Pubdate: Fri, 18 Jan 2002 Source: Investor's Business Daily (US) Copyright: 2002 Investors Business Daily, Inc Contact: http://www.investors.com/ Details: http://www.mapinc.org/media/682 Author: Betsy McCaughey Note: Betsy McCaughey is an adjunct senior fellow at the Hudson Institute and former lieutenant governor of New York state. National Issue WAR ON TERROR GETS A BOOST FROM NEW HIGH COURT RULING The U.S. just gained a new ally in its war on terrorism: the Supreme Court. The nine justices frequently disagree over how to balance the powers of law enforcement and the rights of suspects. Not this time. In U.S. vs. Arvizu, the high court voted unanimously on Tuesday that agents can search vehicles if, in their own judgment, circumstances create a "reasonable suspicion" of criminal activity. The justices made clear that courts shouldn't he second-guessing law enforcement agents, whose "own experiences and specialized training" enable them to detect wrongdoing that "might elude an untrained person." It was a stunning victory for public safety. On the afternoon of Jan. 19,1998, U.S. Border Patrol Agent Clinton Stoddard was alerted by radio that a minivan was heading north along Leslie Canyon Road in southern Arizona. It is a mostly unpaved road frequently used by drug smugglers to circumvent a border patrol checkpoint not far from the Mexican border-a fact that agents in the area know well. It was around 2 p.m., a time when agents change shifts and smugglers are known to try getting through. Stoddard waited on the side of the road and saw a minivan, driven by Ralph Arvizu pass by with his wife and three children inside. Something Funny Stoddard noticed the children's knees were up near their chins, as if their feet were resting on large packages on the floor of the car. Arvizu didn't turn his head or wave to the patrol car, which Stoddard said was unusual in this remote area. Stoddard pulled out to follow. The children began to wave mechanically for several minutes, according to Stoddard. He said they were facing ahead without actually turning around to look at Stoddard, something that aroused his suspicion. Stoddard radioed for a registration check, and learned the minivan was registered to an address in an area notorious for narcotics smuggling. He continued to follow the car, and saw Arvizu turn off the road at the last possible place for him to avoid the border checkpoint. Stoddard pulled over the van, and got Arvizu's permission to inspect it. He found 128 pounds of marijuana in a duffel bag under the kids' feet. Arvizu was convicted of possession of marijuana with intent to distribute it. But a federal appeals court overturned the conviction, citing one of the most valued of all protections in the Bill of Rights-the Fourth Amendment's protection against "unreasonable search." The appeals court said none of the factors Stoddard cited was enough to justify a reasonable suspicion. The court said, for example, that children often behave strangely, families sometimes choose out-of-the-way routes on vacation and drivers frequently don't acknowledge patrol cars on the side of the road. Taken one at a time, none of the factors cited was enough to justify a search. But on Tuesday, Chief Justice William Rehnquist set the appeals court straight on the standard for reasonable suspicion. Chastising the appeals court for considering each of the factors in isolation, which Rehnquist called a "divide-and-conquer strategy," he made clear that a law enforcement agent can weigh "the totality of circumstances" and use his experience and expertise to determine whether a crime maybe in progress. Tuesday's decision reminds federal judges to give law enforcement agents the benefit of the doubt. They can search a vehicle when there's a basis for reasonable suspicion. Although each of the factors, taken one at a time, may be explainable in a way that does not create suspicion, taken together they may be sufficient for reasonable suspicion. Rehnquist's opinion does not establish a precedent. The "totality of circumstances" standard has been used in previous Supreme Court decisions. But Tuesday's decision reminds federal judges to give law enforcement agents the benefit of the doubt. They can search a vehicle when, in their experience, there is a basis for reasonable suspicion. Hunches Not Allowed A hunch isn't enough, but the standard is far less than what's needed to prove a crime in court. It's even less than the probable cause standard required to seize property or search a home. The Arvizu ruling was immediately assailed by a few civil rights advocates. Constitutional law expert Leon Friedman called it horrible. But overall, reaction to the ruling was muted, and the reason is obvious: Sept. 11. U.S. vs. Arvizu is a narcotics case, but some justices had terrorism on their minds as they considered the case. The concern was that in clarifying the rules for searching vehicles, the court shouldn't hinder law enforcement efforts to find terrorist weapons. During oral arguments in November, Justice Sandra Day O'Connor to Arvizu's attorney: "Let me tell you what concerns me very frankly. We live in a perhaps more dangerous age today" than when Arvizu was arrested. Using Common Sense The appeals court approach, she added, was not what "common sense would dictate today." The methods that work best to nab terrorists also catch drug traffickers. The post-Sept 11 campaign to secure American borders against terrorists has increased drug seizures along borders enormously. Border patrol officers who used to wave many cars through checkpoints are now frequently opening hoods, inspecting the underbellies of vehicles and looking under seats. In one month, marijuana seizures were up 58% along the south Texas border and 394% in Arizona, according to the U.S. Customs Service. Drug seizures along the Canadian border rose more than 300% in October and November from the same months a year earlier. In New York City, special narcotics prosecutor Bridget G. Brennan reports that in the three months following Sept11, cocaine seizures increased almost 50% and seizure of Ecstasy pills improved 300-fold. Unfortunately, many cities that aren't along the border have seen illicit drug supplies increase. Stopping drug traffickers is largely a manpower challenge. With the FBI, Border Patrol and Customs Service focused almost singularly on guarding against terrorism, it's estimated that as little as 10% of the manpower once devoted to drug interception is on the job. Nevertheless, in U.S. vs. Arvizu the justices did their part - striking what they believe is a common-sense balance between government's most important job, public safety, and the valuable guarantees and protections contained in the Fourth Amendment. On that, all the justices could agree. - --- MAP posted-by: Beth