ILLEGAL SEARCH AND SEIZURE

ILLEGAL SEARCH AND SEIZURE
by Tony Pan Sanfelipo
(December 1996)
Minnesota Supreme Court Rules in Favor of Biker
Some of you may have received a Constitutional Rights card in the mail after requesting one from Jacobson and Hupy law firm. Or you may have picked one up at the many biker events the law firm has a booth at. What do the cards say, and are they based on fact?

First of all, you should know that the First Amendment guarantees our right to assemble and associate with people of our choice, without government interference. The Fourth Amendmentguarantees us that government will not seize us and search our property without probable cause to believe we have committed a crime.

To effect a warrantless seizure, an officer must have a particularized and objective basis for suspecting the particular person stopped of criminal activity before the officer may seize that person.

To use traffic checkpoints as an exception to the individualized suspicion requirement, the state must have a legitimate interest in the use of the checkpoint, the checkpoint must promote that interest, and the checkpoint must be designed to be minimally intrusive upon the privacy interests of the individual(s) detained.

How many of you have seen bikers detained on the way to Sturgis? Or maybe you have been the victim of such a stop yourself. A few years ago, Minnesota was conducting temporary sobriety checkpoint roadblocks, in the hope of discovering alcohol impaired drivers. The stops were so intrusive that people complained, and some took the situation to court. It was ruled that the stops violated the Minnesota Constitution, namely Article I, s.10, which requires police to have individualized objective and articulable suspicion of criminal wrongdoing before stopping a motorist (Ascher v. Commissioner of Public Safety, 519 N.W. 2d 183, 187 [Minn. 1994]).

You would have thought that the Minnesota State Police would have learned from that case, but I guess not. Thomas Otto George was on his way to Sturgis, when he was stopped by a state trooper. The premise for the stop was that the trooper thought that George's headlight and passing lamps constituted three headlights, which would have been in violation of Minnesota law. The trooper issued a warning ticket for the headlights and then asked George if he had any weapons or drugs with him. George paused, and then the trooper asked if he could search the motorcycle. At that point, George told him it would just be a waste of time. The trooper said it was his time to waste, and he was going to do it anyway. He subsequently found a small amount of marijauna, a .22 caliber handgun and bullets, and a 9mm pistol.

George was arrested for possession of a controlled substance and carrying handguns without a permit. George was found guilty of the charges, and appealed the verdict. The appellate court affirmed the decision. George then appealed to the Minnesota Supreme Court.

The case hinged on two things; (1) was the stop a valid one, under probable cause rules, and (2) was the contraband found admissible due to a question about the consent to search?

The Stop
Under the Fourth Amendment, a stop is considered legal if there is a particularized and objective basis for suspecting the person of criminal activity. This must be more than a mere hunch. The trooper testified that he believed the headlights violated Minnesota statute 169.49, which states that a motorcycle cannot have more than two headlights. The trooper certainly saw many Harley Davidsons that day with stock configuration headlights and passing lamps. Why he singled out George, we don't know. But Minnesota law does allow vehicles to have two auxiliary driving lamps mounted on the front of the vehicle.

George stated that his motorcycle had the stock Harley Davidson lighting system, and Harley must certify that it's motorcycles comply with Minnesota law. The court ruled that since the lights were common and stock equipment, there was no real objective basis for the trooper to believe the lights were in violation of the law.

The Search
The fact that George did not verbally object to the search of his motorcycle, according to the trooper, is not the same as saying he gave permission to search. Actually, the trooper indicated he was going to search anyway, so to object probably seemed meaningless to George at the time. Besides, some police officers have an intimidating nature, or at least the circumstances of a stop may be intimidating enough for persons to believe they have to submit, willing or unwillingly, to a search. The Minnesota Supreme Court said "(it) is our concern that police, who have enormous discretion in enforcing traffic laws, may take advantage of their right to stop motorists for routine traffic violations in order to target members of groups identified by factors that are totally impermissible as a basis for law enforcement activity."

The Court, upon reviewing George's case, found that he did not voluntarily consent to a search, nor was he aware that he had a right to refuse consent and a right to leave. The Court concluded that "the trooper did not have the required objective legal basis for suspecting George was driving his cycle in violation of any motor vehicle law and that the ensuing search was invalid under the totality of circumstances because the state failed to meet it's burden of proving that George voluntarily consented to the search of his motorcycle."

Thankfully, the Minnesota Supreme Court understands and upholds the rights guaranteed under the Fourth Amendment, something the police have a hard time understanding. Justice Tomljanovich, in concurring with the ruling, summed it up in a nutshell when he said, "Our decisions in this case and in Dezso (a similar case cited during the court proceeding), represent what I believe will be an ongoing attempt to come to grips with the increasing use by state troopers and police officers of subtle tactics to get motorists and others to consent to searches. It appears state troopers and police officers are receiving training on getting consent to search, similar to the training sales people receive in getting people to agree to buy things they do not want."

"We are not dealing with vacuum cleaners in this case, but with the liberty and privacy interest of all the people of the State of Minnesota and we have an obligation to do what we can, in our limited role as a court of last resort, to provide reasonable protection to those interests."

The message that BOLT wants to bring to you is that you have a right to be left alone, and a right to be free from unreasonable search and seizure. If you are stopped by law enforcement officers, do not consent to a search of your person or your property. Refuse to photographic or video taping of your person, or the audio recording of your voice. If you are detained, inquire if you are under arrest. If you are, exercise your Miranda Rights and ask to be allowed to obtain the advice of your attorney. If you are not under arrest, respectfully request to leave.

Some other cites pertaining to search and seizure can be found in; Beck v. Ohio, 85 S.Ct. 223, 225 (1964) wherein it states, "...probable cause consists of facts indicating that a person had committed or was committing an offense."

Florida v. Royer, 103 S.Ct. 1319, 1324 (1983), "...reasonable suspicion is an objective and articulable suspicion that a person has committed or is about to commit a crime."

Lankford v. Gelston, 364 F 2d. 197 (4th Cir. 1966) "...searches based on anonymous tips and conducted without a warrant are violative of the fourth Amendment."