Search and seizure – Multi-unit residential building

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Where police officers, having learned during the execution of a search warrant for the defendant’s first-floor apartment that he also rented the second-floor apartment in the same two-family home and that he was using the two apartments as a single dwelling, expanded their search to include the second-floor apartment without obtaining a new warrant, a judge’s decision to allow the defendant’s motion to suppress should be affirmed because the police conducted an unconstitutional search when they extended their search to the second-floor apartment without obtaining a second warrant.

“This is the Commonwealth’s interlocutory appeal from the order of a Superior Court judge allowing the defendant’s motion to suppress evidence, and the subsequent denial of the Commonwealth’s motion for reconsideration. We must decide whether the police violated the particularity requirement of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights when, having learned during the execution of a search warrant for the defendant’s first-floor apartment that he also rented the second-floor apartment in the same two-family home, and that he was using the two apartments as a single dwelling, they expanded their search to include the second-floor apartment without obtaining a new warrant. Concluding that this case was controlled by Commonwealth v. Hall, 366 Mass. 790, 799-800 (1975), the judge decided that the search of the second floor exceeded the scope of the search warrant approved by the clerk-magistrate and therefore allowed the motion to suppress. We agree that this case is controlled by Hall. Accordingly, we affirm the order allowing the motion to suppress as well as the denial of the Commonwealth’s motion to reconsider that allowance. …

“This case presents a straightforward constitutional question: How does the Fourth Amendment’s particularity clause apply to multiunit residential buildings? At least where the police know, when they apply for a warrant, that the building contains multiple residential units, the warrant must state the unit(s) to be searched, thereby (a) limiting the search to the unit(s) described and (b) excluding all other units in the building from the scope of the warranted search. … Where the police learn, after they have begun executing a warrant authorizing the search of a single unit in a multiunit building, that there is reason to extend the search to another unit within the building, this does not justify extending the scope of the warrant beyond the particular unit described, absent exigent circumstances (or some other applicable exception to the search warrant requirement). …

“As the judge here recognized, this case is materially indistinguishable from Hall. …

“In sum, when police extended their search to the second-floor apartment without obtaining a second warrant, they conducted an unconstitutional search. Therefore, the judge correctly concluded that the fruits of that search should be suppressed. The order allowing the motion to suppress is affirmed.

“The order denying the motion to reconsider is affirmed.

Concurring judge’s comments

Grant, J. (concurring). “I concur in the result. …

“I write separately to say that the primary author goes too far in interpreting constitutional particularity requirements, as applied to a search warrant for a multiunit building, to require the warrant to specify the ‘unit(s) to be searched’ and to ‘exclud[e] all other units in the building.’ … The Fourth Amendment to the United States Constitution requires that a search warrant ‘particularly describ[e] the place to be searched.’ Article 14 of the Massachusetts Declaration of Rights requires that a warrant ‘to make search in suspected places’ include ‘a special designation of the persons or objects of search.’ … Those authorities do not require specification of a unit number, nor do they require that the description exclude any part of a building. In my view, on these facts, the police could have obtained two search warrants and executed them simultaneously: one for the defendant’s person seeking keys to any locks at 30 Golf Street, and another identifying the place to be searched as any apartment, room, or locked container at 30 Golf Street to which those keys provided access. A description in the latter search warrant of the premises to be searched as any locked area within 30 Golf Street to which the defendant’s keys provided access would, in my view, have satisfied constitutional and statutory particularity requirements.”

Dissenting judge’s comments

Hand, J. (dissenting). “In Commonwealth v. Hall, 366 Mass. 790, 800 (1975), the Supreme Judicial Court held that, because ‘different apartments in a single building are as distinct as separate dwelling houses, … a separate warrant on probable cause is ordinarily needed for each [apartment],’ as was needed in that case (emphasis added). In dicta, however, the court was explicit that its decision ‘[was] not intended to lay down a rule that the description in a warrant of the location and area to be searched may never be construed more liberally than in [Hall],’ and provided an example in which ‘a liberalized reading of the warrant may be proper,’ that is, where ‘the evidence when the warrant is executed … show[s] that the [defendant’s] illegal activities spill over into a directly adjacent or contiguous area under the same control.’ … Although ‘spillover’ of criminal activity is not an issue here, I think this case — where the evidence shows that (1) the police applied for and obtained a search warrant for one apartment in a two-family dwelling, (2) the warrant was limited to a single apartment only because of the warrant applicant’s mistaken belief that the defendant lived only in that apartment, (3) probable cause existed to search the entirety of the defendant’s home, and (4) when the warrant was executed, police learned that the occupant of the subject apartment also had exclusive control over the other apartment in the same building, and used both as undifferentiated parts of a single dwelling — presents an instance in which a search warrant should be read with the degree of liberality for which the Hall court left room. … Because, on that basis, I would reverse the order allowing the motion to suppress, I respectfully dissent.”

Commonwealth v. Hanson (Lawyers Weekly No. 11-086-25) (34 pages) (Wood, J.) (Grant, J., concurring) (Hand, J., dissenting) A pretrial motion to suppress evidence was heard by William J. Ritter, J., and a motion for reconsideration was considered by him. Anne S. Kennedy for the Commonwealth; Charles P. McGinty for the defendant (Docket No. 24-P-870) (Dec. 2, 2025).

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