Andy Barniskis
adbco@netaxs.com
Legislative Chairman
Bucks County Sportsmen's Coalition (Pennsylvania)

April 25, 2001

Most people have not yet comprehended what a sweeping, anti- Fourth Amendment decision the recent Supreme Court decision [decision, news report] supporting arrests for summary offenses will prove to be. It's true purpose is to permit physical searches of people stopped, on foot or in their cars, for any of the dozens of imaginary petty offenses police have at the ready for such purposes.

Formerly, it was held that if an offense was a non-custodial, summary offense, police needed to show reasonable cause for searching a defendant. However, for custodial offenses, for which arrests are permitted under codified law, searches could be conducted for the safety of the arresting officers.

We have experience with this issue in Pennsylvania. About two years ago our General Assembly passed legislation permitting custodial arrests for a handful of petty, summary offenses, such as "blocking the roadway" or "obstructing traffic" (read, "walking in the street.") This followed several cases -- including, notably, firearms possession cases -- where the Pennsylvania Supreme Court had overturned convictions because the defendants had initially been stopped for summary offenses. The state court held that since the defendants could not be taken into custody for the crime of which they were accused, there were no reasonable causes shown for performing the searches that had exposed the evidence of other crimes.

In the cases that I am aware of, the defendants really were bad guys who apparently "got off on a technicality." One of these involved a case where an under-21 "usual suspect" was stopped by the police, charged with underage drinking when he was found to have beer on his breath, and then searched. The search exposed a gun he had stolen from a truck only minutes before. The Supreme Court overturned the convictions for burglary and illegal weapon possession on the grounds that there had existed no reasonable cause for a physical search of the defendant.

While this seems an egregious example of a "criminal getting off on a technicality," our Supreme Court (which, to their credit, is far more rigorous and respectful regarding constitutional rights than the U.S. Supreme Court) held correctly that Article I, Section 8 of the Pennsylvania Constitution (equivalent to the Fourth Amendment of the federal Bill of Rights) did not permit arbitrary stopping and searching of people simply because they "fit a profile" or were among a class of "usual suspects."

To their discredit, our General Assembly responded by providing an end-run around the state constitution and Supreme Court for the police, by making a handful of petty but convenient summary offenses, into custodial offenses. Still more to their shame, they did so while pretending that offenses such as "obstructing traffic" really were offenses of some crisis proportion, requiring "laws with teeth," and denying the pressure from law enforcement to provide a freer hand with random searches.

There is one ray of hope in all of this, and that is that in the few states where Supreme Courts have been more defensive of human rights than the U.S. Supreme Court has proven to be, those courts are still free to interpret their own states' equivalents to the Bill of Rights with full vigour; they are not required to lower their standards to those of the federal courts. A state can have a more rigorous standard regarding civil liberties than the federal constitution, but not a less rigourous standard.

This also brings up another threat that is quietly afoot; pressure by national police organizations for states to enact amendments to their constitutions that would specify that state courts must adhere to liberal federal standards regarding individual civil liberty issues, and not their own. While anyone who has not encountered such proposals may find the idea of a coordinated effort in support of them too "conspiratorial" sounding to be true, we did have several such bills for such constitutional changes introduced in Pennsylvania several years ago. Fortunately, the worst of them, including one stating that state judges must adhere to federal Supreme Court standards regarding reasonable search and seizure, were defeated, thanks largely to grass-roots resistance among gun rights advocates in coalition with civil liberties organizations. The outcome would have been to render whole portions of our state constitution meaningless window-dressing, subservient to the whims of the U.S. Supreme Court.

In Pennsylvania, the legislature's limited effort to provide some extra wiggle-room for the police continued with laws such as the conversion of some summary offenses into custodial offense. I now anticipate a battle wherein local police nationwide will argue that the U.S. Supreme Court has empowered them to make all offenses custodial, and thus subject of search; while some state Supreme Courts (I hope) continue to hold that liberal federal standards are irrelevant to their interpretation of their state constitutions, which should be their first masters. Hopefully, there will result another round of rediscovery of the Tenth Amendment of the federal Bill of Rights.