The Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights prohibits the government in most cases from searching a private location without first obtaining a warrant. In Massachusetts, a search warrant can be authorized by a judge or a clerk magistrate. In order to obtain a warrant, a law enforcement officer is required to file an application that includes an affidavit (a sworn statement signed under oath). The affidavit must establish probable cause to believe an item related to a criminal investigation will be located in a specific location.
When police officers establish probable cause to believe a person has committed a crime, they are not automatically permitted to search the suspect’s home, car, office, or any other space under his control. A search warrant does not issue upon a finding that there is probable cause to believe a person is a criminal – it issues only when there is probable cause to believe evidence related to the crime will be found in a particular location. For example, if the police have probable cause to believe a suspect is selling drugs from his car, officers will be able to obtain a warrant to search the car. However, absent additional evidence, officers will not be issued a warrant to search the defendant’s home because of an insufficient nexus between the home and the drug dealing activities. The affidavit accompanying the search warrant application must connect the dots between the evidence and the location to be searched.
In providing information to establish that evidence will probably be found in a particular location, the police are required to prove the evidence will be present at the time of the search. Suppose, for example, the police have probable cause to believe a suspect sold drugs from his apartment. If a sale took place within the past 72 hours, it is likely evidence of a drug-dealing operation will still be present in the apartment. However, if the last drug deal occurred six months before the application for the search warrant, the evidence is stale and will likely not support a conclusion that drug dealing evidence will still be in the apartment.
Police officers often establish probable cause by obtaining information from confidential informants. This presents unique challenges for two reasons: first, it’s sometimes difficult for officers to confirm the reliability of the information; and second, the informants are usually criminals and are providing information to help themselves with their own criminal cases. To address these concerns, Massachusetts applies the Aguilar-Spinelli test (named for two famous United States Supreme Court cases) to determine if probable cause has been established. In using confidential informants’ information to establish probable cause, the police must establish the informants’ basis of knowledge and their reliability.
In the affidavit, the police will state how the informant obtained his information. Oftentimes it will be through the informant’s personal observations (claiming to be at the scene of the crime, for example). The informant will sometimes receive the information directly from the suspect (the suspect might tell the informant that he robbed a bank and hid the money in his basement). In drug cases, it’s common for informants to participate in controlled buys by traveling to the suspect’s home or some other location and buying drugs while the police conduct surveillance of the transaction.
There needs to be some evidence that the informant is providing reliable information. The reliability prong is satisfied in a number of ways, including in cases: where the informant has provided reliable information to the police in the past; where the informant admits to his own crimes in his conversations with the police; and where the information is specific and detailed.
When police officers are able to corroborate an informant’s tip through their own investigation, it is more likely a search warrant will be authorized.
What happens when a search warrant is authorized without a showing of probable cause? Once the defendant has been charged in court, he will file a motion to suppress all of the evidence obtained through the execution of the warrant. If a judge agrees with the defendant that the police did not establish probable cause in the search warrant application and affidavit, the evidence seized by the police will be excluded from the defendant’s trial. When a defendant challenges a search warrant for failing to establish probable cause, the judge will make a decision based on the facts contained in the “four corners” of the affidavit. Unlike most motions to suppress, there will not be an evidentiary hearing (a hearing where witnesses testify) because whether probable cause existed in the affidavit is a legal question that can be determined by simply reading the affidavit and applying the relevant caselaw.