I. Police conduct


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.90 § 25 Refusal to submit to a police officer

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

> Massachusetts regulations

555 CMR 1.00: Procedural rules
Regulations governing the processes for receiving, investigating, hearing, and adjudicating complaints regarding law enforcement officers in the Commonwealth.

> United States Supreme Court cases

Lange v. California, 594 U.S. ___ (2021) US Supreme Court held that “the flight of a suspected misdemeanant does not always justify a warrantless entry into a home. An officer must consider all the circumstances in a pursuit case to determine whether there is a law enforcement emergency.”

Torres v. Madrid, 592 U.S. ___ (2021) US Supreme Court held that the use of physical force with the intent to restrain a person, even if that fails to restrain the person, is considered a seizure. This expands the situations in which a plaintiff can sue for excessive force under the Fourth Amendment.

Collins v. Virginia, 592 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.

Vega v. Tekoh, 597 U.S. ___ (2022) US Supreme Court decided that a person cannot sue a police officer under federal civil rights laws for violating their Fifth Amendment right against self-incrimination by failing to provide a Miranda warning, saying “because a violation of Miranda is not itself a violation of the Fifth Amendment, and because we see no justification for expanding Miranda to confer a right to sue under [42 U.S.C.] §1983.” See also Vega v. Tekoh Summary provided by the ACLU.

> Massachusetts cases

Selected case law: citizen's arrest

Com. v. Claiborne, 423 Mass. 275 (1996)
Clarified and “relaxed” citizen's arrest standard regarding warrantless arrest by police outside their jurisdiction.

Com. v. Harris, 11 Mass. App. Ct. 165, rev. denied 383 Mass. 890 (1981). 
Highlights the elements that allow for a citizen’s arrest, and the liabilities of a citizen that makes an arrest in error.

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." See also Com. v. Barros, 435 Mass. 171 (2001).

Com. v. Mora, 485 Mass. 360 (2020)
Police long-term pole camera surveillance

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

Addressing police misconduct laws enforced by the Department of Justice
This document outlines the laws enforced by the United States Department of Justice (DOJ) that address police misconduct and explains how you can file a complaint with DOJ if you believe that your rights have been violated.

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.

Frequently Asked Questions: Brady List, Office of the Worcester County District Attorney
"Some law enforcement agencies compile lists of names in an effort to track various forms of misconduct by police officers. ... Practices vary widely throughout the country.  Presently, there are no Massachusetts procedural or substantive standards for inclusion on a Brady List."

Know your rights: When do I have to give my name or address to law enforcement in Massachusetts?, ACLU, 2021

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

> Print sources

Change and reform in law enforcement:  old and new efforts from across the globe. CRC Press, 2017

Community policing: a contemporary perspective, 8th ed. Routledge, 2020

Community policing today: issues, controversies, and innovations, SAGE, 2021

Criminal defense motions, 5th ed. (Mass Practice v.42) Thomson Reuters, 2019 with supplement

The criminal law handbook : know your rights, survive the system by Paul Bergman, Nolo, 2020.

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

Police community relations: a conflict management approach. West Academic, 2019

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 Project Veritas Action Fund v. Rollins below.

> Selected case law

A brief history of cases regarding the right to record police 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, 982 F.3d. 813 (1st Cir., 2020)People may not be criminally charged for recording police doing their work. For the history of this case see also Martin v. Evans, Project Veritas Action Fund v. Conley, Martin v. Gross I and Martin v. Gross II.

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

ACLU of Massachusetts statement on Martin v. Rollins, ACLU, 2020
“The new decision confirms that the First Amendment protects the right to secretly record police officers discharging their official duties in public spaces, and it upholds the district court’s ruling that the Massachusetts “wiretap law” unconstitutionally violates that right.” You can find more information on the history of this case online.

A federal appeals court upheld the right to secretly record police officers working in public in Mass, Boston.com, 2021
“A recent ruling by the U.S. First Circuit Court of Appeals upheld a decision that allows for the right to secretly record police officers while they are on the job in public in Massachusetts. The court, however, maintained that that right does not extend to recordings of government officials, who can be openly recorded, but not discretely, without consent.”


Last updated: September 23, 2022