Massachusetts Alcoholic Beverages Control Commission Investigation and Enforcement Division
OPERATIONS MANUAL
CHAPTER:O-005
SUBJECT:Arrest Procedures
AMENDS/SUPERSEDES: All Previous
DISTRIBUTION: All Investigators
______
Discussion:
The purpose of this chapter is to set forth uniform and lawful procedures, which govern the methods by which members of the Investigation and Enforcement Division effectuate arrests with and without a warrant.
The arresting investigator must have lawful authority to make an arrest and must exercise that authority in a lawful manner. To constitute an arrest, there must exist intent on the part of the arresting investigator to take the person into custody and a corresponding understanding by the person arrested that he is in custody. The test for determining the moment of arrest is whether, under all the circumstances, a reasonable person would believe that he is not free to leave.
In addition to having lawful authority, an investigator must also have probable cause to make an arrest. "Probable cause" means that, based upon all the circumstances and facts within the investigator's knowledge, and of which he has reasonable trustworthy information, there is sufficient evidence to warrant a reasonable and prudent person to believe that a person has committed, is committing or is attempting to commit a crime. The evidence required to make an arrest is more than suspicion, but less than that needed to make a conviction.
It should always be recognized that there is no such thing as a "routine" arrest. Because of the unpredictability of human behavior, there is a potential element of danger in every arrest, and all investigators must guard against this possibility. Life-threatening struggles have resulted from what appeared to be a "simple" arrest.
It is the practice of the Investigation and Enforcement Division to recognize that, as the power to arrest deprives a person of liberty and freedom, it is one of the most serious responsibilities of an investigator and whenever possible should be substituted with a criminal complaint. All constitutional and statutory rights will be afforded to an arrested person at the time of arrest and immediately thereafter.
Investigators derive their arrest powers, and responsibility to enforce laws under Chapter 138, under the provisions of Massachusetts General Laws Chapter 138 §56.
A deputy sheriff, chief of police, deputy chief of police, city marshal, deputy or assistant marshal, police officer including a state police officer, or constable, or, in the county of Dukes or Nantucket, the sheriff anywhere within his county, or any investigator of the commission,may without a warrant arrest any person whom he finds in the act of illegallymanufacturing, selling or exposing or keeping for sale, storing, transporting, importing or exporting alcoholic beverages or alcohol, and seize the said beverages or alcohol and any vessels and implements of manufacture or sale in the possession of such person, and detain them until warrants can be procured against such person, and for the seizure of said beverages or alcohol, vessels and implements, under this chapter. Such officers shall enforce or cause to be enforced the penalties provided by law against every person who is guilty of a violation of this chapter of which they can obtain reasonable proof, and shall make all needful and appropriate investigations for the said purpose.
In addition, Investigators that have the powers of deputy sheriff in a county give investigators the power to arrest, or enforce laws in said county.
All investigators shall apply for criminal complaint in lieu of arrest, whenever feasible.
While Investigators, lawfully appointed as deputy sheriffs, have the power to arrest individuals for crimes outside Chapter 138, it is the primary mission of the division to enforce laws relating to alcoholic beverages. Arrests made outside the provisions of Chapter 138 shall be confined to a breach of the peace where the safety of the Investigator or another person in immediate peril.
[e.g. Chapter 265 §13D Assault and Battery on a Public Employee]
Based on the development of probable cause investigators may request a police officer from the town, deputy sheriff, or trooper from State Police and pass on your probable cause.
If the investigator passes on probable cause to another police agency, the investigator shall file an Investigation Report providing the observations and the facts and circumstances leading to the development of probable cause.
PROCEDURES
Arrest Without A Warrant:
A.An arrest without a warrant merits close examination because of the subjective factors involved.
B.An arrest warrant is required except in the following situations:
1.The arresting investigator, in a county where he is a deputy sheriff, has probable cause to believe that the person has committed or is committing a felony. In the case of a felony, a warrantless arrest may be made in a public place if there is probable cause.
2.The arresting investigator, in a county where he is a deputy sheriff, has probable cause to believe that a misdemeanor or a violation has occurred in his presence.
C.All investigators should be able to point to specific factors justifying an arrest without a warrant. Probable cause requires more than mere suspicion but less than that required to secure a conviction. Of great importance is the totality of the circumstances surrounding the arrest. The following factors may be used to establish probable cause:
1.Direct observations by the investigators. Did they see a crime being committed?
2.Reliable hearsay. Did they receive information from other sources and were they certain of the reliability of such sources?
a.Statements from other investigators. An investigator making an arrest need not himself have probable cause as long as he relies on information from another investigator who DOES have probable cause.
b.Statements from informants. These are closely scrutinized when used to establish probable cause. An investigator must be able to show the reliability of the informant and the information being provided. Steps should be taken to corroborate all information received for the purpose of establishing probable cause.
Investigator Safety:
A.An arrest should never be made to vent personal feelings or to show authority.
B.An arrest should never be made as a substitute for resolving a problem when less severe methods are available.
