the vehicle even where the actual aim is a narcotics investigation. Buckley, 478 Mass. at 865-866. In Arias, the Supreme Judicial Court reaffirmed the authorization test but held that the motion to suppress should have been granted because of the delay.

A judge analyzes a stop motivated by race under the equal protection principles of arts. 1 and 10 of the Massachusetts Declaration of Rights. In Long, 485 Mass. at 713, the Supreme Judicial Court lowered the required showing. The defendant must establish “a reasonable inference that the officer’s decision to initiate the stop was motivated by race or another protected class.” The inference may rest on specific facts drawn from the totality of the circumstances, gathered through personal knowledge, investigation, or discovery. Statistical analysis is not required. Id. at 723-724. A defendant who raises the inference is entitled to an evidentiary hearing at which the Commonwealth must rebut the inference. At the hearing, the Commonwealth must “do more than merely point to the validity of the traffic violation.” Id. at 726. A bare denial of bias by the officer is insufficient. Id. at 734. Absent a successful rebuttal, all evidence derived from the stop is suppressed. A stop motivated by race is unconstitutional even where enforcing the traffic laws was also a genuine motive.

The court has since extended the Long standard beyond the motor vehicle context. The Long standard “applies equally to pedestrian stops and threshold inquiries, as well as other selective enforcement claims challenging police investigatory practices.” Commonwealth v. Robinson-Van Rader, 492 Mass. 1 (2023). In Commonwealth v. Stroman, 103 Mass. App. Ct. 122 (2023), the Appeals Court affirmed a finding that the Commonwealth rebutted the inference with credited testimony that the officer did not know the driver’s race until after the stop. Counsel should pursue the discovery contemplated by Long, 485 Mass. at 725, early, because the motion must raise the inference before a hearing is ordered.

The Exit Order

Massachusetts law on exit orders differs sharply from federal law. In Commonwealth v. Gonsalves, 429 Mass. 658, 662-663 (1999), the Supreme Judicial Court declined to follow Pennsylvania v. Mimms, 434 U.S. 106 (1977), and Maryland v. Wilson, 519 U.S. 408 (1997), which permit automatic exit orders. The court held that in a routine traffic stop an officer must have “a reasonable belief that the officer’s safety, or the safety of others, is in danger” before ordering a driver out of the vehicle. The court applied the same requirement to passengers. The court stated, “No exit order may be given to the driver or any passenger in a routine traffic stop without the police officer’s having an objective reasonable basis to justify the order.” Id. at 666 n.5.

In Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020), the court restated the justifications for an exit order. An exit order is proper during a traffic stop where “(1) police are warranted in the belief that the safety of the officers or others is threatened; (2) police have reasonable suspicion of criminal activity; or (3) police are conducting a search of the vehicle on other grounds.” The safety threshold is low. The Supreme Judicial Court stated that “it does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns.” Gonsalves, 429 Mass. at 664. A mere hunch is not enough to justify an exit order. Nervousness and fidgeting alone did not justify the exit order in Gonsalves itself.

Under G. L. c. 94C, §§ 32L-32N, simple possession of three ounces or less of marijuana is a civil violation rather than a crime. Therefore, the odor of burnt marijuana alone “cannot reasonably provide suspicion of criminal activity to justify an exit order.” Commonwealth v. Cruz, 459 Mass. 459 (2011). Some additional fact suggesting an actual crime is required.

The Patfrisk

An exit order, standing alone, does not authorize a patfrisk. “The test for a patfrisk is more stringent than for an exit order.” Commonwealth v. Powell, 102 Mass. App. Ct. 755 (2023). To justify the frisk, “an officer needs more than safety concerns” and the police must have “a reasonable suspicion, based on specific articulable facts, that the suspect is armed and dangerous.” Torres-Pagan, 484 Mass. at 37, 38-39. In Powell, a flyer reporting that the car had been used in a shooting 34 hours earlier, with no description of the occupants, did not justify the patfrisk of a passenger.

The scope of the frisk is limited by its purpose. A protective search must be “confined to what is minimally necessary to learn whether the suspect is armed.” Commonwealth v. Amado, 474 Mass. 147 (2016), quoting Commonwealth v. Almeida, 373 Mass. 266, 272 (1977). In Amado, an officer pulled back the defendant’s waistband and removed a bag of narcotics. The court held that the maneuver was a strip search, which requires probable cause under art. 14, and reversed the denial of suppression. Nervousness adds little at the frisk stage as well, because nervousness is “a common and entirely natural reaction to police presence.” Commonwealth v. Cordero, 477 Mass. 237 (2017).

The Search of the Vehicle

A warrantless search of the vehicle must fall within an exception to the warrant requirement, most often the automobile exception. Police may search where they have “probable cause to believe that a motor vehicle on a public way contains contraband or evidence of a crime.” Commonwealth v. Cast, 407 Mass. 891, 901 (1990). The inherent mobility of the vehicle supplies the exigency. A lawful search based on probable cause as to the vehicle itself “extends to all containers, open or closed, found within,” limited by the object of the search and the places that could conceal it. Id.

Marijuana odor cases have their own line of decisions. The odor of burnt marijuana alone does not establish probable cause to search, Cruz, 459 Mass. 459, and the odor of unburnt marijuana, “standing alone, does not provide probable cause to search an automobile.” Commonwealth v. Overmyer, 469 Mass. 16 (2014). The court reasoned that officers cannot reliably distinguish a civil amount, one ounce or less, from a criminal amount by smell. Chapter 65 of the Acts of 2026 raised the marijuana possession quantities effective April 19, 2026. An adult may possess two ounces outside the home, and simple possession through three ounces is civil.

The Duration and Scope of the Stop

A stop that is lawful at its inception can become unlawful by lasting too long. A routine traffic stop may not last “longer than reasonably necessary to effectuate the purpose of the stop.” Amado, 474 Mass. at 151. Police authority to detain ends when the tasks tied to the infraction, the license check and the citation or warning, are completed or reasonably should have been completed. Cordero, 477 Mass. at 242. To expand the inquiry and prolong the detention, an officer “must reasonably believe that there is further criminal conduct afoot,” and that belief must rest on specific and articulable facts. Cordero, supra.

In Cordero, a trooper held the driver for 40 to 45 minutes after a stop for defective lights and window tint. The trooper questioned the driver about drugs on the basis of nervousness, travel from a “source city,” and a prior record. The Supreme Judicial Court held the prolonged detention unlawful. The principle against prolonging a routine traffic stop is an old one. “Citizens do not expect that police officers handling a routine traffic violation will engage . . . in stalling tactics, obfuscation, strained conversation, or unjustified exit orders, to prolong the seizure . . . .” Gonsalves, 429 Mass. at 663.

Suppression Procedure Under Rule 13

Mass. R. Crim. P. 13(a)(2) governs the papers. The motion must state every ground then available, “set forth with particularity,” and it must be supported by an affidavit detailing “all facts relied upon in support of the motion,” signed by a person with personal knowledge. Mass. R. Crim. P. 13(a)(2), as appearing in 442 Mass. 1516 (2004); Commonwealth v. Mubdi, 456 Mass. 385, 389 (2010). The rule requires enough detail to permit the judge to determine whether an evidentiary hearing is warranted and to give the Commonwealth fair notice of the search or seizure being challenged. Mubdi, 456 Mass. at 389.

The burden of compliance rests on the defense. In Commonwealth v. Delossantos, 492 Mass. 242 (2023), the Supreme Judicial Court addressed the particularity requirement. The court held that “the burden of compliance with the particularity requirement of rule 13 (a) (2) falls on the defendant alone,” and that overbroad and bare assertions will not satisfy the rule. The waiver provision is strict. Grounds not stated “which reasonably could have been known at the time a motion is filed shall be deemed to have been waived.” Mass. R. Crim. P. 13(a)(2). The safe practice is to plead every viable theory, including the stop, the timing, the exit order, the patfrisk, the search, the duration, and any equal protection claim. A defendant charged with a possessory offense has automatic standing under art. 14 to challenge the search of the place where the object was allegedly found, including an automobile. Mubdi, 456 Mass. at 391.

