Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.


We have been discussing search and seizure cases and issues. Yesterday, we discussed the necessity of an expectation of privacy in order for the rules against unreasonable search and seizure to be applied.

This was the central issue in a case we discussed last week in which a federal officer left federal property to investigate a driver. The court found that the federal officer did not violate any expectation of privacy simply because he left federal property.

It is worth noting, by the way, that different places in which there is an expectation of privacy differ in the level of that expectation. For example, your automobile has less of an expectation of privacy than your home. The backseat of your car, clearly visible to the outside world, has less of an expectation then your trunk.

Once there is a valid expectation of privacy established, and there is no search warrant, is that the end of the issue?

Not even close.

There are other general concepts that are helpful to know when it comes to search and seizure.

Attorney Sam’s Take On The Warrantless Search Of An Otherwise Private Area

Even if there is no search warrant and there is an expectation of privacy in an area, this does not necessarily mean the police cannot search the area. The law recognizes various exceptions to the general rule. Further, you should be aware that courts absolutely hate to suppress evidence. This is particularly true when the suppression of that evidence means the case must be dismissed. There is a general Preference that a case be tried on its merits by a judge or jury.

First of all, if the Commonwealth can establish that they were exigent circumstances, and so the police could not wait for a search warrant, the search can’t be upheld. For example, Peter Patrolman is signaled by pedestrians that they have heard screaming coming from a particular apartment and loud noises that sounds like the breaking of furniture and people being thrown against glass. The screens by the way include things like “help me someone! He’ll kill me!”

Clearly, if they rescue is to be attempted in a timely manner, the police cannot wait to get a search warrant. It is an emergency. Let’s say the patrol man forces his way into the apartment and, before he sees the violent struggle, he looks to the side and sees three handguns on the sofa.

Can the discovery of the handguns be used against the defendant in the apartment?

Yes. The rest of the defendant, and anything seized that was an open site of the officer when he came in the apartment, would not be suppressed. The officer was in a lawful position when he saw the guns.

We have discussed many times the extremely general language of the crime “intimidation of a witness”. It is a felony and needs much more than people expect. Most noteworthy to our discussion, if a person lives to a police officer during an investigation, he or she can be found guilty of intimidation of a witness.

Does the reverse hold true? In other words, is it lawful for a police officer to lie to a suspect?

Not only is it lawful, it is usually considered good police work. This police tactic is used most often in trying to get a confession of some kind. However, it can also take place in the type of search and seizure we are discussing. For example, Benny backpack is with his friend Alan arms. The police have stopped Alan because he has an open warrant for gun possession. During his arrest, the police search Alan and find two more handguns. They then turn to Benny and ask him if there is anything that they would “care about” in his backpack which is closed on his back. Benny shrugs and indicates that there may be some marijuana in his backpack. The officers tell him that they do not care about marijuana, they are dealing with guns after all, and ask if they can look inside his backpack to be sure that there were no guns there.

Benny can sense to the search of his backpack. Sure enough, the police officers find approximately 1 ounce of marijuana in his backpack. They also find a scale. They arrest Benny for possession of marijuana with the intent to distribute it.

Lawful search? There are various issues that can be attacked in this scenario, but the fact that the officers said they only cared about guns, and not marijuana, is not, in itself, grounds to suppress the evidence. Police offices are allowed by law to lie.

By the way, you’ll notice that the officers automatically searched Alan upon arresting him. This is another exception. It is called a “search incident to arrest”. Basically, when the police arrest you, they are entitled to search you. In fact, for a number of reasons, they must search you.

This is why, in cases where we have angry people opening the door to a police officer and then, upon seeing it as a police officer begin to scream swears at that officer, they end up in handcuffs. Police charge them with another crime which is also extremely vague in its wording. This is called “disorderly conduct”. Disorderly conduct basically means, in reality, angering police officers so that they find one offensive.

Of course, once the officers then pushed their way back into the apartment to arrest the person who was disorderly, whatever they find…!

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