What to Do in the First 24 Hours After an Arrest in Massachusetts

By Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995

An arrest in Massachusetts begins a fast sequence of police and court proceedings. Police first complete booking and must have an on-call court clerk make the initial bail determination. At the court's next session, arraignment occurs and a judge considers bail again.

What the arrested person says and does during this period can affect the evidence, release conditions, criminal record, and available defenses. This page explains each stage of the Massachusetts criminal process from arrest through arraignment and identifies the steps an accused person should take during the first 24 hours.

A criminal case can sometimes end before trial. The page on how Massachusetts criminal cases may be dismissed explains the available procedures and who may authorize each result.

Step 1: The Arrest and the Right to Remain Silent

An officer must have probable cause to make a Massachusetts arrest. For a warrantless public arrest on a misdemeanor, the officer generally must have witnessed the offense unless a statute creates an exception.

Absent such a statute, the common law also requires that the misdemeanor involve a breach of the peace and still be continuing, or only interrupted, at the time of the arrest.

Police generally need an arrest warrant, consent, or exigent circumstances to enter a private residence to make an arrest. An unlawful arrest may support a motion to suppress evidence obtained as a result.

During custodial interrogation, the Fifth Amendment and Article 12 of the Massachusetts Declaration of Rights protect the accused from compelled self-incrimination. Before questioning a person in custody, police must provide the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966).

The accused should invoke the right to remain silent clearly. Under Berghuis v. Thompkins, 560 U.S. 370 (2010), simply remaining quiet does not clearly invoke that right. A single direct statement such as the following is sufficient.

I am invoking my right to remain silent. I want to speak with a lawyer.

After a clear invocation, police generally must stop custodial interrogation. The arrested person should not answer follow-up questions, respond to assertions about the evidence, or discuss possible leniency. The page on the right to remain silent in Massachusetts explains how the protection applies during an investigation and after arrest.

Step 2: Booking at the Police Station

Police transport the arrested person to the station and complete booking. The booking process creates the formal arrest record and ordinarily includes fingerprints, photographs, identifying information, and an inventory of personal property. Police should provide a receipt for property they retain.

The Right to Use a Telephone

M.G.L. c. 276, § 33A requires the officer in charge to inform an arrested person of the right to use a telephone immediately upon arrival at the station. Police must permit the call within one hour. The arrested person may contact family or friends, seek an attorney, or arrange release on bail.

The arrested person should use the call to contact a criminal defense lawyer or a trusted person who can locate a lawyer. The person should not discuss the facts of the case on a station telephone.

Recorded Calls and Booking-Area Conversations

The arrested person should assume that calls to family members and friends from a police station telephone are recorded. Statements about the incident can become prosecution evidence. The person should ask the police how to communicate privately with counsel.

The arrested person should not discuss the case with another detainee or anyone in the booking area. Those conversations are not protected merely because they occur inside the station.

Phones, Computers, and Passcodes

The arrested person should not consent to a search of a phone, computer, online account, or cloud storage. Under Riley v. California, 573 U.S. 373 (2014), police generally need a warrant before searching the digital contents of a seized phone. Consent and other recognized exceptions can permit police to search without a warrant. The person should therefore state the refusal clearly and should not interfere physically if police proceed.

The arrested person should not disclose a passcode voluntarily. The question whether the Commonwealth can obtain a court order compelling access to the device is a separate legal issue. The page on digital search warrants in Massachusetts explains warrants, particularity, device searches, and delays in searching seized electronics. The page on digital evidence in Massachusetts criminal cases addresses authentication and admissibility after police obtain digital material.

Some arrests involve additional procedures. After an arrest for operating under the influence, police may request a breath test. The arrest can also produce immediate license consequences. The page on what happens after an OUI arrest in Massachusetts explains that separate process.

Step 3: The Initial Bail Determination After Booking

After booking, police must have an on-call court clerk make the initial bail determination under M.G.L. c. 276, § 58. The police do not decide whether the arrested person receives this review. The clerk decides whether the person may be released before arraignment and what conditions will apply until the court's next session. The clerk does not decide guilt or resolve the criminal charge.

Section 58 favors release on personal recognizance unless the clerk determines that recognizance will not reasonably assure the person's appearance in court. The clerk may consider the charge, the person's prior record, community ties, employment, and risk of flight. Many people arrested on a first misdemeanor receive personal recognizance, while a serious charge or an existing record may lead to cash bail or continued custody.

For bail taken outside regular working hours, M.G.L. c. 262, § 24 sets a maximum fee of $80 and charges that fee only to the Trial Court. The arrested person does not pay that fee.

An arrested person who receives release must read the paperwork, comply with every condition, and appear at the court's next session. A person whom the clerk does not release remains in custody until that session.

Dangerousness Detention

At arraignment, the Commonwealth may request a dangerousness hearing under M.G.L. c. 276, § 58A when the pending charge is a qualifying offense specified in § 58A. The judge may hold the defendant pending that hearing.

