, Gloucester, MA

June 4, 2013

Letter: Court upheld standards in dismissing DUI case

Gloucester Daily Times

---- — To the editor:

I take exception to the Times’ editorial, (”DUI dismissal raises troubling public safety issues,” Friday, May 24), wherein the Times laments the dismissal of a pending alleged drunk driving matter at Gloucester District Court, where the stop of the involved motorist was premised upon what I believe was illegal police conduct in violation of the Fourth Amendment to the U.S. Constitution.

The tone and tenor of the editorial was needlessly disparaging of the court, the presiding justice and able counsel who practice there. The piece also recklessly raised the specter of ominous public safety concerns resulting from what it concluded was an errant court ruling based on a technicality.

The Times is, of course, entitled to express whatever editorial opinions it deems appropriate. The public, however, has a right to expect that those opinions result from reasonable, professional, journalistic standards of inquiry as to the facts and issues presented in the case. Indeed, nowhere is it suggested that the board made any attempt to contact either the attorney involved in defending the matter, the prosecutor’s office, or otherwise made any attempt to review the controlling legal precedent applicable to the facts.

If the Times had done so it would have learned quite quickly that it is the long held standard of the courts of this commonwealth that a police officer’s “hunch” that criminal conduct is afoot, without more, provides no basis for stopping a motorist.

As Justice Kass articulated in Commonwealth v. Kimball: “The police and the public may wonder why the end product of a hunch, sharpened by experience, should be undone by what the media like to call a technicality. One of the factors that most differentiates a free society based on law from an authoritarian society is that police may not act on mere suspicion or random dragnet.

“As a people we have been instructed by colonial experience, refreshed by repeated experience elsewhere in the world, that in the absence of standards ... ‘technicalities’ ... there is soon no protection from arbitrary invasion of home, automobile, or other places where men and women are entitled to think themselves safe. Disregard those standards, and law enforcement officers will be as vulnerable as the ordinary citizen to the knock in the night.”

It was application of this venerable old standard, enshrined in the plain language of the Fourth Amendment, that was at issue in that seemingly simple DUI matter undone by a mere “technicality.”

Technicalities of this sort are not a lamentable foreshadowing of a breakdown in public safety as the board suggests. Rather, they offer proof that those served by the rather nondescript courthouse on Main Street can feel safe in the knowledge that their Fourth Amendment rights against unreasonable searches and seizures have been, and remain, protected.



Gloucester Bar Association