What to Do When Under Criminal Investigation in Massachusetts Before Charges Are Filed

A detective leaves a voicemail and asks for a call back. Two officers come to the door with a few questions. A sergeant asks a person to come to the station to answer questions about an incident. Officers arrive with a search warrant and leave with a phone and a laptop. A grand jury subpoena arrives in the mail.

Each of these events begins a Massachusetts criminal investigation, and each happens before any arrest and before any charge. A person in that position can retain a criminal defense lawyer at once. A lawyer retained at this stage advises the person on whether to speak with the detective, examines the search warrant, prepares the person for a grand jury appearance, preserves the evidence that helps the person, and prepares to oppose a criminal complaint at a clerk-magistrate hearing.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. He advises people who are under investigation in Boston, Quincy, Cambridge, and the district courts of eastern Massachusetts. He also represents them at the clerk-magistrate hearing, at arraignment, and at every later stage described in the firm’s Massachusetts criminal process guide.

A Detective Calls or Asks for an Interview at the Police Station

A person who receives a call from a detective has no legal duty to return the call, to answer questions, or to go to the police station for an interview. A detective’s request for an interview is an invitation, and the person may decline it. A subpoena or a court order is a command, and the person must comply with it. Counsel can identify from the paperwork which one the person has received and what the person must do about it.

The person should call a lawyer before calling the detective back. Counsel can then call the detective, learn which agency is investigating and what the detective wants to discuss, and advise the person whether to give a statement, to answer written questions, or to communicate only through counsel. Many investigations end without a charge. A statement given without advice can also be the evidence that supports a complaint application, because the police record the interview and the Commonwealth may play that recording at trial.

The Commonwealth’s duty to turn over police reports, witness statements, and other discovery under Mass. R. Crim. P. 14 begins after arraignment. Before charges, the police keep their file to themselves, and the investigation continues after the person retains a lawyer. Counsel instead gathers information from the client, from witnesses, and from documents, investigates independently, and decides whether to present favorable evidence to the detective or to the prosecutor.

A Witness, a Suspect, or a Target

Police often tell a person that the investigation concerns someone else and that the person is “only a witness.” A person described as a witness today can become a suspect after the interview. The person’s own text messages, social media posts, relationships, and whereabouts can become evidence against that person, even when every question seemed to be about a friend, a coworker, or a family member. Counsel assesses the person’s own criminal exposure before the person answers a single substantive question.

The same caution applies to a person who knows that an accusation is false. A false accusation of assault, sexual assault, theft, or fraud still produces a police investigation, and the investigating officer decides what the report says. An innocent explanation given without preparation can be recorded inaccurately, contradicted by a detail the person forgot, or used to establish that the person was present when the alleged event occurred. Counsel decides how and when to give the person’s account to the police.

Voluntary Interviews, Custody, and Miranda Warnings

Police must give Miranda warnings before a custodial interrogation. A person is in custody when a reasonable person in that position would believe that he or she was not free to leave. The Supreme Judicial Court considers where the questioning takes place, whether the officers have told the person that he or she is a suspect, whether the questioning is aggressive or informal, and whether the person is free to end the interview by leaving or by asking the officers to leave. Commonwealth v. Groome, 435 Mass. 201, 211-216 (2001).

An interview at a police station is not automatically custodial. In Groome, the Supreme Judicial Court held that a man who rode with officers to the state police barracks voluntarily, was told that he was free to leave, and was allowed to leave the interview room unescorted was not in custody until the officers confronted him with evidence and decided to arrest him.

Police give Miranda warnings only before a custodial interrogation, so a person in a voluntary interview receives no reminder of the right to remain silent. A person in a voluntary interview can decline to discuss the facts, can end the conversation, and can leave. During a custodial interrogation, the person should say clearly that he or she will not answer questions or that he or she wants a lawyer, and should then stop talking. The firm’s page on the right to remain silent in Massachusetts explains how to invoke that right and what happens after a person invokes it.

Article 12 of the Massachusetts Declaration of Rights gives a person under custodial interrogation a protection beyond Miranda. When a lawyer calls the police station or arrives there and identifies himself or herself as counsel for the person being questioned, the police must stop the questioning and tell the person immediately that the lawyer is trying to speak with him or her. If the person accepts the lawyer’s help, the police must suspend the questioning until the person has consulted the lawyer by telephone or in person. Commonwealth v. Mavredakis, 430 Mass. 848, 858-862 (2000).

For that reason, a family member who learns that a relative is being questioned at a police station should call a lawyer at once. The lawyer’s call to the station imposes that duty on the police.

