COMMONWEALTH vs. JAMES M. COWAN.

COMMONWEALTH vs. JAMES M. COWAN.

4 Mass. App. Ct. 796

March 26, 1976

This is a report from the Superior Court (G. L. c. 211A, Section 10; see G. L. c. 278, Section 30A) of various questions concerning the constitutionality of the provision in G. L. c. 90, Section 7, requiring that an operator of a motorcycle wear protective headgear. The statute was held to be "a valid exercise of the police power" in Commonwealth v. Howie, 354 Mass. 769 (1968), and that case is, of course, binding on us. The first of the reported

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questions, and the one emphasized in the defendant's brief, is whether that provision of the statute "results in a denial to the defendant of his right of privacy . . . ." This issue is not explicitly mentioned in the opinion in the Howie case, but we have examined the original papers in that case and find that the same issue was raised there by the defendant, who quoted from Griswold v. Connecticut, 381 U.S. 479, 493 (1965) (Goldberg, J., concurring), and from Mr. Justice Brandeis' classic dissent in Olmstead v. United States, 277 U.S. 438, 478 (1928). We cannot assume that the Supreme Judicial Court overlooked this contention in sustaining the statute. We therefore hold the statute constitutional on the authority of the Howie case, and answer the questions accordingly.

So ordered.