C.Upon arrest, an investigator should avoid unnecessary conversation. All instructions or directions should be given in a clear, concise and COURTEOUS manner.
D.An arresting investigator MUST identify himself as a investigator and deputy sheriff, and whenever possible, the person arrested should be EXPRESSLY informed of that fact.
E.Arresting investigators should not act in a careless or routine manner, but instead, take all necessary steps to insure the safety of themselves and others. Such steps should include, but are not limited to, the following:
1.Obtaining assistance when necessary either before or after the arrest. This is particularly advisable when:
a.There is more than one person being arrested.
- A dangerous crime is involved, for example, a felony of a serious nature.
c.Prior experience has shown the need for assistance in similar situations.
F.Force should only be used when there is resistance or a reasonable certainty of resistance. The amount of force will be restricted to that which is reasonable, necessary and proper under the circumstances.
G.Upon arrest, it is the responsibility of the arresting investigator to insure that the prisoner does not injure himself, escape or dispose of evidence.
Prosecution
A.Complaints and warrants shall be submitted to the court in advance of the arraignment date as the court directs and the investigator shall be represented at arraignment in person, by a supervisor, or by the police or public prosecutor in the particular jurisdiction. The prosecutor shall be furnished with a copy of the offense report.
B.No investigator shall participate in a cooperative investigation, surveillance, raid or arrest in conjunction with local or state police units without first obtaining the approval of the Chief Investigator.
ARREST REQUIREMENTS
Next to using deadly force, one of the most awesome responsibilities of a police officer is the power to place an individual under arrest. It is essential that all officers understand what is required to make a lawful arrest and the consequences of not doing so properly. Making improper arrests not only jeopardizes any prosecution and exposes the officer and department to civil liability, it also undermines the public’s confidence and trust that are so essential to any successful community policing efforts.
WHAT’S AN ARREST?
An “arrest” is defined as: “the taking of a person into custody and depriving him of his freedom of action, in accordance with law, in order that such person can be brought before the court to answer to a criminal charge.”[1]
Generally, in order to place someone under arrest the police need both:
(1) probable cause that the person arrested committed an arrestable offense, and
(2) an arrest warrant (unless an exception applies).
Because an arrest is a “seizure” under both the Massachusetts and US Constitutions, all arrests must comply with the standards established by those documents. Basically, arrests must not be unreasonable, they must be based on probable cause, and they must comply with arrest warrant requirements (unless falling under a narrow set of exceptions).
The Federal Standard:
Although the Fourth Amendment to the United States Constitution does not specifically mention the word arrest, it clearly governs arrest by police when it declares that “(t)he right of the people to be secure in their persons . . . against unreasonable . . . seizures shall not be violated.” The protections of the Fourth Amendment apply to citizens of each state pursuant to the Fourteenth Amendment's requirement of due process.[2]
The Massachusetts Standard:
The actions of Massachusetts police officers in making arrests are also governed by Article 14 of Part I of the Massachusetts Constitution which, in language similar to the federal Fourth Amendment, declares that “(e)very subject has a right to be secure from all unreasonable . . . seizures, of his person ….”
ELEMENTS OF ARREST
An arrest can occur even if the police do not make a formal arrest.[3] As the Appeals Court explained in the 2007 case of Com. v. Barbosa, an arrest occurs where there is:
an actual or constructive seizure or detention of the person,
performed with the intention to effect an arrest and
so understood by the person detained.[4]
The US and Massachusetts courts seem to be in agreement over what constitutes a seizure under their respective constitutions. As the SJC noted in the 1994 case of Com. v. Cook[5]:
The United States Supreme Court held that, before a seizure occurs under the Fourth Amendment to the United States Constitution, there must either be physical force applied against the suspect or an assertion of authority by a law enforcement officer and submission by the suspect to that assertion of authority.[6] In our determination of what constitutes a “seizure” under art. 14 of the Massachusetts Declaration of Rights, we have followed the test previously set forth by the United States Supreme Court: Whether, in view of all the surrounding circumstances, a reasonable person would have believed that he was not free to leave.[7]
PHYSICAL RESTRAINT, SEIZURE OR SUBMISSION
For an arrest to be complete, the person must be under the custody and control of the police. This can be accomplished in either an actual or constructive manner.[8]
As explained in the famous Supreme Court Mendenhall case, an objective standard is used to determine when a seizure has occurred: “a person has been ‘seized’ ... if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”[9] For example:
“Stopping a car and detaining its occupants constitutes a seizure”[10];
seizure occurs when circumstances of an encounter are so intimidating that a reasonable person would believe that he was not free to leave[11];
physical detention of defendant to determine identity implicates Fourth Amendment rights[12];
“It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”[13]
Actual Seizure
An actual seizure occurs when the officer physically restrains the person by touching the individual, holding him or her, using handcuffs, placing him or her in a cruiser, taking him or her into a room or otherwise restricting the person's freedom of movement by physical gestures or means. But not one of these factors is necessarily controlling. The court will look at many factors involved and the reasonableness of the action by the officers based on the circumstances.