The person being questioned must still invoke those rights personally and at the time of the questioning. In Commonwealth v. Collins, 440 Mass. 475, 478-481 (2003), the Supreme Judicial Court refused to suppress the statement of a man who had already consulted his lawyer about the investigation, waived his rights, and spoke to the police, even though the police had not told him that the lawyer had asked days earlier to be present at any interview.

A lawyer’s advance letter or telephone instruction to the police does not invoke the client’s rights for him or her. The Sixth Amendment right to counsel begins when the Commonwealth starts a formal prosecution by complaint or indictment. Before that point, Miranda and article 12 govern police questioning.

Search Warrants at a Home, a Business, or a Car

Officers who execute a search warrant may enter and search the place the warrant names and may seize the items the warrant describes. G.L. c. 276, § 2 requires the warrant to identify the place to be searched and to describe particularly the property to be seized. Section 2B requires the officer to file a sworn affidavit setting out the facts on which the officer relies, and the magistrate decides from that affidavit whether probable cause exists.

Counsel obtains the warrant, the affidavit, and the return, and examines whether the affidavit established probable cause, whether the search stayed within the warrant, and what the officers took. If the affidavit did not establish probable cause, or the officers searched beyond the warrant, counsel files a motion to suppress once the Commonwealth brings a charge.

A person whose home is searched should read the warrant, keep the copy and the inventory that the officers leave behind, and stay out of the officers’ way. A person who interferes with officers executing a warrant can face a separate criminal charge. The person may refuse to consent to any search beyond what the warrant authorizes, and the officers may still execute the warrant as written.

Police may also search without a warrant in specific situations, such as a search with consent or a search incident to an arrest. The firm’s search and seizure page explains those exceptions and the motion to suppress.

A Seized Phone, Computer, or Passcode Request

Officers who seize a phone or a computer may hold the device, but they may search its contents only under a warrant that authorizes a search of the device or with the owner’s consent. Counsel examines the warrant’s description of the accounts, applications, and dates that the officers may search. The firm’s page on phone and computer searches explains the particularity rules that Massachusetts courts apply to digital searches.

A detective’s request for a passcode is a request for consent, and the person may refuse it. A court order compelling a person to enter a passcode is different. Under Commonwealth v. Jones, 481 Mass. 540 (2019), a judge may order a person to enter the passcode only after the Commonwealth proves beyond a reasonable doubt that the person knows it. The firm’s post on police requests for an iPhone passcode explains that rule and the privilege against self-incrimination that underlies it.

A Grand Jury Subpoena or a Target Letter

A person who receives a grand jury subpoena must appear on the date the subpoena states and must bring any records it demands, unless a judge excuses or modifies the subpoena first. The privilege against self-incrimination gives the witness the right to refuse to answer particular questions. The privilege does not excuse the witness from appearing. Counsel reviews the subpoena, identifies the questions or records that could incriminate the client, and, where the law supports it, moves to quash or modify the subpoena before the return date.

In a Massachusetts grand jury, a witness may have a lawyer in the grand jury room. G.L. c. 277, § 14A. The lawyer may advise the witness during the testimony but may not object, argue, or address the prosecutor or the grand jurors. A witness may not refuse to appear because his or her lawyer is unavailable. Federal grand jury practice differs from Massachusetts practice. A witness subpoenaed to the federal grand jury in Boston consults counsel outside the grand jury room.

A prosecutor has no constitutional duty to tell a witness that the witness is a target of the investigation. The Supreme Judicial Court nevertheless requires a Massachusetts prosecutor who has reason to believe that a witness is a target, or is likely to become one, to warn the witness before the testimony begins that the witness may refuse to answer any question whose truthful answer would tend to incriminate him or her, and that anything the witness says may be used against the witness in a later proceeding. Commonwealth v. Woods, 466 Mass. 707, 716-720 (2014).

A prosecutor sometimes sends a target letter with the subpoena or instead of one. A target letter tells the person that the prosecutor considers the person a likely defendant, and a person who receives one should retain counsel before responding.

Testimony and documents raise different self-incrimination questions. A witness may refuse to give incriminating testimony. The privilege protects the production of documents only in narrower circumstances, so counsel assesses each demand for records separately rather than assuming that every document is protected. The firm’s grand jury and indictment page explains how a grand jury indictment begins a Superior Court prosecution.

Preserving Text Messages, Video, and Other Evidence

A person under investigation should keep every text message, photograph, voicemail, social media post, account record, and receipt that concerns the events, and should delete nothing. A complete message thread shows the context that a single screenshot leaves out.

