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Raising Cane Rob Perez |
Constitutional questions
abound over ‘ice’ debateEarlier this year the scourge was terrorism. Citing the Sept. 11, 2001, terrorist attacks, local law enforcement representatives lobbied to get Hawaii's wiretapping law overhauled. Police said they needed the changes to, among other things, more effectively combat terrorism.
Legislators weren't persuaded. The bill to rewrite the law went nowhere.
Now the scourge is ice.
The crystal meth problem has become so big that authorities say Hawaii's wiretapping law and others need to be changed so police can more effectively combat the drug epidemic.
The Legislature didn't bite last session, rightly concerned about eroding people's privacy rights. And lawmakers should once again be skeptical about the need to make major changes in the coming session.
The hue and cry for expanding policing powers in the face of a growing ice problem needs to be carefully evaluated, especially if we're going to start tinkering with the state Constitution, something that shouldn't be done lightly.
Already, the law enforcement community has brandished some suspect numbers in lobbying for changes. Their estimate of the number of ice users in Hawaii -- roughly one in 10 residents -- appears to be greatly inflated.
That issue notwithstanding, no one disputes that ice is a serious problem, one that is victimizing more residents as addicts turn to crime to feed their habit. Something has to be done to stem the tide.
But should we abandon the current requirement for an adversarial court hearing before authorities can obtain a judge's approval to electronically eavesdrop on a suspect's private conversations?
Should we allow authorities to question people at the airport using a procedure that our state's highest court already has determined to be unconstitutional?
The lawmen, waving the ice flag, answer yes. Others say not so fast.
"It seems to me they're using this kind of hysteria over ice and drugs to basically try to change the rules of the game," said Jack Tonaki, the state public defender.
"The ever-shifting rationale shows it's not about ice, it's not about terrorism," said Brent White, legal director for the American Civil Liberties Union of Hawaii. "It's about increasing the power of government at the expense of our constitutional rights."
Police and prosecutors want Hawaii's wiretapping statute to be more in line with federal law, which doesn't require the court to appoint an attorney to oppose the government's confidential request for a wiretap. Hawaii's law is unique in that regard, authorities say.
Because of the difference in the laws, evidence obtained via federal wiretaps can't be used in state courts. That results in as many as 100 suspects going untried each year because the alleged offenses fall short of federal jurisdiction and the state can't use the evidence, law enforcement officials say.
Thomas Phillips, Maui police chief, said the proposed change would not make it easier to get a wiretap because the same information still would have to be presented to the court to justify the wiretap.
As it stands now, state and county officials rarely seek such authority because of the hurdles involved.
But when wiretaps are requested, whether here or on the mainland, they rarely are rejected, according to national figures.
Of 1,359 requests made by federal and state authorities nationwide last year, only one was turned down, said Joshua Dratel, a New York attorney and board member with the National Association of Criminal Defense Lawyers. Since 1991, more than 13,000 requests have been made nationally, and only four were denied, Dratel said.
Like their counterparts on the mainland, Hawaii police and prosecutors would like to have the ability to get their wiretap requests "rubber stamped" by the court without an attorney raising objections, Dratel said.
Phillips said Maui police use wiretaps, but he declined to say how often or when the last request was rejected.
The offices of the U.S. attorney and city prosecutor didn't respond to a request for comment.
Because federal authorities have greater resources and don't have to go through an adversarial hearing to get a wiretap, it makes sense for Maui police to partner with the feds on large-scale drug investigations, Phillips said.
As part of their push for more enforcement tools to combat the ice problem, police and prosecutors also are seeking to reinstitute a program known as "Walk and Talk" at the Honolulu airport.
The program essentially was a form of profiling. Someone fitting a certain profile in appearance or behavior would be approached by officers, who would talk to the person as they walked through the airport. The idea was to keep "talking" to the suspect until he or she consented to a drug search.
Even though the practice has been permitted on the mainland, Hawaii's high court in the early 1990s declared it unconstitutional, meaning the state constitution would have to be amended before "Walk and Talk" could be restarted.
Tonaki said the practice, which tended to target certain racial groups, was so inherently intrusive and offensive that the high court deemed it a form of unreasonable search and seizure.
And now authorities want to reinstitute "Walk and Talk," presumably on the grounds similar programs are permitted elsewhere.
Our high court, however, already has spoken. Let's not amend the constitution to make a wrong a right.
See the Columnists section for some past articles.
Star-Bulletin columnist Rob Perez writes on issues
and events affecting Hawaii. Fax 529-4750, or write to
Honolulu Star-Bulletin, 500 Ala Moana Blvd., No. 7-210,
Honolulu 96813. He can also be reached
by e-mail at: rperez@starbulletin.com.
