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Can the police look at my cell phone if I am detained or arrested?

The Fourth Amendment to the U.S. Constitution protects you from unreasonable government searches and seizures, including your electronic and smart devices. Whether you’re being held under detainment or arrest, you still have protective rights.

To start, before speaking to any law enforcement official, you can state you do not wish to answer any questions without your attorney present. In many cases, law enforcement will ask you for permission to complete a search. This is the most common way legal searches are conducted, by people saying yes when the police ask them if they can search.   You do not have to say ‘yes’ to a search.

Even when under arrest, a search of your phone data can only be conducted under limited circumstances. Following an arrest, the police generally search the items on your person and in your pockets, as well as anything within your immediate control. This is within their rights.

If a phone or other digital equipment is found, they can only examine the physical aspects of the phone. For example, an officer may remove the phone from its case or remove the battery. In the event law enforcement believes evidence on the phone is likely to be immediately destroyed, they can search your devices without a warrant.

Contact our office to learn more about your privacy rights in Massachusetts.

Does it really matter if I skip jury duty?

Yes—yes it does.

Skipping jury duty is an easy way to land yourself in completely unnecessary trouble. Massachusetts makes it rather difficult to miss or skip your service date. There are many chances to make right on your having skipped jury duty, but they are all time-consuming and potentially nerve-wracking.

After missing jury service, you will receive a “Failure to Appear” postcard. By phone or by mail, you can respond to this. If you have a reasonable excuse, such as illness, be sure to have a note from your doctor. You will then reschedule your service.

Ignoring this card (at your peril) will lead to a “Application for Criminal Complaint” summons to appear before a judge and explain yourself. You will likely receive a rebuke, and then be seated on the next available jury.

Not showing up to this initial hearing leads to the judge scheduling an arraignment date. Missing your arraignment date leads to a warrant for your arrest.

So don’t skip jury duty. Massachusetts makes it easy to make your service work around your schedule:

After receiving a summons in the mail, you should respond either online or in writing. You will receive a reminder notice in the mail about two weeks before your service date. The night before your service, you can call to see if you still need to report.

You can even reschedule your service online up to the day you are scheduled for. First-time rescheduling requests, by law, are always granted.

So stay out of trouble, show up for jury duty, and take pride in being part of our democratic legal system.

Does Massachusetts allow pain-and-suffering claims?

Massachusetts allows pain-and-suffering claims in some cases. Pain-and-suffering claims are considered “non-economic” in that they are not seeking to compensate for a price-tagged, financial loss caused either by damage to property or by high medical bills. The latter type are “economic” damages.

In Massachusetts, pain-and-suffering claims must usually be filed alongside economic claims. In the case of car accidents, medical claims must exceed $2000 before a pain-and-suffering claim may also be filed. For car accidents, Massachusetts law also expects victims to rely on their own, or the at-fault party’s, insurance coverage before suing.

Some states put “caps” on non-economic damage claims. In Massachusetts, there are no such caps, except in the case of medical malpractice. In medical malpractice cases, there is a cap of $500,000 that can be awarded in pain-and-suffering claims.

If you are seeking compensation for the financial and emotional toll of an injury, call our office today to discuss your options.

What is a common law marriage and how is it different from legal marriage?

When it comes to understanding common law marriages, there are a lot of misconceptions out there. You may have heard that a couple living together for 7 years or longer are automatically common law spouses. This is a false statement as common law marriage regulations are determined per state.

In fact, only 15 states recognize a common-law union, and Massachusetts isn’t one of them. Simply put, a common law marriage is one obtained purely through the conduct and relationship of the couple. Common law marriage does not require that the couple have a ceremony led by a justice of the peace, or that they obtain a marriage license. A common law family is a couple living together in a common law marriage situation with children.

States may choose to recognize common law marriages for various reasons, such as ensuring that no one is excluded from marriage for financial reasons or the belief that people should have the option to marry without government involvement. Criteria for a common law marriage is determined per state; however, all states require that the couple have the intent to be married.

While the state of Massachusetts does not recognize common law marriage, there are some exceptions. For example, families moving to Massachusetts from a state where common law marriage is recognized and meet the criteria for a common law marriage will be treated for all purposes as a legally married couple by the state of Massachusetts. The Full Faith and Credit Clause (Article IV, Section 1 of the U.S. Constitution) requires Massachusetts to honor the marriage laws of sister states.

Give our office a call for additional information regarding Massachusetts common marriage laws

How do courts determine if relocation of a child to another state during a divorce is acceptable?

In situations where a custodial parent wishes to relocate with a child, the court will determine whether child custody relocation is in the best interests of the child. While a parent is free to relocate out of state themselves without the child or with the permission of the other parent to take the child, the state of Massachusetts requires a judge ruling regarding relocation contested by a parent.

Depending on the current custody agreement, the judge has two different processes for determining if relocation is in the child’s best interest. For joint or shared custody the judge will take into account the following:

  • Whether or not the quality of the child’s life will be improved and if the child will endure similar benefits as the parent from the move.
  • Adverse effects of altering visitation schedule and the extent to which the child’s relationship to the non-moving parent will be compromised.
  • How the child’s emotional, physical, or developmental needs will be impacted by moving or not moving.
  • If there is a way to create a new visitation order to allow the non-relocating parent to maintain a close and enduring bond with the child.

In the event a parent with primary custody is requesting relocation, the judge will apply what is known as the “real advantage” standard as the child’s well-being is more closely intertwined with the parent’s welfare in these situations. In this case, the judge will examine evidence of economic benefits, availability of extended family, and the desire to relocate with a new spouse. Additionally, the factors mentioned above will also be used to determine if the move is in the child’s best interest.

