October 5, 1997 in Nation/World

New Search Rules Frustrate Police Traffic Stops Become Less Effective Weapon In Drug War

By The Spokesman-Review
 

Charlotte Dotson nodded her head approvingly as the judge spoke.

Police, who found drugs in her car during a routine traffic stop, should not have searched the vehicle without probable cause. Even the fact that police had arrested a passenger no longer justified such a search, said 1st District Judge James Judd.

As the judge spoke, Deputy Prosecutor Henry Madsen’s face reddened with frustration. He’s among prosecutors throughout the state watching routine drug cases get tossed out of court now, thanks to a recent Idaho Supreme Court ruling.

“The automobile exception of searching without a warrant is going to be gone unless they have a reason to search,” Judd told Madsen.

The Supreme Court decision, barely a month old, prohibits police from searching a person’s car unless there is a threat to officer safety or evidence of criminal activity inside the car.

Police say they’ve been robbed of a popular arrest tool. Dozens of cases built on “searches incident to arrest” are unraveling as prosecutors watch their evidence get thrown out of court.

“It’s affecting a lot of cases,” said Deputy Prosecutor Joel Hazel. “Previous to (the Supreme Court ruling), I always advised officers, ‘You arrest somebody, you search the vehicle.’ Now, that’s bad advice. Now we’re going to start losing a lot of cases, mostly drug cases.”

Like the Dotson case, which began with a traffic stop. Police stopped Dotson’s car because it matched the description of one seen leaving a Post Falls business where a burglar alarm had sounded minutes earlier.

Devon Seeling, Dotson’s brother and a passenger in her car, was placed in the back of a patrol car after being arrested on a warrant alleging he failed to pay a hunting citation. Officers then returned to search Dotson’s car, under a 1981 U.S. Supreme Court ruling allowing officers to search passenger compartments after arresting an occupant.

Dotson protested the search and was arrested for obstructing officers. Police then returned to inventory the contents of the car, which they planned to tow because both Dotson and her brother had been arrested.

Inside the car, officers found methamphetamine, marijuana and drug paraphernalia, according to police reports.

Fred Loats, Dotson’s attorney, argued last week that officers had no reason to search his client’s car because they had no evidence of criminal activity. Arresting an occupant does not give officers justification to search, Loats argued, citing the state Supreme Court decision.

Judge Judd agreed, giving Madsen three weeks to demonstrate that officers had justification to search. Without it, Loats’ request to throw out evidence found during the search would be granted, Judd said.

As recently as last month, officers looked under seats and in glove compartments five or six times a night after arrests, Hazel said.

The Supreme Court’s 3-2 decision halted the practice by overruling a federal court decision. The court decided such searches violate a person’s state constitutional rights.

Article I, Section 17 of the Idaho Constitution affords people protection from warrantless searches of their cars after an occupant has been arrested in situations where there is no longer a risk to officer safety or the destruction of evidence, Justice Chas McDevitt wrote in issuing the August decision.

“The search incident to arrest exception, whether involving vehicles or not, was created to minimize danger to an officer, and to prevent the loss or destruction of potential evidence,” McDevitt wrote. “When the operator of a motor vehicle is arrested and removed from that motor vehicle the rationale of officer safety and fear of destruction of evidence no longer exists.”

Lewiston attorney Charles Kovis successfully raised the issue after Nez Perce County prosecutors charged Terina Charpentier with possessing drugs seized after her arrest on a misdemeanor driving offense.

The officer had stopped Charpentier’s 1984 Honda for driving 53 mph in a 35-mph zone. Charpentier, who was on her way to see a mechanic, was arrested for violating a restriction allowing her to drive to and from work and for emergencies only.

Charpentier was handcuffed and put into the back seat of the officer’s patrol car. A search turned up sandwich bags containing methamphetamine and marijuana, according to court documents.

Kovis argued that since there were no other passengers in the car when Charpentier was arrested, any threat to officer safety had ended. Further, Charpentier’s car was legally parked when she stopped it, leaving police with no reason to impound it, he said.

Prosecutors argue that rationale allows people to go free on a technicality.

“It helps criminals,” Hazel said. “It only applies to people who have already been arrested for something. It’s not the Gestapo jumping into your house looking for something. They already have something to arrest you on.”

State law still allows officers to search cars being impounded, provided the police department holding the car has a written policy. Evidence found during impound searches has been ruled admissible at trial.

But police say that’s not as effective an alternative to the kinds of searches now banned by the Supreme Court ruling.

“There are more hoops to jump through to impound and inventory,” Hazel said. “The more hoops there are there’s more chance to trip. Anytime there’s a trip we lose evidence.”

The Kootenai County Sheriff’s Department impounds and searches when there is no other licensed driver available to take control of the vehicle, said Capt. Ben Wolfinger.

The policy protects the department from bogus claims of lost possessions and the car’s owner from damage or theft, Wolfinger said.

“Once we’ve taken the driver out of the vehicle we have a certain responsibility,” Wolfinger said.

The state Attorney General’s office plans to file a motion with the Supreme Court for a rehearing in the Charpentier case, said Mike Henderson, the agency’s criminal division head. However, the Charpentier ruling will face its first test this week when the Supreme Court begins scrutinizing a similar case, also involving drugs found during a search that followed an arrest.

The Supreme Court’s makeup has changed slightly since the Charpentier decision was issued.

McDermott, who wrote the Charpentier decision, has retired, leaving the remaining justices split on the issue. Former Chief Court of Appeals Judge Jesse Walters Jr. replaced McDermott.

, DataTimes


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