At the hearing, the Commonwealth bears the burden of proving that the seizure and any search were reasonable once it is established that the police acted without a warrant. Commonwealth v. White, 475 Mass. 583, 587-588 (2016). A reviewing court accepts the motion judge’s subsidiary findings of fact absent clear error and independently reviews the application of constitutional principles to the facts found. Cordero, supra. Under G. L. c. 278, § 28E and Mass. R. Crim. P. 15(a)(2), the Commonwealth must obtain leave from a single justice of the Supreme Judicial Court to appeal a District Court or Superior Court suppression ruling before trial. Commonwealth v. Jordan, 469 Mass. 134 (2014). The defendant may also apply to a single justice for leave to appeal a suppression ruling before trial. A single justice who grants leave may hear the appeal or may order it to the full Supreme Judicial Court or to the Appeals Court. The suppression ruling remains open to review after trial if the application is denied.

The Fruits Doctrine and the Remedy

Suppression is not limited to the item seized. “The general rule is that evidence is to be excluded if it is found to be the ‘fruit’ of a police officer’s unlawful actions.” White, supra, quoting Commonwealth v. Balicki, 436 Mass. 1, 15 (2002). Under Wong Sun v. United States, 371 U.S. 471, 484-488 (1963), the exclusionary rule requires suppression of the indirect as well as the direct products of the illegality, including verbal statements. The question is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Id. at 488. Evidence remains admissible only where the connection has “become so attenuated as to dissipate the taint” or where the police learned of it from an independent source. Id.

In a motor vehicle case, a successful challenge to the stop ordinarily requires suppression of the officer’s subsequent observations, the products of the exit order and the patfrisk, the contraband, and the roadside statements. The prosecution frequently cannot proceed when the suppressed evidence is the proof of the charged offense.

Summary for a Pending Case

A motor vehicle suppression motion presents a sequence of questions. The first question is whether the stop was justified when made and made within a reasonable time of the violation. The second question is whether race can reasonably be inferred as a motive. The third question is whether the exit order rested on a reasonable belief that safety was in danger. The fourth question is whether the patfrisk rested on specific articulable facts that the person was armed and dangerous. The fifth question is whether probable cause supported any search. The sixth question is whether the detention outlasted its purpose. The standards differ at each stage. The Commonwealth has the burden once the warrantless character of the police action is shown. A defect at any stage can require suppression of everything that followed. Serpa Law Office litigates these motions in the District Courts and Superior Courts of eastern Massachusetts.

The same sequence, written for the person stopped rather than for referring counsel, appears on the firm’s page on Massachusetts traffic stops, exit orders, and pretext searches, which also covers protective patdowns of bags and other belongings.

Referring counsel may reach Attorney Serpa at 617.936.0201.

Last Reviewed: July 2026

On June 29, 2026, the United States Supreme Court held in Chatrie v. United States, No. 25-112, 609 U.S. ___ (2026), that police conducted a Fourth Amendment search when they acquired a suspect’s Google Location History data. The Court reasoned that a person keeps a reasonable expectation of privacy in cell phone location information. The vote on the judgment was 6 to 3. Justice Kagan wrote the opinion of the Court for five Justices, and Justice Gorsuch supplied the sixth vote for the judgment on a separate property theory.

The decision extends Carpenter v. United States, 585 U.S. 296 (2018), the Supreme Court’s earlier ruling on cell phone location data. Massachusetts courts adopted similar protections under the state constitution years earlier.

The Supreme Court vacated the decision of the Fourth Circuit in United States v. Chatrie, 136 F.4th 100 (4th Cir. 2025) (en banc), and remanded the case. The Court decided that the Fourth Amendment applies. The Court did not decide whether this warrant, or any geofence warrant, is valid, and no court has yet suppressed any evidence in Mr. Chatrie’s case.

What a Geofence Warrant Is

A geofence warrant starts with a place rather than a person. In an ordinary investigation, police identify a suspect and then ask where the suspect’s phone was. With a geofence warrant, police draw a boundary around a crime scene and ask a provider, usually Google, to identify every device inside the boundary during a period of time.

The warrant searches the location histories of everyone who passed through the area, almost all of them innocent, in the hope that one of them is the suspect. The Chatrie case began with a Virginia bank robbery and a warrant that collected the location data of every Google user near the bank during a two-hour period.

What the Court Held

The majority held that people keep a reasonable expectation of privacy in their cell phone location data. A government demand for that data intrudes on a constitutionally protected interest, even when the period is short and a third party holds the data. The Fourth Amendment has no exception for short periods. The Court wrote that Fourth Amendment protections do not begin to apply only after an intrusion goes too far. The Amendment applies regardless of the quality or quantity of information the government obtains.

The Court also rejected the government’s argument that users voluntarily share this data with Google. The Court described the exposure of the information as what happens when a user avails himself of the services on his phone. The third-party doctrine did not apply in Carpenter, and the Court held that the doctrine does not apply to Location History either. This reasoning extends Carpenter, where the Court came to the same conclusion for historical cell site location information. The decision also further limits the old third-party doctrine in digital cases.

What the Court Left Open

The Court sent back to the Fourth Circuit every question about the validity of this warrant, including probable cause, particularity, and the lawfulness of the second and third steps, in which officers widened the time period and de-anonymized selected devices. The Fourth Circuit must evaluate the warrant at each step of the search process. The question of the good faith exception was not part of the grant of certiorari, and the Court expressly left the Fourth Circuit free to consider that question again.

Two Justices would have gone further. Justice Jackson, joined by Justice Sotomayor, wrote separately that she would have held this search unconstitutional. Her concurrence criticizes the discretion that the warrant left to officers at the second and third steps. A two-Justice concurrence is not the holding of the Court, and the concurrence reads as the argument the defense will make on remand rather than as a rule.

Under federal law, acquiring Location History requires a warrant that satisfies probable cause and particularity at each step, and no court has yet decided how narrow those warrants must be. In federal court, the government will argue that officers who relied on earlier law acted in good faith. The dissent read the majority opinion as leaving the Fourth Circuit’s good faith ruling in place. The remaining federal litigation will focus on that good faith question.

Massachusetts Law Before Chatrie

For Massachusetts defendants, Chatrie confirms protections that Massachusetts courts recognized first. The Supreme Judicial Court held in Commonwealth v. Augustine, 467 Mass. 230 (2014), S.C., 470 Mass. 837 (2015) and 472 Mass. 448 (2015), four years before Carpenter, that police generally need a warrant for historical cell site location data under Article 14 of the Massachusetts Declaration of Rights.

In Commonwealth v. Estabrook, 472 Mass. 852 (2015), the Supreme Judicial Court then set a limit. A request for up to six hours of historical telephone-call CSLI needs no warrant, and the six hours is measured by what the Commonwealth requests, not by the portion that the Commonwealth later offers at trial.

The Supreme Judicial Court decided the remaining questions case by case. In Commonwealth v. Almonor, 482 Mass. 35 (2019), the court held under art. 14 that police conduct a search when they cause a phone to reveal its real-time location, and the court then reversed the suppression order because of exigent circumstances. In Commonwealth v. McCarthy, 484 Mass. 493 (2020), the court adopted mosaic reasoning for automatic license plate readers. The court held that four fixed cameras on two bridges did not invade the defendant’s expectation of privacy, and the court affirmed the denial of suppression.

In Commonwealth v. Mora, 485 Mass. 360 (2020), the court held that months of pole camera surveillance of a home is a search under art. 14, and the court remanded for a probable cause determination rather than ordering suppression.

In 2025, the court came to the opposite conclusion for a short period of surveillance. In Commonwealth v. Govan, SJC-13600 (Mass. June 4, 2025), the court held that the warrantless review of roughly twenty minutes to an hour of historical GPS data from a pretrial monitoring bracelet was not a search. The court reasoned that surveillance that short reveals details from isolated incidents rather than a pattern of life, and the court affirmed the denial of suppression.

A defense argument under the mosaic theory against a short geofence period must address Govan. After Chatrie, the defense can instead argue, as the Supreme Court held, that the acquisition of the location data itself, for any duration, is a search.