I hear police say they are detaining a suspect while putting them in handcuffs. What is the difference between detention and arrest?

It’s important to understand the differences between detention and an arrest because your rights change drastically from one to the other.

Anyone can be detained. The police only need reasonable suspicion to stop an individual. It is required by law that when an officer stops someone, the officer has either a search warrant, probable cause to search, or reasonable suspicion. The term reasonable suspicion refers to an officer having objectively reasonable circumstances to suspect that a detained individual is involved in, or about to be involved in a crime. A 20-minute detainment is considered a reasonable timeframe for detaining someone according to the U.S. Supreme Court.

When people are detained, it is typically for questioning about a person’s identification and purpose for being in the location. While being held, a person may be subject to a ‘patdown’ search if the police have reasonable suspicion that a person may be dangerous. While this does not mean police can immediately search pockets of bags without permission, however, if an officer comes across a weapon they may seize it to protect themselves.

Use of a metal detector, a drug-sniffing dog, or a computer search to determine if the individual has any outstanding warrants for their arrest there are other legal methods of searching during detention.

My ex-spouse has asked to pick up our children, of whom we share custody, at a different time from that stated in our custody agreement. I’m fine with the change. Do we need to alter the agreement, or is a verbal agreement enough?

As an attorney, my answer is almost always going to be “get it in writing.” While you may have the most amicable divorce in the world, you never know what the future may hold. Contracts fill the gaps left when human trust fails.
If this is a one-time, or two-time situation, a verbal agreement might suffice. Of course, without putting it in writing, if you agree to a “quick change,” you may find yourself agreeing to a years-long arrangement without intending to.

Moreover, while it is hard to think about, custody agreements in part to protect children from the threat of parental abduction. Without having a firm time or day for the hand-off, you might find yourself more anxious for the return of your children than you need to be.

If this is a longer-term change, you should definitely alter the custody agreement. If both parents agree to the change, they can jointly file a petition with the court in a fairly simple process.

Whether you are working out an initial custody agreement or need to modify one that is no longer working for your family, come discuss your individual situation with our skilled family law attorneys.

My neighbor allows her dog off-leash. While walking my own dog, the neighbor’s bit me. What recourse do I have under the law?

An aggressive dog is a menace to the neighborhood, and potentially a source of great legal trouble for the owner. In Massachusetts, a dog and its owner are not granted any leniency in terms of civil liability even if this is the first occasion on which the dog has bitten someone. Additionally, since Massachusetts is a “strict liability” state, even if a dog is restrained or an owner otherwise takes “reasonable precautions,” the owner is still at fault. The only exception to this is if the person bitten is trespassing or is tormenting, abusing or teasing the dog.

If you plan on filing charges, or a lawsuit, be sure to take pictures of your injuries and bring documentation from your doctor. If you’ve previously taken pictures of the dog running loose, this would also be helpful.
There may be additional, local ordinances against unleashed dogs that come into play. An experienced personal injury attorney, such as one of our partners, will be able to assess the individual circumstances of a dog attack.
All this assumes, however, that neither you nor your own dog did anything to provoke the neighbor’s animal. The law waves liability for the owner of a dog if the victim of the bite was trespassing or in any way harassing or tormenting the dog.

Call our office today to discuss your options for compensation following a dog bite or another injury.

I make my living in the arts. Does my spouse have a fifty percent share in rights to my works and the income they produce?

Yes and no.

Yes, in the sense that artistic works, along with patents, trade secrets, and many other “intangible” properties, constitute intellectual property. And intellectual property, in Massachusetts, is marital property.

No, in that Massachusetts does not assume “equal” (fifty-fifty) distribution of property between partners at the dissolution of a marriage, but rather “equitable.” Intellectual property falls under the requirement for equitable distribution.

In dividing something intangible, such as the rights to artistic works, Massachusetts family judges will, as with other forms of property, assess the relative contribution of partners to the marriage financially, emotionally, and logistically. Intellectual property has two sorts of value to be divided. The first is the rights to income from future royalties on a work or idea. Second, the present monetary value of a work or idea.

For creators or inventors, it may be wise to include provisions in a prenuptial agreement to protect your intellectual property. If you need help drawing up a prenuptial agreement, or if you are currently involved in a divorce without one, call our office today for expertise in handling intellectual property division.

What constitutes “malicious” destruction of property?

“Malicious” is what separates a crime from an accident that happened to destroy someone’s property. It is also worth noting that the statute covers both “destruction” and lesser “injury” to another person’s belongings, physical or digital.

In Massachusetts, the law is primarily concerned with three things: intention, motive, and cost of the destroyed property. The Commonwealth’s General Code states that destruction of property must be done “willfully” and “maliciously” in order to be a crime.

The “will” of “willfully” refers to intention, which keeps accidents in the realm of the civil courts. If one ran over a neighbor’s tulips while trying to navigate a very narrow shared driveway, this would be unlikely to result in criminal charges. If one lined up the tulips in one’s sights before running them over, this would be a different story.

The other part of the statute covers motive; this is where “maliciously” comes into play. If the destructive act was done out of anger, hatred, or revenge, and specifically targeted at the owner of the destroyed property, then it is done “in malice.” Returning to the tulips—if one had just fought with the neighbor before the destruction of the tulips, this could be interpreted by prosecutors as motive.

Penalties for malicious destruction of property are stiff, with jail time running up to ten years, along with fines in proportion to the value of the property destroyed.

If you’re facing charges of malicious destruction of property, call our office today to discuss your situation.