Prosecutors seek review of drug ruling

Monday, December 11th 2000, 12:00 am

By: News On 6

OKLAHOMA CITY (AP) _ A federal appeals court has agreed to take another look at an Oklahoma drug case that could set new guidelines for how far police can go in questioning motorists stopped for traffic violations.

The case involves the search of a pickup truck in Muldrow in September 1999. The search was conducted after an Oklahoma Highway Patrol trooper asked the driver if there was a weapon in the vehicle.

Driver Dennis Dayton Holt, who was stopped for not wearing a seat belt, was charged with possessing methamphetamine with the intent to distribute it, making the drug and possessing a firearm in connection with drug trafficking.

But U.S. District Judge Michael Burrage in Muskogee suppressed the evidence, drugs and drug-making equipment, ruling they were seized in an unconstitutional search. Prosecutors appealed to the Denver-based 10th U.S. Circuit Court of Appeals.

But in a 2-1 decision, a three-judge panel of the court ruled in August that it is unconstitutional during a traffic stop for police routinely to ask a motorist if he or she has a gun in the vehicle.

Officers may not ask that question or any question unrelated to the purpose of the traffic stop, the judges concluded, unless the officer has reasonable suspicion of other illegal activity or a concern for the officer's safety.

At the request of the Justice Department, the appellate court has agreed to have all 10 judges reconsider the decision.

In its request, Justice Department attorney Richard A. Friedman argued that the ruling ``will have serious implications ... for police practices'' and said the ruling ``conflicts with decisions of the Supreme Court that minimal steps to assure officer safety during a traffic stop are always reasonable'' under the Constitution.

Friedman also said the ruling's limitations on officers' questions in general conflict with rulings from three federal appeals courts in other parts of the country.

The full appellate court will take up the case again in March.

Police were stopping all vehicles at a checkpoint because they believed Holt, who lived nearby, was transporting drugs.

When Trooper Damond Tucker asked if there were weapons in the truck, Holt said there was a loaded pistol behind the seat.

Tucker obtained Holt's consent to search the vehicle. But Burrage ruled that the trooper's questions, unrelated to the traffic stop, were impermissible because the trooper did not have a justifiable basis for what is known in legal circles as ``reasonable suspicion.''

Holt's attorney, Michael A. Abel, assistant federal public defender in Tulsa, said the August ruling conforms to Supreme Court decisions in similar cases.

Abel said the Justice Department is trying to expand the Supreme Court's decisions so police can ask unnecessary questions on matters unrelated to the purpose of traffic stops.