Freedom on Wheels

Posted Aug. 18, 2009, at 5:16 p.m.

The recent decision by Maine’s Supreme Judicial Court upholding the right of game wardens to stop ATV riders without “reasonable articulable suspicion” is more evidence of a creeping curtailment of Fourth Amendment rights. In a 4-3 ruling, the court overturned a lower court decision that blocked evidence from the trial that an ATV driver was intoxicated. The evidence came when a game warden stopped the driver simply because the ATV caught the officer’s eye as he sat outside a convenience store one night. Upon questioning the driver, it became apparent that he was under the influence of alcohol, the warden said.

Since the man’s arrest and trial, the Legislature has enacted a law that requires wardens to have “reasonable and articulable suspicion” to believe an ATV driver has violated a law before stopping the vehicle. The “reasonable and articulable suspicion” standard is the same one that guides car stops. The new law goes into effect next month.

The justices based their ruling in part on concerns about the damage all-terrain vehicles can cause to private property. “If private landowners lack confidence in the state’s efforts to protect their land, they will prohibit the public’s access to it,” the judges wrote. The current law, then “is vital to the state’s efforts, and thus to the sustainability of our recreation industry, because it allows wardens to stop ATVs with or without reasonable articulable suspicion,” the judges wrote.

A national ATV advocacy group supports the court’s ruling because of worries that if ATV riders are believed to be likely to trespass and tear up private property, more people will post their land and state law will clamp down on ATV use. That’s logical enough, but current statutes on trespassing give law enforcement the tools to protect private property owners.

And if the court hangs decisions relating to constitutional protection against unreasonable search and seizure on economic interests, the door is open to rationalizing all sorts of intrusive police powers.

The Maine Civil Liberties Union objected to the Maine court ruling, and sees it as part of a trend in which privacy rights are “slowly being chipped away,” as staff attorney Zach Heiden put it. Jim Burke, a professor at the University of Southern Maine’s law school, agreed. He noted that the previous “probable cause” standard for stopping a car, in which an officer had to have reason to believe a crime was being committed, was a much higher threshold than the current “reasonable articulable suspicion.” That standard can relate to something as innocuous as windshield wipers not working properly, he said.

Writing for the three dissenting judges, Warren Silver argued that the intrusiveness of stopping ATVs without the suspicion threshold is worse than a potential harm to the state’s economic interests. Allowing such stops “sends a message to Maine citizens … that this court tolerates regulations that plainly infringe upon individuals’ Fourth Amendment liberties.”

Although ATVs have been around since the 1970s, emerging modes of transportation — not to mention communication — should not be stripped of the same established constitutional protections that have been in place for cars.

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