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Massachusetts law about police conduct

A compilation of laws, cases and web sources on police conduct and audio and video recording of police activity by the public.

Table of Contents

I. Police conduct

Note

Search and seizure jurisprudence is always evolving. Please update your research by checking for the latest cases on your particular issue.

> Constitutions

U.S. Constitution, 4th Amendment, Right against unreasonable searches and seizures
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Article 14 of the Massachusetts Declaration of Rights
“Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions.”

> Massachusetts laws

St. 2020, c.253 An act relative to justice, equity and accountability in law enforcement in the Commonwealth (police reform law)

July 1 Facial recognition law

MGL c.6, § 220 Use of facial and other remote biometric recognition, effective July 1, 2021

MGL c.276 Search warrants, rewards, fugitives from justice, arrest, examination, commitment and bail, probation officers and Board of Probation

> United States Supreme Court cases

Collins v. Virginia, __ U.S. __ (2018) US Supreme Court held that a warrant is needed to search a car parked in a driveway at a private home. The "automobile exception" does not give an officer the right to enter a home or its curtilage to access a vehicle without a warrant.

Miranda v. Arizona, 384 US 436 (1966). Required warnings
"In dealing with custodial interrogation, we will not presume that a defendant has been effectively apprised of his rights and that his privilege against self-incrimination has been adequately safeguarded on a record that does not show that any warnings have been given or that any effective alternative has been employed." See also, Miranda v. Arizona Explanation from National Paralegal College.

> Massachusetts cases

Selected case law: citizen's arrest

Com. v. Claiborne, 423 Mass. 275 (1996) “Relaxed” citizen's arrest standard - Warrantless arrest by police outside their jurisdiction and not in “fresh and continued pursuit” of suspect requires probable cause that the suspect committed a felony.

Com. v. Harris, 11 Mass. App. Ct. 165, rev. denied 383 Mass. 890 (1981). Citizen's arrest elements
“Generally, the person arrested must be convicted of a felony before the 'in fact committed' element is satisfied and the arrest validated. If the citizen is in error in making the arrest, he may be liable in tort for false arrest or false imprisonment."

Com. v. Lussier, 333 Mass. 83 (1955) Citizen's arrest standard
“A private person may lawfully arrest one who in fact has committed a felony.”

Selected case law: police procedure

Com. v. Barreto, 483 Mass. 716 (2019) Order to exit from vehicle
"The mere fact that an officer observes a driver's 'nervousness and fidgeting' without more, does not warrant a belief that the safety of the officers or others is threatened."

Com. v. Buckley, 478 Mass. 861 (2018) Pretextual stops
Police may stop a vehicle for an observed traffic violation, even if it is actually a pretext to investigate other crimes.

Com. v. Clarke, 461 Mass. 336 (2012). Invoking Miranda rights by shaking head
Defendant invoked right to remain silent by shaking head “no” in response to a question whether he wanted to speak.

Com. v. German, 483 Mass. 553 (2019) Police must provide an instruction to witnesses before a showup identification
Going forward, police must instruct: "You are going to be asked to view a person; the alleged wrongdoer may or may not be the person you are about to view; it is just as important to clear an innocent person from suspicion as it is to identify the wrongdoer; regardless of whether you identify someone, we will continue to investigate; if you identify someone, I will ask you to state, in your own words, how certain you are."

Com. v. Gautreaux, 458 Mass. 741 (2011). Foreign national has right to consular assistance
"[T]he notifications required by art. 36 [of the Vienna Convention] must be provided to foreign nationals on their arrest; and, if not provided, a challenge to the soundness of any conviction resulting therefrom may be made in a motion for a new trial. The standard to be applied in such circumstances is the substantial risk of a miscarriage of justice standard."

Com. v. Goncalves-Mendez, 484 Mass. 80 (2020) Allow passenger to take custody of vehicle
When police arrest a driver, and know that a passenger could lawfully assume custody of the vehicle, they should offer the driver the option of having the passenger take the car, rather than impounding it.

Com. v. Long, 485 Mass. 711 (2020)
Pretextual traffic stops and racial profiling

Com. v. Matta, 483 Mass. 357 (2019) Seizure of a person
"[R]ather than attempting to determine whether a reasonable person would believe he or she was free to leave, in our view, the more pertinent question is whether an officer has, through words or conduct, objectively communicated that the officer would use his or her police power to coerce that person to stay."

Com. v. Narcisse, 457 Mass. 1 (2010). Frisk during consensual encounter
"[P]olice officers may not escalate a consensual encounter into a protective frisk absent a reasonable suspicion that an individual has committed, is committing, or is about to commit a criminal offense and is armed and dangerous."

Com. v. Ortiz, 478 Mass. 820 (2018) Search under the hood
“[U]nless it is reasonably clear that consent to search extends beyond interior of vehicle, police must obtain explicit consent before vehicular search may extend beneath hood.”

