TEXAS LAWYER BATTLES HIGHWAY DEPARTMENT, ANTI-DRUG POLICE

A 1-man fight against searches

COLORADO CITY, Texas -- The signpost on I-20 warns thousands of
travelers that the war on drugs has taken a strange turn here in west
Texas.

This lonely stretch of interstate highway between Abilene and Midland
once seemed an unlikely spot to spawn debates about First Amendment
rights to free speech and Fourth Amendment protections against
unreasonable searches.

But that was before Colorado City lawyer Pat Barber erected a big
billboard on his ranch at the edge of town. Just past the Dairy Queen
and the state prison, it rises from the rocky landscape next to
Interstate 20.

"Just Say NO to Searches! 915-728-5505."

A phone call reveals a tape-recorded message encouraging law-abiding
travelers to "just say no" when police ask to search their vehicles
for drugs during routine traffic stops.

"An innocent citizen . . . should know that when an unreasonable
search request is refused, the officer must let him go," Barber advises.

The message concludes, "Good luck, and have a safe
trip."

Law officers were not amused.

"I think it would be fair to say we resented it at first," said
Mitchell County Sheriff Pat Toombs. "But he has a right to his opinion."

Texas Department of Transportation officials also had a problem with
Barber's sign. They said his billboard violated the Highway
Beautification Act and threatened to fine him $1,000 a day if he
didn't remove it.

Barber, 52, filed suit against the highway department. The sign, he
argued, sits on his own property and carries a political opinion that
cannot be censored.

In October, District Judge Suzanne Covington of Austin granted Barber
an injunction, which means the sign can stay up until a trial next
year.

In her order, Covington said Barber "will probably prevail on his
claim that the statute (Highway Beautification Act) as written and as
enforced is an unconstitutional infringement of his rights of free
speech under the Texas and U.S. constitutions."

Highway department officials said agency policy prevents them from
commenting about active court cases.

Barber said his main goal is to create a fundamental debate about
roadside searches. He asks: Do they yield enough criminal cases to
justify intrusions into glove compartments, trunks and luggage of
law-abiding travelers?

"Most people don't know they have a right to say no," he said. "And a
lot of others are afraid to say no. These officers count on that."

Barber conducts a one-attorney law practice out of a historic bank
building in downtown Colorado City. Sharon Barber, his wife, is the
legal assistant.

Colorado City, population 4,600, has seen better times. Barber fondly
disparages it as "a ghost town." Folks said he's never been concerned
about being popular with the chamber of commerce crowd.

In the 1970s, as a county prosecutor, he accused local law enforcement
officers of beating jail inmates. Two police officers were prosecuted
but acquitted.

In the early 1990s, he sued the local school board when his son's hair
length collided with the dress code. He lost before the Texas Supreme
Court.

Now, he's crusading against roadside searches.

"Nobody wants to see us turn into a Third World police state where you
can't walk across the street without a drug dog in your crotch," he
said. "Police may want it, but people don't want it."

Thus far, Barber has aimed most of his barbs at the West Central Texas

Interlocal Crime Task Force, which operates in a 15-county area
surrounding Abilene.

Billy Schat, the task-force commander, said no one has complained
about his interdiction officers and that they have never used threats
or intimidation to get consent to search a vehicle.

"We don't operate that way," he said. "We don't have to. Most people
give permission to search."

Schat's group is one of 47 regional drug task forces funded by the
Texas Narcotics Control Program. The governor's office administers the
program with $26 million a year in federal funds.

Barber's sign and his opposition to roadside searches has had no
effect, Schat said.

"He hasn't affected anything of ours," he said.

The Abilene-area's highway interdiction program and others statewide
generally operate this way:

Officers stop a motorist for a minor traffic violation. The officer
then tries to engage the traveler in conversation and to look for
"indicators" that the car may contain drugs.

Based on a quick assessment, an officer either sends the traveler down
the road with a warning or asks permission to search the vehicle. The
officer does not have to warn the motorist that the right to say "no"
is an option.

"Texas law and U.S. Supreme Court decisions hold that everyone
presumably knows that you don't have to let the cops search your car
or home," said Ted Wilson, a criminal law expert in Houston.

Officers with probable cause -- the smell of marijuana coming from the
car, for example -- don't need a warrant to search the car. And
officers without probable cause cannot pressure travelers into a
consensual search by threatening to detain them while a magistrate
issues a search warrant, Wilson said.

"The law says you cannot coerce someone into allowing a search," he
said. "Once the officer is told `no,' it's over."

Barber said it is impossible to determine the program's effectiveness.
The task force is not required to report how many traffic stops are
made each day, or how many vehicles are searched.

Searches that do not yield drugs are not reported.

"If we ever got an accurate assessment of what they are doing, it
would show an enormous number of people being terrorized and harassed
by an ineffective policy," Barber said. "They can't stop the flow of
drugs. How far do we go to allow them to erode our constitutional
rights in an unwinnable war on drugs?"

Checked-by: Rich O'Grady