by James J. Baxter, President, NMA - National Motorists Association

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9NATIONAL MOTORISTS ASSOCIATION FOUNDATION NEWSThe ABC’s of Arrest, Search, And Seizure Part 2By Joe Musselwhite, Texas ActivistThe Fourth Amendment (USConstitution): "The right ofthe people to be secure intheir persons, houses, papers, andeffects, against unreasonablesearches and seizures, shall not beviolated, and no Warrants shallissue, but upon probable cause,supported by Oath or affirmation,and particularly describing theplace to be searched, and thepersons or things to be seized."So, when does the FourthAmendment apply?In this issue, we will discusswhen the Fourth Amendmentapplies. Simply put, the FourthAmendment applies to lawenforcement agents. There are twothreshold requirements that must bemet before the Fourth Amendmentwill be held applicable in a particularsituation. The first, which applies toall the provisions of the Bill ofRights, is that the conduct inquestion must be governmental.Second, the action challenged mustconstitute a search or a seizure.Thus, the Fourth Amendment isimplicated only when the governmentintrudes into one of these twoareas. In a future article, we willdiscuss the definitions of the termssearch and seizure, and when asearch or a seizure occurs.The Fourth Amendment appliesonly to action by the government,not to private conduct. As the Courtobserved in 1921, the "origin andhistory of the Amendment clearlyshow that it was intended as arestraint upon the activities ofsovereign authority [only]." Burdeauv. McDowell, 256 U.S. 465, 475(1921). Where the actor is a federal,state, or local government agent, thisrequirement is met. Where, however,a private party acting on his ownacquires evidence that the governmentlater seeks to introduce in acriminal case, neither the FourthAmendment nor its exclusionaryremedy is implicated. However,when an individual acts at thedirection of a government agent orpursuant to an official policy, thesearch will be deemed public andconsequently within the coverage ofthe Amendment.The issue becomes substantiallymore difficult when there is no directgovernmental command or policy,but merely acquiescence in theprivate individual's action. Suppose,for example, that police officers aresummoned to a scene by personswho proceed, in the presence of theofficers, to conduct an illegal search.Is that a "public" search subject to"The right of the people to be securein their persons, houses, papers, andeffects, against unreasonable searchesand seizures...Fourth Amendment constraints?Several courts have concluded that itis. Factors looked at in determiningwhether the private party is acting as"an instrument of the state" are:1) the degree of governmentencouragement, knowledge, and/oracquiescence with regard to theprivate actor's actions; and 2) thepurpose underlying the privateparty's action. That is, was hepursuing a governmental interest(such as the discovery of criminalactivity or evidence thereof), whichpoints toward the conclusion that thesearch was public? Or did he act topromote his own business objectives( such as protecting against accidents,false claims or potentialliability), which makes the actionprivate in nature? See United Statesv. Walther, 652 F. 2d 788 (9th Cir.1981) and United States v. Feffer,831 F 2d 734 (7th Cir. 1987).In summary, we have seen thatthe federal right applies to actions oflaw enforcement officers or theiragents. If a non-officer is commandedby police to help solve orinvestigate a case, then that person isconsidered an agent of law enforcementand the Fourth Amendmentapplies. If a private citizen makesa search or seizure, the FourthAmendment does not apply. Searchand seizure law is designed to applyonly to governmental actions, notactions taken by private personsor entities.In our next issue, we will discussthe definitions of a search and whena search occurs.References: ConstitutionalCriminal Procedure, Robert M.Brown, and Mark S. Brodin Arrestand Search Manual, Judge JadeMeeker.Stop Signscontinued from page 6signs only slow traffic for about 100feet in either direction. Farther away,cars drive faster to make up losttime. Most drivers don't stop for"speed control" stop signs, and aGeorgia study found that 11 percentof drivers didn't even slow down.Portland found that the accident rateincreased where unjustified stopsigns were installed."An accident waiting to happen.''Multiway stop signs should be basedon counts of actual accidents, nothypothetical ones. A single accidentis also not sufficient, even if ithappened to somebody important.The basic principle, applicable tomost traffic control devices, is that asign that does not deserve respectwill not get respect. If we traindrivers to treat stop signs asnuisances to be ignored, how willthey know to stop at a trulydangerous intersection?MARCH/APRIL 2002
