Massachusetts Car Searches: A Statutory Limit on Searches Incident to Arrest

The most useful provision for a Massachusetts driver is not in the motor vehicle chapter. G.L. c. 276, section 1 is the search warrant statute, and it does three things that bear directly on a car.

First, it names the vehicle. A court or justice may issue a warrant on complaint on oath, if satisfied there is probable cause, where the property named is concealed in a house, place, vessel or vehicle, or in the possession of a person. The warrant must identify the property and name or describe the person or place to be searched, and the categories are closed: property stolen, embezzled, obtained by false pretenses or otherwise obtained in the commission of a crime; property intended for use or used as a means or instrumentality of committing a crime; property whose possession or control is unlawful or is for an unlawful purpose, expressly excepting property reachable under G.L. c. 138, sections 42 to 56; the dead body of a human being; and the body of a living person for whom a current arrest warrant is outstanding.

Second, and this is the part with real force at a roadside, section 1 puts a statutory ceiling on the search incident to arrest. It 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 destruction or concealment, and removing any weapons the arrestee might use to resist arrest or effect an escape. Then comes the remedy, written into the section itself: property seized as a result of a search in violation of that paragraph shall not be admissible in evidence in criminal proceedings. Massachusetts has therefore legislated both the scope limit and the suppression consequence, rather than leaving both to constitutional doctrine.

Third, section 1 is candid about what it does not do. It states that nothing in the section shall be construed to abrogate, impair or limit powers of search and seizure granted under other provisions of the General Laws or under the common law. So the statutory limit governs the search incident to arrest and the warrant, and other authorities continue to operate alongside it.

On cannabis, the answer is the opposite of California and New York. G.L. c. 94G, section 7(a) says a person 21 or older shall not be arrested, prosecuted, penalised, sanctioned or disqualified under the laws of the Commonwealth in any manner, or denied any right or privilege, and shall not be subject to seizure or forfeiture of assets, for the listed conduct. The word search does not appear anywhere in section 7, and it does not appear anywhere else in c. 94G either. Massachusetts did not enact the not grounds for search clause that Michigan put in MCL 333.27955(1). It went the other way in the vehicle: G.L. c. 94G, section 13(d) makes it a civil offence carrying up to $500 to possess an open container of marijuana or marijuana products in the passenger area of a motor vehicle on a public way, defining open container as a package whose seal is broken or whose contents have been partially removed or consumed, and defining passenger area to exclude the trunk, a locked glove compartment, the living quarters of a house coach or trailer, or, in a car with no trunk, the area behind the last upright seat.

What Massachusetts does have on stops is a data and profiling statute. G.L. c. 90, section 63(a) requires the Registry to collect, from every issued Massachusetts Uniform Citation, the age, race and gender of the person warned, cited or arrested, the infraction, the date, time and municipality, whether a search was initiated as a result of the stop, and whether the stop ended in a warning, citation or arrest. Section 63(c) says the failure of an officer to collect that data shall not affect the validity of the underlying stop, so the logging duty is not itself a defence. Section 63(h) is enforceable law rather than reporting: a law enforcement agency shall not engage in racial or other profiling, defined as differential treatment based on actual or perceived race, colour, ethnicity, national origin, immigration or citizenship status, religion, gender, gender identity or sexual orientation in conducting a law enforcement action, whether intentional or evidenced by statistically significant data showing disparate treatment, and the Attorney General may bring a civil action in the superior court for injunctive or other equitable relief to enforce it.

c. 276, section 1 itself: property seized as a result of a search in violation of that paragraph shall not be admissible in evidence in criminal proceedings, so the motion to suppress rests on the statute and not only on constitutional argument. c. 90, section 63(h) gives the Attorney General a civil action in the superior court for injunctive or other equitable relief against a law enforcement agency that engages in racial or other profiling. The statutory analysis under section 63(d) also has teeth: where the annual report suggests an agency appears to have engaged in racial or gender profiling, the Secretary of Public Safety and Security, in consultation with the Attorney General, shall require that agency for one year to collect information including the reason for the stop on all traffic stops, including those not resulting in a warning, citation or arrest, and shall mandate implicit bias training using best practices.

c. c. 94C, section 32N rather than by criminal complaint. c. 276, section 1 the word property covers books, papers, documents, records and any other tangible objects, so the scope limit reaches a phone or a laptop found in the car.