An appeals court is allowing evidence to get tossed from a case against an alleged marijuana dealer, ruling that cops conducted an “unconstitutional search.”

The drug and gun case against Barry Hanson goes back to July of 2023 when cops in central Massachusetts executed a search warrant at his first-floor apartment.

Southbridge Police found several guns, packaging materials for the alleged sale and distribution of marijuana, a large amount of edible products suspected to contain THC, and pre-rolled cigarettes packed for sale suspected to be marijuana.

Hanson did not have a license to carry firearms and was not licensed by the Cannabis Control Commission to sell marijuana in Massachusetts, as police arrested him on numerous charges.

Southbridge Police found several guns, packaging materials for the alleged sale and distribution of marijuana, and other items. (Southbridge Police photo)

But after his arraignment, Hanson pushed to toss out some of the evidence that was found during the police’s search.

He argued that the cops should not have gone to the second floor during the search based on the warrant for the first floor. He claimed this violated the Fourth Amendment of the Constitution and Article 14 of the Massachusetts Declaration of Rights.

A Superior Court judge agreed with Hanson, allowing his motion to suppress evidence from the search. Prosecutors then called on a higher court to reverse the ruling.

During the execution of the warrant for Hanson’s first-floor apartment, the cops found out that he also rented the second-floor apartment — and that he was using the two apartments as a single dwelling.

This led to the cops expanding their search to the second-floor apartment without obtaining a new warrant.

“… 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,” the state appeals court wrote in its ruling issued on Tuesday.

“In sum, when police extended their search to the second-floor apartment without obtaining a second warrant, they conducted an unconstitutional search,” the appeals court later wrote. “Therefore, the judge correctly concluded that the fruits of that search should be suppressed.”

The affidavit supporting the search warrant noted several sales of marijuana and related paraphernalia to an undercover cop.

Police also reported that they spotted Hanson leaving the first floor with the plastic bags and shoebox from which he later retrieved the drugs that he allegedly sold to the undercover cop.

When police executed the search warrant for the first floor, his girlfriend told the cops that Hanson rented both the first- and second-floor apartments — treating them as a single unit.

Without applying for another search warrant for the second floor, the police obtained the keys to the padlocks securing the two doors on the second floor, unlocked them, and searched the rooms. During that search, the police found contraband, including guns.

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This appeal centers around how the Fourth Amendment applies to multi-unit residential buildings.

“… The motion judge could permissibly rule that police should have obtained another search warrant for the second-floor apartment,” Associate Justice Marguerite Grant wrote in a concurring opinion.

Associate Justice Kathryn Hand in a dissenting opinion argued that the search was legal. She wrote that the second-floor apartment was “part and parcel” of the same dwelling identified in the search warrant.

Hand wrote, “Because, on this record and on these particular facts, I believe that the search the police conducted of the second-floor apartment was within constitutional bounds, I respectfully dissent.”