Open and Gross Lewdness and Lascivious Behavior Under G.L. c. 272, §16 Requires “Shock” or “Alarm” to Another Person

In the case of Commonweatlh v. Maguire, 476 Mass. 156 (2017), the Supreme Judicial Court addressed the elements of the felony crime of Open and Gross Lewdness and Lascivious Behavior under G.L. c. 272, §16.  Based upon a failure to prove that the defendant’s conduct of exposing his penis to several females sitting on a bench at the Hynes Convention Center subway platform produced either “shock” or “alarm” for the females or the MBTA officer who made the arrest, the Court reversed the conviction.  The officer testified that he was disgusted at the defendant’s actions and concerned that the women were being victimized by those actions, but the Court ruled that evidence was insufficient to meet the subjective shock or

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Police Need ‘Particularized Evidence’ to Seize Electronic Devices Without a Search Warrant and Must Diligently Apply for a Warrant After the Seizure

In Commonwealth v. White, 475 Mass. 583, 59 N.E.3d 369 (2016), a Boston police detective investigated an armed robbery and shooting at a convenience store.  His investigation led him to the defendant as one of the suspects.  Visiting the defendant’s high school, the detective learned from one of the administrators that, under the school’s policy, she was holding the defendant’s cell phone.  At the time, the detective had no information that the phone was used in the planning, commission or cover up of the crime, but he was aware that crimes committed by multiple suspects frequently involved the use of cell phones by the suspects.  He thought there might be useful information on the phone; he obtained it from the

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Reardon, Joyce & Akerson, P.C. Prevails in Important Civil Service Case Establishing EPO Probationary Periods and Resulting in a Significant Award of Back Pay

A Massachusetts Environmental Police Officer (“EPO”) with the foresight to have joined the Massachusetts Police Association’s Legal Defense Fund found out just how valuable a resource the Fund is after being terminated from his EPO positon, and then being abandoned by his Union when he wanted to challenge that termination. Soleimani was sworn in by the Massachusetts Environmental Police (“MEP”) as an EPO in May 2015, and, because he was a former Westfield police officer with academy safety training, he was not required to attend an additional police academy before performing his duties as an EPO.  After working more than six months, Soleimani believed he had completed his probationary period under G.L. c. 31, §34. Despite having no discipline issued

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Suspect Still Has No Right to Counsel Before Deciding Whether to Take Breathalyzer Test

Recently, the Supreme Judicial Court ruled that the amendment in 2003 of the Commonwealth’s drunk driving law, G.L. c. 90, § 24, did not provide a reason for it to reverse its decision in Commonwealth v. Brazelton, 404 Mass. 783 (1989), that there is no right to counsel when a suspect must decide whether or not to take a breathalyzer to test whether they were driving under the influence.  In Commonwealth v. Neary-French, 457 Mass. 167 (2016), the Court considered a question reported to it from the District Court asking whether the per se violation of operating a motor vehicle with a breath test of .08 or greater created by the 2003 amendments to G.L. c. 90, § 24 made

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First Circuit Court of Apeals Affirms Judgment in Favor of Fall River Police Chief in Case Involving Allegation of Rape by a Police Officer

In a recent First Circuit decision concerning civil liability for police supervisors, Saldivar v. Racine, 818 F.3d 14 (2016), Reardon, Joyce & Akerson, P.C. (“RJA”) successfully represented the Fall River Chief of Police in a civil rights lawsuit in which the plaintiff, who sought $750,000.00 in damages, claimed that she had been assaulted and raped by a Fall River police officer.  According to the plaintiff, a Fall River police officer arrived at her apartment to investigate a complaint that she made earlier in the day and, once the officer was inside the residence, he threatened her with his gun and assaulted her sexually.  The officer later resigned his position with the Department. The plaintiff filed a civil rights lawsuit naming

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According to SJC, Police Need Only Notify Suspects of the Recording of the Interview; You Do Not Need Suspect’s Permission to Record the Interview

In Commonwealth v. Alleyne, ___ Mass. ___ (2016), the Supreme Judicial Court clarified that police officers do not need a suspect’s permission to record the suspect’s interview as long as the suspect has actual knowledge of the recording.  The Court recommended that police departments do away with their interview forms that advise a suspect of a right to refuse recording and that require the suspect to initial a choice whether or not to permit recording.  According to the Court, “… the better practice going forward is simply to advise suspects of the recording instead of requesting permission to record.”

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