What is significant, however, about its decision in the leading case of Massachusetts Gen. Hosp. v. Revere, is that the SJC held that an arrest occurred when the police officers used extreme force to apprehend the defendant.[14] Such a use of force was inconsistent in nature and degree with that authorized by an investigatory stop. The SJC’s opinion in Com. v. Bottari, illustrates, also, that, as matter of State law, use of excessive force in detaining a suspect may raise the nature of a seizure from an investigatory stop to the level of an arrest requiring probable cause.[15]
Case Examples of police action that was deemed a seizure by the courts:
A seizure occurs if officers restrain an individual's freedom simply to walk away.[16] This statement was made by the U.S. Supreme Court in 1985 during the well-known Tennessee v. Garner case.[17] It is important to note the distinction that the Court made when it explained that restraining an individual’s movement is a seizure, but not necessarily an arrest. (A seizure may require Miranda warnings and trigger other rights.) However, in order to have an arrest the other two elements of an arrest must be met.
A suspect who had been handcuffed and locked in the back of a police cruiser after she attempted to flee during a Terry investigatory stop, which took place after she was observed near the scene of a reported robbery, and matched the description of the perpetrator, was subject to curtailment of her freedom of action to the degree associated with a formal arrest, and thus was entitled to warnings under Miranda before being questioned by the police as to what she was doing at that early hour of the morning.[18]
An officer's request that the defendant remove his shoes constituted a seizure within the meaning of art. 14.[19]
Case Example of police action that did not amount to a seizure:
An officer does not make a Fourth Amendment seizure merely by approaching an individual, identifying himself or herself as a police officer, and asking that individual to take his or her hands out of their pockets.[20] The officer's request in such case is not sufficiently coercive or intimidating to convert an encounter into a seizure.[21]
A plain clothed officer displaying badge and asking defendant if he would step aside and talk with him was a “consensual encounter” implicating no Fourth Amendment interest.[22]
Constructive Seizure
A constructive seizure occurs when the person submits to the officer's authority and control, but physical restraint or similar measures are not needed or used. This is the case when the person willingly complies with the officer's instructions or orders to remain where he or she is, or go to a certain area, or otherwise complies with the officer's commands without the utilization of physical gestures or means.[23]
An encounter between the police and a suspect may amount to an arrest, rather than a “stop,” even if the police do not make a formal arrest. “[T]here is no magic in the word ‘arrest’....”[24]
Practice Pointer
One situation in which officers may be faced with a real need to determine whether an arrest has occurred is when they are considering charging an individual with resisting arrest. Officers must be able to determine when an arrest is complete and whether further struggles with a person thereafter might be assaultive but not come under the resisting arrest definition for purposes of MGL c. 268, s. 32B. In the 2003 Appeals Court case of Com. v. Green, the defendant contended that his arrest was complete when he was handcuffed in front of the glass partition at the police station, and therefore the jury should not have been permitted to consider his subsequent struggle as having a bearing on whether he resisted arrest.[25] The Court ruled in Com. v. Grandison, where the defendant had been struggling with officers who were trying to arrest and handcuff him, that the arrest was not “effected” until the defendant was under the control of the officers. The entire continuum of events commencing with the handcuffing and culminating with forcing the defendant into the holding cell was found to be the “effecting” of the arrest under the statute. On the other hand, the defendant in the Green case was not placed securely in custody until he was finally pushed into the holding cell. Prior to that, his resistance prevented the effecting of the arrest for purposes of G.L. c. 268, § 32B. Unlike the Grandison case, the Green case did not feature two separate periods of resistance separated by an effected arrest.
Case Examples of police action amounting to a constructive seizure:
Large Show of Force: A detention may escalate into an arrest if the police use a large show of force. For example, where a suspect's vehicle was blocked from moving by a police cruiser and the police then confronted the suspect upon his return to that parking lot with weapons drawn, an arrest occurred.[26] However, the fact that the cruiser backed up in the direction of the defendant did not amount to a stop or a constructiveseizure.[27]
Prolonged Detention: A forty minute stop by two state troopers who used their cruisers to block a suspect's car front and rear, had a canine sniff for drugs, consulted with the District Attorney's office and held the individual pending the arrival of other troopers, amounted to an arrest.[28]
Pursuit: A person is seized by a police officer under Article 14 if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave.[29] According to the 1996 SJC case of Com. v. Stoute, in the context of a police pursuit, a person being pursued is seized when the circumstances, objectively considered, indicate to that person that (s)he would not be free to leave the area (or to remain there) without first responding to a police officer’s inquiry.[30] At that moment, when that person is neither free to stay nor leave without police interference, that person “is plainly the object of an official assertion of authority, which does not intend to be denied, and which infringes considerably on the person’s freedom of action.”[31] The Stoute case involved a police attempt to pursue, detain, and question a person riding a bicycle on a public street. The SJC was concerned that individuals be able to avoid prolonged police interaction when the police have no basis for suspecting criminal wrongdoing.