Com. v. Pearson, 486 Mass. 809 (2021)
Clarifies that the standard to apply when police apply for a warrant after an illegal entry (the independent source doctrine) has 2 separate prongs.  "(1) the officers' decision to seek the search warrant was not prompted by what they observed during the initial illegal entry, and (2) the affidavit supporting the search warrant application contained sufficient information to establish probable cause, 'apart from' any observations made during the earlier illegal entry. " 

Com. v. Torres-Pagan, 484 Mass. 34 (2020) Patfrisk of driver
To justify a patfrisk of a driver who has exited the car, “an officer needs more than safety concerns (emphasis in original); . . . police must have a reasonable suspicion, based on specific articulable facts, that the suspect is armed and dangerous.”

Com. v. Vasquez, 482 Mass. 850 (2019)
Inadequate Spanish translation of Miranda warning led to suppression of defendant's statements.

Com. v. Warren, 475 Mass. 530 (2016) Reasonable suspicion for investigatory stop – Running from police
“[T]he finding [of the 2014 Field Interrogation and Observation (FIO) study] that black males in Boston are disproportionately and repeatedly targeted for FIO encounters suggests a reason for flight totally unrelated to consciousness of guilt. Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity. Given this reality for black males in the city of Boston, a judge should, in appropriate cases, consider the report's findings in weighing flight as a factor in the reasonable suspicion calculus." See also Com. v. Evelyn, 485 Mass. 691 (2020)

> Most wanted lists

> Web sources

Executive Office of Public Safety and Security (EOPSS)
EOPSS is responsible for the policy development and budgetary oversight of its secretariat agencies, independent programs, and several boards which aid in crime prevention, homeland security preparedness, and ensuring the safety of residents and visitors in the Commonwealth.

The criminal law handbook: know your rights, survive the system, Nolo, 2020
Explains the criminal system in plain English. Offers an overview of the criminal justice system from arrest to appeal and more. Requires free library card for access.

Massachusetts criminal practice, 4th ed., by Blumenson, Eric D.
Full-text available via Suffolk University Law School. C 2012

> Print sources

Community Policing:  a contemporary perspective, 7th ed.  Routledge, 2015

Massachusetts criminal law: a District Court prosecutor's guide, by Richard G. Stearns, loose-leaf.

Mackenzie L. Brockmyre, "Getting it right: law enforcement's use of ancestry websites to catch criminals," 21 J. HIGH TECH. L. 165 (2021).  Available through the law libraries' document delivery service

Massachusetts practice v. 42 (Criminal defense motions), 5th ed., West, 2019 with supplement

Police misconduct:  law and litigation, West, annual editions

Rules and regulations, Massachusetts Department of State Police, updated regularly

Suppression matters under Massachusetts law, LexisNexis, annual editions

II. Recording police

> Massachusetts laws

MGL c.272, § 99 Interception of wire and oral communications.

Ruled unconstitutional as applied to recording police in most circumstances. See Martin v. Gross, below.

> Selected case law

A series of 3 cases, beginning in 2011, explain current law in Massachusetts.

1. Glik v. Cunniffe, 655 F.3d 78, 2011
There is a constitutional right to videotape police carrying out their duties in public.

2. Gericke v. Begin, 753 F.3d 1 (2014)
"the threshold question here is whether the occasion of a traffic stop places Gericke's attempted filming outside the constitutionally protected right to film police that we discussed in Glik. It does not."

an individual's exercise of her First Amendment right to film police activity carried out in public, including a traffic stop, necessarily remains unfettered unless and until a reasonable restriction is imposed or in place.

3. Project Veritas Action Fund v. Rollins, __ F.3d. __ (1st Cir., 2020)
People may not be criminally charged for recording police doing their work.

Section 99 violates the First Amendment in criminalizing the secret, nonconsensual audio recording of police officers discharging their official duties in public spaces.

> Web sources

Federal court rules cops can't arrest you for secretly filming them, The Root, 2018.
Provides examples of incidents when people had been arrested for taping police in Massachusetts. "A federal court ruled that recording law enforcement officials performing their duties in public is protected by the First Amendment, even if the recordings are done in secret."

Massachusetts wiretap law can’t apply to police recording, First Circuit rules, First Amendment Watch, 2020.
"On December 15th, the United States Appeals Court for the First Circuit unanimously ruled that a Massachusetts wiretap statute could not be used against individuals who recorded police officers in public, even if the officer had not consented to the recording."

You can secretly record officials and police in Massachusetts, a judge ruled, Boston Magazine, 2018
In a victory for two very different groups of people, a federal judge has ruled that a Massachusetts law against secretly recording police officers or government officials in public places is unconstitutional.

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Last updated: March 23, 2021
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