GUESSING AT GUILT

The U.S. Supreme Court last week attempted to clarify the grounds upon
which a police officer may stop a motorist who has violated no laws. "A
mere hunch" of criminal activity won't do, but a "common-sense inference"
based on undefined observations passes legal muster. Pedants might quibble
that an inference is a hunch, but they would miss the pivotal point: It's
not a mere hunch. Get it?

The hunch here is that most people won't, particularly those who get pulled
over and questioned for something "inferred" by a police officer. In fact,
they might infer that civil libertarians have been right all these years
when they warned that the court has been chipping away at Americans'
constitutional protections.

For the record, the inference at issue was correct. In 1998, a Border
Patrol officer pulled over a minivan near Douglas, Ariz., and found 125
pounds of marijuana after making several observations: The van was on a
road sometimes used by smugglers; the driver had slowed down when he saw
the officer's car; the driver appeared tense; his children waved
"methodically"; the van was registered to an address in a high- crime
neighborhood; smugglers in the area sometimes used vans. The court ruled
that combination of those observations, none of which was an indication of
criminal activity, gave the police officer the leeway to stop the driver.

It is easy to support the ruling in a case in which the officer caught a
smuggler, but what if he had been wrong? And what if this was the only
guilty man the officer had snared after stopping and grilling 15 innocent
motorists? If pressed, any officer could conjure up a few "observations" to
justify a traffic stop under this lax standard.

The great majority of officers are honest, but this ruling invites abuse by
the minority who are not. As with asset-forfeiture statutes that allow
confiscation of property based on a mere presumption of guilt, the
legitimacy of future traffic stops will depend more on the vagaries of
individual officers than on the certainty incumbent in a strict adherence
to consistent law.

It is another poor trade-off for the American public.