Saturday, April 17, 2004

Annals of criminal procedure 

If a police officer stops a car because he mistakenly believes its passengers are fighting, only to learn that they are husband and wife having sex, did he have probable cause for the stop sufficient to charge the man with driving under the influence?

At long last, this pressing question seems to have been resolved. In Alaska, at least.

According to a judgment issued by the court Wednesday, the Alaska State Troopers got a report about 11:15 p.m. June 21, 2001, that a man and woman were fighting in a car. The caller had the license number and approximate location of the vehicle, so trooper Lawrence Erickson was dispatched to investigate a possible domestic violence incident.

Headed north on the Steese Highway, Erickson noticed the blue Jeep Cherokee driving south. He turned around and followed and got close enough to confirm the plate was the same.

The Jeep stopped for a red light. Erickson was directly behind and could see into the Cherokee. At first he thought the man and woman were still fighting but "soon realized that the two were having a sexual encounter," the judgment says.

The woman in the passenger seat was facing the driver, her left leg on top of the driver's seat, wrapped around his head rest. "While trooper Erickson watched [and who wouldn't? - Ed.], Wallace 'got up and leaned over on top of the female passenger,' " the judgment says.

The light turned green. Wallace did not respond "for a few seconds." Then he sat back up and started to drive away. Erickson turned on his patrol lights, and Wallace stopped after about a block.

Erickson inquired about the reported fight. "Wallace responded that the passenger was his wife and that they had been having sex, not fighting," the judgment says. Wallace "smelled strongly of alcohol, had red, watery eyes, unsteady balance and thick speech."

In a unanimous decision, the appeals court judges said the trooper had a legal right to stop the Jeep and ask questions about possible domestic violence even if the couple was no longer fighting.

And besides that, the judges said, the Alaska Administrative Code provides that no person "may drive a vehicle when he has in his embrace, or holds in his hands, another person in a manner (that) prevents the free and unhampered operation of the vehicle."

So Erickson actually had two legal reasons to stop the car and get a whiff of Wallace's breath, the court concluded.

Maybe it's just that it's Saturday night and I've had half a bottle of wine, but it seems to me you don't need to be Louis Brandeis to figure out that the Alaskan prohibition against driving while embracing or holding another person still leaves a lot of room to maneuver, as it were, behind the wheel of a car.


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