Frequently Asked Questions
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Disclaimer:
Nothing included in this page should be considered legal advice. One should consult an attorney for legal matters rather than the internet!
What is a constable?
"A Massachusetts Constable is a sworn peace officer who serves for a municipality. These duties consist of serving judicial processes in their assigned jurisdiction, as well as a series of other duties as may be assigned in their jurisdiction."
-Massbond.com
Under Mass General Law (Section 41) a Constable may serve judicial process (court documents) in the cities or towns in which they’re appointed or elected.
“A constable who has filed such a bond, in a sum of not less than five thousand dollars, may, within his town, also serve any such writ or other process in which the damages are laid at a sum not exceeding $7,000, and any process in replevin in which the subject matter does not exceed in value $7,000” (MGL ch. 41 s. 92).
Another important function of the local Constable is the ability to serve eviction notices to defendants within their sworn area. If a judge signs an eviction, the petitioner (or attorney) can hire a Constable to execute that notice. Needless to say, a defendant may have a difficult time hearing they need to vacate their home, and may offer some reluctance to follow the judge's order. Therefore, the Constable needs to approach a potentially hostile situation with tact and sensitivity. My years of experience as a security professional, private investigator and police officer has prepared me to perform this function with sensitivity and professionalism.
-Massbond.com
What does a Constable do?
All bonded Constables may serve, within the Cities or Towns in which they are appointed or elected, the following:
-All Summons and Complaints with maximum
Ad Damnum allowed by law
-Writs and Trustee Process
-Real Estate Attachments
-Land Court Process
-Executions
-Supplementary Process in any Amount
-Small Claims Notices and Notices To Show Cause
-All Process under G.L. Chapter 239
-Summary Process, Ejectments, etc.
-Notices of all kinds and Demands
-Capias
-Probate Court Process, Domestic Relations
-Subpoenas, Criminal, Civil, and Federal,and other certain Writs and Papers from the District Courts, the Superior, Supreme Judicial, and the United States District Courts
-https://www.constables-mbca.org
How are Constables different from Deputy Sheriffs?
Constables are similar to county Deputy Sheriffs only in the paperwork they’re allowed to serve. Constables are somewhat limited to serving civil process and are dependent on the amount being sued. For example, a Constable can not serve a defendant if the lawsuit is in excess of $7000, unless specifically permitted by a judge. Just as a lawyer would request permission to hire a private investigator for an indigent client, the attorney can apply to the court for special dispensation for a Constable to serve the papers. It should be noted that a constable can only serve this function after they have filed a $5000 bond with the town clerk. Otherwise, any process served over the amount of one thousand and not exceeding seven thousand could be considered null and void.
What is probable cause?
Probable cause is defined as facts or circumstances that cause a police officer to believe, more likely than not, that the subject has committed or is committing a crime. The common sources of probable cause are observations, officers first hand knowledge and/or information from others including government databases. Depending on the circumstances, one of these factors may be enough to establish probable cause, however there are several additional elements that aid the officer in developing a stronger justification. These include the area of the interaction, proximity to a crime, running from police, description of suspect, criminal history, inconsistent/plausible responses to questions, questionable movements, nervousness as well as several others.
Probable cause is developed by the combination of more than one of the above listed factors to lead the police officer to believe the person committed a crime or the person possesses a prohibited item, or evidence of a crime.
Although a person displaying more than one may be a coincidence, the likelihood of this is statistically nil. Thus, by developing probable cause the officer is permitted to arrest or search a subject without a warrant as long as she can articulate what factors led them to that action.
What is reasonable suspicion?
Reasonable suspicion is articulate facts and reasonable inferences that are drawn from the officer's observations or information supplied to the officer to suspect criminal activity. Conversely, probable cause is established by facts or circumstances that cause the officer to believe more likely than not the subject has committed or is committing a crime. The factors to support one can be used to support the other in most cases. However, reasonable suspicion allows the officer to briefly detain the subject in order to gather more information. Unless the interaction proves worthwhile in gaining additional factors in a reasonable amount of time, the subject must be released forthwith.
What is the difference between a seizure and an encounter?
An encounter is when a police officer interacts with another citizen and the citizen is under no obligation to stay and talk to the officer. However, under certain circumstances the officer can compel the person to stay for a brief period of time for inquiry. Failure to do so, may require the officer to deploy physical force or a show of force and require the citizen to stay. Only then is the citizen's liberty restrained and the interaction is deemed a seizure.
How does the Aguilar-Spinelli test, compare to the “totality of the circumstances” test used in federal court?
The federal standard of totality of the circumstances views all the evidence in the “big picture” to determine if the officer had the right authority to stop or arrest the subject. Massachusetts uses a more strict Aguilar-Spinelli test (based on the U.S. Supreme Court in Aguilar v. Texas which created a two-prong test that deals with hearsay evidence). When dealing with informants the police must ask “who are you and how do you know?” Unless both questions are answered, the evidence and subsequent police action may be determined ineligible or unlawful. In most cases an anonymous informant or witness will need more information for the officer to justify a Terry stop or develop probable cause to arrest without a warrant. The federal court, on the other hand may give more credence to the unidentified witness based upon the totality of circumstances if what they reported was later found to be true.
When can police arrest in a dwelling?
In order to arrest a subject in a private dwelling without warrant the officer must show that exigent circumstances existed. Otherwise, if exigency did not exist, the officer must apply for an arrest warrant from the court. Police can show exigent circumstances existed by several ways including the presence of violence, suspect escape if not apprehended immediately, or the length of time it would take to obtain a warrant. However, there is no exigency requirement if the subject is found in the public, where probable cause exists and the offense has a statutory right of arrest.