by Adam Gorlick, Associated Press
SPRINGFIELD, Mass. (AP) - The state cannot use post-Sept. 11 calls for stricter “homeland security” as a reason to stop and search people, a district court judge has ruled.
In an eight-page decision issued Tuesday, Judge David Ross granted a motion to suppress evidence from a drunken driving arrest that was gathered by a state police trooper who was under orders to stop and question anyone driving near the Cobble Mountain Reservoir in Blandford.
The orders came on Oct. 15 after the federal Department of Homeland Security warned law enforcement agencies of an unspecified but “credible threat” of an impending attack on the United States.
At about 2 a.m., Trooper Richard Gawron stopped David Carkhuff, 42, of Westfield, as he was driving toward the reservoir’s dam. After questioning Carkhuff, Gawron said he had enough evidence to arrest him for drunken driving.
“He wasn’t stopped for driving erratically or doing anything wrong,” said Ryan Alekman, Carkhuff’s lawyer. “All he did was drive by the reservoir.”
Prosecutors argued the stop was legitimate because of the threat to public safety.
In his ruling, Ross said Carkhuff was unjustly stopped because there was no reason to suspect he “might be committing or be about to commit a crime.”
“The Commonwealth would have the Court carve a new “homeland security” exception to the warrant requirement of the Fourth Amendment,” Ross wrote in his decision. "(R)ecognition of such a broad “homeland security” exception would constitute a sea change in constitutional law.”
The Fourth Amendment of the U.S. Constitution prohibits warrantless searches.
“The tragic and horrific events of Sept. 11 did not topple the prohibition against unreasonable searches and seizures,” Ross wrote.
Bill Newman, who helped defend Carkhuff on behalf of the western Massachusetts chapter of the American Civil Liberties Union, said he was unaware of any other case in which the terrorist attacks have been the only reason for a search and seizure where the search has been challenged in court.
Hampden County District Attorney William Bennett did not return a telephone message seeking comment from The Associated Press on Thursday.
Prosecutors have until March 15 to appeal.
Unless there is a successful appeal, the state will have to drop drunken driving charges against Carkhuff, Alekman said.
“Because the stop was illegal, anything that the police found after the stop can’t be introduced as evidence,” he said.