• Alexander Conley

A Search Here, But Not There

Updated: May 17, 2019


The 4th Amendment of the United States Constitution grants people the right to be secure against unreasonable government searches and seizures. The Massachusetts Constitution grants a similar right in Article 14 of the Declaration of Rights. To determine the protection afforded to people by these rights, courts have often grappled with the seemingly simple question of what is a "search." Although the State and Federal Constitutions both require a definition of a "search," courts have managed to define searches differently depending on which Constitution is being applied. While this may seem oxymoronic initially, there is sound legal reasoning that allows a State Constitution to grant greater protections to individuals then the Federal Constitution does.

So, what does this mean for people? If you are charged with a crime in Massachusetts, and the government obtained evidence against you through a "search" then you are entitled to argue that the search was illegal, and thus the evidence cannot be used against you. If the government's action is not a "search" then you cannot challenge it. For example, if you are walking down a public sidewalk, and the police observe you, they have not conducted a "search." Because something may be a search in Massachusetts however, does not mean it would be a search under the U.S. Constitution.

A recent decision of the Massachusetts Supreme Judicial Court is an example of this. The Court found that if police purposefully obtain your real-time location through your cell-phone's GPS, they have conducted a "search" under the Massachusetts Constitution. This was a huge win for privacy advocates, as it meant that the government can't just use your cell-phone GPS to know where you are, without any justification for doing so.


However, the Court declined to answer whether they believed that such actions would be a search under the 4th Amendment of the U.S. Constitution. So, depending on what State you are in, the government may have conducted an illegal search, or they may have conducted no search at all. This could be the difference between a case being dismissed because the necessary evidence was excluded, or a serious criminal conviction. That's one reason why it is important to contact a criminal defense lawyer who knows the law in the State where you are charged.

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