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Searches Incident to Arrest. Article 14 of the Massachusetts Constitution limits the police, incident to arrest, to a search for weapons or for evidence of the crime for which the arrest was made. (This is also outlined statutorily in G.L. c. 276, § 1.) 


It requires exclusion of evidence of an unrelated crime found during a search incident to a lawful arrest, unless the search was conducted to gather evidence of the first crime or to look for weapons. Commonwealth v. Madera, 402 Mass. 156, 159 (1988); Commonwealth v. Toole, 389 Mass. 159 (1983) (evidence seized from the cab of the defendant's truck was inadmissible after an assault and battery arrest because there was no reason to search the truck for weapons or evidence of the assault and battery).


Under Article 14, police can search a bag carried by a lawfully arrested person, provided that there is also probable cause to believe that the bag contains evidence of the crime for which the arrest was made. Commonwealth v. Madera, 402 Mass. at 159.


Protective Sweep of a Dwelling. Under the Fourth Amendment, the police may conduct a quick and limited protective sweep of a premises if there are specific and articulable facts that lead police to believe that there is someone else in the dwelling who poses a danger. Commonwealth v. Walker, 370 Mass. 548, 556-58 (1976) (in light of what police learned and observed on entering an apartment, they were justified in entering the bedroom to search for a person for the safety of themselves and occupants). The “accomplice sweep” has not yet been adopted in Massachusetts. See Commonwealth v. Dubois, 44 Mass. App. Ct. 294, 297 n.4 (1998). A protective sweep of the premises may be justified by a defendant's violent criminal record. Commonwealth v. DeJesus, 70 Mass. App. Ct. 114 (2007).


Body Evidence. Incident to arrest, certain warrantless seizures of personal evidence are permitted. The more invasive the procedure, the greater the showing of probable cause (or exigency) that is required to justify acting without a warrant. Schmerber v. California, 384 U.S. 757 (1966). A manual body cavity search may be conducted only with a warrant issued on a “strong showing of particularized need supported by a high degree of probable cause.” Rodriques v. Furtado, 410 Mass. 878, 888 (1991). A visual body cavity search or strip search is only justified when there is probable cause that the defendant has drugs on his or her person that would not otherwise be discoverable by usual search methods. Even if there is probable cause, the search must be reasonably conducted in both location and method. Commonwealth v. Morales, 462 Mass. 334 (2012).


Plain View Seizures. For the police to make a plain view seizure, they must have a lawful right of access to the object seized, which requires the following: The police must have a legal right to be where they are when the observation is made and must have a lawful right of access to the object seized (either by valid intrusion or simply by observation); The discovery of the item seized must be inadvertent; The item seized must have an apparent nexus to crime or be plausibly related to criminal activity. Commonwealth v. Forde, 367 Mass. 798, 808-09 (1975).


Lawful Position to See. The police are lawfully in a position from which to view an object if they did not violate the Fourth Amendment to arrive there. Commonwealth v. D'Amour, 428 Mass. 725, 730 (1999). Evidence in plain view during an exception to the Fourth Amendment requirements is admissible evidence to the court. See Grasso & McEvoy § 13-3(a)-(g).


Inadvertent Discovery. Massachusetts has interpreted “inadvertent” discovery to mean that it lacked previous probable cause and was not based upon pretext (contrivances) of the police. “Inadvertent” does not mean “surprising, unanticipated, unintentional or fortuitous.” Commonwealth v. Cefalo, 381 Mass. 319, 330-31 (1980). The inadvertence requirement does not apply to stolen goods, contraband, or inherently dangerous items. Commonwealth v. Hason, 387 Mass. 169, 176-77 (1982).

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