Pubdate: Fri, 02 Jul 1999
Source: Tacoma News Tribune (WA)
Copyright: 1999nTacoma News Inc.
Contact:  PO Box 11000, Tacoma, Wa. 98411
Fax: (206) 597-8451
Website: http://www.tribnet.com/
Author: Hal Spencer; The Associated Press

STATE SUPREME COURT BARS 'PRETEXTUAL' TRAFFIC STOPS

5-4 Ruling Finds Practice Violates State Constitution

OLYMPIA - The Washington State Supreme Court, in a decision one police
spokesman called "nutty," ruled Thursday that it is unconstitutional
for police to stop a motorist for a minor infraction to check out
suspected criminal activity.

In a 5-4 ruling written by Justice Richard Sanders, the court said
such "pretextual" traffic stops amount to warrantless searches or
seizures in violation of the state constitution's Article 1, Section
7. That section says: "No person shall be disturbed in his private
affairs, or his home invaded, without authority of law."

The majority acknowledged that the U.S. Supreme Court has upheld
pretextual traffic stops as OK under the U.S. Constitution, but said
the state constitution offers citizens more protection and takes precedence.

In dissent, Justice Barbara Madsen contended that the court has no
business peering into the mind of a police officer making a legitimate
traffic stop to determine whether he or she is looking for other
criminal activity.

"I'm just devastated, because it takes away an essential tool for law
enforcement," said Mike Patrick, a former Seattle police officer who
now heads the Washington Council of Police and Sheriffs.

"It's a tool we have to have to identify who suspicious people are. I
know the citizens expect that when they call law enforcement officers
to report a suspicious person in their neighborhood. This tightens the
noose on the rope that's already tying our hands behind our backs.
That's a nutty decision," Patrick said.

Jack Jones, senior deputy Thursday County prosecutor, said he also was
disturbed by the ruling.

"I think it's going to hamper law enforcement efforts ... and it's
going to clog the courts," he said.

But the American Civil Liberties Union of Washington applauded the
decision, although it was not involved in the litigation.

"We have not studied the decision, but that said, it appears to be a
good decision. It takes on an important issue, especially for minority
communities, and that's the widespread use of pretextual searches of
people simply because they are minorities - the 'crime' we call
'driving while black,'" said Doug Honig, the ACLU's state public
education director.

The case stems from a 1995 traffic stop made by Lacey police officer
Jim Mack and Thurston County sheriff's detective Cliff Ziesmer while
on a patrol using routine traffic stops to detect gang activity.

They tailed for a time and then stopped and cited Richard Fogle, whom
they suspected of drug dealing, for expired registration plates. He
was carrying a passenger, Thomas Ladson, who was searched and charged
with unlawful possession of marijuana with intent to deliver while
armed with a deadly weapon and with possession of a stolen firearm.
Both men are black.

Ladson filed a motion to suppress the evidence against him on ground
that it was, as police admitted, a pretextual traffic stop. Thurston
County Superior Court Judge Thomas McPhee granted the motion, and the
high court agreed.

"Officer Mack's suspicions about Fogle's reputed drug dealing was his
motivation in finding a legal reason to initiate the stop of Fogle's
vehicle," Sanders wrote.

Police don't need warrants to make legitimate traffic stops. But,
Sanders wrote, that exception to needing a warrant "does not justify a
stop for criminal investigation."

"The ultimate teaching of our case law is that the police may not
abuse their authority to conduct a warrantless search or seizure under
a narrow exception to the warrant requirement," he wrote.

Sanders' opinion was joined by Justices Gerry Alexander, James
Dolliver, Charles Johnson and Charles Smith.

In dissent, Madsen said "the motive of a law enforcement officer is
irrelevant when assessing constitutionality of a stop for a minor
traffic infraction."

"Nothing in the statutes limits an officer's authority to make a
traffic stop depending upon the motive of the officer, nor is a stop
prohibited depending on the duties to which the officer is assigned,"
she wrote in an opinion joined by Chief Justice Richard Guy and
Justices Phil Talmadge and Barbara Durham.
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