Will privacy rights pass the smell test?

Police in half the states are using hidden Breathalyzers to help catch drunk drivers.

A miniature Breathalyzer disguised as a police flashlight is opening a new frontier in the debate over privacy in America.

The devices, which are being used by police and highway patrol officers in more than half the states, pick up tiny traces of alcohol on a driver's breath that the officers' own noses might miss.

Armed with that tip-off, the police officer then uses a battery of investigative techniques, sobriety tests, and blood-alcohol detection equipment to determine whether the driver should be arrested.

Highway safety groups such as Mothers Against Drunk Drivers praise the flashlight sniffers as an important crime-fighting tool.

But others see them as a threat to basic constitutional freedoms.

Civil liberties groups and defense lawyers say the use of such concealed devices, when aimed into a car to measure a driver's breath, is a violation of the right to privacy.

"I have no doubt that if the device is working properly that it would be of great benefit to law enforcement," says Steven Oberman, a Knoxville, Tenn., lawyer who specializes in defending DUI cases. "As with many law-enforcement tools, we must weigh the intrusion to privacy with the right of citizens to live in a free society."

He and other defense attorneys say police violate citizens' privacy rights when officers set up roadblocks and force drivers to unknowingly undergo potentially incriminating tests without any prior suspicion that the driver may have acted unlawfully.

The Fourth Amendment to the US Constitution generally forbids police from taking action against a driver unless they have a reasonable suspicion that the driver has done something wrong.

But the US Supreme Court has ruled that under certain limited circumstances - such as roadside sobriety checkpoints - the police may act without any prior suspicion.

And the nation's highest court may soon expand that exception to include random roadside checkpoints to detect drugs hidden in cars. In a case to be argued this fall, the justices will decide whether police in Indianapolis acted properly when they set up a roadblock and led a drug-sniffing dog around each stopped car.

Eroding probable cause

Civil libertarians warn that such cases are undermining the constitutional safeguard of requiring that police have probable cause prior to infringing on the rights of citizens. And some state judges have agreed.

But most states view roadside checkpoints as minor intrusions of a driver's privacy.

Lawrence Taylor, a defense lawyer in Los Angeles and national expert on DUI law, says that exceptions to constitutional protections were allowed in an effort to battle drunk driving. And now those exceptions are spilling over into other areas of law enforcement.

"Legislators are violating the constitutional rights of suspects in drunk-driving cases," Mr. Taylor says. "That sets precedents. If you can do it with a DUI case, why can't you do it with a drug case, or a burglary case, or a murder case?"

He adds, "Once you set the precedent, then it is just a question of interpretation."

Michele Fields, general counsel of the Insurance Institute for Highway Safety, sees the use of flashlight sniffers as an effective tool in dramatically increasing the ability of police to detect drivers who drink.

A 1993 study in Virginia conducted by the Insurance Institute found that police at sobriety checkpoints were able to detect only 55 percent of drivers who were legally drunk. When they were given the sniffer machines, the detection rate rose to 71 percent.

Ms. Fields and other supporters of the devices say the high detection rates justify what they term a relatively minor inconvenience to drivers at random checkpoints.

As for privacy, Fields says Americans do not enjoy a reasonable expectation that their breath will remain private once they exhale.

Defense lawyers counter that as long as the suspended breath is still inside the driver's own car, it is in a zone of privacy.

But Fields says the law recognizes a kind of breathing equivalent to what lawyers call the "plain sight doctrine."

That legal doctrine says that police do not need a search warrant or probable cause to take law-enforcement action when contraband is in plain sight in a car.

For example, if a police officer pulls over a driver with a broken tail light and notices a bag of marijuana sitting on the car seat, the officer may seize the marijuana and charge the driver with drug possession without first obtaining a search warrant.

Who owns your breath?

Fields says a driver's exhaled breath is no longer the driver's private property.

"Once you have expired it and co-mingled it with the ambient air around you, however you want to analyze it, it is abandoned property and it is not protected by the Fourth Amendment," Fields says.

"Society does not recognize that we have a privacy interest in the way we smell. If we go out in the world, people are going to smell us."

(c) Copyright 2000. The Christian Science Publishing Society

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