 |
Emergency Line
24 Hours a Day
(978) 995-1122
Lowell Office
Nine Middlesex Street
Lowell, MA. 01852
Tel. (978) 452-7100
Fax (978) 452-3278
|
|
 |
|
The Lowell Sun, October 30, 1990
Lowell lawyer: Gun ruling affirmed client’s rights
By LINDA HERVIEUX Sun Staff
LOWELL – Call it a case of missed opportunity, but Lowell attorney P. Scott Bratton says he doesn’t mind the prestige lost – or the anxiety spared – when the U.S. Supreme Court decided not to hear his case.
In a case involving Lowell police, the nation’s highest court yesterday refused to allow police in Massachusetts to stop and search someone seen carrying a handgun in public.
In reaching their decision, the justices let stand a ruling by the state’s highest court that Lowell police had no right to stop and search Bratton’s client, Paul R. Couture, 34, of Lowell, after Couture was spotted walking out of a convenience store in 1988 with a pistol tucked into his pocket.
Couture, who did not have a license to carry the gun, was charged with illegally carrying a firearm.
Bratton said yesterday’s decision sets a new standard for police officers in Massachusetts, but acknowledged that the ruling was something of a “double-edged sword.”
“On the one hand, most attorneys never get a chance to go before the Supreme Court and I would have got the chance to go before the court early in my career. But on the other hand, my first obligation is to my client,” said Bratton, 30, who works at the law offices of Andrew J. Zaroulis on Middlesex Street.
DA dropping charges
The Middlesex district attorney’s office intends to drop the charges against Couture, which are still pending in Lowell District Court, said Edward Rapacki, first assistant to District Attorney Scott Harshbarger. If convicted, Couture would have faced a mandatory sentence of a year in prison.
Unless Couture picked up a newspaper, Bratton said his client, who does not have a phone, does not know he’s off the legal hook.
Bratton lauded the ruling and said that in broad terms it will ensure that the constitutional rights of the public are upheld.
“It’s a really good decision because it reinforces for the police that they must have hard evidence before they talk to people in the street. We do not live in a police state.”
But attorneys involved in prosecuting the case said the ruling does not take into account the danger illegal firearms pose to police officers and the public at large.
The attorneys also said the decision may not speak to the larger issue of whether police stops and searches are constitutional because the circumstances are different in each case.
Attorney General James Shannon’s office filed the petition with the Supreme Judicial Court after the Supreme Judicial Court (SJC) of Massachusetts ruled last year that the Lowell police violated Couture’s constitutional rights when they stopped his truck and found an illegal handgun in the Charles A. Bookman, Esquire.
Lowell police received a call Feb. 11, 1988 from a clerk at the Li’L Peach store on Rogers Street who saw a man inside the store with the handle of a pistol sticking out of his pocket.
Working with the clerk’s description of the man’s truck and license plate number, Lowell police officers Gary Richardson and Steven Morril pulled Couture over several blocks from the store.
Right to search
Bratton contends the officers held Couture at gunpoint while they searched his truck, where they found a .38 caliber handgun.
Bratton believes the issue is not whether Couture had an unlicensed gun but whether police had any right to search him.
“This guy had not done anything else that was illegal. There was no shoplifting. There was no robbery, he wasn’t weaving in his car, “ Bratton said.
Bratton drew an analogy of a police officer who stops a driver for no other reason than to ask if that person is licensed. “Police can’t pull people over on the assumption that they’re not licensed,” he said.
In July 1988, Lowell District Court Judge Neil J. Colicchio agreed, and approved Bratton’s motion to dismiss the gun as evidence, thus stripping away the prosecution’s case against Couture.
The district attorney’s office appealed to the SJC and in May 1989 the court reaffirmed the decision. The attorney general’s office took over and appealed to the Supreme Court. When the high court declined to hear the case, the SJC ruling was affirmed.
Effects of case
Assistant Attorney General Paula J. DeGiacomo, who prepared the petition to the high court, said the decision cannot be regarded as a legal precedent preventing police officers from stopping and searching people they believe to be illegally carrying a handgun.
“Each case is totally different. It would be hard to speculate on future cases, “ DeGiacomo said. “What we tried to point out to the Supreme Court is you’ve got to look at the totality of the circumstances facing a police officer.”
Among those circumstances she said is “the time of day, the actions of the person who would be asked” to show a gun license as well as potential danger to the police officer.
In Couture’s case, she said, the Li’L Peach clerk “called the police in fear,” giving police adequate reason to believe that Couture should be stopped.
Moreover, DeGiacomo said, Couture had New Hampshire plates on his car, giving police more reason to suspect he might not have a gun license.
Rapacki, of the district attorney’s office, said he does not know how the ruling will affect police officers on the job.
“I’m really at a loss to recommend to police officers what to do in these situations,” Rapacki said.
“Obviously we’re disappointed (with the ruling) because we believed the logic inherent in the SJC’s decision fails to take into account the very real threat that firearms pose to police officers and the public at large, “ he said.
The actions of Lowell police he said, were not “unreasonable, which is why we fought it as hard as we could.”
|
|