After the hearing, a judge may order detention only upon clear and convincing evidence that no conditions of release will reasonably assure the safety of another person or the community. Absent good cause, Section 58A authorizes detention periods of up to 120 days in the District Court and up to 180 days in the Superior Court. Counsel should prepare for the qualifying-offense, evidentiary, and release-condition questions before the hearing.

Step 4: Arraignment at the Court's Next Session

Arraignment occurs at the court's next session. The judge identifies the charges, receives the defendant's plea, and considers bail and release conditions again. The judge makes this bail determination even though the on-call court clerk addressed bail after booking.

Massachusetts Rule of Criminal Procedure 7 governs the timing of arraignment. A person arrested during the weekend may remain in custody until the court opens for its next session on Monday.

For a warrantless arrest, Article 14 separately requires a reasonably prompt judicial determination of probable cause. In Jenkins v. Chief Justice of the District Court Department, 416 Mass. 221 (1993), the Supreme Judicial Court set an outer limit of 24 hours for that determination. The Jenkins probable-cause determination is not an arraignment and can occur before the court's next session.

Arraignment and CORI

Arraignment creates the criminal-record entry known as CORI. The CORI record lists the charge as pending once the court calls the case for arraignment. The CORI record later reports the disposition of the charge, but a dismissal or not-guilty verdict does not by itself erase the entry.

Sealing a Massachusetts criminal record involves a separate procedure that depends on the disposition. The sealing page explains the different rules for convictions, dismissals, acquittals, and other non-conviction dispositions.

For many misdemeanor allegations in which police did not make a warrantless arrest, a private clerk-magistrate hearing may occur before the court issues a criminal complaint. No complaint issues if the clerk-magistrate denies the application. In that event, no arraignment occurs and no CORI entry results from the application.

The existence of a CORI entry can affect college and university students, licensed professionals, and anyone whose application or employment requires a criminal-record disclosure. The Massachusetts clerk-magistrate hearing FAQs answer common questions about eligibility, evidence, privacy, and possible outcomes.

The Plea at Arraignment

A defendant ordinarily enters a not-guilty plea at arraignment. That plea preserves the ability to review discovery, file motions, negotiate a resolution, seek dismissal, or proceed to trial. A not-guilty plea does not prevent the defendant from later accepting an agreed disposition after receiving legal advice.

Step 5: The Pretrial Phase

After arraignment, defense counsel obtains and analyzes the Commonwealth's evidence, investigates the accusation, identifies motions, and advises the defendant about trial and possible dispositions.

Discovery

The Commonwealth must provide police reports, witness statements, recordings, surveillance footage, dispatch records, forensic material, and other discoverable evidence. The Commonwealth must also disclose material exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and the governing Massachusetts rules.

Motions

A motion to suppress may challenge evidence obtained through an unlawful search, seizure, stop, interrogation, or warrant. The Commonwealth cannot use the suppressed evidence at trial if the judge grants the motion. The Commonwealth may be unable to proceed with the case when the suppressed evidence is necessary to prove the charge. The page on illegal searches and seizures in Massachusetts explains the principal constitutional grounds.

Other motions may challenge a defective complaint, untimely prosecution, discovery violation, or another procedural defect. The appropriate motion and the person authorized to dismiss the case depend on the procedural stage, as explained in the Massachusetts criminal dismissal rules.

Pretrial Conferences and Dispositions

At pretrial conferences, counsel addresses discovery, motions, trial scheduling, and possible resolution. A proposed disposition may include a continuance without a finding, pretrial probation, a reduced charge, or another agreement.

The defendant decides whether to accept an offer after counsel explains the evidence, available defenses, trial risks, sentence, and collateral consequences. Immigration, professional licensing, school discipline, firearms, Registry, and CORI consequences may require separate review before the defendant accepts a disposition.

What to Do During the First 24 Hours

These instructions reflect Attorney Serpa's Massachusetts criminal-defense experience since 1995.

1. The arrested person should invoke the right to remain silent clearly. The person should say, “I am invoking my right to remain silent. I want a lawyer.” The person should then stop discussing the allegation.
2. The arrested person should refuse consent to a search. The person should state a refusal to consent to any search of the person's vehicle, home, phone, computer, accounts, or other property. The person should not physically resist if police proceed.
3. The arrested person should not disclose a passcode voluntarily. Police generally need a warrant to search a phone's digital contents. Compelled access presents a separate question.
4. The arrested person should use the telephone right to contact counsel. M.G.L. c. 276, § 33A requires police to permit a call within one hour after arrival at the station.
5. The arrested person should not discuss the facts of the case on a station telephone. The person should assume that calls to family members and friends are recorded.
6. The arrested person should not discuss the case in the booking area or holding cell. Statements to another detainee can become evidence.
7. The arrested person should not contact the complainant or a witness. A call, text, apology, indirect message, or social-media contact can damage the defense, support an intimidation allegation, or violate a protective order.
8. The arrested person should preserve evidence. The person should keep relevant photographs, messages, videos, location information, witness names, and contact information. The person should not delete or alter digital material.
9. The arrested person must follow the clerk's release conditions. The person must read the bail paperwork and comply with every no-contact, stay-away, travel, or appearance requirement.
10. The arrested person must appear at the court's next session. The judge will arraign the case and consider bail again.

