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Disorderly Conduct – When Talking Back Will Get You Arrested

Who doesn’t get upset when a police officer pulls you over when you are already running late?  Nothing can be more frustrating than getting stopped for going only five miles over the speed limit.  How many times have you wanted to tell the police officer just where he can put his ticket?  Most of us do well to remain calm, either out of fear or respect.  But what happens if you lose your cool?  Can you really get arrested? One Massachusetts resident found out the hard way.

Watch what you say to the police

About three years ago in Lowell, Massachusetts, Officer Brian M. Kinney was called to investigate a report of an unwanted individual on private property.  When he arrived at the house, he found Vesna Nuon, a Cambodian father of two, who was being belligerent and refusing to return to the house of the friend he was visiting.  Nuon appeared to have been drinking.  When Officer Kinney approached, Nuon shouted, “you’re a coward, hiding behind your badge.”

Here the stories diverge.  Officer Kinney said that Nuon was being aggressive and rude from the very beginning, yelling at the officer and waving his arms angrily.  Nuon told Kinney, “nobody wants you here.”  Nuon’s position was that “[he] wouldn’t be rude to an officer who is responding to a crisis, a crime.”  He claims that Officer Kinney was doing neither.  When the officer asked Nuon for identification, he complied and went inside his friend’s house to get it. When the officer followed him into the house, Nuon objected, reminding him that he could not come into the house without a warrant.  The next thing Nuon knew, he was under arrest and in handcuffs.

Was Nuon’s arrest justified?

Officer Kinney states that he arrested Nuon because he “reeked” of alcohol and was exhibiting “irrational behavior.”  According to the officer, “[Nuon] was screaming and yelling at me over nothing. I was just looking at him, at first, thinking, I don’t know what this man’s problem is.’’ To the contrary, Nuon said he only had two beers that evening and was certainly not drunk.

Nuon was arrested for disorderly conduct and spent several hours in the city jail.  The charges were ultimately dismissed but Nuon filed a complaint in federal court challenging the arrest and alleging that Kinney did not have probable cause.  The federal judge hearing his case agreed with Nuon, and Officer Kinney was found liable for false arrest.  In 2011, the lawsuit was settled for $50,000.

Disorderly conduct charges can cross the line when a police officer is insulted.

Surprisingly, Nuon’s case is not as uncommon as you may think.  On March 24, 2011, the Sixth Circuit Court of Appeals held that a Kentucky man, Kevin O. Kennedy, had been arrested without probable cause and charged with disorderly conduct simply because he called an officer a “fat slob.”  In March 2009, a federal judge ruled against a Pittsburgh police officer who issued a citation to David Hackbart, 34, for giving him the middle finger.

Then of course, there was the newsworthy case of Harvard professor, Henry Louis Gates Jr., who was arrested in July 2009 for screaming at a Cambridge police officer from inside his own home.  The police were initially called out to the residence to investigate a possible break-in, as Gates was having trouble unlocking the door to his home.  If these are all cases in which the courts determined the officers had crossed the line, where is the line actually drawn?

Disorderly conduct versus free speech.

As a former Newark Police Department captain, Jon Shane, has said, “[t]he issue is where you draw the line between free speech and disorderly conduct. That is a perpetual debate in law enforcement circles.’’  Under Massachusetts law, disorderly conduct means “publicly fighting, threatening, engaging in “violent or tumultuous behavior,’’ or creating a hazardous or physically dangerous condition.  In the case of Nuon, the court determined that, even viewing the incident from the officer’s point of view, it was clear Nuon’s conduct did not meet this threshold.  As such, Officer Kinney did not have probable cause to arrest him.  As the court explained in its 20-page decision, “[e]xpressive conduct, even of a coarse and vulgar nature, cannot be punished as a disorderly offense.”

So, how can this abuse of arrest powers be curbed?

Sarah Wunsch, staff attorney with the Massachusetts ACLU, said the decision in the Nuon case is a reminder to police officers that, even when dealing with someone who is belligerent or irritated, that person is still protected by the Constitution.  Wunsch said of police officers in general, “They don’t have an easy job.  They do have to put up with people who are yelling at them and disapproving of what they’re doing. But they’re supposed to be trained to deal with that. . . . They’re supposed to remain calm.”

In light of Nuon’s case, Lowell city officials are looking at training options to better ensure that officers are not overstepping their authority by making arrests improperly based on insult or emotion.  Otherwise, more and more municipalities and law enforcement organizations will be faced with lawsuits for violations of civil and constitutional rights.

Resisting Arrest – Knowing Your Rights

Resisting arrest is one thing, assaulting an officer in the process is yet another.  Assaulting a police dog?  That will certainly make the headlines.  When police were called to the scene of a disturbance and found a San Jose man vandalizing cars and brandishing a weapon, they employed the skills of their German Shepherd.  However, they didn’t expect the man to bite the dog.