The firm’s pages on phone, computer, and digital device searches and illegal searches and seizures explain how Article 14 often protects more than the Fourth Amendment does. Chatrie raises the minimum protection that the Fourth Amendment guarantees in every state.

No Good Faith Exception in Massachusetts

No Massachusetts appellate court has yet decided a geofence warrant case. The question is open, and the courts will decide the question under the cases described above.

Massachusetts recognizes no good faith exception under art. 14. Evidence from a search warrant issued without probable cause is excluded even if the officer relied on the warrant in objectively reasonable good faith. Commonwealth v. Fredericq, 482 Mass. 70 (2019), and Commonwealth v. Upton, 394 Mass. 363 (1985).

In federal court, the good faith exception has kept the geofence evidence in Chatrie admissible at every stage of the case, and the Fourth Circuit may rely on the good faith exception again on remand. Massachusetts has no such exception. A Massachusetts court does not admit evidence from a geofence warrant that lacks probable cause or particularity under art. 14 merely because the officer relied on the warrant. For a defendant charged in a Massachusetts court, the absence of a good faith exception can lead to the suppression of geofence evidence that a federal court would admit.

Fredericq gives the defense a second argument. Evidence may be suppressed as the fruit of the poisonous tree even if the police find the evidence in a place where the defendant has no reasonable expectation of privacy. In a geofence case, the return may identify the client, and the police may later find physical evidence somewhere else. The Fredericq rule allows the defense to seek suppression of that later evidence as well.

What the Chatrie Decision Means for Massachusetts Cases

Any Massachusetts case that depends on a geofence return presents a suppression issue that the defense should litigate. After Chatrie, the acquisition of the data is a search, so police need a warrant, and the warrant must rest on probable cause and describe the search with particularity at each step. A warrant that covers a busy block for an open-ended period is open to challenge on both grounds.

The second and third steps, where officers widen the time period and choose the devices to de-anonymize, can be challenged separately. For that reason, the Supreme Court directed review of the warrant at each step.

Reverse keyword warrants and tower dumps raise the same objection, because each technique searches the data of many people to find one person. The defense can argue that Chatrie extends to these techniques, but no controlling court has yet extended Chatrie to them. A federal appellate decision on geofence warrants, United States v. Smith, 110 F.4th 817 (5th Cir. 2024), held that geofence warrants are unconstitutional general warrants but still applied the good faith exception. The Fifth Circuit decision is persuasive authority only. The defense presents these points as arguments, not as settled rules.

The Commonwealth will respond with three doctrines about derivative evidence, and the defense should brief all three doctrines in advance. The first is the independent source doctrine. Evidence first found through an unlawful search is admissible if the police later obtained the evidence independently by lawful means. The Commonwealth must prove by a preponderance of the evidence that the later discovery was free of taint. Commonwealth v. Estabrook, 472 Mass. 852 (2015).

The second is inevitable discovery. Massachusetts requires proof that lawful discovery was certain as a practical matter, measured at the time of the unlawful seizure. The Massachusetts test is demanding and stricter than the federal rule. Commonwealth v. O’Connor, 406 Mass. 112 (1989), and Commonwealth v. Balicki, 436 Mass. 1 (2002).

The third is attenuation. A court weighs the time that elapsed, any intervening circumstances, and the purpose and flagrancy of the misconduct. Consent obtained by confronting the client with the tainted return does not break the connection to the unlawful search. Commonwealth v. Fredericq, 482 Mass. 70 (2019).

Discovery requests should follow each step of the search rather than ask generally for the warrant package. Counsel demands the complete affidavit and every attachment, the coordinates, the radius, and the time period. Counsel also demands what the magistrate was told about how many uninvolved people the search would include. Counsel demands the warrant’s own terms for the second and third steps. Counsel also asks whether any judge reviewed the narrowing of the search, or whether officers applied their own criteria, which is the discretion that the Jackson concurrence criticized.

Counsel demands Google’s native productions at each step, with device counts, the de-anonymization request, every investigative step between the anonymized return and the client’s name, and every later warrant whose probable cause depends on the return. Counsel sends preservation letters immediately, before the provider purges the underlying data.

The firm’s post on digital search warrants in Massachusetts and the firm’s digital search FAQs explain the rules for these warrants. The firm’s guide to the modern Massachusetts traffic stop covers questions about location data in car cases.

Timing of the Fourth Amendment Ruling

Chatrie is the fourth in a series of Supreme Court decisions over fifteen years. United States v. Jones, 565 U.S. 400 (2012), held that attaching a GPS tracker to a car is a search. Riley v. California, 573 U.S. 373 (2014), required a warrant to search a phone seized at arrest and recognized that digital devices hold the privacies of life.

In Carpenter, 585 U.S. 296 (2018), the Court then refused to let the government use the old third-party doctrine of Smith v. Maryland, 442 U.S. 735 (1979), and United States v. Miller, 425 U.S. 435 (1976), to obtain week-long location histories without a warrant. Chatrie applies the same reasoning to geofence warrants. The government cannot demand one person’s location history by name without a warrant. The government therefore cannot avoid the warrant requirement by demanding everyone’s location history by place.

A new Fourth Amendment rule applies to cases still pending on direct review when the issue has been preserved. Griffith v. Kentucky, 479 U.S. 314 (1987). Massachusetts applies the same rule, with the same preservation condition, to its own new search rules. Commonwealth v. Augustine, 467 Mass. 230 (2014). Counsel should therefore raise Chatrie in writing in every pending case that involves a geofence return, a tower dump, or a reverse keyword demand.

Retroactive application of the search holding does not guarantee suppression. In federal court, the good faith exception can still prevent exclusion of the evidence, so a Massachusetts defendant should also raise the art. 14 claim.

Massachusetts already requires a warrant when police cause a phone to reveal its real-time location. Commonwealth v. Almonor, 482 Mass. 35 (2019). Together, Chatrie and Article 14 give Massachusetts defendants two independent bodies of law on which to challenge location searches.

Who a Geofence Warrant Identifies

A geofence return identifies the phones that were near a location. The return does not show who committed a crime. In Boston and Cambridge, the people near a late-night incident are often students and young professionals.

The return from a geofence that police draw around a late-night incident near a campus, a stadium, or a nightlife area can identify every phone in the crowd. Weeks later, the police may contact a college or university student who has no idea why the police are calling. A person who receives such a call should decline to answer questions and should contact a lawyer, as the firm’s guides on the right to remain silent and the first 24 hours after an arrest explain.

For a licensed professional, or for anyone whose career depends on background checks, the arraignment itself causes harm, because the arraignment creates a CORI entry that employers and licensing boards can see. For a case that begins with a complaint application instead of an arrest, the defense can challenge a weak geofence identification at the clerk-magistrate hearing, before any record exists.

Serpa Law Office litigates digital search issues across Massachusetts. A person whose case involves location data, a device search, or a warrant that the person has not seen can contact Serpa Law Office at 617.936.0201 for a confidential consultation.

Most of these cases depend on seven questions.

1. Why Was the Car Stopped?

Where an officer observes a traffic violation, the stop is authorized. Massachusetts uses an authorization test rather than a suspicion test for that situation: a stop is reasonable “so long as the police are doing no more than they are legally permitted and objectively authorized to do, regardless of the underlying intent or motivations of the officers involved.” Commonwealth v. Buckley, 478 Mass. 861, 865 (2018). See Commonwealth v. Bacon, 381 Mass. 642, 644 (1980) (“Where the police have observed a traffic violation, they are warranted in stopping a vehicle”).

That means a pretextual stop, one made because officers want to investigate something else, is lawful under art. 14 if a violation in fact occurred.

Reasonable suspicion is the standard for a different situation, the investigatory stop of a vehicle on suspicion of criminal activity where no violation has been observed. Commonwealth v. Manha, 479 Mass. 44, 46 (2018). A profile, out-of-state plates, a rental car, or nervousness at the sight of a cruiser does not establish it. An alert from the license plate readers that many departments operate raises separate questions about the accuracy of the read and the lawfulness of the query.

