# Commonwealth v. Harris

> Massachusetts Appeals Court · November 5, 2009 · 75 Mass. App. Ct. 696

URL: https://www.frixlaw.com/law-library/cases/6463656

## Case

- **Full name:** Commonwealth v. Michael Harris
- **Court:** Massachusetts Appeals Court
- **Decided:** November 5, 2009
- **Citations:** 75 Mass. App. Ct. 696; 916 N.E.2d 396; 2009 Mass. App. LEXIS 1364
- **Precedential status:** Published
- **Opinion:** Concurrence by Milkey
- **Judges:** Cypher, Milkey
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6463656

## Opinion text

Milkey, J.
(concurring). We conclude, inter alia, that the *708 police did not violate the defendant’s right to place a telephone call. I write separately to note that I join that conclusion only because I believe it is dictated by Commonwealth v. Carey, 26 Mass. App. Ct. 339, 342-343 (1988).
The detective who interrogated the defendant back at the station initially testified that the defendant made no request to exercise his right to make a telephone call. Consistent with that statement, he repeatedly denied trying to delay the defendant from exercising his telephone rights until after the interrogation was over. He explained that he would not have done that because, had the defendant asked to use a telephone, he simply would have let the defendant use his (the detective’s) cellular telephone as he had allowed other suspects to do in the past. According to the detective, “[i]t was his right to use the phone.”
Under further cross-examination, the detective admitted that the defendant did in fact ask to make a telephone call during the interrogation and that the defendant was told that — because there was no telephone in the room — he could not exercise his telephone rights until he was taken for booking. After the defendant provided a new confession, he was allowed to use a telephone within one hour of his arrival at the station.
Although the police delayed the defendant’s use of the telephone, this does not establish that the police intentionally violated the defendant’s telephone rights as those rights have been interpreted by Commonwealth v. Carey, supra at 343 (no violation of defendant’s telephone rights where police informed him that he could make telephone call “when the booking was completed” and provided him telephone access within one-hour period referenced in G. L. c. 276, § 33A). 1 Suppression is therefore not required. See Commonwealth v. Jackson, 447 Mass. 603, 615 (2006), and cases cited.
In G. L. c. 276, § 33A, the Legislature established an across-the-board requirement that the police make a telephone available to people held at the station within one hour of their arrival. In Carey , we concluded that the Legislature thereby created a one-hour “safe harbor” for the police (despite the fact that nothing in the statute directly speaks to what police are supposed to do if someone specifically asks to exercise his telephone rights while he is being interrogated but before the hour has expired). Thus, although the detective did not act in accordance with the norm he initially claimed to have been following (suspending an interrogation once someone specifically asks to use the telephone), that norm is not required by Carey .

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6463656. Public record. Not legal advice.