Massachusetts Criminal Defense Lawyer Blog

One issue that a criminal defense lawyer in Brockton would raise when challenging a search warrant is the nexus between the probable cause and the location of where the police want to search. The Fourth Amendment requires that a police officer be particularly specific about the place to be searched and this is set forth in the warrant.

A case from the Massachusetts Appeals Court recently raised this issue in the context of a gun offense, Commonwealth v. Thevenin, 83 Mass. App. Ct. 822 (2012) .

In July 2010, a fight escalated between the defendant and 2 other visiting persons on his front porch. The defendant allegedly shot 3 times as they attempted to leave in their car. The Boston "Shot Spotter" system alerted the Boston police of the shooting and dispatched officers to the scene where they found three spent shell casings on the street, and took photos of the bullet hole left in the visitor's car door.

Defendant did not have a firearms identification card or a license to carry firearms. Additionally, police found an abandoned firearm in the alleyway 100 yards away from his residence. Police used these facts combined with the witnesses from the Boston "Shot Shooter" system to obtain a search warrant for the defendant's residence.

Upon executing the warrant, they found photographic evidence, personal papers with defendant's name, a "sawed off" .22 caliber rifle, a clear plastic bag containing fourteen .22 caliber cartridge bullets, two .25 caliber cartridge bullets, and one .22 caliber cartridge bullet. The single .22 caliber bullet was found on the floor to the defendant's room.

The defendant argued in court that there was no probable cause to search, stating there was no reason to think the ammunition would be at the residence. He contended that even though he fired shots from the porch, there was no reason to believe ammunition was kept at that site. He argued that in fact, he had not been at the residence for two days, and the gun was found 100 yards away.

The Massachusetts Appeals Court found that the warrant officers had obtained was specifically for firearms and ammunition. Supporting this warrant were the eyewitness accounts of the defendant displaying the gun on the porch and the shots that immediately followed. Therefore, link was established between the defendant, his residence, and the crime that did provide probable cause.

As a Brockton criminal defense lawyer, whenever the police obtain a warrant one source of challenge is whether the affidavit establishes a nexus under the Fourth Amendment to the probable cause alleged and the location named in the warrant where the police want to search. This requires the police to detail a clear link and establish with particularity the reason the police believe contraband or evidence of criminal activity will be found in the location of the search.