Two further limits apply to the stop itself. An observed violation does not authorize a stop at any later time the officer chooses. In Commonwealth v. Arias, 497 Mass. 425 (2026), the Supreme Judicial Court held that “[a] stop for an infraction is not reasonable if, upon consideration of the totality of the circumstances, the stop occurred after an unreasonable delay,” and that an observed infraction “cannot hang over a suspect indefinitely until a time at which he has engaged in some other suspicious activity that officers believe warrants a pretextual stop.”

And a lawful stop may not be prolonged past its purpose. “The police do not earn ‘bonus time’ to conduct additional investigations by an expeditious performance of the traffic-related investigation.” Commonwealth v. Cordero, 477 Mass. 237, 241 to 242 (2017). See Commonwealth v. Tavares, 482 Mass. 694, 703 (2019).

A claim that a stop was motivated by race is an equal protection claim, not an art. 14 unreasonable-seizure claim. Buckley, 478 Mass. at 872 to 873 (“to the extent we do consider the purpose of a stop when assessing its validity, we do so pursuant to the equal protection principles of arts. 1 and 10, not art. 14’s guarantee against unreasonable seizures”).

The governing framework is Commonwealth v. Long, 485 Mass. 711 (2020), under which a defendant must establish a reasonable inference that the decision to stop was motivated by race, without needing statistical analysis or conclusive evidence, at which point the Commonwealth bears the burden of rebutting the inference.

Long also recognizes a right to reasonable discovery of the officer’s recent stops and field interrogations under Mass. R. Crim. P. 14(a)(2). The Massachusetts traffic stop FAQs explain how these principles apply in practice.

2. Why Was Anyone Ordered Out of the Car?

Massachusetts rejects the federal rule permitting an officer to order occupants out of a vehicle during any stop. Commonwealth v. Gonsalves, 429 Mass. 658, 662 to 663 (1999), declining to follow Pennsylvania v. Mimms and Maryland v. Wilson.

An exit order requires one of three justifications. Police must be “(1) . . . warranted in the belief that the safety of the officers or others is threatened; (2) have reasonable suspicion of criminal activity; or (3) [be] conducting a search of the vehicle on other grounds.” Commonwealth v. Barreto, 483 Mass. 716, 722 (2019); Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020). The Supreme Judicial Court restated the same three grounds in Commonwealth v. Robinson, No. SJC-13756 (Mass. Feb. 13, 2026).

The threshold on the safety ground is not high. “[I]t does not take much for a police officer to establish a reasonable basis to justify an exit order.” Gonsalves, 429 Mass. at 664. But nervousness alone is not enough. Barreto, 483 Mass. at 723. And the second ground requires suspicion of criminal activity, which a civil infraction is not.

A patfrisk is a separate question with a higher standard, and the distinction is frequently blurred at the scene. “[A] patfrisk is permissible only where an officer has reasonable suspicion that the suspect is armed and dangerous,” and “general safety concerns without more will not justify a patfrisk.” Torres-Pagan, 484 Mass. at 36, 38 to 39. An exit order that was lawful does not make the frisk that followed lawful.

Once the license and registration are produced and found in order, the occupants are ordinarily to be released promptly. Commonwealth v. Torres, 424 Mass. 153, 158 to 159 (1997). Exit orders and pretext searches are covered in more detail on the Massachusetts traffic stops, exit orders, and pretext searches page.

3. Did Anyone Consent?

Consent must be “unfettered by coercion, express or implied,” and it must be “something more than mere acquiescence to a claim of lawful authority.” Commonwealth v. Rogers, 444 Mass. 234, 236 to 238 (2005). The Commonwealth bears the burden of proving it. Failure to advise a person of the right to refuse is a factor bearing on voluntariness, though it is not determinative. Buckley, 478 Mass. at 878.

A person may decline a search. Saying so clearly and calmly, and not physically interfering if officers proceed anyway, preserves the argument for the courtroom where it belongs.

Consent given after an unlawful exit order or an unlawful search is a separate problem for the Commonwealth. In Robinson, consent given less than two minutes after an unlawful exit order, with no intervening circumstances, did not purge the taint, and the Supreme Judicial Court held the evidence should have been suppressed: “[e]ven where traditional markers of voluntariness are present, consent does not purge the taint of an unlawful seizure absent a meaningful break in the causal chain.”

In Commonwealth v. Dobson, No. SJC-13794 (Mass. July 17, 2026), the surrender of a car key was not valid consent where it was not attenuated from prior unlawful searches, and the Court confirmed that “the purpose and flagrancy of police misconduct are relevant to the validity of consent.”

4. What Ground Did Police Claim for the Search?

Massachusetts recognizes several exceptions to the warrant requirement. Each requires facts beyond the stop itself.

The automobile exception. Police may search a vehicle without a warrant where they have probable cause to believe it contains evidence of a crime or contraband. Carroll v. United States, 267 U.S. 132 (1925); Commonwealth v. Cast, 407 Mass. 891, 901 (1990).

Under art. 14, no separate exigency showing is required beyond the vehicle’s mobility: “when an automobile is stopped in a public place with probable cause, no more exigent circumstances are required by art. 14 beyond the inherent mobility of an automobile itself to justify a warrantless search of the vehicle.” Commonwealth v. Motta, 424 Mass. 117, 124 (1997).

What the exception does not provide is the probable cause. That must be developed through independent facts.

Search incident to arrest. Two limits apply, and the second is statutory rather than constitutional.

Under Arizona v. Gant, 556 U.S. 332, 346 (2009), applied in Commonwealth v. Perkins, 465 Mass. 600, 605 (2013), police may search the passenger compartment incident to arrest only where the arrestee is unsecured and within reach of the compartment, or where it is reasonable to believe the vehicle contains evidence of the offense of arrest. In Perkins the evidence was suppressed because the arrestee was handcuffed outside the car and the arrest offense, unlicensed operation, could yield no evidence inside it.

Separately, M.G.L. c. 276, § 1 provides that a search incident to arrest “may be made only for the purposes of seizing fruits, instrumentalities, contraband and other evidence of the crime for which the arrest has been made, in order to prevent its destruction or concealment; and removing any weapons that the arrestee might use to resist arrest or effect his escape,” and that “[p]roperty seized as a result of a search in violation of the provisions of this paragraph shall not be admissible in evidence in criminal proceedings.”

A search conducted for an investigatory purpose unrelated to the crime of arrest is outside the statute. Commonwealth v. Blevines, 438 Mass. 604, 607 (2003), quoting Commonwealth v. Wilson, 389 Mass. 115, 118 (1983); reaffirmed in Dobson.

Plain view. Four requirements apply, and Massachusetts adds one the Fourth Amendment does not. The officer must be lawfully in a position to view the object, must have a lawful right of access to it, the incriminating character must be immediately apparent, and the officer must come across the object inadvertently. Commonwealth v. White, 469 Mass. 96, 102 (2014), quoting Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 306 to 307 (2010); Commonwealth v. Balicki, 436 Mass. 1, 8 to 9 (2002).

The second requirement is the one that most often defeats a seizure. In Commonwealth v. Sheridan, 470 Mass. 752, 763 to 764 (2015), officers could see marijuana inside a vehicle from a lawful vantage point outside it, and the seizure still failed: “although the officers could see the marijuana from their lawful vantage point outside the minivan, they did not have a ‘lawful right to access’ it from that vantage point. To seize the marijuana, the police officers had to enter the minivan. Because the observation of a noncriminal quantity of marijuana alone did not give rise to probable cause that the vehicle contained evidence of a crime,” the plain view doctrine did not authorize the seizure.

Seeing an item through a window is not the same as being entitled to take it.

Consent. Discussed above.

Inventory search. Where a vehicle is lawfully impounded, officers may inventory its contents under the department’s written procedures. Commonwealth v. Ellerbe, 430 Mass. 769 (2000). Both the impoundment and the conduct of the search are separately reviewable. The full treatment, including the written-policy requirement, closed containers, roadside inventories, and when inventoried property becomes evidence, is on the illegal searches and seizures page.

5. What Did That Ground Permit Police to Search?

The scope of the search depends on the ground claimed, and the grounds differ sharply.

