SECTION: Pg. 5

LENGTH: 930 words

HEADLINE: Something about this air freshener stinks

BYLINE: TIMOTHY P ONEILL

BODY:

   For years we have discussed how much easier patrol and investigation would be if that darned Fourth Amendment didn't get in
our way.

I am happy to announce that the U.S. Supreme Court has recently answered our prayers, at least in the area of traffic stops, in a case
called Atwater v. City of Lago Vista, No. 99-1408 (April 24).

From now on, any determined police officer should be able to stop any -- I repeat, any -- motor vehicle. Pursuant to this stop, you
should be able to arrest the driver, search the driver, search the car, take the driver down to the police station for booking, and then
inventory everything in the vehicle.

And all of this activity will be completely proper under the Fourth Amendment.

Here's how.

Pick a car at random. Maybe the driver is a member of a minority group. Maybe you just don't like the driver's looks. Maybe you
are just curious.

The first step is to find some traffic violation. It has long been true that no violation is too minor to support a stop.

Our lobbyists are currently drafting some new motor vehicle laws based on some statutes we have seen in reported cases:

- U.S. v. Williams, 106 F.3d 1362 (7th Cir. 1997). The driver violated Illinois law by signaling for a left turn less than 100 feet
from the intersection. And, the driver did not make proper stop at a stop sign because he did not stop precisely "at the point nearest
the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the
intersection."

- U.S. v. Smith, 80 F.3d 215 (7th Cir. 1996). The traffic stop was proper because the air freshener hanging from the rearview mirror
obstructed the driver's vision out the windshield. And, the windshield itself was cracked, which also supported the stop.

- People v. Rush, 745 N.E.2d 157 (2d Dist. 2001). The driver's single, momentary crossing of the center line was a sufficient basis
for a traffic stop.

If you follow a driver for a mile and cannot find a single violation, you are just not trying hard enough.

Should you be worried about using one of these minor offenses simply as a "pretext" for stopping a vehicle? Don't worry. Your
actual, subjective reason -- even if racist -- is irrelevant under Fourth Amendment law. Whren v. U.S., 116 S.Ct. 1769 (1996).

Once you make the stop, you know you can simply write a citation and send the driver on his way. If you arrest the driver for the
offense, however, your options for searches will greatly increase.

But does the Fourth Amendment allow you to make a full custodial arrest for hanging an air freshener from your rearview mirror?
Atwater says "absolutely".

The issue in Atwater was whether the Fourth Amendment permitted an arrest for a minor criminal offense; in Atwater the offense
was a misdemeanor seat belt violation punishable only by a fine. For years there was doubt that an arrest for a minor offense was
"reasonable" under the Fourth Amendment. See Gustafson v. Florida, 414 U.S. 260 (1973) (Stewart, J., concurring).

But Atwater held that, as long as an officer has probable cause, the Fourth Amendment allows the officer to make an arrest for even
a very minor offense committed in the officer's presence.

All that is necessary is that state law provides for arrest as an option to a citation. Again, we are directing our lobbyists to introduce
legislation authorizing arrest as an option for any traffic violation.

Obviously, if you discover that the driver you have pulled over is a law-abiding citizen of our town, you can issue a citation or
simply a warning.

But if you find out that the driver is ... how can I say this? ... "suspicious," the arrest option provides you with enormous power.

First, upon placing the person under arrest, you can now do a full search of that person. U.S. v. Robinson, 414 U.S. 218 (1973). It
is irrelevant whether or not you believe he may have weapons or any evidence of any kind.

Second, the mere fact you have made the arrest now gives you the right to make a complete search of the passenger compartment of
the car. New York v. Belton, 453 U.S. 454 (1981). This search can include glove compartments, luggage, bags -- any container
within the passenger compartment.

Third, after the arrest you may then take the person to the police station for booking. At that time an inventory can be made of his
personal belongings. Illinois v Lafayette, 462 U.S. 640 (1983).

Fourth, if his vehicle is impounded pursuant to the arrest, you may then inventory the contents of his vehicle, as long as the
inventory is conducted pursuant to standardized operating procedures. Colorado v Bertine, 479 U.S. 367 (1987).

And all this is allowed because of an air freshener hanging from the rearview mirror!

We will let you know when the legislature has made arrest an option for all traffic offenses. When that change is made, you will
have no excuse not to find a way to stop and search any car and driver you wish. Criminal Procedure By Timothy P. O'Neill O'Neill
is a professor of law at The John Marshall Law School in Chicago. He served from 1989 to 1999 as reporter to the Illinois
Supreme Court Committee on Pattern Jury Instructions in Criminal Cases.
 
 
 
 

LOAD-DATE: May 14, 2001