Circumventing the Constitution

As a criminal defense attorney of almost 10 years, I must write and relay my strong opposition with your most recent editorial from April 2 titled “Primary Offense.”

Police officers have a difficult job. They must try to protect the public while balancing the parameters of our constitutional rights. If officers can pull people over for not wearing their seat belt, it will only make their job more difficult. It’s one thing to see a vehicle weaving back and forth or point a radar detector at an oncoming vehicle. It’s an entirely different thing to look at a vehicle traveling 70 miles per hour and see if the driver or passenger is wearing a seat belt.

What “primary offense” offers is another sacrifice of our constitutional protections against unlawful searches in exchange for small amount of security. The West Virginia Supreme Court of Appeals has stated the traffic stop is a search of the vehicle. The law currently requires that an officer observe events that would give reasonable suspicion that criminal activity is afoot. If the law is changed to allow officers to pull people on the simple claim that the seat belt wasn’t being used, then we, the people, will have little, if any, protection from unlawful searches. Our protections against such government intrusions would be essentially gone.

This is not to say that all officers or any specific law enforcement branch engages in illegal searches by pulling people over without regard to the Constitution. But unconstitutional traffic stops do occur whether they are intentional or not. Ultimately, this state should not be in the business of forcing people to act in a certain way by making it easier for the government to get around our constitutional protections.

Jay W. Gerber Jr.