Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

3 MEN CHARGED WITH UNLAWFUL POSSESSION OF FIREARMS AND AMMUNITION AFTER ROUTINE TRAFFIC STOP

Yesterday,Attorney Sam’s Take discussed a fatal drunk driving incident from over the Labor Day Weekend. Today we deal with another automobile – related story. This time, it was what was found inside the car which is of import.

Somerville police say that they recovered eight handguns, six of which were fully loaded, during a traffic stop on Medford Street during the weekend.

The incident took place at around 4:00pm on Sunday. Somerville police pulled over a 2004 BMW for speeding. During the traffic stop, the driver, 37-year-old Sherwood Gustave of Mattapan, found himself in a bit more trouble. He was arrested for operating after his license was suspended.

But the trouble was not to end there.

Officers say that they spotted an empty gun holster in the rear seat of the vehicle. This triggered a more in-depth search of the car, officers said, which revealed eight pistols, six of which were loaded. Two of the firearms have been found to have been stolen according to law enforcement.

Mr. Gustave was not alone in the vehicle. There were two passengers in the car as well. They were arrested as well and are identified as Anthony Paulino, 18, of Somerville, and Gunter Vital, 47, of Cambridge.

All three men are charged with unlawful possession of firearms and ammunition, among other charges, police said. Gustave was also charged with speeding and driving with a suspended license.

Attorney Sam’s Take On Traffic Stops And Guns

There are specific procedural rules which the police must follow on a traffic stop. The driver in this case was smart enough not to try to flee or take on the officers. That always makes the situation worse…if not deadly…for the suspect.

In this case, law enforcement claims that what brought their attention to the car was the offense of speeding. Now, if the car was indeed speeding, then the officers clearly had a right to pull the car over. However, that, absent anything else, would not give the officers the right to search the vehicle or even order the driver out of the car.

However, the officers next found out that the driver had a suspended license. For this type of offense, the officer could potentially arrest the defendant. Usually, though, an arrest does not take place. Usually, the officer gives or sends the suspect a summons to appear in court. Naturally, the driver would not be allowed to continue driving, but one of the passengers could have taken over the wheel.

That’s where the holster comes in and that is likely going to be a significant part of the defense in this case.

If the driver is arrested, then the officers can of course order him out of the car. In many cases, they can even search the car, particularly if they impound the car. However, again, in this case, a passenger was able to drive the car. There would be no reason to impound the car.

But the officers claim that, during the discussion with the driver, they saw the holster in the back seat. Believable? I would say it is debatable. With nothing more, the officers could only see from the outside of the car in. Would two gents who knew they were carrying guns drive around with a holster in plain view in the back seat? Maybe. Could be. It’s an issue.

Depending on how the case is presented, the officers will have to convince a judge/jury that they saw that holster in order to search the car in more depth to find the firearms.

With three men in the car.

The next issue, of course, is who knew about the weaponry. Possessing the guns means knowingly doing so. In this case, do not be surprised if all defendants claim that they did not know.

These are issues which deal with lawful searches and seizures, except for the latter. That one simply deals with guilt. In a case such as this, an accused wants an experienced criminal defense attorney well versed in arguments for BOTH.

For the original story upon which this blog was based, please go to http://www.boston.com/metrodesk/2012/09/04/somerville-traffic-stop-yields-eight-guns-three-arrests/kNjhNBKLnc5Z0lWB2VkpuO/story.html

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