Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

“A MASSACHUSETTS POLICE OFFICER IS TRYING TO ENTER MY HOME IN VIOLATION OF MY CONSTITUTIONAL RIGHTS.”

We continue on the subject matter that Attorney Sam’s Take was
discussing this past Thursday. Namely, the exercising of your Constitutional rights when law enforcement is pretending that said rights do not really exist
Last week, we discussed a case in which a number of young folks apparently felt that police officers who responded to a loud party were going too far. According to the Commonwealth, these 20-ish people (hereinafter referred to collectively as the “Defendants”) ended up verbally and physically assaulting the officers. Let’s put aside what the Defendants say they were doing for the moment. Clearly, they were not simply agreeing with the officers and quietly complying with the officers’ demands. It brought us to the question of what one is to do when law enforcement is trying to, in your opinion, “go too far”.

The legal issue is that of Search and Seizure and the answer, as it usually is, is “it depends”. However, the one thing that is almost always bound to get you into more trouble is to take on the officer and question his or her authority. This will often lead to some kind of violence and will usual end up in an arrest which did not have to occur.

Let’s take a fact scenario that we dealt with a year or so ago. Patty Prelaw is having a little party in her apartment…assuming 35 partygoers can be said to be “little”. Police Officer Nofun bangs on the door. Patty opens the door and Officer Nofun explains that he has had complaints that the party is too loud and so he would like to come in and “look around”. Patty feels that Officer Nofun’s stroll within would be detrimental to her party’s mood.

Assuming that Patty agrees to turn the party’s volume down and there are no other crimes taking place which Officer Nofun observes, she most likely has every right to not allow him to come in. I say “most likely” because cases differ and some circumstances could change that fact. In this case, however, no such circumstances exist.

Now, most likely, Officer Nofun will not be shocked if she does not invite him to come in. However, she does not have the right to be “disorderly” about it. In other words, if she swears at the officer and tells him amidst various four-letter words to get away, she is likely to have a problem with the officer. Of course, if she tries to shove him out of the doorway, that problem will only increase.

“But I thought that Patty had the right not to let him come in”.

She did, but things are relative. First of all, the officer could always say she was demonstrating disorderly conduct, a crime which is extremely broadly described under applicable statutes and caselaw. It almost comes down to the question of whether it offended the police officer. Naturally, pushing the officer out the door is assault and battery on a police officer.

But here is the real question. Officer Nofun tells Patty that, not only would he like to come in, but he is actually going to come in. And he does. What should she do?
Clearly, the officer is in the wrong here. Patty knows her rights. However, if she were to exercise these rights she may find herself arrested and the police testimony against her might somehow miss the mark of total truth.

What to do?

The fact is that the safest thing for Patty to do is to not fight the officer, but perhaps remind him that he does not have her consent to offer and make sure others at the party see what is going on as well. Not to the extent that suddenly there is a ground-swell of murmuring against the officer so that he could feel threatened. Just so that they are witnesses. The result is that, should an arrest or seizure take place, there is a very valid motion to suppress the evidence and dismiss whatever case develops.

But what if no arrest develops? What if the officer just comes in, bothers people, and leaves? What can Patty do?”

Well she could file a grievance against him with the department…

“But what if they do not do anything about it? Can’t she bring criminal charges against him for trespass or something?”

Realistically, no. The officer will be protected for that.

Well, that’s not fair.”

Yes, I would agree with that. There are many unfairness in the system. Many far worse than this. However, if Patty’s goal is not to spend the night as an involuntary guest of the Commonwealth, then it is the course of action she should follow.

By the way, this is true whether the issue is the officer wanting to come into your home or the officer ordering you out of your car when you are sure he has not right to do it. You take the officer on at your own peril and then a judge will have to decide who to believe between the two of you.

This suggestion is true, by the way, whether you are a teenager, a young adult or someone even older.

However, lest you think that the officers generally refuse to have their authority challenged as a lark…stay tune to my next blog. We will discuss a matter which usually brings about violence between police and civilians most often.

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You had better be reading the Boston Criminal Lawyer Blog!”

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