Prosecutor feels like bull in bullfight before Justices
Steve Korris Oct. 7, 2009, 2:45pm
HUNTINGTON – Supreme scorn fell on Fayette County assistant prosecutor Brian Parsons when he argued that police can stop drivers at random for safety checks.
"Safety my foot," barked Justice Menis Ketchum of the Supreme Court of Appeals in oral argument at Marshall University on Sept. 22.
"A lonely road at 4 a.m.," he told Parsons. "What I read, frankly, was it's a good way to meet women."
Chief Justice Brent Benjamin asked, "How many safety specialists were there? Was there one? I think none.
"That makes it look like pretext."
Parsons said, "I feel like the bull that got invited to the bullfight."
He represents the state against challenges to two stops that led to convictions on charges of driving under the influence of alcohol.
Courts allow police to stop drivers at random for sobriety checks, after training and under clear rules, but these officers lacked training and rules.
In one case, a Gauley Bridge policeman parked his cruiser sideways on a street and started flashing blue lights.
In the other case, deputies hid their cruiser and stopped traffic on foot.
Jack Thompson of Oak Hill appealed, seeking to overturn the convictions.
At oral argument he said, "Sometimes we take for granted our rights under the United States and West Virginia constitutions."
Benjamin asked if the stops violated constitutional protection from search and seizure, and Thompson said yes.
The Gauley Bridge officer was not properly trained, he said.
Justice Thomas McHugh asked if the officer testified that he had nothing else to do, and Thompson said yes.
Benjamin asked if the penalty would be to exclude the evidence. "Absolutely," Thompson answered.
In response, Parsons cited a U.S. Supreme Court dissent by the late William Rehnquist.
Ketchum said, "You are asking us to follow a dissent?" Parsons said yes.
Benjamin asked, "How is this different from a fireman coming into your house?"
Parsons said a homeowner doesn't have to have a license.
Ketchum said, "You had a couple cowboys out there waving lights and they didn't have vests on. They're not going to stop me."
Ketchum said, "They hid the cruiser. They're not interested in safety."
Parsons said, "Would I rather have an officer drinking coffee or out doing something?"
Ketchum said, "You can't stop a citizen unless you have reasonable suspicion of a crime."
Justice Robin Davis asked why there should be different standards for safety and sobriety when sobriety standards are easy for police and understandable for the public.
The Justices took it under advisement.