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Reno gets tough day in court Claim of police power over passengers in traffic stop questioned; Curran appeals Md. case; U.S. attorney general argues her 1st case before Supreme Court

THE BALTIMORE SUN

WASHINGTON -- In her first argument before the U.S. Supreme Court, Attorney General Janet Reno fended off yesterday a barrage of unfriendly questions about whether police officers should have more power over passengers in cars they pull over during routine traffic stops.

The case, stemming from a 1994 Maryland State Police traffic stop, could have sweeping implications for anyone who climbs inside a car, a truck or a bus as a passenger anywhere in the United States.

If Reno and Maryland Attorney General J. Joseph Curran Jr. have their way, officers could order passengers outside and detain them during traffic stops -- without probable cause that they had committed crimes or posed threats to the officers.

Several justices -- including key conservative members of the bench -- peppered Reno and Curran with questions, asking them whether more police power was necessary to protect officers, and if that power would violate the Fourth Amendment's protection against unreasonable searches and seizures.

The nation's top law enforcement officer traditionally argues at least one case before the Supreme Court and those cases are usually considered to be sure-fire wins. But the outcome of the case Reno decided to argue didn't seem so certain yesterday.

Reno barely began to speak when Justice Antonin Scalia interrupted her.

"I suppose a police officer could stop a bus and order everyone off," he suggested.

"It's going to depend on many different circumstances," Reno replied.

"This is a prolonged seizure," Justice Anthony M. Kennedy said.

Reno tried to be more specific.

"It's a brief, temporary stop," she said.

The justices seemed particularly perplexed by the lack of evidence from Reno and Curran showing that passengers posed a risk to officers during traffic stops. Neither could say how many officers have been assaulted or shot by passengers.

"We do not have specific numbers," Curran said.

1994 Maryland traffic stop

University of Baltimore law Professor Byron L. Warnken, who is representing the passenger in the case before the Supreme Court, warned the justices that broadening police powers would result in unchecked interpretations about what officers could do during traffic stops.

"You can't give standardless, limitless discretion to law enforcement officers," he said.

The case began on an otherwise ordinary summer night two years ago, when Maryland State Police Trooper David Hughes spotted a Nissan Maxima speeding along Interstate 95 in Baltimore County. Hughes followed, clocking the car at nine miles over the speed limit.

Hughes flipped on his lights and siren, and started to pursue the Nissan.

For 1 1/2 miles, the Maxima wouldn't pull over. Hughes said he saw a passenger duck behind the seat. When the Nissan finally did stop, Hughes said the driver was nervous. He ordered the driver to step out of the car -- a police power the Supreme Court upheld in a 1977 ruling -- and then ordered the passenger outside.

As the passenger, Jerry Lee Wilson, stepped out, a packet of cocaine fell to the ground, and he was later indicted on drug

charges. But Baltimore County Circuit Judge Thomas J. Bollinger ruled that Hughes ordered Wilson out of the Nissan without probable cause. The drugs could not be admitted as evidence.

Bollinger's ruling was upheld by Maryland's appeals courts, and the state took its case to the Supreme Court, asking the justices to provide officers with an automatic right to order passengers out of cars. The charges against Wilson and the driver, Terrance MacNichol, are pending while the justices sort out the case.

Md. backed by 26 other states

Maryland's appeal is backed by 26 other states, which have filed so-called friend-of-the-court briefs. The Justice Department filed a brief backing the expanded use of police power during traffic stops.

Curran told the justices yesterday that 5,762 officers were assaulted during traffic stops in the United States in 1994, and that more than 200 officers, including at least two in Maryland, have been slain since the Supreme Court gave police the power to order drivers out of cars 19 years ago.

"To control the stop, the officer has to control the passengers," Curran told the justices.

"You want the passengers to be detained?" Justice Sandra Day O'Connor asked.

"Yes, your honor," Curran said.

"I'm just not sure what the authority is for detaining a passenger," she said.

O'Connor then asked Curran what would happen during a snow storm. Should an officer be permitted to order a mother and her child outside?

She also wondered what would happen if a passenger suffering from dementia wandered away and didn't understand the officer's order to stop.

What then, O'Connor asked, her voice rising in anger: "Shoot him? This could be carried to extremes, and you don't seem to recognize that there's a difference."

Warnken started to argue his side of the case when Justice David H. Souter cut him off. What's the difference between a passenger in a traffic stop, he asked, and a bystander at a crime scene who is ordered to keep back by police.

"Why shouldn't the passenger be in the same boat as the bystander?" Souter asked.

Warnken said there is a distinction: The passenger is being detained; the bystander is not.

Scalia wondered whether passengers should bear some responsibility for the actions of the drivers. After all, he said, most passengers know the drivers, and they voluntarily get into their cars.

The passenger, the justice said, "is not really a totally innocent fellow."

That may be true, Warnken replied, but police should not be able to force passengers from cars without some standards to guide them.

Guidelines sought

Rather than adopting a broad rule giving police officers unfettered discretion, Warnken said law enforcement agencies should instead draft guidelines for their officers to follow.

At the end of the hourlong argument, Curran was permitted to speak one final time. He didn't get far before Scalia asked him again how many officers have been assaulted or shot by passengers during traffic stops.

Curran said he didn't know.

"We don't know if we are going to increase police safety? Isn't that the point?" Scalia said, his tone turning hostile. "I resent being put in the position of deciding this case on speculation."

Pub Date: 12/12/96

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