Right to search cars challenged
Police reluctant to give up tool for fighting drugs
11/27/98
By Scott Parks / The Dallas Morning News
COLORADO CITY, Texas - The signpost on I-20 warns thousands of travelers that the war on drugs has taken a strange turn here in West Texas...
This lonely stretch of highway between Abilene and Midland once seemed an unlikely spot to spawn debates about First Amendment rights to free speech and Fourth Amendment protections against unreasonable searches.
But that was before cantankerous Colorado City lawyer Pat Barber erected a big billboard on his ranch at the edge of town. Just past the Dairy Queen and the Sonic and the state prison, it rises from the rocky landscape next to Interstate 20.
"Just say NO to Searches! 915-728-5505."
A phone call reveals a tape-recorded message encouraging law-abiding travelers to "just say no" when police ask to search their vehicles for drugs during routine traffic stops.
"An innocent citizen . . . should know that when an unreasonable search request is refused, the officer must let him go," Mr. Barber advises.
The message concludes, "Good luck, and have a safe trip."
Law officers were not amused.
"I think it would be fair to say we resented it at first," said Mitchell County Sheriff Pat Toombs. "But he has a right to his opinion."
Texas Department of Transportation officials also had a problem with Mr. Barber's sign. They said his billboard violated the Highway Beautification Act and threatened to fine him $1,000 a day if he didn't remove it.
Mr. Barber, 52, no shrinking violet, filed suit against the highway department. The sign, he argued, sits on his own property and carries a political opinion that cannot be censored.
Last month, District Judge Suzanne Covington of Austin granted Mr. Barber an injunction, which means the sign can stay up until a trial next year.
In her order, Judge Covington said Mr. Barber "will probably prevail on his claim that the statute [Highway Beautification Act] as written and as enforced is an unconstitutional infringement of his rights of free speech under the Texas and U.S. Constitutions."
Highway department officials said agency policy prevents them from commenting about active court cases.
Mr. Barber said his main goal is to create a fundamental debate about roadside searches. Do they yield enough criminal cases to justify intrusions into glove compartments, trunks and luggage of law-abiding travelers? he asked.
"Most people don't know they have a right to say no," he said. "And a lot of others are afraid to say no. These officers count on that."
Family operation
Mr. Barber runs a one-person law practice out of a historic bank building in downtown Colorado City. Sharon Barber, his wife, is the legal assistant. Mr. Barber's father, also an attorney, worked in the same office before him.
Colorado City, population 4,600, has seen better times. Mr. Barber fondly disparages it as "a ghost town." Folks say he's never been concerned about being popular with the chamber of commerce crowd.
In the 1970s, as a county prosecutor, he accused local lawmen of beating jail inmates. Two policemen were prosecuted but acquitted.
In the early 1990s, he sued the local school board when his son's hair length collided with the dress code. He lost before the Texas Supreme Court.
Now, he's crusading against roadside searches.
"Nobody wants to see us turn into a Third World police state where you can't walk across the street without a drug dog in your crotch," he said. "Police may want it, but people don't want it."
Thus far, Mr. Barber has aimed most of his barbs at the West Central Texas Interlocal Crime Task Force, which operates in a 15-county area surrounding Abilene.
Billy Schat, the task force commander, said no one has complained about his interdiction officers and that they have never used threats or intimidation to get consent to search a vehicle.
"We don't operate that way," he said. "We don't have to. Most people give permission to search."
Mr. Schat's group is one of 47 regional drug task forces funded by the Texas Narcotics Control Program. The governor's office administers the program with $26 million a year in federal funds.
Mr. Barber's sign and his opposition to roadside searches has had no impact, Mr. Schat said.
"He hasn't affected anything of ours," he said.
The Abilene-area's highway interdiction program and others statewide generally operate this way:
Officers stop a motorist for a minor traffic violation: Not wearing seat belts. Failure to use the turn signal when changing lanes. Tail lights out.
After the stop, the officer attempts to engage the traveler in conversation and to look for "indicators" that the car may contain drugs.
Based on a quick assessment, an officer either sends the traveler down the road with a warning or asks permission to search the vehicle. The officer does not have to warn the motorist that the right to say "no" is an option.
"Texas law and U.S. Supreme Court decisions hold that everyone presumably knows that you don't have to let the cops search your car or home," said Ted Wilson, a criminal law expert in Houston.
Officers with probable cause - the smell of marijuana coming from the car, for example - don't need a warrant to search the car. And officers without probable cause cannot pressure travelers into a consensual search by threatening to detain them while a magistrate issues a search warrant, Mr. Wilson said.
"The law says you cannot coerce someone into allowing a search," he said. "Once the officer is told 'no,' it's over."
Mr. Barber describes the Abilene-area interdiction officers as "storm troopers" with mirrored sunglasses, black shirts, black pants and black boots.
"It's meant to intimidate," he said. "Everyone is a suspect."
Mr. Schat said Mr. Barber makes too much of his officers' attire. "It's just a uniform," he said.
Mr. Barber said he has heard stories of people left to repack their belongings after officers find no drugs and leave.
One of those stories comes from Randy Cooper, a Colorado City businessman. He said he saw a woman in her 30s, dressed in a nice suit, standing in the wind beside I-20.
"Her belongings were spread out in the bar ditch, and every door on her Suburban was open," he said. "My immediate feeling was that I felt bad for her."
Mr. Schat said his officers have never spread out anyone's belongings in a bar ditch and left them to fend for themselves.
"I'd say that's false," he said.
Whatever happens, the highway interdiction program is based entirely on officers making legal traffic stops. Mr. Schat said his officers are well-trained in the law.
But Mr. Cooper's mother and father tell a different story.
Billy and Ruth Cooper, both 76, were on I-20 in the pre-dawn hours of June 15 when the task force stopped them on their way from Colorado City to Midland.
"The officer told me he stopped me for having a license plate light that was out," Mrs. Cooper said. "He just warned me about the light and let us go. He was courteous and it didn't bother me a bit."
Mrs. Cooper said she and her husband checked the license plate light and found it was working fine.
Mr. Schat said he is not familiar with Mr. and Mrs. Cooper, but he added, "I'd say the license plate light was out at the time my officers stopped the vehicle."
Mr. Schat estimates that one in 20 traffic stops results in a search. He said his two interdiction officers have racked up impressive statistics since he implemented the program in January: 1,153.66 pounds of marijuana confiscated; 7.2 pounds of cocaine; 20 pounds of heroin; 17.23 grams of methamphetamine; 10 vehicles seized; three stolen vehicles recovered; one DWI case; and the arrest of a prison escapee.
"I'm proud of our program," he said.
But Mr. Barber said it is impossible to determine the program's effectiveness. The task force is not required to report how many traffic stops are made each day or how many vehicles are searched.
Searches that do not yield drugs are not reported.
"If we ever got an accurate assessment of what they are doing, it would show an enormous number of people being terrorized and harassed by an ineffective policy," Mr. Barber said. "They can't stop the flow of drugs. How far do we go to allow them to erode our constitutional rights in an unwinnable war on drugs?"
Mr. Schat said he believes the war on drugs is going well in the 15 counties his task force covers.
"We are working hard and think we're doing some good," he said. "I like it just the way it is."
