Virginia - Motorcycle Only Checkpoints and the Fourth Amendment..

OFF THE WIRE
BY: Matt Danielson


Source: Tom McGrath's Motorcycle Law Group

Virginia - For the past several years, motorcyclists across the country have been hearing about motorcycle only checkpoints. Let me now go on record as being vehemently opposed to such checkpoints as I believe that they serve no purpose. Motorcycle only checkpoints are checkpoints where only motorcycles are stopped in order to check for operating licenses, safety equipment, etc. In New York, motorcyclists have challenged the legality of such checkpoints due to the method in which they are being conducted (we will come back to New York later in this article). Georgia has announced that they will begin conducting motorcycle only checkpoints in March to coincide with Daytona Bike week.

For the past year and a half I have been traveling throughout various states speaking about "Your Rights During a Traffic Stop." The issue of motorcycle only checkpoints always comes up. Are these legal? Isn't it discrimination? How can we fight these? The answer to those questions in order is probably but it depends, yes but discrimination is not illegal, and vigilance. Now that I have given you the short answers let's dig a little deeper into the Fourth Amendment and discuss how the United States Constitution addresses traffic stops and more specifically checkpoints. That will give us a better understanding of these motorcycle only checkpoints.

The Fourth Amendment to the United States Constitution, among other things, prohibits unreasonable searches and seizures. When you are riding down the road and all of the sudden those blue lights come on behind you, you are being seized. The officer behind you is not extending to you an invitation to stop and chat. He is commanding you to cease your movement and submit to his authority under penalty of law. That is a seizure. As such, the officer must have reasonable suspicion of criminal activity before he can stop a person in that manner. In the 1979 U.S. Supreme Court Case of Delaware v. Prouse, the Supreme Court held that a random stop of a motorist in order to verify that the motorist was licensed was unconstitutional. The court concluded that "except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment." However, interestingly the court went on as follows:

This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative.
These roadblock-type stops (checkpoints) are an exception to the reasonable suspicion requirement of the Fourth Amendment. At a checkpoint, the officers stop everyone who comes through. Each stop lacks any suspicion of criminal activity, yet under certain circumstances the United States Supreme Court has said that the lack of reasonable suspicion does not violate the
Fourth Amendment because the stop is still reasonable. When the program is designed to serve special needs, beyond the normal need for law enforcement, checkpoints have been held to be valid provided that the detention is brief and the officers conducting the checkpoint do not have discretion over whom they stop. For instance, the checkpoint plan may call for stopping every vehicle or every third vehicle but it may not allow the officers to stop only those motorists that are deemed suspicious. Checkpoints which comply with these standards have been upheld when the purpose was to intercept illegal aliens near the border due to the unique problem and interest in securing our borders. Unites States v. Martinez-Fuerte, 428 U.S. 543 (1976). Sobriety checkpoints have been allowed due to the immediate hazard posed by drunk drivers and the State's interest in getting drunk drivers off of the roads. Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). In Delaware v. Prouse The U.S. Supreme Court suggested that such checkpoints would be appropriate to spot check for motorist's drivers license and vehicle registration due to the State's interest in ensuring that only those qualified to do so are permitted to operate motor vehicles and that such motor vehicles are fit for safe operation. 440 U.S. 648 (1979). However, checkpoints have never been allowed in order to detect evidence of general criminal wrongdoing. In 2000 the United States Supreme Court struck down an Indianapolis Indiana program which used checkpoints to detect narcotics violations. City of Indianapolis v. Edmond, 531 U.S. 32 (2000). In that case the court pointed out that in most of the cases which allowed checkpoints, the thread of highway safety was present. They stated that there was a difference in the significance of highway safety interests and the general interest in crime control.
This brings us to the motorcycle only checkpoints. The National Highway Traffic Safety Administration (NHTSA) has offered law enforcement agencies grant money in order to set up checkpoints aimed solely at motorcyclists. NHTSA argues that such checkpoints are needed due to the problem of motorcycle fatalities and injuries. When I first started receiving calls about these checkpoints the argument I heard most often was that the checkpoints were a form of discrimination. They unfairly discriminated against motorcyclists. That may be true but discrimination is not illegal. WHAT?!? Danielson has lost his mind you say. No I have not. Discrimination is generally not illegal unless it is aimed at certain protected classes. The Equal Protection Clause of the Fourteenth Amendment has never meant that all people must be treated the same. That is a myth that we as a society have come to believe. Justice Kennedy pointed this out in the 1996 case of Romer v. Evans. He stated as follows:
Yet, from the very beginning the meaning of "equal protection" has at times been confusing, perhaps because the framers of the Fourteenth Amendment left us no explanation of exactly what they meant. On the other hand, the phrase could be read to mean that any law, no matter what common sense suggests, will be applied rigidly to all people. Such an extreme notion that laws cannot in any way, shape or manner discriminate among individuals or groups, can become silly. Passing a vision test as a requirement for securing a driver's license clearly discriminates against people who are blind or have sight impediments, yet this is an appropriate form of distinction.