10NATIONAL MOTORISTS ASSOCIATION FOUNDATION NEWSNews From Around The CountryArizonaA bill (H.B. 2045) has beenintroduced in the Arizona House ofRepresentatives to exempt vehicles 20years old and older from the state'smandatory emissions inspection andmaintenance program.CaliforniaThe Thousand Oaks City Councilhas rejected a plan that would haveallowed the city to utilize red lightcameras in a vote of 5-0.ColoradoCurrently, you can not be pulledover solely for not wearing yourseatbelt. Senate Bill 15 would changethe seatbelt law to a primaryenforcement law.Also in Colorado news, Denver ishalting the use of photo radar until itfinishes reviewing a court ruling thatsaid the program violates local and citylaws. County Judge Mary Celesteruled that Denver's program violatescity law by giving police power to aprivate contractor, who prepares andsends the summonses. And, theprogram violates state law byappearing to compensate the contractorbased on the volume of tickets issued.MassachusettsA bill passed the Senate that(if signed by the Governor) wouldmandate the collection of a $50.00payment from convicted drunk drivingoffenders. The payment would then beallocated to a fund that would providesupport services to victims.MichiganState Senator Phil Hoffman sentthrough a $10 increase in the surtaxapplied to all traffic fines. Senate Bill677 was protested in testimony byMichigan NMA members and anti-taxactivists, but was approved and signedquickly. In fact, the surtax wasimposed by the Governor's executiveorder in advance of the passage of thebill. Michigan legislators may begetting the habit of tapping motoristsfor money, instead of taxpayersgenerally. House Bill 5555, introducedin late December by RepresentativeFaunce of Warren, would doublespeeding fines in "residence districts."A residence district is any 300 feet ofroad where the dominant roadside landuse is houses or mixed houses andbusinesses, so most of the state's roadscould qualify.MississippiCurrently, Mississippi restricts thepurchase and use of radar speeddetection equipment to the MississippiHighway Safety Patrol and certainmunicipal law enforcement agencies incities with more than a 2,000population or college and universitycampuses with more than 2,000students enrolled. House Bill 99 wouldallow the sheriff and his deputies inany county having a population of60,000 or more to use radar on publicstreets, roads and highways of thecounty lying outside the limits of anyincorporated city. There is a similar bill(HB308) for counties with apopulation of more than 50,000. Ifpassed, either bill could take effectJuly 1, 2002.MontanaCurrently in Montana, you areallowed to refuse to take a breath orblood test for alcohol. However, theMontana Supreme Court (in a 6-1decision) has now said that results ofblood tests taken from an injureddriver as part of medical treatment canbe used for prosecution.New YorkA proposal before the New YorkState Senate calls for the creation of aSeptember 11 remembrance licenseplate showing the image of the WorldTrade Center with a red, white andblue ribbon. Freedom Stands Tallwould be inscribed on the plates.People getting the plates would pay anextra $25 a year; The proceeds wouldgo to September 11 victims or theirsurvivors.VirginiaIn a 12-9 vote, a House panelblocked legislation that would haveallowed local governments to use redlight cameras. The legislation wouldhave allowed any locality in the stateto erect the cameras at intersections.Currently, only a handful of localgovernments have been granted thisauthority, most of them in NorthernVirginia.Washington DCWashington DC has issued over160,000 automated speeding ticketsand has collected more than $5.3million in fines since they started theprogram on August 10, 2001. Theprogram has issued a monthly averageof 32,264 speeding tickets since itsinception. Affiliated ComputerServices of Dallas, which operates thecameras has collected $2,152,612. Thecompany's contract with the cityentitles it to receives $29 of each finethat is paid.WisconsinRicky Stephenson is suing JohnKrueser for the death of his wife,Kathy Stephenson. Krueser hadpromised Michael Devine that hewould be his "designated driver"during a company party in December1998 after a bartender said that Devinewas too drunk to drive. Devine endedup driving himself home and crashedhead-on into a car driven by KathyStephenson. Both died. TheWisconsin Supreme Court will decidewhether Krueser should be heldaccountable for Stephenson's death.MARCH/APRIL 2002
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by James J. Baxter, President, NMA - National Motorists Association

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