(dissenting). Because the warrant in this case specifically authorized the search of only the defendant (named as an “occupant”) and “any person present,” I would affirm the allowance of the defendant’s motion to suppress evidence seized from Meredith Gravina, for four reasons: (1) the warrant did not specifically authorize the seizure of persons outside of the apartment; (2) I conclude that art. 14 of the Massachusetts Declara*59tian of Rights grants individuals more protection than does the Fourth Amendment to the United States Constitution; (3) the police illegally detained Gravina when they first approached her and the defendant; and (4) even if Michigan v. Summers, 452 U.S. 692 (1981), did apply in some circumstances, it would not apply in the circumstances of this case.
The motion judge found that three minutes after police officers saw the defendant and an unidentified female (Gravina) leave the apartment that was the subject of the search warrant, three armed police officers approached the pair in a parking lot.1 It is uncontroverted that the parking lot was some fifty to seventy feet from the apartment. The motion judge further found that, at that moment, Gravina was unknown to the officers; she was not identified on the warrant as an occupant of the apartment. The police immediately stated that they had a search warrant for the apartment. Gravina blurted out that it was her apartment. Police officers displayed the search warrant. State and Federal law enforcement officers, by now numbering five, gave the defendant and Gravina the Miranda warnings, handcuffed the defendant, and led the two back to the apartment. The motion judge found, and I agree, that Gravina was seized outside the apartment for purposes of the Fourth Amendment and art. 14.
Article 14 states that a search warrant is not proper unless it has a “special designation of the persons or objects of search, arrest, or seizure.”2 Our cases concerning search warrants have upheld the particularity requirement, and I see no reason to depart from their holdings. Commonwealth v. Pellier, 362 Mass. 621 (1972), addressed facts similar to the facts of this case: The defendant was an occupant of an apartment that was the subject of a search warrant, which, like the warrant in this case, authorized both the search of another man, referred to by the name Fernando, as well as “any persons present” who might have contraband in their possession (first warrant). On the night *60the police executed the first warrant, Pellier was stopped when he and Fernando pulled up in front of the building that was the subject of the first warrant in a vehicle with a registration plate that matched the one described in a second search warrant (second warrant) the police also were executing. The police officers went up to the car and asked Pellier and Fernando their names and addresses. The police officers learned that Pellier was an occupant of the apartment that was the subject of the first warrant when Pellier identified himself and stated his address. Police officers searched both men and found a bag of heroin on Pellier. In the meantime, police officers also searched the apartment pursuant to the first warrant and found heroin and other contraband.
On appeal, the court stated a search of Pellier pursuant to the first warrant was not proper and, therefore, the heroin found on Pellier’s person could only be the basis for convicting him if it was properly seized pursuant to the second warrant. The court also focused on the “any person present” language as an improper basis to introduce the heroin found on Pellier’s person. Id. at 625-626 & n.3 (“ ‘any person or persons present’ . . . lacks specificity and is of dubious meaning”).
In Commonwealth v. Smith, 370 Mass. 335, cert. denied, 429 U.S. 944 (1976), the court departed from Pellier when it held that the “any person present” language contained in a search warrant was constitutional. Id. at 339-342. However, the court also said that the “law requires a particular description of the persons to be searched pursuant to a warrant” and “the ‘any person present’ clause” does not relax the particularity requirement as it applies to all identifiable persons known to be on the premises” (emphasis added). Id. at 339, 344. The court expressed concern about innocents being swept up in the search and required that applications for search warrants indicate whether any person unconnected with the illegal activity had been seen at the premises. Id. at 345. See Commonwealth v. Rutkowski, 406 Mass. 673, 675 (1990) (items to be seized must be described with sufficient particularity pursuant to art. 14).
