Protective Sweep found Unconstitutional by Massachusetts Appeals Court

Search and Seizure that occur in the home are subject to the highest scrutiny by the Court.  The case of Commonwealth v. Colon addresses whether a protective sweep complies with the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights.

What happened in the Colon Case?  

Officers arrived at the home of Robert Colon and knocked on the door, waiting for the defendant to open it. Upon opening the door, the officers identified a “strong odor” of fresh marijuana. This prompted the officers to handcuff the defendant and preform a protective sweep of his apartment.

A protective sweep a search done when there is a reasonable belief based on “specific and articulable facts that the area could harbor a dangerous individual”.

The Commonwealth contended that the reason that the police preformed this protective sweep was because the defendant had a prior violent felony, which was the illegal possession of a firearm. The Appeals Court held that while an illegal possession of a firearm is not permissible, it is not something that is a per se violent act.

One critical fact that lead to the Court finding the search unconstitutional was that the police did not have reason to believe that the defendant was behaving in a dangerous manner.  The officers knocked at the door.  Further, the defendant did not give consent to enter his house.  The Court found that the defendant did not voluntarily consent to have the officers enter the house.  The fact that there were 5 police officers in his doorway, all with weapons drawn, is coercive enough that the court did not find he may a voluntary consent.

Additionally, the defendant was acting completely compliant with the officers and did not act violent or uncooperative towards them. Therefore, the prior possession of an illegal firearm was not enough to warrant a protective sweep of the home under the facts of this case.

The defendant filed a motion to suppress that was denied.  The Appeals Court reversed finding the protective sweep unconstitutional.  Motion to suppress based on Constitutional challenges under the Fourth Amendment can be very fact specific, meaning that a small detail can alter the Constitutional analysis of a judge or court of appeals on review.  Accordingly, at these hearings, defense lawyer must carefully draft cross examination questions.  It can be just as important to avoid asking a question that may undermine a defense as it can be to ask questions to establish the defense theory.  Given the Commonwealth has the burden at a motion to suppress, a defense lawyer is also left deciding whether the record is clear on its face or risk an adverse answer to create a better record for the judge or an appellate court.

If you are interested, you can read more about the Colon Case.

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