No Fourth Amendment For Bikers

November 21, 2011


A federal district judge in upstate New York ruled, for all practical purposes, that because motorcycles are inherently dangerous to operate the Fourth Amendment to the Constitution does not apply to bikers and that it particularly does not apply to members of motorcycle clubs.

The judge was the Honorable Gary L. Sharpe and the case was Michael Wagner, Levi Ingersoll, Ken Fenwick and Sidney Alpaugh versus David J. Swarts et al.

The Fourth

The Fourth Amendment, states “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Over the centuries, an “unreasonable search” has generally become understood to mean a search or seizure conducted without the “individualized suspicion of wrongdoing.” A giant exception to this definition of “unreasonable” is something called the “special needs” doctrine. This doctrine allows, for example, “sobriety checkpoints.” Last week Judge Sharpe extended the doctrine to include mass stops of bikes to search for “safety violations” like too loud pipes and helmets that have not been approved by the Department of Transportation.

The rationale behind the dragnets was called the “Statewide Motorcycle Enforcement and Education Initiative.” Its stated goal was to address the “alarming increase in motorcycle crashes . . . over the past decade,” and the escalating “number of motorcycles traveling New York’s roadways.” This safety effort was largely implemented by cops dressed in riot gear.

The Stops

The plaintiffs in the case were all involved in one of 17 “motorcycle safety checkpoints” conducted in New York in 2008. All of the checkpoints were constructed on roads leading to or from large motorcycle rallies. A total of 1,064 tickets were issued. Nine hundred and sixty-five of the tickets were either for non-safety offenses or for wearing the wrong kind of plastic hat. Bikers were detained between 30 and 45 minutes each. Patch holders got extra special attention by “gang intelligence” officers. The police presence at each checkpoint was extensive and included Swat. Only motorcycles were stopped. Cars were waved on.

The bikers and their attorney, a well known motorcycle rights lawyer in New York named Mitchell Proner, argued that “the severity of the checkpoints’ interference with the personal liberty of motorcyclists far outweighs the degree to which the seizure actually serves the public interest in reducing motorcycle accidents and fatalities.”

Proner also argued that the checkpoints ignored “speed” and “alcohol;” that the checkpoints always included officers of the New York State Police Special Investigation Unit and gang task force for the purposes of “criminal interdiction;” and that the checkpoints were funded by a grant that was intended to fund “overtime for intelligence gathering and subsequent criminal and traffic enforcement resulting from this effort.”

Last week Judge Sharpe ruled that there is no arguing with the police as long as they say they are stopping you to protect you from yourself.



13 Responses to “No Fourth Amendment For Bikers”

  1. sled tramp Says:

    I’d be curious to know if a locked sadlebag still requires a warrant.And I certainly don’t get the connection between inherently dangerous to operate-I think stability when I read that-and search and seizure rights.The ONLY thing that comes to mind is a more open (by design) vehicle which may or may not lend itself to either a search or grounds for same.

  2. Rebel Says:

    Dear Sled Tramp,

    I probably should have been more clear. It is a long decision. The song and dance is that a State cop in New York got a masters degree and his thesis was about motorcycle safety. So he is now an expert. So he thought, “How can I save more lives?” Isn’t that noble? The presenting idea was to cut down on motorcycle fatalities by ensuring that everyone was riding a safe bike and wearing the right brand of hat. The safety angle was then used to create dragnets for bikers returning from popular runs so cops could see what tickets they might give them and what searches they might carry out.

    Cops don’t need a warrant to search locked saddlebags. They only need probable cause, like Fido “alerting” on your motorcycle. In my personal opinion, you should always carry your contraband in your bags anyway and leave them unlocked. And, every once in a while you should stand in front of a mirror and practice saying, “I have no idea how THAT got in my saddlebags.”

    The stops in New York were a dragnet. and unconstitutional. The plaintiffs may or may not appeal.


  3. sled tramp Says:

    Thanks! I appreciate your clarifying this.Because of cultivated paranoia,I never carry anything of consequence.That’s my story and I’m stickin’ to it.I remember a few decades ago riding down 880 with a friend on another bike when we saw a bunch of flashing lights up ahead.We were at the time,somewhat stoned as it was but my friend,always given to impulsive decisions,grabbed his cut pocket with his free hand and started gobbling in a panic.
    As we passed the tow truck a look of “Oh shit,what did I do…” crossed my amigo’s face.
    Ended up in Fremont at a bar where we sat on him in a corner for a few hours until we could trust him to ride.

  4. RVN69 Says:

    Sled Tramp,
    There was a case in, I believe Cali where a member of a large club there that wears Red and White was detained and had his saddlebags searched. The probable cause was that he had a bandana tied to his bike near the saddlebag, and some law enforcement “biker expert” stated that was a sign within his club that he was carrying a weapon in that saddlebag. A weapon was found in his saddlebags, I think I remember reading that the search was eventually held to be illegal.

    Funny story, I’m coming back from picking up an ounce of weed, I was in a hurry and stuffed it in the left pocket of my cut as I was on my old shovel and didn’t have any storage on the bike. I’m sitting at a red light about 2 miles from home and a state cop pull up in the left turn lane, he is staring at me, and I glance down a see the bag of weed protruding from my pocket! I think I am well and truly fucked when his light turns green and he says “Nice Bike” and pulls away!!! After I got my heart rate down to about 150 beats a minute I pushed the bag deep in the pocket and rode home feeling like my head would explode.

    “The snozberries taste like snozberries”

  5. troyez Says:

    Sled Tramp,
    Reminds me of a movie – “Oh man, You just ate the most acid I ever seen anyone eat in my whole life!!!”
    It also reminds me of a long night from many years ago in my youth, where a freaked-out buddy told me: “dude, you ate too much!”

    Makes me wonder how much is/was too much – I lived through stuff that should have killed me 10 times over. Live and learn, I guess.

    How did your buddy come out of that? OK, hopefully.

  6. troyez Says:

    “You boys like MEXICO?!?!” Ha ha!

  7. common_call Says:

    “Last week Judge Sharpe ruled that there is no arguing with the police as long as they say they are stopping you to protect you from yourself.”

    Why do I have the inherent urge to fucking punch something?!?

  8. DirtyBruin Says:

    I hope there’s an appeal, and this “ruling” gets put to its proper use – for someone’s pet to crap on.

  9. sled tramp Says:

    Uh……..this means you. (And you….and you….and you…)

    Hiding with the dawg…..

  10. rollinnorth Says:

    sled tramp,
    I had heard about this, but I have looked through the actual legislation,particularly sections 1031, 1032 and cannot find any such provision. Appears someone is using the ACLU blog for “nothing more than election season politics” themselves. Still, we must remain vigilant.

  11. Rashomon Says:

    Strikes me as odd that John McCain would be involved in something like this after his POW experiences. That having been said, I expect less than nothing from our politicians and I’m still surprised/disappointed/pissed off at them most of the time.

  12. Stroker Says:

    There’s more and much to this, check out this one good link,
    and you’ll find others simply by googeling american concentration camps.
    Be afraid my freind, be very, very afraid. (and keep yer guns loaded)

  13. calexpat Says:

    a pretty good op-ed(albeit a bit long). no answers but some solid observations. especially in light of the S1867 vote last week…



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