In this case, the officers knew that the defendant lived with his girl friend, yet she was not named or identified on the war*61rant as an occupant subject to search.3 I would conclude from this that the police did not have probable cause to believe the girl friend was involved in criminal activity and it was entirely proper to omit her from the warrant, in light of the caution expressed in Commonwealth v. Smith, supra. Moreover, it is foreseeable that, by happenstance, an occupant of an apartment could be leaving her residence at the same time police officers execute a search warrant, particularly in the circumstances of this case. Here, officers had authority to search at night without having to knock, but they went to the apartment at approximately 4 p.m. At that time of day, it is foreseeable that occupants would be leaving (or arriving at) their residences. The officers, on showing probable cause, should have asked the magistrate to issue a warrant covering, within explicit limits as to time and distance, those individuals the police observed leaving the apartment at the time the warrant would be executed.
Based on our case law and the plain language of art. 14, I conclude that art. 14 confers broader protection on individuals than does the Fourth Amendment.4
To support its holding, the court relies both on the fact that Gravina blurted out that she lived in the apartment and on Michigan v. Summers, 452 U.S. 692 (1981). I do not agree with the court that, because Gravina was with the defendant, she demonstrated the requisite “suspicious conduct [to give] the officer^] reason to suspect that [she had] committed, [was] committing, or [was] about to commit a crime.” Commonwealth v. Grandison, 433 Mass. 135, 139 (2001), quoting Commonwealth *62v. Silva, 366 Mass. 402, 405 (1974). See Commonwealth v. Rodriguez, 430 Mass. 577, 579 (2000). I believe that Gravina was illegally seized at the moment the first three armed police officers approached her and the defendant in the parking lot, and therefore the exclusionary rule applies to her statement that she lived in the apartment, as well as to the drugs found in her purse. See Commonwealth v. Stoute, 422 Mass. 782, 783 (1996) (person seized under art. 14 once police officer has initiated pursuit of person with obvious intent of requiring him to submit to questioning).5 See also Commonwealth v. Balicki, 436 Mass. 1, 15 (2002) (evidence excluded because fruit of unlawful actions of police officers).
Furthermore, even assuming that the holding in Michigan v. Summers, supra, did not violate art. 14, it would not apply to this case, because it can be distinguished on the facts. In Summers, as police were about to execute a search warrant, “they encountered respondent descending the front steps” (emphasis added). Id. at 693. In this case, however, the police set up surveillance to determine whether anyone was home and, therefore, had not approached the apartment to execute the warrant. They saw the defendant and Gravina leave the apartment from their point of surveillance. As the motion judge found, three minutes elapsed before police officers approached the pair. It is uncontroverted that, by then, the defendant and Gravina were walking across a parking lot, some fifty to seventy feet from the apartment. Thus, unlike the police in the Summers case, the police in this case were not executing a search warrant and did not “encounter[] [Gravina or the defendant] descending the front steps.” Id.
For the reasons stated above, I respectfully dissent.
Contrary to the court’s assertion, ante at 58 n.17, the record does support, through the testimony of Detective Balcolm, the motion judge’s finding that three minutes passed before the police officers approached the defendant and Gravina. The finding, therefore, cannot be clearly erroneous.
See also G. L. c. 275, §§ 1, 2.
The court notes, ante at 55 n.14, that, despite sustaining objections to questions whether an informant told Detective Balcom that the defendant’s girl friend lived in the apartment, the judge found that she did live there. The statement that the defendant lived with his girl friend was in the affidavit supporting the warrant. At a motion to suppress hearing, the judge can properly consider hearsay in an affidavit. See, e.g., Commonwealth v. Honneus, 390 Mass. 136, 139 (1983).
In other contexts, this court has held that art. 14 of the Massachusetts Declaration of Rights confers rights on individuals that are not granted by the Fourth Amendment to the United States Constitution. See Commonwealth v. Upton, 394 Mass. 363, 373 (1985) (“art. 14 provides more substantive protection to criminal defendants than does the Fourth Amendment in the determination of probable cause”). See also Commonwealth v. Rodriguez, 430 Mass. 577, 584, 585 & n.7 (2000), and cases cited (art. 14 prohibits roadblocks to search for contraband such as drugs).
Assuming, arguendo, that the police were justified in stopping the defendant, had they asked Gravina to step aside as they approached and apprehended the defendant, and only then did Gravina blurt out that she lived there, it would be, in my opinion, different.