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Prosecutor: New search rules could favor criminals

The Kitsap County Prosecutor’s office has expressed concern about a Supreme Court decision that narrows the definition of vehicular searches, saying that it will change how policemen do their jobs while forcing the dismissal of several criminal cases.

“There is no upside to this,” said Kitsap County Deputy Prosecutor Chris Casad of the decision. “Unless you are a criminal, and trafficking in stolen property or drugs.”

A Port Orchard criminal attorney disagrees, and feels the ruling is not so significant.

“This is neither bad nor good,” Eric Fong said. “It is a further evolution of the interpretation of the Constitution, and the definition of individual rights.

This is just a shift in the landscape.”

The decision was based on a case involving Tucson resident Rodney J. Gant, who was arrested by police for driving on a suspended driver’s license. After the arrest police searched Gant's vehicle, and found a weapon and a bag of cocaine.

The case went all the way to the Supreme Court, which ruled that the search violated Gant’s expectation of privacy.

Casad feels that the decision “was made by people who don’t know what it means for police officers to do their jobs,” which is to have the ability to react quickly in potentially dangerous situations. Previously, an officer could pull over a driver for a minor infraction to discover they had an expired license. They would then search the car, and find guns, drugs or stolen property.

The April 21 decision, Arizona v. Gant, sets a new precedent. If someone is pulled over for a broken tail light and it turns out they have an expired license, the officer cannot search the car unless he has probable cause that a separate crime has been committed.

“This means that we need to treat cars like houses when it comes to search and seizure,” said Kitsap County Prosecutor Russell Hauge. “The good news is that we are putting together a network of judges that we can call at any time, day or night, and get a warrant. The judges will get less sleep, but we will be able to prosecute the crimes.”

Hauge said that he does not know how many cases will need to be dismissed, but said charges will be dropped in several instances.

While the past can’t be changed, the prosecutor’s office is hoping to reconfigure law enforcement to make them aware of the new standards and ensure that future cases stand up in court. This will be accomplished in a memo from Casad, dated April 23, which states “The decision of this case will have a tremendous impact on the performance of your law enforcement duties.”

The memo spells out the changes, most significantly that officers can only search a car if it relates directly to the offense the driver apparently committed.

Police can no longer search a car for drugs or guns, if the offense is driving with an expired license. And they cannot execute a search if the driver is not in proximity to the car.

Casad objects strenuously to this, saying that it endangers the officers’ safety.

“If the suspect knows there is a gun in the car he can grab it and shoot the officer,” Casad said.

In the memo, Casad advises officers to consider their own safety first.

“Be sure to keep your eyes open as you are approaching the vehicle to gain any information that will be helpful in obtaining a search warrant,” the memo reads. “While consent (of the suspect) is a great tool if you do not have probable cause, the better practice is to obtain a search warrant if probable cause does exist.”

Fong, who had not read Casad’s memo, said he didn’t think the prosecutor was overreacting to the Supreme Court decision, but is “doing their job, which is to interpret and enforce the law.”

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