A probable-cause search under the automobile exception “extends to all containers, open or closed, found within” the vehicle. Cast, 407 Mass. at 908. A search incident to arrest under Gant is framed in terms of the passenger compartment, and is further limited by M.G.L. c. 276, § 1 to evidence of the crime of arrest and to weapons. Plain view authorizes seizure of the item observed, not a general search. An inventory authorizes what the written policy directs and no more.

The Appeals Court has equated Gant‘s “reasonable to believe” prong with probable cause and treated it as an application of the automobile exception, Commonwealth v. Starkweather, 79 Mass. App. Ct. 791, 796 to 797 (2011), while later noting “considerable uncertainty” over whether the standard is probable cause, reasonable suspicion, or something else, Commonwealth v. Williams, 104 Mass. App. Ct. 498, 507 n.4 (2024).

6. Was the Search Based Only on the Odor of Marijuana?

The most frequently litigated vehicle search issue in Massachusetts drug cases is the odor of marijuana, and the law has moved decisively.

Adults twenty-one and over may lawfully possess up to two ounces, or the equivalent amount of marijuana products as determined by the Cannabis Control Commission, outside a residence. G.L. c. 94G, § 7(a)(1), as amended by Chapter 65 of the Acts of 2026, effective April 19, 2026. Section 7(a)(2) permits up to ten ounces in a primary residence, and simple possession through three ounces outside the home is a civil offense.

In Commonwealth v. Cruz, 459 Mass. 459 (2011), the Supreme Judicial Court held that “without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order.” 459 Mass. at 472. Articulable facts “must demonstrate a suspicion that the defendant possessed more than one ounce.” Id. at 476.

The Court extended the reasoning to unburnt marijuana and to the automobile exception. In Commonwealth v. Overmyer, 469 Mass. 16 (2014), it held that “such odor, standing alone, does not provide probable cause to search an automobile,” 469 Mass. at 23, reasoning that a human nose cannot reliably discern the presence of a criminal amount.

The odor cases above were decided under the one-ounce limit. Chapter 65 raised the numbers without changing the constitutional principle, so the quantity a fact pattern must suggest before odor or plain view supports criminal process is now larger. An adult may now possess two ounces outside the home, and simple possession through three ounces is civil rather than criminal.

In Commonwealth v. Craan, 469 Mass. 24, 30 to 38 (2014), it held that odor alone cannot support a warrantless search under the automobile exception, and rejected the Commonwealth’s fallback arguments based on a supposed duty to prevent future impaired driving and on federal drug law, holding that state decriminalization “curtail[ed] police authority to enforce the Federal prohibition.”

Commonwealth v. Rodriguez, 472 Mass. 767 (2015), addresses the stop rather than the exit order: “Because stops based on reasonable suspicion of a possible civil marijuana infraction do not promote highway safety and run contrary to the purposes of G. L. c. 94C, § 32L . . . [s]uch stops are unreasonable; therefore, the stop in this case violated art. 14.” 472 Mass. at 778.

Probable cause must come from independent facts: a large quantity in plain sight, packaging or scales consistent with distribution, admissions, or other concrete indications of a crime beyond personal use. Craan, 469 Mass. at 33 to 34; Sheridan, 470 Mass. at 761.

Legalization did not make marijuana irrelevant at a stop. Operating under the influence of marijuana remains a criminal offense, Commonwealth v. Gerhardt, 477 Mass. 775, 779 (2017), but Gerhardt sharply limits the Commonwealth’s proof: an officer may not testify that a driver passed or failed field sobriety tests, no lay or unqualified-officer opinion that a driver was under the influence of marijuana is admissible, and performance on those tests alone is insufficient to prove impairment, with a jury instruction required to that effect. 477 Mass. at 783, 785 to 787.

7. What Happens If a Judge Suppresses the Evidence?

A motion to suppress is litigated at an evidentiary hearing before a judge, ordinarily before trial. On a warrantless search the Commonwealth bears the burden of proving that the search fell within an exception. Commonwealth v. Antobenedetto, 366 Mass. 51, 57 (1974); Commonwealth v. Roderick, 490 Mass. 669, 672 (2022). The defendant has an initial burden of establishing standing and setting out the facts supporting the motion, and the judge’s credibility findings control what happens next.

If the motion is allowed, the evidence obtained through the unlawful search is excluded from the Commonwealth’s case. That is not the same as dismissal, and it does not end the case automatically. The Commonwealth has a statutory right to appeal an order allowing suppression. G.L. c. 278, § 28E. Where the suppressed evidence is the only proof of an element, the practical result is often that the Commonwealth cannot proceed, but that is a consequence rather than a rule.

Suppression also does not necessarily reach everything that followed. Evidence obtained after unlawful police conduct “does not automatically become sacred and inaccessible.” Commonwealth v. Fredette, 396 Mass. 455, 459 (1985).

Three exceptions apply: independent source, Commonwealth v. Cassino, 474 Mass. 85, 90 (2016); inevitable discovery, which requires the Commonwealth to prove that discovery was certain as a practical matter and that police did not act in bad faith or to evade constitutional requirements, Commonwealth v. O’Connor, 406 Mass. 112, 117 to 118 (1989); and attenuation, Commonwealth v. Fredericq, 482 Mass. 70, 81 (2019).

The question is not but-for causation but “whether . . . the evidence . . . has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Fredericq, 482 Mass. at 81.

Since Commonwealth v. Guardado, 491 Mass. 666, 690 (2023), S.C., 493 Mass. 1 (2023), cert. denied, 144 S. Ct. 2683 (2024), the Commonwealth must prove beyond a reasonable doubt that the defendant did not possess a license to carry. That is an element, and it is separate from any suppression issue.

What to Do at the Stop

Provide the license and registration when asked. Decline a search clearly and without argument. Decline to answer questions about where you have been, whether you have been drinking, or what is in the car. Under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights, a person is not required to answer. See your right to remain silent in Massachusetts.

Do not physically interfere if officers proceed over an objection. A judge decides the legality of the search later, in court.

Write down the reason the officer gave for the stop, what the officer said to justify the search, whether consent was requested and what was said in response, how long the stop lasted, and how many officers were present. Those facts are the foundation of the motion.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and has litigated motions to suppress vehicle searches in the District Courts and the Boston Municipal Court. Serpa Law Office can be reached at 617.936.0201 for a free and confidential consultation. The Boston office is at 20 Park Plaza #400A. The Quincy Office is at 500 Victory Road, Suite 400A. See also illegal searches and seizures in Massachusetts and Massachusetts drug crimes defense.

Three situations are frequently confused with one another. Different rules govern each situation. In the first situation, a person declines to give a passcode to an officer. In the second situation, a person refuses consent to a search. In the third situation, a person disobeys a court order compelling entry of a passcode. This post addresses each situation separately.

Three Situations, Three Different Rules

An officer asks for the passcode. A police request is not a court order. A person has no obligation to answer the request. No Massachusetts statute makes the refusal a crime. Article 12 provides a further protection to a person who refuses a police request.

Evidence of a defendant’s outright refusal to comply with a police request generally may not be admitted as consciousness of guilt, because “in so refusing a defendant furnishes evidence against himself.” Commonwealth v. Conkey, 430 Mass. 139, 142 to 143 (1999). Accord Commonwealth v. Hinckley, 422 Mass. 261, 264 (1996). The Commonwealth is not supposed to use the refusal against the person who made it.

An officer asks to search the device. A request to search the device raises a consent question under the Fourth Amendment and art. 14, not a self-incrimination question. Consent must be voluntary. The Commonwealth bears the burden of proving that the consent was voluntary. A person may decline to consent.

A judge orders decryption. The sections below explain the constitutional rules that govern a decryption order. A person who refuses a court order to enter a passcode can be held in contempt.

The Testimonial Act Doctrine

The Fifth Amendment privilege protects a person from being compelled to make testimonial communications that are incriminating. The privilege applies only to a communication that is testimonial, incriminating, and compelled.

The United States Supreme Court established in Fisher v. United States, 425 U.S. 391 (1976), that the act of producing evidence can itself be testimonial. The act of production can be testimonial because the person who produces an item concedes the existence of the item, the person’s possession or control of the item, and the authenticity of the item.

The act of production is not protected where “[t]he existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the papers,” the Court held. 425 U.S. at 411.

