PRIVACY OVER COP HUNCH

POLICE officers often have good hunches about suspicious-looking
motorists. But a cop's gut instinct is not enough reason to abridge
the privacy rights of citizens established by the state's founding
fathers.

A slim majority of the state Supreme Court ruled last week that police
officers can't pull over drivers and conduct criminal searches on the
pretext of minor traffic violations. The case before the high court
involved two African Americans who were stopped by Lacey police
officers in 1995 on the grounds that their car's license plate tabs
had expired five days earlier.

The true reason they were stopped, the police admitted, was that they
recognized one of the men from an unsubstantiated street rumor that he
was involved with drugs. The officers had tailed the car until coming
up with a pretext for searching the men and the vehicle without a
warrant. The police recovered marijuana and a stolen firearm. But the
results do not justify unconstitutional means.

Such "pretextual" traffic stops violate Article I, Section 7 of the
state constitution, which states that "No person shall be disturbed in
his private affairs, or his home invaded, without authority of law."
Some critics of the 5-4 ruling protest that investigatory stops have
been upheld at the federal level. But the state's privacy rights'
provision, established in 1889, is broader than the federal
Constitution's Fourth Amendment protection against warrantless
searches and seizures.

Criminal searches require police to demonstrate probable cause.
Writing for the majority, Justice Richard Sanders noted, "the problem
with a pretextual traffic stop is that it is a search or seizure which
cannot be constitutionally justified for its true reason (i.e.,
speculative criminal investigation), but only for some other reason
(i.e., to enforce traffic code) which is at once lawfully sufficient
but not the real reason. Pretext is therefore a triumph of form over
substance; a triumph of expediency at the expense of reason."

Some law-enforcement officials say the ruling takes away a crucial
crime-fighting tool. But nothing in the decision precludes police from
making stops for bona fide traffic violations. The ruling simply
bolsters a century-old protection against governmental invasions of
privacy and personal security based on thin hunches alone.