CASES DECIDED ON CASE-BY-CASE BASIS

Recently the Boyce case, where an officer detained a car to allow for a
drug dog to be summoned, has been an issue of consternation for your
editors and some of your readers. In that decision, the 11th Circuit Court
held that detaining a motorist for 20 minutes was an unconstitutional
detention and disallowed the seizure of some 10,000 Ecstasy pills. This may
surprise some, but I don't disagree with that decision. As a prosecutor, I
can tell you that the more rulings we have as to what is reasonable and
unreasonable, the better we can train officers and still enforce the laws
that protect us from criminals. You see, there are not crystal clear laws
that say 20 minutes is unlawful, but 10 minutes detention is okay. As the
courts interpret, we all learn and adjust our behavior accordingly.

So I take issue with The Telegraph's editors who write a headline that says
" Police must follow the law." Of course the police must follow the law!
But what is the law? Cases are decided on a case-by-case basis. In this set
of facts, the court ruled the detention unlawful. But your readers who take
this case as a huge infringement on personal liberty need to know that some
detention is lawful. How much is decided on the facts of the case.

I take issue with general comments like "but we have a large number of
police officers violating someone's constitutional rights daily." That is
simply not true. Police officers receive more training and education in
constitutional rights than most citizens will ever have. Most police
officers will tell you that they have asked for permission to search a home
or car and it has been denied, and the officer thanked the citizen and
allowed them to go on their way.

But do not confuse your constitutional right to privacy with the people's
right to protect themselves. Can the police detain you, in certain
circumstances? Yes. Can you refuse to give consent to a search of your
home, car or person? Sure. But can the police still search? Yes, sometimes
they can. Sometimes they find 10,000 Ecstasy pills, or 1,000 firearms, or
100 pounds of explosives. Sometimes they find nothing.

The point here is that everything in the criminal justice system is a
matter of degree. To take a case like this and claim that the police are
constantly infringing on our rights is to show a lack of understanding of
our system of justice. We are a free people because the police and the
prosecutors who enforce the law are willing to fight the fight to keep us
secure. Abiding by the law of the land is paramount to all of us. Too bad
criminals don't have that same respect.

Kelly R. Burke is district attorney of the Houston Judicial Circuit.