The Court applied the same framework in United States v. Hubbell, 530 U.S. 27 (2000). In that case, the Court rejected a compelled production where the government “ha[d] not shown that it had any prior knowledge of either the existence or the whereabouts” of the documents. 530 U.S. at 45.

In Commonwealth v. Gelfgatt, 468 Mass. 512 (2014), the Supreme Judicial Court observed that entering an encryption key “would appear, at first blush, to be a testimonial communication that triggers Fifth Amendment protection,” and that the act “would be a communication of his knowledge about particular facts.” The Supreme Judicial Court then held that, on the record before the court, the facts conveyed by the act of decryption were foregone conclusions. The court therefore held that “the act of decryption is not a testimonial communication that is protected by the Fifth Amendment.”

Gelfgatt is the decision that permits compelled decryption in Massachusetts. An order compelling a defendant to unlock a device is called a Gelfgatt order for that reason.

Under Gelfgatt, the foregone conclusion exception applies only if the government already knows “(1) the existence of the evidence demanded; (2) the possession or control of that evidence by the defendant; and (3) the authenticity of the evidence.” 468 Mass. at 524.

The Foregone Conclusion Standard After Jones

In Gelfgatt the exception applied because the defendant had already told investigators that the seized computers were his, that their contents were encrypted, and that he was able to decrypt them. The defendant’s compelled entry of the key gave the Commonwealth no new information. The Supreme Judicial Court did not decide in that case how certain the government must be of those facts.

The Supreme Judicial Court answered that question in Commonwealth v. Jones, 481 Mass. 540 (2019). The court held that, when the Commonwealth seeks a Gelfgatt order, “art. 12 requires that, for the foregone conclusion to apply, the Commonwealth must prove beyond a reasonable doubt that the defendant knows the password.” Proof beyond a reasonable doubt is the highest standard of proof that Massachusetts courts apply to a factual question.

The Court rejected the Commonwealth’s argument that clear and convincing evidence should suffice and declined to speculate about the federal standard. The Court explained that “[w]hatever the standard under the Fifth Amendment may be, requiring the Commonwealth to bear this high burden is necessary to ensure that the art. 12 rights of defendants are adequately protected.”

Three points from Jones affect the defense against a compelled decryption order. Defendants routinely give up the benefit of one of those points by talking to the police about the phone or its passcode.

The Commonwealth must prove that the defendant knows the passcode. The Commonwealth does not have to prove that the defendant owns the phone.

“[T]he Commonwealth is only required to establish the defendant’s knowledge of the password beyond a reasonable doubt, not his ownership or exclusive control of the LG phone . . . exclusive control of the phone is not required.” The evidence of knowledge in Jones was the defendant’s possession of the phone at arrest, his statement that the phone number was his, subscriber and cell site records, and a witness who contacted him at that phone number. The Supreme Judicial Court held that this evidence together satisfied the burden even though others may also have used the device.

The order requires the defendant to enter the passcode. The order does not require the defendant to tell the passcode to the police. Summaries of the case omit the limitation to physical entry more often than any other point. That limitation favors the defense.

The Court wrote, “We need not, and do not, resolve this distinction here, and our decision is therefore limited to only the physical entry of the password by the defendant, as we required in Gelfgatt. The defendant may therefore only be compelled to enter the password to the LG phone, not disclose it.” The question whether the foregone conclusion doctrine would permit compelled oral or written disclosure of a passcode remains open.

The Commonwealth may continue to seek a decryption order after a judge denies the first motion. Jones also holds that “a judge acting on a renewed Gelfgatt motion may consider additional information without first finding that it was not known or not reasonably available at the time of the first filing.” Counsel should expect a second application supported by new material.

Justice Lenk wrote separately and would also require the government to demonstrate, beyond a reasonable doubt, “that the government already knows, with reasonable particularity, the existence and location of relevant, incriminating evidence it expects to find on that device.” Justice Lenk’s separate opinion is a concurrence rather than the holding of the court. The Court’s standard is knowledge of the passcode.

The police search of the device after the unlocking must also comply with the warrant requirements set out in the guide to digital search warrants for phones and computers.

Biometric Unlocking

The analysis for biometric unlocking, meaning Touch ID, Face ID, and fingerprint scanners, is distinct from the passcode analysis. The law on biometric unlocking is unsettled.

Neither the Supreme Judicial Court nor the Appeals Court has addressed whether the Fifth Amendment or art. 12 permits compelled biometric unlocking. Every reported decision on the question is federal. No federal decision binds a Massachusetts state court on this issue.

The federal courts have decided the question differently on materially different facts. United States v. Payne, 99 F.4th 495 (9th Cir. 2024), involved a parolee who was subject to a suspicionless general search condition. The Ninth Circuit held that “the compelled use of a biometric to unlock an electronic device was not testimonial because it required no cognitive exertion,” where an officer physically applied the parolee’s thumb to the device.

The panel added a limit that summaries of the case regularly omit, stating that “[o]ur opinion should not be read to extend to all instances where a biometric is used to unlock an electronic device. Indeed, the outcome on the testimonial prong may have been different had Officer Coddington required Payne to independently select the finger that he placed on the phone.”

In United States v. Brown, 125 F.4th 1186 (D.C. Cir. 2025), the District of Columbia Circuit held that the compelled opening of a cellphone was testimonial where an agent ordered a co-defendant to open the phone himself and he complied. The federal courts genuinely disagree, but most of the conflicting decisions are from federal district courts. The facts of the cases also differ in a way that may explain the different outcomes.

A Massachusetts defendant should not assume that a Massachusetts court will decide the question of compelled biometric unlocking for the defendant on the ground that art. 12 is broader than the Fifth Amendment. Article 12 protects a person from being compelled to “furnish evidence” against himself. By contrast, the Fifth Amendment protects a person from being compelled to be “a witness against” himself.

The Supreme Judicial Court has “consistently held that art. 12 requires a broader interpretation” than the Fifth Amendment. Jones, quoting Opinion of the Justices, 412 Mass. 1201, 1210 (1992), and Attorney Gen. v. Colleton, 387 Mass. 790, 796 (1982).

In Gelfgatt, the Supreme Judicial Court also limited that broader protection. The court wrote that although art. 12 demands more expansive protection, “it does not change the classification of evidence to which the privilege applies. Only that genre of evidence having a testimonial or communicative nature is protected under the privilege against self-incrimination,” quoting Commonwealth v. Burgess, 426 Mass. 206, 211 (1997).

In other settings, the Supreme Judicial Court has treated fingerprints as real or physical evidence outside the protection of art. 12. “If evidence sought is real or physical evidence, such as hair and blood samples, voice exemplars, fingerprints, lineups, sobriety tests, or breathalyzer tests, art. 12 does not protect a person from having to provide such evidence.” Conkey, 430 Mass. at 142. Accord Commonwealth v. Lydon, 413 Mass. 309, 313 to 314 (1992).

The privilege against self-incrimination protects a memorized passcode, because entering the passcode communicates what the owner knows. The privilege may not protect a phone that opens with a face or a fingerprint, because some courts treat a biometric unlock as nontestimonial.

What Happens if a Person Refuses

Refusing a police request is not a crime. Under Conkey, the Commonwealth generally may not offer the refusal as consciousness of guilt.

Refusing a court order has different consequences.

A defendant who does not comply with a Gelfgatt order may be held in civil contempt and confined until the defendant complies. A person confined until compliance holds “the keys of [his] prison in [his] own pocket,” so contempt of that kind is civil. Civil contempt requires “a clear and undoubted disobedience of a clear and unequivocal command.” Birchall, petitioner, 454 Mass. 837, 848, 851 (2009). A defendant who claims to be unable to comply bears the burden of proving that inability. Mahoney v. Commonwealth, 415 Mass. 278, 286 (1993).

In 2026, the Appeals Court addressed for the first time whether time confined for civil contempt counts toward a later sentence. In Commonwealth v. Theogene, No. 24-P-1395 (Mass. App. Ct. Apr. 9, 2026), a defendant ordered to input the PIN to a seized iPhone refused and was held in contempt “until such time as he complies.” He was confined for months.