The bottom line is that when it comes to discrimination, it is illegal to discriminate against a protected class. The government cannot discriminate based upon race, religion, etc. It is not illegal to discriminate due to the clothes a person is wearing or the vehicle that he or she operates. In short, motorcyclists are not a protected class for the purposes of the Equal Protection Clause. (This is where I stress that you can hate the message but don't hate the messenger).
So then how do we fight these checkpoints? I think we look to what New York has done. The New York State Police instituted a checkpoint system. It was done in the name of highway safety. However when the motorcycles were pulled over they were checked for more than licenses. They had members of their gang and auto theft units searching VIN numbers in order to detect stolen motorcycles. Some motorcyclists were detained for up to 45 minutes. In the end, the majority of tickets written were for equipment violations such as illegal exhausts and the so called non-approved helmet. A law suit has been filed challenging these stops and I believe that it will be successful. Not because the checkpoints are discriminatory but because they do not confirm to the ridged guidelines set out by the United States Supreme Court.
First and foremost, looking for stolen motorcycles is clearly not related to highway safety. That falls under the general interest in crime control. The same can be said for exhaust tickets. I am unaware of any exhaust system that caused an accident or injury. You cannot claim that checking motorcycle exhausts is a matter of highway safety. I would make the same argument for the helmet citations. No helmet has ever caused an accident. Additionally, for many reasons it is impossible to determine the safety of a helmet by merely visually inspecting it. One would have to conduct a test to determine how the helmet dissipates energy in a crash. Even if one could do that I would find it hard to believe that the statistics concerning people injured in crashes while wearing a so called non-approved helmet would justify this assault on the motorcyclists right to travel free of arbitrary governmental intrusion. For these reasons I believe that motorcyclists in New York will prevail. I further believe that all motorcyclists owe them a debt of gratitude for standing up for the rights of motorcyclists everywhere. We will all continue to monitor this law suit.
This brings us to Georgia and the other states who want to attempt to utilize motorcycle only checkpoints. Under past U.S. Supreme Court decisions, I do not believe that all motorcycle only checkpoints would be automatically illegal. If the detention were brief and the officers conducting the checkpoints were afforded no discretion in who they stopped then such checkpoints would be, in my opinion, legal so long as they were aimed solely at highway safety.

That last part is the Achilles heel of these programs. They are not aimed at highway safety. They are aimed at general crime control. They are aimed at equipment violations that have nothing to do with highway safety. They are aimed at curbing the problem associated with stolen motorcycles. This too has nothing to do with highway safety.
I believe that these programs are highly vulnerable to attack. If you or someone you know are involved in one of these checkpoints please contact my firm. We want to keep track of these checkpoints and challenge them whenever possible. This is not an advertisement for business as we do not charge a fee for this service. We as motorcyclists need to keep a close eye on these programs that threaten our right to travel the roads free from unwarranted governmental intrusion.
As always if you have any questions or comments concerning this article or any other matters of interest to motorcyclists, please feel free to contact me.
Matt Danielson McGrath& Danielson Tom McGrath's Motorcycle Law Group 1-800-321-8968 matt@motorcyclelawgroup.com