Tuesday, May 24, 2011

Bellevue's Proposed "Drug Loitering" Ordinance Promotes Racial Profiling and May Be Unconstitutional, Says Lawyer

By Curtis Cartier, Tue., May 24 2011 at 2:16 PM
Categories: Law & Courts

Bellevue police officers would really like to arrest a handful of people that hang out in the Crossroads and Factoria neighborhoods and look like they're selling drugs. Unfortunately the whole "Fourth Amendment of the Constitution" thing requires police to have either a warrant or probable cause to make such arrests.

But what if there was a law that allowed officers to arrest people for "loitering with the intent of engaging in drug-related activity"? And what if instead of probable cause, police only needed "reasonable suspicion" to detain and arrest someone for that crime? The Bellevue City Council wants to find out.

Last night, after hearing from two BPD officers who complained about not being able to arrest known drug dealers because the dealers are hiding their drugs off-site, the council voted to look more closely at a law that would let officers arrest people for simply appearing to be trying to sell drugs.

Bellevue Police Legal Advisor Kyle Aiken explained at the hearing:

"Known convicted drug dealers hang out on public sidewalks... So they're out there, they hold what appear to be innocent conversations and then they escort the person--the customer--out of the sight of officers where it's presumed a drug sale occurs," Aiken testified. "The officers can't do anything because those are all innocent actions."

The proposed law would make those "innocent actions" no longer innocent and allow officers to search and arrest people for "drug-related loitering."

The proposed ordinance is actually based on existing laws in Seattle, Tacoma and Yakima--most closely the law in Tacoma.

Early language from the legislation states:

If an officer observes circumstances that gives the officer a reasonable suspicion that the person is loitering with (the intent of selling drugs). . . The officer will have the ability to arrest this person.

But serious questions remain as to whether such a law would be constitutional. Aiken and Bellevue PD note that the Washington Supreme Court upheld Tacoma's drug-loitering law in 1992.

This is true. But along the way judges have noted that the law is vulnerable to constitutional challenges from higher courts.

The Seattle Times reported in 1990 that when Pierce County Superior Court Judge James Healy upheld Tacoma's drug-loitering law, he did so with the caveat that it may be struck down later.

The law has never been challenged in federal court. But according to Seattle attorney Kurt E. Boehl, a former Seattle city prosecutor and expert in constitutional law, "with the right case" a challenge to this ordinance could go all the way to the U.S. Supreme Court.

"How could a law like this not create profiling? Especially racial profiling?" Boehl tells Seattle Weekly today. "I think it's expanding what officers can use to make contact and make arrests. And it's expanding their arsenal at the expense of our civil rights. What exactly does a drug dealer look like?"

Aiken maintains that she's confident the proposed law is constitutional. But when asked what prevents officers from using normal probable cause procedures to obtain a search warrant and find where the drugs that the alleged dealers in question are hiding, she balks.

"These officers aren't able to develop probable cause for a crime, but they have reasonable suspicion," she says.

Reasonable suspicion and probable cause have, of course, two completely separate legal definitions--the latter requiring much more evidence than the former. But having a law that makes the two terms essentially the same thing would certainly simplify things for cops--never mind what it does to individual liberties.

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