'REASONABLE ARTICULABLE SUSPICION'OF POLICE TRUMPS RIGHTS?

By the time I got pulled over in Frog Level for speeding, I had already had
a bad day, and a long one. It was 2:30 a.m., and I'd been forced to cut my
vacation short because my dog had broken his chain and was roaming around
loose in the neighborhood. I discovered this by retrieving a neighbor's
message left on my answering machine. Since I could not locate my
house-sitter by phone, I had no choice but to pack up and head back to
Waynesville, driving half the night to get there. I was no more than a
quarter mile from my house when two town police cars pulled me over,
ostensibly for speeding down Russ Avenue.

I explained my circumstances to the officer and admitted I might have been
speeding, since I had been driving for three solid hours, the five-lane road
was completely deserted and I was anxious to find my dog. It was nothing
extraordinary, but I might have been driving 50 mph in a 35 mph zone. But
the officer seemed more interested in whether I had any drugs in my vehicle.
He asked me twice, and after I said 'no' each time, he asked me if I would
have a problem if he searched the vehicle. When I said I would have a
problem with that, under the circumstances, I was asked to get out of my car
and keep my hands out of my pockets, even though it was 20 degrees.

During our exchange, I tried to make my position clear: I hadn't committed
any crime, had no prior record and was not especially excited about having
anyone rummage through my Christmas gifts and personal belongings at 3 a.m.
when I needed to drive two hundred more yards, park in my driveway and begin
looking for my dog.

To make a long story short, the officer and his supervisor did detain me
long enough for the drug dog to sniff around the perimeter of my vehicle and
for the officer to pursue a different line of questioning with me in his car
as to whether I had been drinking. Finally, I had to blow into a plastic
device in order to prove I was sober. Then I was let go with a warning
ticket for speeding.

It is not my intent to use my column as a means to criticize the Waynesville
Police Department, even if I do believe that the officer lacked probable
cause in detaining me and subjecting me to both the dog's examination of my
car and a breathalyzer. He and his supervisor both assured me that it was
his job to take just these sorts of measures during routine traffic stops,
and that they had made numerous drug arrests as a result.

When I called the department the next day to get a better understanding of
their policies and procedures, a very cooperative lieutenant went to great
lengths to explain to me the difference between probable cause, which he
said is not necessary for police to search your vehicle, and something
called "reasonable articulable suspicion," which is the standard they use.
That could mean driving at an odd hour, or in some odd manner. It could mean
a lot of things, I suppose, as long as an officer is suspicious and can
reasonably articulate why.

Unfortunately, the officer who pulled me over could not articulate very
reasonably or very clearly to me why a garden variety speeding violation
made me a suspect for drug charges, especially in light of my circumstances
that night. He simply told me that people make up stories all the time and
proceeded with his investigation.

As I stewed over the incident later, I wondered how many people yielded to
similar unreasonable requests to search their vehicles because they were
unaware of their rights. And I wondered how many more might not realize the
degree to which courts have "relaxed" our privacy rights guaranteed under
the Fourth Amendment. If a dog sniffing around your vehicle for drugs isn't
a search, then what is it?

The problem I have with this approach to law enforcement is simple -- the
assumption of a person's innocence until he is proven guilty, which is the
bedrock, the very foundation of our legal system -- is completely inverted
in these cases. The assumption is that you have drugs until you prove that
you do not, by submitting to an invasion of your privacy in so proving.

And what is "reasonable articulable suspicion"? Well, your guess is as good
as mine. In my case, it was having the misfortune to be out driving a little
too fast very late at night because I was in a hurry to get home and find my
dog. I didn't know that was a federal offense, but I'm learning.