Actions That Can Damage the Defense

Certain actions after arrest can create additional evidence, new charges, or stricter release conditions.

Explaining the Incident to Police

Police conducting a post-arrest investigation collect evidence for the prosecution. A statement intended to explain or deny the accusation can contain admissions that establish part of an offense or conflict with other evidence. The arrested person should invoke the right to remain silent and allow counsel to review the evidence before making any statement.

Posting or Deleting Material on Social Media

The arrested person should not post about the incident, the complainant, the police, or the pending case. The person should preserve existing posts and messages rather than deleting or altering them. The Commonwealth may seek social-media content and use relevant statements or deletions as evidence.

Contacting the Complaining Witness

The arrested person should not call, text, email, or visit the complaining witness or send the complaining witness a message through another person. Contact can support an additional allegation, affect bail, or damage the defense. Prohibited contact can constitute a separate criminal offense if a 209A abuse prevention order or another no-contact order is in effect.

After a domestic violence arrest, the complainant may seek an emergency 209A restraining order (abuse prevention order), including through an on-call judge when court is closed. The arrested person should read every release and protection order carefully.

Assuming the Complainant Controls the Prosecution

The District Attorney's Office controls the criminal prosecution. A complainant cannot unilaterally dismiss a criminal charge. The Commonwealth may continue the case through police observations, 911 recordings, medical evidence, photographs, or admissible out-of-court statements even when the complainant does not want to testify.

Licensed Professionals and University Students

Professional-Board Investigations and Reporting Duties

Professional boards and regulators may investigate information they receive about an arrest or criminal charge. A board may have authority to restrict or suspend a license before the criminal case is resolved, depending on the governing statute and regulation.

The professional's own reporting duty presents a separate question. A Massachusetts attorney must notify bar counsel within ten days after a conviction under S.J.C. Rule 4:01, § 12(8). The rule defines conviction to include an admission to sufficient facts, but a charge alone creates no reporting duty to bar counsel. FINRA asks about specified criminal charges when they are filed. Other boards set profession-specific rules about which events require a report and when the report is due.

The page on criminal defense for licensed professionals explains the disclosure and disciplinary rules by profession.

University Disciplinary Proceedings

A college or university may open a student-conduct or Title IX proceeding after learning of an arrest or allegation. The procedure, burden of proof, interim restrictions, and potential discipline depend on the institution's current policy. The school may proceed before the criminal case is resolved and may act even if the criminal charge is later dismissed.

Statements made during a campus interview or in a written submission can affect the criminal defense. Counsel should coordinate the two proceedings before the student provides an account of the incident.

Which Court Will Hear the Criminal Case

Massachusetts District Courts and Boston Municipal Court divisions hear misdemeanors and many felonies. The Superior Court hears more serious felony cases. The court that hears the case depends on the location of the alleged offense and the charge.

Local scheduling, clerk-magistrate procedures, and prosecution practices differ among courts. Cambridge District Court hears many cases involving Harvard and MIT students and Kendall Square professionals. Quincy District Court hears cases arising from South Shore communities. Counsel should prepare for the procedures of the particular court where the case is pending. The Massachusetts District Courts and Boston Municipal Court directory provides court-specific information.

Interrogation in a Language Other Than English

Defense counsel should obtain the recording of any police questioning conducted in a language other than English and examine the accuracy and completeness of any interpretation or translation. The Appeals Court has addressed the use of an untranslated interrogation to impeach a defendant who later testifies.

Key Points

• Police complete booking and must have an on-call court clerk make the initial bail determination. The judge considers bail again at the court's next session.
• Arraignment occurs at the court's next session. The separate judicial probable-cause determination required after a warrantless arrest must occur within 24 hours and is not the arraignment.
• The arrested person should clearly invoke the right to remain silent and ask for a lawyer. The person should then stop discussing the allegation.
• The arrested person should assume that nonprivileged station telephone calls are recorded and should not discuss the case with another detainee.
• Police generally need a warrant to search a phone's digital contents. The arrested person should refuse consent and should not disclose a passcode voluntarily.
• No complaint, arraignment, or CORI entry results from an application denied by a clerk-magistrate.
• Licensed professionals and university students may face separate board or campus proceedings before the criminal case is resolved.
• The arrested person should not contact the complainant or any witness and must comply with every release or protection-order condition.

Related Serpa Law Office Resources

• Greater Boston and Massachusetts Criminal Case FAQs
• Massachusetts Arraignment
• What to Do When Under Criminal Investigation in Massachusetts Before Charges Are Filed
• Massachusetts Clerk-Magistrate Hearings
• Massachusetts Criminal Records
• Massachusetts Dangerousness Hearings
• Digital Search Warrants in Massachusetts

For a free consultation after a Massachusetts arrest, contact Serpa Law Office. The office can be reached at 617.936.0201.