Pubdate: Sun, 09 Mar 2003
Source: Lodi News-Sentinel (CA)
Copyright: 2003 Lodi News-Sentinel
Author: Joe Guzzardi


The lives of drug mules, terrorists and other sundry bad guys who use
the California freeways to ply their trade just got a lot easier.

The astonishing settlement by the California Highway Patrol of a 1999
racial profiling lawsuit originally brought by San Jose attorney
Curtis Rodriguez will end CHP consent searches until at least 2006
even though a 1996 Supreme Court decision ruled (Ohio v. Robinette)
that explicitly given permission searches are legal.

The settlement also requires officers to have objective evidence that
drugs will be found before searching any vehicle. Finally, officers
must document, subject to supervisory review, the race or ethnicity of
each person stopped.

The American Civil Liberties Union of Northern California, which
represented the plaintiffs, may never have had an easier case. Despite
the Supreme Court precedent, the CHP, with the presumed assent of Gov.
Gray Davis, folded up like a cheap suit.

The CHP is the nation's first law enforcement agency to prohibit
officers from asking motorists for consent to search their cars or

CHP Commissioner Dwight "Spike" Helmick took the fall for Davis. The
ACLU's lead counsel, the San Francisco law firm of Keker & Van Nest,
rubbed salt in the CHP's wounds. Said partner Jon Streeter:
"Commissioner Helmick and his top deputies convinced us that they
recognized a problem and were committed to making significant changes
to eradicate the egregious practice of racial profiling."

What problem would that be? Anyone who doesn't wanted to be searched
has only to say, "No!"

Helmick denied that the CHP practices profiling. He also insisted drug
arrests have not been adversely affected since the 2001 moratorium on
consent searches. And in a most curious comment, Helmick, referring to
suspects, said, "I want to treat them like family."

But Helmick's take on the CHP doesn't square with the views held by
district attorneys and criminologists. All agree the volume of drugs
and cash seized is down since consent searches ended. And the highly
trained narcotics officers are demoralized. Here is an example one
expert gave of how efficiently the CHP operated:

"CHP officers must have a 'reasonable suspicion' of a crime before
they can pull someone over. This reasonable suspicion of a law
violation must be based on non-race-based evidence before the officer
can pull the guy over (e.g., the motorist was speeding). Once the
officer makes the stop, he contacts the person. Then, the officer goes
through his standard litany of questions, gets the license, etc.

"During this contact, the officer, through his experience, may
recognize certain things about the motorist that are common with other
people in the officer's past (and training) who have committed crimes.

"On Highway 395, for example, the CHP officer knows that the Central
Valley Mexican gangs use Mexican illegals to run the dope north. So --
when the officer is confronted with a Mexican illegal, with no
luggage, and who only has a vague ability to describe where he is
going and who he is going to see -- the officer might just want to
search that car.

"However, because the officer does not have actual evidence that the
guy is carrying dope, the officer will rely on the simple request for
consent. Very often the driver will consent, even if there is a huge
amount of dope in the car. Major drug busts are made this way and it
is one of the most effective tools for road cops to use to stop the
flow of dope." Buy today, thanks to the ACLU and Gov. Davis,
suspicious behavior is not enough."

The ACLU hailed the CHP settlement as "landmark." And Brooklyn Law
School Professor Emeritus and constitutional expert Henry Mark Holzer
agrees but for different reasons.

"What you have here," Holzer said, "is the ACLU making the laws of
California without going through the legislative process. This is
rampant political correctness. Not only has the Supreme Court upheld
consent searches but racial profiling -- whatever that means -- is not

Ward Connerly of the American Civil Rights Institute agrees with

"Law enforcement has to be given sufficient ability to do its job,"
Connerly said. "This settlement has a number of foolish components
that will drive up the cost of law enforcement without commensurate
benefits to the public. In particular, requiring officers to record
drivers' race and ethnicity and to have this documentation reviewed
daily is racial idiocy gone amok. Clearly, by settling this lawsuit in
the manner that it was, Gov. Davis played into the hands of the ACLU
and aided them in their opposition to the Racial Privacy

And that is the scariest of all: The ACLU has struck so much fear into
our legislators that the mere mention of buzz words like "racial
profiling" send them running for cover.

While they're hiding, new laws -- like the ban on consent searches --
are enacted without a single vote cast.

Joe Guzzardi, an instructor at the Lodi Adult School, has been writing
a weekly opinion column since 1988.
- ---
MAP posted-by: Derek