- Associated Press - Sunday, February 15, 2015

FARGO, N.D. (AP) - Robert Schneider was parked on a gravel road outside Bismarck on a November night in 2012 when a sheriff’s deputy turned on his overhead flashing lights and pulled in behind him. Schneider had not been spotted doing anything illegal. There were no warrants for his arrest.

When the deputy approached and asked if he could search the car, Schneider consented. He was busted for possession of pot.

Defense attorneys and a longtime North Dakota legal expert say the case illustrates a longstanding problem in the state with car stops based on non-criminal offenses - and believe the only place it can be fixed is in the state Legislature.

“I don’t think it would ever pass, but it would be a real interesting debate,” said retired University of North Dakota professor Thomas Lockney, who first published a law review article on the issue five years ago. “When I saw the (Schneider) case, the first thing that came to my mind was that nothing’s changed.”

The state Supreme Court ruled three months ago that Schneider’s rights were not violated because the deputy was making a welfare check and Schneider agreed to the search. Four of the justices say Schneider should have believed he was free to drive away. The lone dissenting justice says the lights were a show of authority and constituted a seizure.

The proposal by Lockney and Fargo attorney Mark Friese would update the laws on traffic offenses and require an officer to “possess at least probable cause” to believe the offense was committed. It would, among other things, limit questions related to the traffic stop unless the officer has reasonable suspicion.

The Supreme Court ruling in the Schneider case acknowledges that the deputy had no reasonable suspicion to stop Schneider. However, the high court backed a district judge’s ruling that Schneider could have started his car and driven away, either down the gravel road where he was parked or another gravel road to the left.

Justice Carol Kapsner, who disagreed with the ruling, said a reasonable person would not feel he or she was free to leave the scene.

“I would hold the officer’s approach to Schneider with flashing lights was a show of authority constituting a seizure,” said Kapsner, who would have reversed the district court’s ruling and allowed Schneider to withdraw his guilty plea.

Schneider’s lawyer, Samuel Gereszek, did not respond to a request for an interview.

Lockney said he doesn’t necessarily blame the judges. He said they don’t want to be known for giving a criminal a free ride.

“You’ve got a guilty criminal standing there and his lawyer is claiming in order to protect all the innocent people, you should give this guy a break,” Lockney said. “That’s just psychologically a stacked deck.”

At least one lawmaker, Republican Sen. Kelly Armstrong, of Dickinson, himself a lawyer, agrees that “broad Fourth Amendment” policy discussions should be held in the Legislature. A bill in the current session that would ban drunken driving checkpoints “is a step in the right direction,” he said.

“Really what the bill says is that in order to stop a vehicle, the officer must have a reasonable and articulate suspicion,” Armstrong said. “The bill is in House Judiciary and is touching on many of the same things relating to driver privacy.”

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