Search of car, despite consent, is ruled illegal

December 21, 1990|By Michael J. Clark | Michael J. Clark,Howard County Bureau of The Sun

Police cannot search a car stopped for a traffic violation -- even if the motorist signs a form consenting to a search -- unless they have evidence to suggest the person has commited a crime, a Howard County judge has ruled.

District Judge Louis A. Becker made the ruling Wednesday when he threw out drug charges against Gail Filler, a 21-year-old college student from Monsey, N.Y., who was stopped at 11:30 p.m. July 11 on Interstate 95 in Laurel for driving at 67 mph in a 55 mph zone.

A state trooper who searched her car found 6.3 grams of marijuana and a pipe in the woman's purse after finding a burned marijuana cigarette in an ashtray next to the back seat.

W. William Cookson, the prosecutor, said he believed Judge Becker's ruling was "incorrect" because Ms. Fuller had signed a consent form, which means that she had waived her constitutional rights.

But Judge Becker agreed with defense attorney Alan L. Fishbein that Trooper L. R. Pruitt needed to have some suspicion that Ms. Fuller had marijuana in her possession before having her sign a form consenting to a search.

"You don't usually get a consent search when it is purely a speeding case," Judge Becker said. "The trooper said the motorist did not fit a drug profile. It was just a . . . speed-limit case. There was no odor of marijuana detected by the trooper or any evidence of impairment by the driver, such as weaving."

Mr. Cookson said Maryland court rules do not permit the state to appeal rulings from District Court. Judge Becker's ruling is binding only in the Fuller case and does not set a precedent for other judges, he added.

Capt. Johnny Hughes, a state police spokesman, said yesterday that he was unaware of any other case in the state in which a a judge has thrown out evidence obtained after a motorist had signed a consent form.

Mr. Fishbein said the case raises questions about whether state police routinely search cars.

"There should be a reasonable belief in privacy," he argued. "What would stop a police officer from stopping anybody and asking them to sign a search consent form?"

Captain Hughes said police policy does not allow troopers to "search vehicles arbitrarily. It is discretionary, but there has to be some reasonable suspicion."

"They can ask for a consent search if the officer has a sixth sense that leads him to believe something is there," he added. "If the motorist signs a consent form, they are kind of open" to having their car searched.

Captain Hughes said troopers have used the search consent forms for years, adding that other states also use them.

Mr. Cookson, the prosecutor, said he argued that there was no case law to support Judge Becker's ruling.

"He created a burden on the state to prove not only that the motorist's consent was voluntary, but that the police officer needs reasonable suspicion before asking," Mr. Cookson said. "My position is that there is only one standard, and that is to prove the consent for the search was voluntary and not coerced."

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