- The Washington Times - Sunday, March 17, 2002

State appeals courts are struggling with a controversial Supreme Court decision last April that allows arrest and search for relatively minor offenses, such as munching fries on the Metro or not buckling seat belts.
The 2nd District Ohio Court of Appeals announced it no longer would adopt federal search-and-seizure laws automatically, but the California Supreme Court upheld a search performed on a man arrested for riding a bicycle the wrong way on a one-way street.
States may avoid following Supreme Court guidance if local laws or constitutions are more permissive but not if they are more restrictive than the U.S. Constitution.
Supreme Court Justice Sandra Day O'Connor predicted such problems and warned in her dissent from the landmark 5-4 ruling that arrests for trivial crimes would open people to searches when a warrant otherwise would not be given. Justice David H. Souter's majority opinion in Atwater v. Lago Vista, Texas, stirred much debate at the time with assurances that such instances would be rare.
Despite figures showing that tens of thousands of people are arrested for offenses punishable only by fines, the high court ruled that handcuffing Gail Atwater, a Texas housewife, in front of her children for not using seat belts did not signal an "epidemic" of such cases.
Several outspoken judges in top state courts have criticized the 11-month-old Atwater decision, but no consensus has developed on what to do about it.
Five of California's seven justices recently applied the new precedent to sanction a search of Conrad R. McKay, the man arrested for wrong-way cycling. But Ohio and Montana courts went in the other direction, invoking state law to trump the Atwater precedent.
On Dec. 28, Ohio's 2nd District Court of Appeals suppressed evidence of cocaine found in the pocket of a jaywalker, Dali J. Brown, in a decision that specifically departed from the state's custom of being guided by federal search-and-seizure decisions.
Three weeks earlier, the Montana Supreme Court let that state's privacy guarantee prevail in throwing out charges of possession of cocaine, found when Havre police arrested Laurence J. Bauer for having alcohol.
In California, the officer who handcuffed and searched McKay in a community southeast of Los Angeles International Airport found amphetamine in a plastic pouch tucked into his sock. McKay, 35, was sentenced to 32 months in prison for drug possession. He was a second offender.
"[It] allows officers to push past the boundaries of the Fourth Amendment," California Supreme Court Justice Janice R. Brown said last week as she chided colleagues who decided to follow the U.S. Supreme Court precedent and uphold his conviction.
"She's entitled to her opinion," California Deputy Attorney General Thomas C. Hsieh said. "At a practical level, I don't think it's going to happen very much."
Robert C. DeCarli, the Austin, Texas, lawyer who lost the Atwater case, disagreed. Mr. DeCarli filed statistics with the high court showing an estimated quarter-million such arrests are made nationwide every year, with 37,814 in Oregon and California alone in 1999.
Writing for the California majority, Justice Marvin R. Baxter quoted in full the key passage from the April 24 decision: "If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender."
Justice O'Connor had predicted those words would have "potentially serious consequences" for ordinary Americans.
"The majority takes comfort in the lack of evidence of an epidemic of unnecessary minor-offense arrests," she wrote, "but the relatively small number of published cases dealing with such arrests proves little and should provide little solace."
Justice Souter's majority opinion backed by Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas brushed aside qualms expressed by Justice O'Connor, who was joined in dissent by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer.
"The dissent's own language betrays the speculative nature of its claims," Justice Souter wrote. "Noticeably absent from the parade of horribles is any indication that the 'potential for abuse' has ever ripened into a reality."
"This shows why we cannot rely on the courts to protect our rights. People need to get angry and get the legislatures to change the laws," Mr. DeCarli said. "A single deprivation of an individual's civil liberties is one too many."

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