2023 Massachusetts Procedure Police Manual (eBook)

This book is written for the police officer, supervisor, and commander. It defines and describes essential law enforcement activities that are regulated and shaped by a set of principles contained within our federal and state constitutions.

The Legacy of the Revolution: A Constitutional System

Prior to the Revolution, the British authorities relied extensively on “general warrants and writs of assistance.” These warrants allowed British officials to almost indiscriminately violate the privacy of the colonists in support of the crown’s efforts to discover wrongdoing. This practice was so hated by the colonists that, after the Revolution, the Bill of Rights was adopted containing the Fourth Amendment (prohibiting illegal searches and seizures), the Fifth Amendment (prohibiting illegal interrogations), and the Sixth Amendment (providing the right to counsel in court). Comm. v. Cundriff, 382 Mass. 137 (1980).

Our Constitution stood for the radical proposition that laws are more important than the government officials who enforce them. The Constitution tried to minimize the potential of those who govern to abuse their power.

Intrusive Activities Regulated

Police officers, as societal agents of law and order, are limited when they engage in activities that intrude on the privacy of citizens. When all is said and done, the most intrusive authority that officers have is the power to search, seize, interrogate, and identify. That is why the Constitution limits these fundamental activities. The Constitution tells officers that if they are going to perform these functions, they need a good reason.

Policing Under Federal & State Constitutions

Officers are governed by the federal constitution and by the Massachusetts Declaration of Rights. In particular, two important state provisions impact police behavior in Massachusetts: Article 14 (which is the Commonwealth’s version of the Fourth Amendment) and Article 12 (which is similar to the Fifth and Sixth Amendments).

Our state constitution may never hold officers to a lesser standard than the federal constitution, but it may be more restrictive in how they must investigate. This is sometimes the case in Massachusetts. Federal standards are the floor, while our state standards are the ceiling. This is why, when there is a difference, officers are directed to follow the Massachusetts rule so their conduct is proper within the Commonwealth. See, e.g., Comm. v. Upton, 394 Mass. 363 (1985) (Massachusetts has stricter test for establishing an informant’s credibility). Comm. v. Gonsalves, 429 Mass. 658 (1999) (no automatic exit orders during Massachusetts traffic stop). Comm. v. Gonzalez, 426 Mass. 313 (1997) (electronic surveillance issues).

The United States Constitution

Principles that lie at the heart of policing in a democratic society.The following portions from the Bill of Rights most directly influence policing in America.

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Fourth Amendment

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.

Fifth Amendment

(1) No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; (2) nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; (3) nor shall he be compelled in any criminal case to be a witness against himself; (4) nor be deprived of life, liberty, or property, without due process of law; (5) nor shall private property be taken for public use without just compensation.

Sixth Amendment

In all criminal prosecutions, (1) the accused shall enjoy the right to a speedy and (2) public trial, (3) by an impartial jury (4) of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and (5) to be informed of the nature and cause of the accusation, (6) to be confronted with the witnesses against him, (7) to have compulsory process for obtaining witnesses in his favor, and (8) to have the assistance of defense counsel.

Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Fourteenth Amendment

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Massachusetts Constitution

The following portions of the Massachusetts Declaration of Rights are the constitutional principles that directly influence policing in the Commonwealth.

Article 12

No subject shall be held to answer for any crimes or offense, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs that may be favorable to him; to meet the witnesses against him face-to-face, and to be fully heard in his defense by himself, or his counsel, at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land. And the legislature shall not make any law that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, without trial by jury.1

Article 14

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. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities prescribed by the law.

Making Rights Mean Something: The Exclusionary Rule

It was not until 1961, in the case of Mapp v. Ohio, that the Supreme Court made the exclusionary rule binding on state law enforcement.2 Until that decision, officers were told not to violate the Constitution, yet no legal consequences occurred when they did. Declaring that rights were meaningless without some level of enforcement, the U.S. Supreme Court decided in Mapp that evidence obtained by unlawful police conduct should be excluded from criminal trials. In announcing its ruling, the court declared:

“Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.”

The exclusionary rule remains controversial. Advocates say that it deters police misconduct while opponents insist that it allows the guilty to go free. Defenders of the rule point to its higher purpose:

“Letting the guilty at times go free is the price our society has agreed to pay in order to put privacy and the integrity of the home beyond the reach of unwarranted police intrusions. The community that fails to insist on scrupulous observance of high standards by its police and prosecutors has lost track of its fundamental purposes, and courts that approve well-meaning but unconstitutional conduct by law enforcement officers, even in the case of undoubtedly guilty defendants, deal the administration of justice and the integrity of the legal process a greater blow than when they permit a particular criminal to delay, or sometimes even wholly to escape, due punishment . . .” Comm. v. DiGeronimo, 38 Mass. App. Ct. 714 (1995).

The fact that an officer’s conduct produces...