2017-2018 Legal Issues Student Guide - Mass.Gov

1 2017 - 2018 Legal Issues Student Guide Municipal Police Training Committee Dan Zivkovich, Executive Director 2 This document is intended to serve as a training Guide for Legal instructors to review new case law and legislation that has been issued from the controlling courts in Massachusetts, the Supreme Judicial Court and the Massachusetts Appeals Court over the course of the year. Some Supreme Court decisions are included in this curriculum. While this curriculum examines the impact of new cases or law by revisiting some past cases, it is not intended to serve as a criminal law or criminal procedure book. For specific guidance on the application of these cases or any law, please consult with your supervisor or your department s Legal advisor or prosecutor.

2 Additionally, please remember that many cases are fact specific and contain variations that make it difficult for the Courts to establish bright line rules for policing. Please direct questions and comments to: Attorney Sheila Gallagher, Legal Issues Coordinator for MPTC Telephone (781) 437-0314 Email 3 Legal Issues TY 2017 - 2018 Distributed on September 2017 Acknowledgments and Contributions for Legal Issues Curriculum Lt. Michael Chapman Boston Police Department Academy Lt. John Flynn Boston Police Department Academy Chief Andrew Kevin Kennedy Lincoln Police Department Officer Phil Magnuson Yarmouth Police Department Chief Paul Madera Ludlow Police Department Joseph Pieropan, Esq. ADA from Berkshire County Captain Richard Sexton Boston Police Department Lt. William Sharpe Lynn Police Department Lt.

3 John Towns Worcester Police Department Special thanks to Virginia Gaughan for providing technical assistance. 4 TABLE OF CONTENTS Chapter 1: MOTOR VEHICLE LAW Breathalyzer Issues 8 Recording Language Interpreter Services 8 OUI Drug Cases 9 Motor Vehicle Stops Routine Traffic Stops and Exit Orders 11 Safety Concerns during a Motor Vehicle Stop 12 Prolonging Motor Vehicle Stops 13 Delayed Issuance of Citation 18 Stops Involving Rental Contracts 20 Motor Vehicle Inventory Searches Standards for an Inventory Search 22 Scope of an Inventory Search 22 Alternatives to Impounding a Motor Vehicle 23 Pretext Stops and Subsequent Searches 25 Search Warrant Missing Nexus to Safe Found within a Motor Vehicle 28 Miscellaneous Driving Issues Bike Legislation 29 Mopeds 29 Chapter 2: CRIMINAL PROCEDURE Field Encounters & Detentions Revisiting Field Encounters Involving a Firearm 34 Search and Seizure Warrantless Searches 43 Reasonable Suspicion 43 Recent Drug Cases 48 School Zones & Schools 51 Inventorying Personal Items 52 Protective Sweeps 56 Exigent Circumstances 58 Emergency Aid Exception 62 Curtilage 64 Strip Searches 68 Misleading a Police Officer 70 Eyewitness Identification/Inanimate Object 73 5 Searching Cell Phones and the Impact of Social Media Officer s Opinion Related to Cell Phones 74 Requirements for Cell Phone Searches 77 Particularity Requirement 79 Cell Site Location Information 79 Dissemination of Harmful Matter 83 Photographing 84 Review of Up-skirting 84 Social Media Ban on Sex Offenders 85 Chapter 3.

4 CRIMINAL LAW DEVELOPMENTS New Legislation Regulating Medical and Adult-Use Marijuana 87 Impact of Question4 89 Lineage of Marijuana Cases _103 Domestic Violence, Abuse and & Sex Offenses Service of 209A Orders _105 Open, Gross, Lewd & Lascivious Behavior _106 Reckless Endangerment _107 Snapshot of Stalking _110 Firearms & New Trends Types of Firearms and Dangerous Weapons _113 LTC in Massachusetts _114 Carrying a Loaded Firearm While Intoxicated _116 Firearms Chart _118 Juvenile Issues Review of CRA _120 Arrest Procedures for Juveniles _137 Overnight Arrest Placements _142 Miscellaneous Federal Civil Detainers _143 Stolen Valor Act _145 Overview of Hate/Bias crimes Definitions _145 Elements of Hate/Bias Crimes _149 Massachusetts Laws and Statutes _150 Hate/Bias Crimes Chart _152 Civil Action for Hate/Bias Incidents _154 State and Federal Case Law for Hate/Bias Crimes _155 6 Hate Speech Hate Symbols Factors to Consider before Charging a Hate/Bias Crime _158 Procedures for Reporting Hate/Bias Crimes _159 Federal

