CONSTITUTIONAL QUESTIONS ABOUND OVER 'ICE' DEBATE

Earlier this year the scourge was terrorism. Citing the Sept. 11, 2001,
terrorist attacks, local law enforcement representatives lobbied to get
Hawaii's wiretapping law overhauled. Police said they needed the changes to,
among other things, more effectively combat terrorism.

Legislators weren't persuaded. The bill to rewrite the law went nowhere.

Now the scourge is ice.

The crystal meth problem has become so big that authorities say Hawaii's
wiretapping law and others need to be changed so police can more effectively
combat the drug epidemic.

The Legislature didn't bite last session, rightly concerned about eroding
people's privacy rights. And lawmakers should once again be skeptical about the
need to make major changes in the coming session.

The hue and cry for expanding policing powers in the face of a growing ice
problem needs to be carefully evaluated, especially if we're going to start
tinkering with the state Constitution, something that shouldn't be done
lightly.

Already, the law enforcement community has brandished some suspect numbers in
lobbying for changes. Their estimate of the number of ice users in Hawaii --
roughly one in 10 residents -- appears to be greatly inflated.

That issue notwithstanding, no one disputes that ice is a serious problem, one
that is victimizing more residents as addicts turn to crime to feed their
habit. Something has to be done to stem the tide.

But should we abandon the current requirement for an adversarial court hearing
before authorities can obtain a judge's approval to electronically eavesdrop on
a suspect's private conversations?

Should we allow authorities to question people at the airport using a procedure
that our state's highest court already has determined to be unconstitutional?

The lawmen, waving the ice flag, answer yes. Others say not so fast.

"It seems to me they're using this kind of hysteria over ice and drugs to
basically try to change the rules of the game," said Jack Tonaki, the state
public defender.

"The ever-shifting rationale shows it's not about ice, it's not about
terrorism," said Brent White, legal director for the American Civil Liberties
Union of Hawaii. "It's about increasing the power of government at the expense
of our constitutional rights."

Police and prosecutors want Hawaii's wiretapping statute to be more in line
with federal law, which doesn't require the court to appoint an attorney to
oppose the government's confidential request for a wiretap. Hawaii's law is
unique in that regard, authorities say.

Because of the difference in the laws, evidence obtained via federal wiretaps
can't be used in state courts. That results in as many as 100 suspects going
untried each year because the alleged offenses fall short of federal
jurisdiction and the state can't use the evidence, law enforcement officials
say.

Thomas Phillips, Maui police chief, said the proposed change would not make it
easier to get a wiretap because the same information still would have to be
presented to the court to justify the wiretap.

As it stands now, state and county officials rarely seek such authority because
of the hurdles involved.

But when wiretaps are requested, whether here or on the mainland, they rarely
are rejected, according to national figures.

Of 1,359 requests made by federal and state authorities nationwide last year,
only one was turned down, said Joshua Dratel, a New York attorney and board
member with the National Association of Criminal Defense Lawyers. Since 1991,
more than 13,000 requests have been made nationally, and only four were denied,
Dratel said.

Like their counterparts on the mainland, Hawaii police and prosecutors would
like to have the ability to get their wiretap requests "rubber stamped" by the
court without an attorney raising objections, Dratel said.

Phillips said Maui police use wiretaps, but he declined to say how often or
when the last request was rejected.

The offices of the U.S. attorney and city prosecutor didn't respond to a
request for comment.

Because federal authorities have greater resources and don't have to go through
an adversarial hearing to get a wiretap, it makes sense for Maui police to
partner with the feds on large-scale drug investigations, Phillips said.

As part of their push for more enforcement tools to combat the ice problem,
police and prosecutors also are seeking to reinstitute a program known as "Walk
and Talk" at the Honolulu airport.

The program essentially was a form of profiling. Someone fitting a certain
profile in appearance or behavior would be approached by officers, who would
talk to the person as they walked through the airport. The idea was to keep
"talking" to the suspect until he or she consented to a drug search.

Even though the practice has been permitted on the mainland, Hawaii's high
court in the early 1990s declared it unconstitutional, meaning the state
constitution would have to be amended before "Walk and Talk" could be
restarted.

Tonaki said the practice, which tended to target certain racial groups, was so
inherently intrusive and offensive that the high court deemed it a form of
unreasonable search and seizure.

And now authorities want to reinstitute "Walk and Talk," presumably on the
grounds similar programs are permitted elsewhere.

Our high court, however, already has spoken. Let's not amend the constitution
to make a wrong a right.