Unprovoked Mars Hill ATV stop ruled legal

Posted Aug. 11, 2009, at 3:35 p.m.

PORTLAND, Maine — In a rare 4-3 decision, the Maine Supreme Judicial Court ruled Tuesday that a Maine game warden did not violate a Mars Hill man’s constitutional rights when he stopped the ATV driver two years ago without suspecting that he had done anything wrong.

The majority opinion, written by Justice Robert Clifford, said that the intrusiveness of the stop was “minimal when compared with the state’s legitimate and substantial interest in regulating ATVs.”

Clifford, who was joined in the majority opinion by Justices Donald Alexander and Jon Levy and Chief Justice Leigh Saufley, said an individual’s Fourth Amendment right to be free of unreasonable search and seizure should be balanced against the state’s role in preserving “natural resources so that generations to come can enjoy these resources.”

Justices Warren Silver, Andrew Mead and Ellen Gorman strongly disagreed.

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“An individual does not relinquish his expectation of privacy or his constitutional rights simply because he is behind the wheel of an ATV rather than a car or truck,” Silver said in the minority opinion. “There must be a state interest that sufficiently justifies the intrusion.

“The court today infringes on the liberties of Maine citizens by allowing unconstitutional stops of ATVs, which the Legislature itself no longer finds appropriate,” Silver wrote.

Earlier this year, the Legislature passed a bill requiring that wardens have reasonable suspicion to stop drivers of all-terrain vehicles and snowmobiles in the future.

The bill, sponsored by Rep. John Martin, D-Eagle Lake, passed the House of Representatives by a vote of 125-19 and unanimously in the Senate.

The law takes effect Sept. 12.

Brent L. McKeen, 53, was stopped about midnight on Aug. 12, 2007, on an abandoned railroad bed after being observed by Warden Joshua Smith leaving a convenience store at the intersection of Routes 1 and 1A in Mars Hill, according to court documents. Smith stopped McKeen in order to check his registration and safety equipment but did not suspect him of any criminal activity.

The warden, according to court documents, observed that McKeen’s movements were slow, his speech slurred, his eyes bloodshot, and his breath smelled of alcohol. After conducting a field sobriety test, Smith arrested McKeen and charged him with operating an ATV while under the influence of intoxicants.

After seeking a jury trial, McKeen’s attorney, Alan Harding of Presque Isle, moved to suppress all of the evidence obtained as a result of the search and seizure. Superior Court Justice E. Allen Hunter granted the motion, finding that the section in the statute that outlines the duties and powers of game wardens was unconstitutional. Aroostook County District Attorney Neale Adams appealed the decision to the state supreme court, which heard oral arguments in January in Portland and on Tuesday upheld the statute.

The case now goes back to Aroostook County.

If found guilty, McKeen faces a minimum $400 fine but no jail time.

Adams praised the supreme court’s decision.

“The decision is very gratifying,” he said. “The court went through and examined the nuances [in the law] between motor vehicles and ATVs. They reflected a long time on it and had the courage to address it even after a change in the law. We respect the wisdom and intelligence of the dissent.”

Harding called the decision disappointing. He also said the majority relied on factors to uphold the statute that had nothing to do with the circumstances in McKeen’s case.

“The court relies on factors such as the use of private property by ATV drivers when the trends are toward the use of government-owned trails,” he said. “The opinion talked about children’s safety, and there was never any suggestion that a child was involved. The factors the court relied upon to suggest there was no violation of Fourth Amendments rights are totally irrelevant for the case at hand and for my client.”

The Maine Civil Liberties Union, which filed a “friend of the court” brief on McKeen’s behalf, supported the change in the law passed by the Legislature.

“The Fourth Amendment protects our right to be left alone,” Zachary Heiden, legal director of the MCLU, said in a press release Tuesday. “Today, a minority on the Law Court recognized that this right continues as a vital principle in defining the relationship between people and government.”

The Associated Press contributed to this report.

jharrison@bangordailynews.net

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