An unusual case of resisting arrest.

In Santa Clara County, California near San Jose, Sheriff’s deputies responded to a call and found Frank Garcia, 34, armed with what appeared to be a knife.  He had slashed a tire on one vehicle and smashed in several car windows.  Officers attempted to talk him down so they could take him in, but he stabbed himself three times.

As his self-inflicted injuries were not life threatening, the deputies made the decision to release their K-9, “Ski” in an attempt to subdue the man.  However, Garcia allegedly, punched, choked and bit the dog until the deputies were able to tackle him to the ground.  Ski was not seriously injured, and is expected to make a full recovery and return to duty soon. Garcia was arrested on a number of charges, including resisting arrest, being under the influence of a controlled substance, and injuring a police dog.

Some of the incident was caught on video by a nearby cell phone user, and of course the video has gone viral.  Garcia’s cousin, Maxine Gonzales says that she was very thankful the deputies did not have the need to shoot at him.  That is obviously one good thing that came out of the deputies’ decision to use the K-9.  However, the penalties for resisting arrest can still be pretty steep.  In California, resisting arrest is a misdemeanor and carries with it a sentence of up to one (1) year and/or a maximum fine of one thousand dollar ($1,000) fine.  The same offense in Massachusetts could lead to a longer period of confinement.

Resisting Arrest Charges in Massachusetts

Although the charge of resisting arrest in Massachusetts is only a misdemeanor, it still carries with it a pretty significant penalty.  Massachusetts General Law Chapter 268 section 32B states as follows:

[w]hoever violates this section shall be punished by imprisonment in a jail or house of correction for not more than two and one-half years or a fine of not more than five hundred dollars, or both.

The elements of a resisting arrest charge are (1) that you prevented or attempted to prevent a police officer from making an arrest; (2) the officer was acting under color of his official authority at the time of the arrest; (3) proof that you actually resisted; and (4) you knowingly committed these acts.  Resisting usually means that you used, or threatened to use, physical force or violence against an officer or someone else.  It can also include using some other means to create a substantial risk of causing bodily injury to the officer or another person.  It must also be shown that the police officer was either in uniform at the time he attempted to arrest you, or if not, he identified himself by showing his badge or other credentials.

Defenses to resisting arrest may apply to your situation.

In Massachusetts, there are defenses applicable for resisting arrest charges, such as when you are resisting a pat frisk, fleeing a police officer who orders you to stop for the purposes of a threshold inquiry only, or not knowing the person you were resisting was a police officer.  You also have the right to use reasonable force to resist an arrest if the officer uses unreasonable or excessive force.  If you have been charged with resisting arrest it is important to retain a Massachusetts criminal defense attorney who knows the system and can help defend your rights.

“Pleasant” Street a Harbor for Drugs

Once a man’s world, the underbelly of drug trafficking is resurfacing in once-peaceful neighborhoods. Massachusetts police recently raided an Easthampton apartment and arrested two female residents for narcotics trafficking and possession. While this is not an isolated incident in the increasingly criminal neighborhood of Pleasant Street, it certainly adds to the problem. Police alleged that Marcella Severance, 54, was the head of the operation. Police charged Severance with trafficking up to 100 grams of cocaine. At market value, the cocaine is worth nearly $4,800. Heather Martinez, 39, was charged with two counts of class B substance possession, Percocet and Suboxone, without a prescription.

Since January, police has recorded two cases of drug overdoses on Pleasant Street alone. Accordingly, Easthampton police and the Northwestern District Attorney’s Anti-Crime Task Force commenced their investigation and are hoping to make more drug-related arrests.

How Does Massachusetts Law Treat Cocaine Possession?

The law on drugs is clear in Massachusetts. One-time possession of cocaine, a class “B” substance, racks up to 1 year in jail and a fine of up to $1,000, according to  MGL Chap.94C, Sect.34. In addition, the cocaine possessor also automatically loses his license for one year. If you are convicted of cocaine possession for the first time you could face up to 1 year in jail and a fine of up to $1000.

In terms of cocaine possession with intent to distribute, M.G.L. Chapter 94C Section 32A states that offenders will receive a 2 ½ year jail sentence and a fine of not less than $1,000 and up to $10,000. Recidivist offenders may face up to 3 years in state prison, a maximum sentence of 10 years, a $2,500 to $25,000 fine, and a mandatory 3 year license suspension.

According to MGL Chapt. 94C, Sect. 32E, 14-28 grams of cocaine warrant at least three and at most 15 years in state prison. If an individual is caught with 28 and up to 100 grams of cocaine, he or she may be imprisoned for five to twenty years. For 100 grams or more, but less than two hundred grams, the prison term becomes 10-20 years in state prison.

