When can the cops pull you over to see if you're driving under the influence?

It's one of the questions at the heart of the case of Brian J. Noakes, who is threatening to sue the city of Corvallis over a traffic stop in June that led to his arrest for DUII. A breath test showed he hadn't been drinking, and a urine test came back negative for drugs.

A police report showed that Noakes was approached by the arresting officer, Dave Cox, because Noakes had pulled out of a tavern parking lot shortly after midnight and parked after driving just half a block. Cox was later investigated by the Corvallis Police Department, in part because of the Noakes arrest, and subsequently resigned.

The results of that investigation have not been released, and efforts to reach Cox for comment have been unsuccessful.

But the Noakes case has drawn attention to the issue of "pretext stops" - the police practice of pulling a motorist over on the pretext of a relatively minor traffic violation - say, a burnt-out taillight or failing to signal a lane change - and then making an arrest for a more serious offense, such as drug possession or driving under the influence.

It's a sensitive subject that raises questions about law enforcement's ability to get drunk drivers off the road while respecting the right of citizens to be free from unreasonable search and seizure.

That right is guaranteed in the Fourth Amendment of the U.S. Constitution and Article 1, Section 9 of the Oregon Constitution.

Mid-valley police chiefs insist their officers don't make random stops to check for drunk drivers (see related story). But local prosecutors point out that both state and federal courts have established the right of police to arrest someone pulled over on a traffic infraction for DUII or other crimes, as long as they have probable cause to believe a crime has been committed.

"That's not illegal," Benton County District Attorney John Haroldson said. "It is absolutely legal to make a pretext stop."

DeAnn Novotny, the senior deputy district attorney for Linn County, took a similar position.

"If they've got a valid pretext to pull someone over, I'm not sure that's a pretext stop," Novotny said.

But civil rights advocates argue that problems can arise because police have such wide latitude in enforcing traffic laws that, if they really want to, they can pull virtually anyone over at any time.

"Any B-average-trained police officer can lawfully stop any citizen if given three miles to follow them," said John Henry Hingson, an Oregon City attorney who specializes in DUII defense. "No one is immune."

"If drivers are really drunk, that's good policing - but that's a big if," said David Fidanque, executive director of the Oregon chapter of the American Civil Libreties Union. "Good supervision is critical over some of these kinds of discretionary decisions."

Obviously, if someone's weaving all over the road, that's a good reason to ask the driver to take a field sobriety test. But can an officer really use a minor traffic infraction as an excuse to stop someone to check for evidence of a crime?

In recent years, the courts have said yes.

In Whren v. United States, the U.S. Supreme Court upheld a 1993 drug bust by plainclothes District of Columbia officers who stopped a vehicle after it waited about 20 seconds at a stop sign, then turned right without signaling.

"As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to belive that a traffic violation has occurred," the justices ruled.

While lower courts in Oregon have sometimes thrown out cases based on pretext stops, the state Supreme Court has upheld the practice. In a case known as State v. Carter/Dawson, the justices held that a police officer who made a drug bust after pulling over a motorist for speeding was justified "regardless of the officer's true motive for making the stop."

Still, the intertwined questions of when a police officer is justified in stopping a motorist and what justifies an arrest for driving under the influence have given rise to some lively debates in Oregon courtrooms.

A case in point is State v. Gilmour, which arose out of a 1993 Corvallis arrest.

A car carrying two people was stopped after pulling out of a tavern parking lot at 2 a.m. because the driver failed to signal before turning and again before changing lanes. The officer testified that the odor of alcohol was emanating from the car and that the driver had red, watery eyes but otherwise appeared sober.

The driver was arrested for DUII after refusing to take a field sobriety test. Afterward, a breath test revealed he had been drinking.

A Benton County judge ruled the traffic stop was valid, but he suppressed the breath test results on the grounds that the officer lacked sufficient probable cause to arrest the driver for DUII in the first place.

The Oregon Court of Appeals reversed the lower court's decision to suppress the breath test results, but not without a dissenting opinion.

Justice Susan Leeson argued strenuously that more obvious signs of impairment should be required before arresting someone for driving under the influence.

"Taxi drivers are among those who will be interested to learn that, if they are called to pick up an intoxicated passenger at a tavern in the early hours of the morning and, upon leaving the parking lot, commit the common traffic infractions of driving out of a parking lot without signaling and failing to signal a lane change, they are at risk for being arrested for DUII."

Haroldson, the Benton County DA, argued that the ability to stop drivers for minor infractions is an important weapon in the arsenal of law enforcement, citing a local case in which the technique was used to detain suspects in an identity theft ring.

"The reality is a lot of times those violations will allow an officer to pull over some pretty dangerous people," he said.

Ultimately, Haroldson said, a balance must be struck between protecting civil rights and protecting the public.

"The goal is public safety and justice," he said. "Public safety cannot come at the expense of public injustice - that's just absolutely not a negotiable point. I inherently believe we can achieve and maintain both goals."

Bennett Hall can be reached at 758-9529 or bennett.hall@lee.net.

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