5 Laws and Statutes _159 Department of Justice Chart Outlining Federal Law _160 Procedures for Reporting Hate/Bias Crimes at Federal Level _161 Chart Examining Whether a Hate Crime Occurred _162 Policy Considerations with LGBTQ Definitions _163 Laws and Statutes _163 Police Considerations and Enforcement for Police _164 Forms of Address and Identifying a Person Patfrisk/Field Searches Booking Booking Searches Holding Cell Restrooms Proof of Gender Identity Places of Public Accommodations Improper of Unlawful Conduct Best Practices _167 Transgender Bill _167 ADDENDUM Hate/Bias Crimes Reporting Form _170 Changes with Elder Abuse _174 7 Chapter 1 MOTOR VEHICLE LAW Breathalyzer Test Issues Commonwealth v. Timothea Neary-French, 475 mass . 167 (2016): The SJC holds that there is no constitutional right to counsel under the Sixth Amendment or art.

6 12 when deciding to submit to a breathalyzer test because taking the breathalyzer test is not a critical stage in criminal proceedings. Recording Language Interpreter Services TRAINING TIP: This case is important because the SJC created new protocol that requires police to record when police utilize a language interpreter service to communicate with a suspect while in police custody. Commonwealth v. Glenis Adonsoto, 475 mass . 497 (2016): The SJC concluded that the police- appointed Spanish language interpreter acted as the defendant s agent and the defendant s statements while in the police station were not considered hearsay. The admissibility of the defendant s statements did not violate the defendant s confrontation rights and there was no showing that the statements resulted in a substantial miscarriage of justice.

7 As a result of this case, the SJC created a new protocol that requires police to record all interviews and interrogations when using interpreter services. Here the SJC found that while the interpreter was selected by the police, the facts relevant to this case suggest the interpreter was an agent of the defendant. There are four factors that determine whether an interpreter acts as an agent or language conduit for the speaker: (1) which party supplied the interpreter; (2) whether the interpreter had any motive to mislead or distort; (3) the interpreter s qualifications and language skill; and (4) whether actions taken subsequent to the conversation were consistent with the statements as translated. Applying these factors in this case, the SJC concluded that although the police supplied the interpreter, and thus, the remaining factors specific to this case demonstrate that the interpreter was acting as an agent of the defendant.

8 Please note that police selecting a translator should assess whether he/she meets requirements two (2) and three (3). Lastly, the defendant raised some legitimate concerns about the current procedure for assessing the reliability of an interpreter's translation of a defendant's statements. Because of these concerns, the SJC announced a new protocol. Going forward, and where practicable, we expect that all interviews and interrogations using interpreter services will be recorded. Previously, the SJC found that recording interviews and interrogations enhance reliability by 8 providing a complete version of a defendant's statements. Commonwealth v DiGiambattista, 442 mass . 423 (2004). This protocol should not impose undue burden on police departments. Because many police departments use telephonic language interpreter services as a regular practice in several State agencies, it enables police to communicate with speakers of many different foreign languages in a prompt and efficient manner.

9 Most police departments record interviews regularly at station houses and, as here, the use of these services often takes place at the station. In those circumstances, all that would be required is for police to conduct the speakerphone translation in a room equipped for recording and to engage the recording equipment. Thus, it will be the rare case where the police will be unable to record the interview. The implementation of this protocol will provide significantly enhanced protections and assurances of reliability for defendants who speak through an interpreter. Reliability is an essential factor of due process to the defendant. A recording allows defendants and judges to independently evaluate accuracy, and thus, the reliability of interpreter services. Along with providing a method to gauge reliability, a recording of the translation provides an independent basis to evaluate the truth of the testimony for purposes of determining the applicability of the confrontation clause.

10 OUI Drug Cases TRAINING TIP: OUI drug cases continue to be challenging in Massachusetts because not only do they require police to identify what substance police believe the suspect took while driving, there is no test to measure the amount of impairment. However, if police suspect OUI drugs but cannot identify the drug the person may have taken, police consider charging the suspect with operating to endanger or filing an immediate threat form with the Registry of Motor Vehicles. Please refer to the Addendum of this update to find a copy of the immediate threat form. Elements Required for OUI Drug cases: 1. The driver took drugs; 2. The driver took one of the drugs classified as a controlled substance pursuant to c. 94C, 31, (marijuana, narcotic drugs, depressants, stimulants, or vapors of glue).