In this scenario, the drug operation’s ringleader possessed 97 grams of cocaine, and she may face up to 20 years in prison. However, a portion of her sentence may be mitigated if she can help police get more leads.

Public Policy Concerns

The public policy concerns inherent in the war on drugs are that it simply does not seem to end anytime soon. From marijuana sales among teens to large-scale operations, drug trafficking does not discriminate among race or educational background. Thus, law enforcement does not shy from bursting  into apartments, even ones inhabited by single women, or families, because enough cause has been shown in their investigations. Drug abuse will remain the black sheep of American society, and the means to get drugs are more accessible than ever.

What Can Police Search in MA?

The constitution of the United States gives people many different rights.  One of the  rights that every person has is against unreasonable search and seizure.  The constitution is supposed to protect each person from being searched and or seized by police for no reason. Now the constitution is just words on a piece of paper and from a practical stand point it doesn’t physically stop the police from illegally searching any individual.  This is where the court comes in.  If the court finds that a search was illegal, then the court could suppress any evidence that was found during the illegal search. 

The constitution was written over 200 years ago in old colonial times.  This means that the forefather’s really didn’t consider many things that we have today.  For example, 200 years ago we didn’t have cars, phones, or the internet.  Therefore, our forefather’s next covered whether searching a person’s cell phone would be in violation of a person’s constitutional rights. As a result, courts try to interpret the constitution and try to apply it to the issues that we have today.  So under the constitution what is the police allowed to search?  The answer is that it largely depends on the circumstances, however, the court has been pretty clear in some areas. 

police search

One of the clear examples of things that the police are allowed to search is license plates.  For the most part, the police are allowed to approach any license plate and punch it into the computer to find out more about the car.  The court reasons that a license plate is displayed in public and that a driver would have no expectation of privacy over the license plate.  Therefore, the court has ruled on several occasions that a license plate being written down or entered into a computer by the police is allowed and not a violation of a person’s constitutional rights. 

Conversely, the court has ruled that body invasion generally constitutes a violation of a person’s constitutional rights.  Therefore, the police would not be allowed to take a blood sample without a warrant or court order. The court reasons that a person has a right to privacy regarding one’s blood.  Moreover, in order to retrieve that blood a needle would need to invade a person’s body.  The court has ruled similarly to the police attempting to obtain a DNA sample without a court order.  In collecting DNA the police usually use a buccal swab. Essentially, the police use something that looks like a large Q-Tip. The process entails putting the swab in the suspect’s mouth and rubbing it against the inside of the person’s cheek.  The court has ruled on several occasions that a person has a high right to privacy regarding his or her own body.  This means that police may not retrieve blood samples or DNA samples without first getting a search warrant or a court order. 

So there are the two extremes.  First, you have things that are in the open such as license plates that generally the police are allowed to search.  Then you have a person’s own body on the other spectrum that would usually require a search warrant for the evidence to be allowed. The rest of things the searches and seizures are not so clear cut.  There are thousands if not millions of car searches that happen every year.  Now there is no clear cut rule on whether the police are allowed to search a car. Many drug cases start with the police searching a car. For the most part, the court has ruled that a person has less of an expectation to privacy in a car then if they were at home.  This means that it is harder for the police to search a person’s house without a warrant than for the police to search a person’s car without a warrant.  Generally, when it comes to searching a car, the court will look at a number of different factors to see if the police had a right to search the car.  If the court finds that a person’s constitutional rights were violated as a result of the search, the evidence that was found will be suppressed.  If the court finds that a person’s constitutional rights were not violated as a result of the search, the court will allow the prosecutor to continue to use the evidence. 

 The constitution of the United States gives people many different rights.  One of the rights that every person has is against unreasonable search and seizure.  The constitution is supposed to protect each person from being searched and or seized by police for no reason. Now the constitution is just words on a piece of paper and from a practical stand point it doesn’t physically stop the police from illegally searching any individual.  This is where the court comes in.  If the court finds that a search was illegal, then the court could suppress any evidence that was found during the illegal search.  

Does the police need a search warrant to use GPS?

20 years ago it was difficult to find someone that had GPS.  In the modern world where new tech toys are coming out every few months, GPS is more common than ever.  GPS is in cars and even in the palm of most people’s hands. 

GPSWith technology moving so fast the law is trying its best to keep up.  GPS is used now more than ever in criminal cases.  GPS is used in all stages of a criminal case.  First, GPS could be used a way to hinder the movement of a defendant who has plead guilty to an offense.  Second, a judge could require that a defendant abide by a GPS while their case is pending.  And finally, the GPS is being used more and more as an investigative tool by the police. 

When a person is placed on probation or on pre-trial release they know that they are on a GPS.  On the other hand, when the police use the GPS as an investigation tool, the suspect has no idea that the GPS is being used.  The giant legal question was does the police need to have a search warrant to tag someone with a GPS?  The question regarding GPS and criminal police investigations was very much a gray area until now. 