The Appeals Court held that he “was not entitled to receive jail credit pursuant to G. L. c. 279, § 33A, for the time he was held in custody for civil contempt prior to sentencing,” reasoning that crediting the time “would undermine a judge’s inherent contempt power to coerce a contemnor to obey a court order.”

Time served on a coercive contempt does not count toward the eventual sentence.

The correct response to a Gelfgatt order is litigation rather than defiance. Before compliance, defense counsel challenges through motion practice whether the order is constitutional and whether the Commonwealth proved beyond a reasonable doubt, as required by Jones, that the defendant knows the passcode.

A Passcode That Has Already Been Given

A passcode volunteered to an officer, without a court order and without compulsion, is not a compelled testimonial act at all, because the privilege applies only to communications that are compelled. Volunteering a passcode is instead an act of consent. The law of consent, rather than the law of self-incrimination, governs the consequences.

Defense counsel can still challenge the consent as involuntary, as exceeded in scope, or as the product of an unlawful seizure that preceded the consent. In Commonwealth v. Fencher, 95 Mass. App. Ct. 618 (2019), a defendant “consented to the search of her cell phone and provided passwords to both the phone and her Snapchat account,” the Appeals Court wrote. The motion judge allowed suppression on taint grounds. The Appeals Court reversed only because the seizure turned out to be supported by probable cause and the consent was found free and voluntary. The motion was available and nearly succeeded.

Consent is also given item by item. In Fencher, the defendant declined consent to search a vehicle in the same interview in which the defendant consented to the search of the cell phone. A person who consents to one search has not consented to any other search.

Anyone who has already given a passcode should have counsel assess what the police extracted, the validity and scope of the consent, and the lawfulness of the seizure that preceded the consent.

Deleting Data and the Tampering Statute

A person should not attempt to wipe or delete data from a device that is in law enforcement custody or subject to a preservation order.

The tampering statute, M.G.L. c. 268, § 13E, applies to whoever “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the record, document or object’s integrity or availability for use in an official proceeding, whether or not the proceeding is pending at that time.” The Commonwealth must prove the specific intent to impair as an element of the offense.

The penalty depends on the kind of official proceeding. A defendant convicted under the tampering statute may receive a fine of up to $25,000 and up to ten years in state prison where the official proceeding involves a violation of a criminal statute. In any other case, a defendant convicted under the tampering statute may receive a fine of up to $10,000 and up to five years. Under either penalty provision, the maximum sentence to the house of correction is two and one half years.

Practical Guidance

A person should not provide a passcode to an officer without first consulting counsel. A police request is not a court order. A person has a right to decline the request and to require law enforcement to seek judicial authorization.

A person should not provide a passcode in exchange for a promise of leniency or a representation that giving the passcode will help the case. Those representations do not bind the government.

A person should not delete or remotely wipe anything.

A person who has already given a passcode should contact counsel promptly to assess what was extracted and what remains challengeable.

Key Points

Compelled entry of a passcode is testimonial in nature, but Commonwealth v. Gelfgatt, 468 Mass. 512 (2014), held that the foregone conclusion doctrine permitted the compelled decryption in that case and authorizes the order that bears its name.

Under Commonwealth v. Jones, 481 Mass. 540 (2019), art. 12 requires the Commonwealth to prove beyond a reasonable doubt that the defendant knows the passcode. The fact to be proved is knowledge, not ownership or exclusive control. The order permits only entry of the passcode, not its disclosure.

No Massachusetts appellate court has decided whether compelled biometric unlocking is permitted. The federal decisions differ on materially different facts. No federal decision binds a Massachusetts court. Article 12 is broader than the Fifth Amendment, but the Article 12 privilege still applies only to testimonial evidence. Massachusetts courts treat fingerprints as physical evidence in other settings. Commonwealth v. Conkey, 430 Mass. 139 (1999).

Refusing a police request is not a crime. The Commonwealth generally may not use the refusal as consciousness of guilt. Conkey.

Refusing a court order can result in coercive civil confinement. Under Commonwealth v. Theogene, No. 24-P-1395 (Mass. App. Ct. Apr. 9, 2026), time spent in that confinement does not count toward the eventual sentence.

A passcode volunteered without compulsion raises a consent question rather than a self-incrimination question. Defense counsel may still challenge the consent as involuntary, exceeded, or tainted by an unlawful seizure. Commonwealth v. Fencher, 95 Mass. App. Ct. 618 (2019).

Deleting material from a seized device can support a charge under M.G.L. c. 268, § 13E, which requires proof of intent to impair the item’s integrity or availability for use in an official proceeding.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and litigates compelled decryption and device search motions. Serpa Law Office can be reached at 617.936.0201 for a free and confidential consultation. The Boston office is at 20 Park Plaza #400A. The Quincy Office is at 500 Victory Road, Suite 400A. See also phone, computer, and digital device searches in Massachusetts and your right to remain silent.

June 2026. Updated July 2026 for the Supreme Court’s geofence ruling in Chatrie v. United States.

A Massachusetts search warrant for a digital device, whether a smartphone, laptop, tablet, or cloud storage account, does not authorize a search of all of a defendant’s digital data. Under the Fourth Amendment to the United States Constitution, Article 14 of the Massachusetts Declaration of Rights, and the developing body of Massachusetts case law governing illegal searches and seizures, law enforcement must satisfy specific, narrowly defined requirements.

A judge authorizes a digital search warrant only after law enforcement satisfies those requirements. Officers must then execute that warrant within its precise boundaries. A digital search that exceeds those boundaries is unconstitutional. A judge can suppress the evidence that police obtain through such a search.

The Constitutional Framework Under Riley v. California and Article 14

The foundational constitutional protection governing digital device searches in Massachusetts derives from the United States Supreme Court’s ruling in Riley v. California, 573 U.S. 373 (2014). In that case, the Supreme Court held that law enforcement must obtain a warrant before searching the digital contents of a cell phone seized incident to arrest.

The Court recognized that a modern smartphone contains more personal information than any physical space subject to a traditional search. A single device can hold financial records, medical history, private communications, location data, and years of photographs. The historical rationales for the search-incident-to-arrest exception do not justify a search of the digital contents of a phone.

In Massachusetts, Riley is supplemented by Article 14 of the Declaration of Rights, which the Supreme Judicial Court has consistently interpreted to provide broader privacy protections than the Fourth Amendment in certain contexts. In Commonwealth v. Augustine, 467 Mass. 230 (2014), the SJC required a warrant for historical cell site location information. Four years later, the United States Supreme Court came to the same conclusion under the Fourth Amendment in Carpenter v. United States, 585 U.S. 296 (2018). Massachusetts defendants facing digital searches can therefore assert both federal and state constitutional challenges simultaneously.

A warrant to search a phone is also not an order to unlock it. Compelled disclosure or entry of a passcode raises separate self-incrimination questions. The Serpa Law Office post on whether a person must give police an iPhone passcode in Massachusetts addresses those questions.

What Must Be in a Massachusetts Digital Search Warrant Affidavit

To obtain a warrant to search a digital device in Massachusetts, law enforcement must submit a sworn affidavit to a magistrate or judge establishing three things with particularity.

Probable cause that a crime was committed. The affidavit must present specific, articulable facts rather than conclusions or hunches. Those facts must be sufficient to warrant a person of reasonable caution in believing that an offense has occurred. Probable cause demands more than bare suspicion, although it requires considerably less than proof beyond a reasonable doubt.

Probable cause that evidence of that crime will be found on the specific device. The second requirement is distinct from the first requirement of probable cause that a crime was committed. The affidavit must establish a nexus between the alleged criminal conduct and the particular device sought to be searched. A general assertion that people who commit crimes use phones is not a sufficient nexus. The Supreme Judicial Court enforced the nexus requirement in Commonwealth v. White, 475 Mass. 583 (2016).

The court held that an officer’s opinion that a phone is likely to contain evidence of the crime, standing alone, does not supply probable cause to seize the device. The fact that a suspect owns a phone does not establish a nexus between the crime and the phone. The court reaffirmed the nexus requirement in Commonwealth v. Snow, 486 Mass. 582 (2021), warning that police may not rely on the ubiquitous presence of cell phones in daily life as a substitute for particularized information.

