Pubdate: Sat, 31 Jan 2004
Source: Times Daily (Florence, AL)
Copyright: 2004 Times Daily
Contact:  http://www.timesdaily.com/
Details: http://www.mapinc.org/media/1641
Author: James J. Kilpatrick
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)
Bookmark: http://www.mapinc.org/raids.htm (Drug Raids)

WHEN IS A SEIZURE REALLY A POLICE SEARCH?

Robert Lidster's bad luck was to be in the wrong place at the wrong
time. Just after midnight on Aug. 30, 1997, he was driving along a
highway in Lombard, Ill., 25 miles west of downtown Chicago. He ran
into a police checkpoint - literally ran into a checkpoint - and now
he's part of the case law construing the Fourth Amendment.

The Fourth Amendment protects us from "unreasonable'' searches and
seizures. The question in Lidster's case is a constantly recurring
question before the Supreme Court. Was a given search reasonable or
unreasonable? The court's current term already has produced three
opinions on search and seizure and a fourth is likely. No part of the
Constitution is of greater meaning to more people than the Fourth.

Here, the facts were not in dispute. On Aug. 23, a hit-and-run
motorist struck and killed an elderly bicyclist. The Lombard police
figured that someone who had been arriving or departing from a nearby
midnight shift might provide information. They set up a roadblock at
the site of the accident. As each vehicle reached the checkpoint, an
officer would stop it just long enough to hand out a flier requesting
assistance in identifying the vehicle and driver.

Along came Lidster in his minivan. As he approached the checkpoint,
his van swerved, nearly hitting one of the cops. The officer smelled
alcohol on Lidster's breath. A sobriety test led to Lidster's arrest
for drunken driving. He was found guilty, fined $200, and ordered to
undergo counseling. Subsequently, he appealed on the ground that the
evidence against him had been obtained through an unconstitutional
stop at the checkpoint. The Illinois Supreme Court upheld that
argument, but two weeks ago, the U.S. Supreme Court reversed and
remanded for reinstatement of the verdict.

Justice Stephen Breyer wrote the high court's sensible opinion. "The
Fourth Amendment does not treat a motorist's car as his castle.''
Special concerns of law enforcement may justify highway stops without
individualized suspicion. In this case, police were merely seeking
information as part of their investigation into a serious crime. True,
the involuntary stop amounted to a "seizure'' under the Fourth
Amendment, but the brief pause was not "unreasonable.'' The delay was
"no more onerous than many that typically accompany normal traffic
congestion.''

Breyer reiterated the court's guidelines for determining
reasonableness. "We look to the gravity of the public concerns served
by the seizure, the degree to which the seizure advances the public
interest, and the severity of the interference with individual
liberty.'' Here the traffic stops "interfered only minimally with
liberty of the sort the Fourth Amendment seeks to protect.'' The
police contact provided little reason for anxiety or alarm.

The high court handed down another sound opinion on Dec. 9, in U.S. v.
Lowell Banks. The case arose in North Las Vegas in 1998, when police
acted on a tip that Banks was selling cocaine from his apartment.
Officers obtained a warrant. They beat on the front door and loudly
announced their presence. Getting no response, they waited 15 to 20
seconds and knocked down the door with a battering ram. The search
produced three pistols and a stash of rock and crack cocaine. After
his conviction, Banks appealed.

Banks contended that the forcible entry violated the Fourth Amendment,
but he got no help from a unanimous Supreme Court. Justice David
Souter ruled that the officers had acted on a "reasonable suspicion of
exigent circumstances.'' After 15 or 20 seconds, they could "fairly
suspect that the cocaine would be gone if they were reticent any longer.''

Chief Justice William Rehnquist spoke for another unanimous court in
Maryland v. Joseph Pringle. The case arose in August 1999, in
Baltimore County. Police stopped a car for speeding. On routine
search, they found $763 in the glove compartment and five baggies of
cocaine in the back seat. The facts added up to probable cause to
believe that Pringle was engaged in drug dealing. His conviction was
affirmed.

The high court has yet to act on a sniffing dog case from Illinois.
The question is whether police must have a reasonable suspicion before
siccing a drug-detecting dog on a motorist charged with speeding. The
Illinois Supreme Court said the successful sniff was constitutionally
"unreasonable.'' It's a close question, but I'd come down on the side
of the cops.

James J. Kilpatrick is a columnist for Universal Press Syndicate.
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MAP posted-by: Larry Seguin