The United States Supreme Court (Boston Globe Article) has ruled that the police do need a search warrant to use GPS in investigating a case.  The US Supreme Court found that the police using a GPS without a search warrant violate a suspect’s constitutional rights.  With the police having access to greater technology these legal questions and limits are just the beginning of a new world. 



Police Blue Lights in Your Rear View Might Not be Christmas Lights

Many people who get pulled over in the state of Massachusetts do not fully know their rights with the officer who pulled them over. Unfortunately this can lead to some police officers taking advantage of those uninformed. Knowing what the officer, who just pulled you over, can and can’t do can help protect your 4th amendment and other rights.

police lights(Picture taken by JSmith) First off, Police officers can not randomly stop and search a vehicle to check the license and registration without a reasonable suspicion of wrongdoing. What does reasonable suspicion of wrongdoing mean? It means that the officer reasonably believes or believed that you have committed a traffic violation or some other crime. So therefore if you have been speeding or driving while under the influence of alcohol  then the officer can pull you over and ask you for your license and registration. The police cannot randomly pull people over to see if your car is licensed and registered. It is important to note that even though the police do not have a reasonable suspicion to pull you over, sobriety checkpoints are legal and valid due to the fact that they are categorized as “fixed checkpoints to test for compliance related to driver safety”.

When an officer pulls you over for a routine traffic stop (speeding, burnt out headlight, etc.) his inquiry about the stop must end on the production of a valid license and registration. However the officer can continue their inquiry if they have the grounds for inferring that either you (the driver) or your passengers were involved in the commission of a crime or engaged in other suspicious activity. If the officer does believe you are engaged in a suspicious activity and continues his inquiry, he must stop his inquiry once any potential threat to his safety has been dispelled and there is no reasonable suspicion that criminal activity is afoot. Once this happens any basis for further detention of you is gone and the office must allow you to leave. Also the officer cannot interrogate any of your passengers unless there is a reasonable basis for him doing so; such as he sees them holding drug paraphernalia.

So lets say you get pulled over for a traffic violation and the officer decides to arrest you. Once this happens the officer can search your body due to the search incident to arrest doctrine. This doctrine basically states that the police can search you for any dangerous weapons or incriminating evidence (e.g. a pat-down) and anything within your immediate control. Due to this doctrine, the officer can search your entire passenger area, including the glove box and any containers found in the passenger area because these areas have been deemed to be within your immediate control at the time the handcuffs are put on you. The officer can search these areas even if you are sitting in the back of the police cruiser.

The searching of an automobile and when you can be stopped is a complex and well litigated issue with many rules applying to many different situations. It is such a complex issue that several blog posts need to be written about it in order to fully explain all the nuances of this area of the law. However the above, basic, laws regarding your rights during a traffic stop are crucial and the ones that citizens need to know about the most. It is especially pertinent to know these basic officer cans and cant’s during the holiday season as there will be many drivers and police officers on the road this holiday season. 

Article written by Andrew Kussmaul 

Police Want More Jurisdiction Power

Boston.com  that some local police agencies are seeking to broaden the powers of police officers to make arrests outside of their jurisdictions. The police agencies are following the outcome of a current Supreme Judicial Court (SJC) appeal to reinstate a driving under the influence conviction, which was dismissed after an Appeals Court determined an off-duty police officer exceeded his powers in another jurisdiction.


In the case the defendant, Joseph F. Limone, was convicted of driving under the influence of alcohol for a 2006 incident in which he rear-ended the vehicle of Robert Kelleher, a Somerville police officer on his way home from work. After the accident, Kelleher, dressed in uniform, approached the defendant’s car, identified himself as a police officer, suspected the defendant was drunk, and asked him to step out of the car. Kelleher then took the keys from the ignition of Limone’s car and called the police. The two men awaited the arrival of the Woburn police in their respective cars. Subsequently, Limone was arrested and convicted of drunk driving


In its reasoning for dismissal of the case, the Appeals Court discusses the Fourth Amendment, which provides for the right to be secure against unreasonable searches and seizures. The officer, being outside of his jurisdiction, is essentially a private citizen and therefore limited to making arrests under the same circumstances as a private citizen. In this case, was the behavior of the police officer consistent with the behavior of a private citizen in the same scenario?


Police Picture taken By Thivierr

The answer, in some respects, is yes. The officer took the keys from a person he suspected of being drunk, called the police, and waited in his car for them to arrive. He never arrested the defendant. These are all actions that a private citizen under the same circumstances might make.

On the other hand, the officer was in uniform, which makes it difficult to separate his actions as a private citizen and a police officer. If an off-duty police officer in uniform asked you to do something, would you obey? Would you know if they were off duty or out of their jurisdiction?

 We’ll wait to hear what the SJC thinks.