The facts in the affidavit must be fresh enough to support a belief that the evidence remains on the device. Stale information does not establish probable cause. A delay by the police in seeking a warrant after a seizure also counts against the government. In White, the SJC held that police who seize a phone without a warrant may hold the phone only for the short period needed to apply for a warrant. The court found an undiligent 68 day delay unreasonable.

Particularity as to the data to be searched. Massachusetts courts have developed a narrowly tailored standard for warrants to search digital devices. Under that standard, a warrant authorizing a search of a digital device must specify the categories of data to be examined and must limit that examination to data connected to the offense under investigation. In Commonwealth v. Dorelas, 473 Mass. 496 (2016), the SJC held that searches of a smartphone must be conducted with special care and confined to the places within the device where the evidence sought may reasonably be found.

In Snow, the court added that an initial cell phone warrant should presumptively contain a temporal restriction and should err on the side of narrowness. The Attorney General’s office instructs prosecutors and police in similar terms in its Massachusetts Digital Evidence Guide. A warrant that authorizes wholesale extraction of all data on a device without limitation is overbroad and constitutionally defective.

The “Overbreadth” Challenge: Digital Fishing Expeditions

The overbreadth challenge is a constitutional challenge to a digital device search in Massachusetts. In an overbreadth challenge, the defense argues that the scope of the search authorized by the warrant exceeded the probable cause shown in the affidavit.

In practice, law enforcement frequently requests and receives warrants authorizing the extraction of the entire contents of a device. These warrants authorize the extraction of all text messages, all emails, all photographs, all application data, all location history, and all browser history for all time periods.

A warrant for the entire contents of a device is not narrowly tailored to the offense when the underlying criminal investigation concerns a discrete incident, such as a single alleged assault, a specific financial transaction, or a particular communication. A search under such a warrant is a digital fishing expedition. Massachusetts courts have the authority to suppress the evidence obtained in such a search.

A Motion to Suppress based on overbreadth challenges the warrant on its face. In deciding the motion, the judge examines the underlying affidavit to determine whether the scope of the authorized search was proportionate to the probable cause presented. A judge who finds the warrant overbroad must determine which of the extracted data, if any, falls within the constitutionally permissible scope. The judge must suppress the rest of the extracted data. The Serpa Law Office overview of the Massachusetts criminal process explains when defense counsel files a suppression motion in the course of a prosecution.

The Two-Step Search Protocol and the Plain View Doctrine

Massachusetts courts have addressed the question of what happens when law enforcement, in the course of executing a valid digital search warrant, discovers evidence of a separate crime not covered by the warrant. The traditional plain view doctrine permits warrantless seizure of contraband or evidence that an officer sees in plain view during a lawful search. The plain view doctrine is difficult to apply to a digital search, because every file becomes potentially visible once an examiner opens the extraction.

Courts in Massachusetts and in the federal system have accordingly urged law enforcement to use a two-step protocol for digital searches. First, a technical specialist performs a forensic extraction of the device’s data. Second, investigators conduct a separate review of the extracted data. The investigators must confine that review to the categories of data authorized by the warrant. Evidence discovered outside those categories during the second step is not automatically admissible under the plain view doctrine and requires independent legal authorization before it can be used.

Update: The Supreme Court’s 2026 Chatrie Decision on Geofence Warrants

The law of digital searches changed again shortly after this post was first published. On June 29, 2026, the United States Supreme Court held in Chatrie v. United States that a geofence demand is a search under the Fourth Amendment. A geofence demand compels a technology company to identify the devices present in a defined area around a crime scene. The Court relied directly on Carpenter in concluding that people retain a reasonable expectation of privacy in their location history even when a third-party company stores it.

Law enforcement must justify geofence requests with a warrant supported by probable cause and drawn with particularity. The full Serpa Law Office analysis of the Chatrie geofence decision covers the consequences of the decision for pending Massachusetts cases. The Serpa Law Office guide to digital evidence in Massachusetts criminal cases covers the authentication of AI-generated material.

Cloud Storage, Third-Party Platforms, and the Stored Communications Act

A digital search warrant directed at a physical device is governed by Massachusetts constitutional law. A law enforcement demand for data held by a third-party platform is governed by a separate federal statutory framework, the Stored Communications Act (18 U.S.C. § 2701 et seq.). Third-party platforms include Apple iCloud, Google Drive, Meta, Snapchat, and cellular carriers.

Under the SCA, the legal process required to compel a third-party platform to disclose a user’s stored data varies depending on the type of data sought and its age. Certain categories of data require a full probable cause warrant. Others can be obtained with a court order under a lower standard, and still others with a mere subpoena.

After Carpenter, historical cell site location information requires a warrant regardless of the statutory tier, and after Chatrie, the same is true of geofence location data. Under Article 14, automatic license plate reader data from a dense enough camera network is also a search. Commonwealth v. McCarthy, 484 Mass. 493 (2020). Massachusetts defendants whose data has been obtained from third-party platforms should have defense counsel examine the legal process used to compel that disclosure. The data is suppressible if the government used a subpoena where the Fourth Amendment or Article 14 required a warrant.

Digital search warrants also arise with increasing frequency in cases charged under Massachusetts’s nonconsensual intimate image statute, the Act to Prevent Abuse and Exploitation (Chapter 118, Acts of 2024), which took effect September 18, 2024. The same is true of cases charged under the federal TAKE IT DOWN Act, signed May 19, 2025.

Investigators typically seek warrants for the phone, social media accounts, cloud storage, and messaging applications of a defendant accused of distributing intimate images without consent under M.G.L. c. 265, § 43A. The same particularity requirements that apply to all digital warrants under Commonwealth v. Dorelas, 473 Mass. 496 (2016), and Commonwealth v. Snow, 486 Mass. 582 (2021), apply in full to intimate image cases.

A warrant that authorizes a general search of all device contents rather than specifying the categories of images, communications, or account data to be examined is constitutionally deficient. Defense counsel challenges the scope of digital warrants in intimate image cases through the same Motion to Suppress analysis that applies in drug, firearms, and fraud cases.

Key Takeaways

• Under Riley v. California and Article 14 of the Massachusetts Declaration of Rights, law enforcement must obtain a warrant before searching the digital contents of a seized phone or computer. The search-incident-to-arrest exception does not apply to digital devices. See the Serpa Law Office overview of Illegal Searches and Seizures in Massachusetts.
• A Massachusetts digital search warrant affidavit must establish probable cause that a crime occurred and a specific nexus between that crime and the particular device under Commonwealth v. White and Commonwealth v. Snow. Under Commonwealth v. Dorelas, the affidavit must also establish particularity as to the categories of data to be searched. General authorization to extract all device data is constitutionally overbroad.
• A judge may suppress the evidence obtained under a warrant that authorizes wholesale extraction of an entire device’s contents without limitation as to data type or time period, because such a warrant authorizes a digital fishing expedition. In Snow, the Supreme Judicial Court directed that initial phone warrants should err on the side of temporal narrowness.
• The plain view doctrine does not automatically authorize the use of evidence of a separate crime discovered during a valid digital search. Evidence outside the scope of the warrant requires independent legal authorization.
• Data obtained from third-party platforms such as iCloud, Google, and cellular carriers is governed by the federal Stored Communications Act. The legal process used to compel disclosure must match the category of data sought. Data obtained with process that violates the Fourth Amendment or Article 14 is suppressible.
• After Chatrie v. United States, decided June 29, 2026, a geofence demand for location data is a Fourth Amendment search that requires a warrant.
• A person should never consent to a warrantless search of a digital device, because a person who consents generally forfeits the constitutional challenges described above. A person may decline to answer questions and refuse a search.

Serpa Law Office has defended Massachusetts criminal cases since 1995 and litigates digital suppression issues in courts throughout Greater Boston. Contact Serpa Law Office at 617.936.0201 or visit the firm’s Contact page for a confidential case review.

In August 2026, the Supreme Judicial Court again addressed the delay between a phone seizure and the application for a warrant. The court upheld delays of 109 and 123 days. See how long the police may hold a phone before seeking a warrant.