Counsel can send a preservation letter to a store, a bar, a building manager, a rideshare company, or a cellular carrier before surveillance video or account records are overwritten in the ordinary course of business, and can interview witnesses while their memories are fresh. The firm’s page on digital evidence in Massachusetts criminal cases explains how the Commonwealth and the defense authenticate messages and recordings at trial.

A person who deletes or hides evidence can be charged with a separate crime. G.L. c. 268, § 13E makes it a felony to alter, destroy, mutilate, or conceal a record, document, or other object, or to attempt to do so, with intent to impair its integrity or availability for use in an official proceeding, whether or not the proceeding is pending at the time. A person who wipes a phone or deletes a message thread after learning of an investigation can therefore face a tampering charge in addition to the original allegation.

Contact with the complainant or with other witnesses can create a second problem. A person who asks a witness to change an account, to stay quiet, or to withdraw a complaint can be charged with intimidation of a witness under G.L. c. 268, § 13B, and any contact with a person protected by a restraining order violates that order. Counsel gathers evidence from witnesses lawfully, through an investigator or a subpoena, so that the person under investigation never negotiates with a witness about testimony.

Clerk-Magistrate Hearings, Arrest Warrants, and Arraignment

Many Massachusetts investigations end with a police officer filing an application for a criminal complaint rather than with an arrest. For a misdemeanor, a person who is not under arrest ordinarily receives notice and an opportunity to oppose the complaint at a clerk-magistrate hearing before any complaint issues. G.L. c. 218, § 35A. The clerk-magistrate holds the hearing in private, before any arraignment. If the clerk-magistrate denies the application, no complaint issues, no arraignment occurs, and no entry appears on the person’s criminal record from that application.

The statute makes exceptions where there is an imminent threat of bodily injury, of the commission of a crime, or of flight from the Commonwealth. For a felony application filed by a police officer, the clerk-magistrate holds a hearing when the officer requests one. Counsel prepares the evidence and the argument for the hearing. In Attorney Serpa’s experience, the clerk-magistrate hearing is often the proceeding at which the matter ends without a complaint.

Where police seek an arrest warrant or plan an arrest, counsel can arrange for the person to appear in court voluntarily rather than be arrested at home or at work, and can prepare the argument on bail and conditions of release for the arraignment. The firm’s page on warrants and arrests explains how a judge or a clerk-magistrate issues a warrant and what happens when police execute one.

A notice of a clerk-magistrate hearing and a summons for arraignment are different documents with different consequences. A hearing notice means that no complaint has issued yet. A summons for arraignment means that the clerk-magistrate has already issued the complaint, and the arraignment itself creates the entry on the person’s criminal record.

School, Employer, and Licensing Board Investigations

A college, an employer, or a professional licensing board may investigate the same conduct at the same time as the police. Each has its own rules on whether an allegation, an arrest, a pending charge, an admission, a conviction, a continuance without a finding, or a dismissal must be disclosed and on what discipline may follow. A statement given to a dean, a human resources investigator, or a board investigator can be obtained by the prosecutor and used in the criminal case. Counsel coordinates the timing and the content of every response.

The firm’s college and university student defense page explains the student conduct proceedings that run alongside a police investigation. The professional license page identifies the disclosure and discipline rules for nurses, teachers, lawyers, and other licensed professionals. For conduct alleged to have occurred before the person turned eighteen, the firm’s juvenile delinquency and youthful offender page explains the Juvenile Court rules on questioning, diversion, and records.

Speaking With a Criminal Investigation Lawyer in Boston

At a first consultation, Attorney Serpa reviews the agency involved, the kind of contact, any deadline or return date, any search warrant or subpoena paperwork, and any existing court order. Serpa Law Office represents people under investigation in Boston, Quincy, and across eastern Massachusetts, from the first call from a detective through the clerk-magistrate hearing, the arraignment, and trial. Request a free, confidential consultation before speaking with the police.

Frequently Asked Questions

Related Serpa Law Office Resources

• Massachusetts Criminal Process: From Clerk-Magistrate Hearing to Trial and Appeal
• Your Right to Remain Silent in Massachusetts
• Illegal Searches and Seizures in Massachusetts
• Phone and Computer Searches in Massachusetts
• Massachusetts Clerk-Magistrate Hearing Lawyer
• Massachusetts Grand Jury Indictments: How Superior Court Cases Begin
• Warrants and Arrests in Massachusetts District Courts and the Boston Municipal Court
• How Criminal Cases Begin in the District and Boston Municipal Courts
• Arraignment in Massachusetts: What Happens and What It Means for Your Record
• Massachusetts Bail: Release, Conditions, and Review
• Digital Evidence in Massachusetts Criminal Cases