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Greater Lowell Bar Association

Warrants (Execution)


When the government wants to search a private area, it ordinarily must obtain a warrant. There are two phases to searching pursuant to a warrant:

  1. The government must establish probable cause to convince a judge or a clerk magistrate to issue the warrant; and
  2. Once the warrant has been issued, the government must properly execute the warrant.

The execution of the search warrant is subject to a number of rules and restrictions, and if the government fails to follow those rules, a defendant will file a motion to suppress the evidence seized as a result of the search.

Scope of the Search

Law enforcement authorities are permitted to search only those areas, and for those items, specified in the search warrant. The scope of the search may be different depending on what items are being sought. For example, the police could obtain a warrant for a particular house to search for stolen jewelry. During that search, the police could search anywhere in the house where the jewelry could reasonably be found (including small containers, drawers, and medicine cabinets). If the police obtained a warrant to search the same home for artwork that was stolen from a museum, the officers would not be permitted to search small containers, drawers, or medicine cabinets because it is not reasonable that artwork would fit in those areas.

When cops obtain a search warrant for a residence, they are permitted to search the actual home along with areas within the curtilage. Curtilage is the land that is attached to the residence, such as the yard and the driveway. There has been extensive litigation regarding what counts as curtilage when the police are executing a search warrant on a home. The Supreme Judicial Court has ruled there are four considerations in determining whether a location is within the curtilage:

  1. How close is the area to the home?
  2. Is the area enclosed by something (such as a fence) that surrounds the home?
  3. What is the area used for? and
  4. Did the homeowner take measures to protect the location from people passing by?

Detached sheds on the property generally qualify as being within the curtilage, as do storage units in basements of apartment buildings. Motor vehicles that are parked within the curtilage (such as in a driveway or a garage) can be searched pursuant to a warrant so long as they are owned or controlled by the home’s owner. If the vehicle is parked on the street or in a public parking lot, it cannot be searched pursuant to a warrant to search the residence.

Timing of the Search

Once a judge or clerk magistrate issues a search warrant, the police must execute it and return it to court as soon as reasonably possible, and no later than seven days. Generally warrants are required to be executed during the daytime unless there is a good reason for a nighttime execution. In Massachusetts, nighttime is from 10 p.m. until 6 a.m. for purposes of search warrant executions. In order to obtain a nighttime search warrant, the police ordinarily need to establish some sort of exigency (such as the likelihood that contraband will be moved or destroyed if the search is delayed until the daytime).

When the police are executing a warrant on a residence, they are usually required to knock and announce their presence. This rule is primarily intended to reduce violence that might result from the cops busting into a home unannounced. After knocking and announcing their presence, the police cannot force their way inside of a home unless: (1) the resident is home and refuses to open the door; (2) there is no answer after a reasonable period of time has elapsed; (3) there is reason to believe evidence is being destroyed; or (4) there is reason for the officers to believe they are in danger. If the police believe when they are applying for the warrant that knocking and announcing their presence will result in the destruction of evidence or a dangerous situation, they may apply for a no-knock warrant. The government bears a heavy burden of establishing a no-knock warrant is necessary.

If the police do not execute a search warrant pursuant to its terms, the defendant may be entitled to have the evidence that was recovered suppressed at the trial.

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