A TROUBLING DECISION

The U.S. Supreme Court ruled this week that Border Patrol agent
Clinton Stoddard acted within the law when he stopped a vehicle near
Douglas and arrested its driver. The high court in effect approved a
broad interpretation of what constitutes a legal search and seizure.
In this particular case, the driver of the vehicle, Ralph Arvizu, was
indeed a smuggler carrying 128 pounds of marijuana, and Stoddard's
intuition was correct.

However, while prosecutors and the Border Patrol are celebrating their
victory in this case, it is for the rest of society a Pyrrhic victory
at best. What law enforcers gain by this decision is not nearly as
significant as what society as a whole may lose. What we lose is the
feeling that we can be safe in our own vehicles.

In reversing the lower court ruling, the Supreme Court said, "In
making reasonable-suspicion determinations, reviewing courts must look
at the 'totality of the circumstances' of each case to see whether the
detaining officer has a 'particularized and objective basis' for
suspecting legal wrongdoing." Translated, this means an officer can
use his experience to evaluate what he sees and then act
accordingly.

On one level, this makes perfect sense, but it is also a concept that
is rife with potential abuse.

For example, critics point out, the ruling may be interpreted to mean
that if you are the "wrong" color and you're driving around in the
"wrong" neighborhood in a vehicle that an officer believes is the
"wrong" vehicle for that neighborhood, he can legitimately pull you
over and search your car, contrary to the protections provided in the
Fourth Amendment to the Constitution.

We don't for a moment believe the court intended that, but its
decision sets a precedent that conceivably could make such behavior
defensible. That would be a tragic erosion of the Fourth Amendment,
which protects citizens against unreasonable searches and seizures.

The Arvizu case was an especially poor one to use as a potential
example of a Fourth Amendment violation because in that particular
case the agent's action made sense. Arvizu was driving a minivan, a
vehicle popular among smugglers, along Leslie Canyon Road, a route
commonly used by smugglers trying to circumvent a Border Patrol
checkpoint at Rucker Canyon Road and Route 191, about 30 miles north
of the Mexican border at Douglas.

He was stopped around 2:15 in the afternoon, around the time of day
that agents stationed at the checkpoint would be leaving to return to
their base for a shift change, a schedule smugglers are familiar with.
And when the Border Patrol agent approached Arvizu from the opposite
direction, Arvizu ignored a common social practice on rural dirt
roads: To wit, when someone goes by, a driver will typically wave, nod
or somehow greet the other driver. Arvizu did none of the above though
his children, seated in the back with their feet propped on a
dufflebag filled with marijuana, waved to the agent.

All of this was recounted in the Supreme Court's unanimous decision,
written by Chief Justice William H. Rehnquist.

The key phrase in Rehnquist's decision was the "totality of
circumstances." In the Arvizu case, the court believed that all the
pieces of the puzzle fit, and Stoddard had "reasonable cause" to stop
and search Arvizu's van.

Rehnquist acknowledged that while the court in other cases has
determined "that the concept of reasonable suspicion is somewhat
abstract," it has nonetheless "deliberately avoided reducing it to 'a
neat set of legal rules.' " The lower court had held that each of
Stoddard's reasons for stopping Arvizu should have been scrutinized
and evaluated to reduce any troubling uncertainties. But Rehnquist
said that to do so would seriously undercut the "totality of the
circumstances" principle.

Perhaps because of the fear that gripped the nation after Sept. 11,
and the zeal to prevent future terrorist attacks, the Supreme Court
will be applauded for making it easier for authorities to stop and
search suspects.

But without a set of objective guidelines, the decision may,
unfortunately, result in needless interference in the lives of
innocent citizens.