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| Posted by: sarge33rd
- [99331714] Tue, Nov 27, 2007, 14:00
The particular piece of Texas Code relevant to the "discussion":
§ 521.025. LICENSE TO BE CARRIED AND EXHIBITED ON DEMAND;
CRIMINAL PENALTY. (a) A person required to hold a license under
Section 521.021 shall:
(1) have in the person's possession while operating a
motor vehicle the class of driver's license appropriate for the
type of vehicle operated; and
(2) display the license on the demand of a magistrate,
court officer, or peace officer.
(b) A peace officer may stop and detain a person operating a motor vehicle to determine if the person has a driver's license as
required by this section.
(c) A person who violates this section commits an offense.
An offense under this subsection is a misdemeanor punishable by a
fine not to exceed $200, except that:
(1) for a second conviction within one year after the
date of the first conviction, the offense is a misdemeanor
punishable by a fine of not less than $25 or more than $200; and
(2) for a third or subsequent conviction within one
year after the date of the second conviction the offense is a
misdemeanor punishable by:
(A) a fine of not less than $25 or more than $500;
(B) confinement in the county jail for not less
than 72 hours or more than six months; or
(C) both the fine and confinement.
(d) It is a defense to prosecution under this section if the
person charged produces in court a driver's license:
(1) issued to that person;
(2) appropriate for the type of vehicle operated; and
(3) valid at the time of the arrest for the offense.
(e) The judge of each court shall report promptly to the
department each conviction obtained in the court under this
section.
Like many states, TX requires an "M" endorsement on your standard drivers license, for the operation of a motorcycle. Many TX Police Officers, will pull over any motorcyclist they see, to check for proper endorsement, intending to impound the bike if the driver is found to lack such an endorsement. I for one, hold that such stops are illegal.
I hold that stopping only motorcyclists and not automobile/truck/suv/van drivers, constitutes discrimination.
I hold, that random stops absent any form of "probable cause", would constitute a violation of the 4th Ammendment.
I draw these conclusions, from the fact that IA courts (different state, I know) held that random DUI stops were an infringement on the publics right to privacy, could too easily be construed as discriminatory and had to be halted. (New Years eve for ex, IA HP used to execute a LOT of random stops to check for DUI. After the ruling, the random stops ceased, and roadblock stops were initiated wherein EVERY driver passing the "check point", was stopped and checked fro DUI. By checking everyone, the court held that the stops could not be discriminatory and were then legal. The stopping of all traffic absent any PC was allowed, by virtue of state law saying that motor vehicle operation is a privalege and not a right. That clause, gave the state authority to enforce licensing requirements among other things.) I would hold, that the same legal logic would hold here. Set up a roadblock and check EVERY vehicle, and you do away with discrimination and enforce the "privalege vs right" aspect of vehicle operation. Leave it to discretionary stops, wherein only a single class of vehicle finds itself the subject of the stops, and I think you have discrimination and abuse of authority issues.
What I find particularly odd, is that as a leftist, I am arguing against this form governmental intrusion while many from the right, are arguing in favor of said intrusion.
Comments?
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| | | 1 | Perm Dude
ID: 251012710
Tue, Nov 27, 2007, 14:11
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You don't have a right to privacy in this case.
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| | | 2 | sarge33rd
ID: 99331714
Tue, Nov 27, 2007, 14:18
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You have the right to be secure from search w/o warrant. A vehicle stopped, is indeed subjected to "plain view" search by that Officer. An area, which could not be searched, without first stopping the vehicle. That stop, absent any PC, and being executed against a single class of vehicle and no others....is still discriminatory by the very definition of the word discrimination.
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| | | 3 | Perm Dude
ID: 251012710
Tue, Nov 27, 2007, 14:21
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You have the right to be secure from search w/o warrant
Uh, no you don't. And you are confusing plain view searches of a vehicle with requesting proof of license by the operator. Two different things.
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| | | 4 | sarge33rd
ID: 99331714
Tue, Nov 27, 2007, 14:23
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No...I'm saying the plain view search is most certainly being conducted once the veh is stopped. I am further saying, that said search could NOT be conducted, w/o the stop. Then, I am saying that by stopping only 1 class of vehicle for this purpose, and never stoipping any vehicles of any other class, constitutes selective law enforcement, otherwise known as discrimination.
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| | | 5 | Perm Dude
ID: 251012710
Tue, Nov 27, 2007, 14:38
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Yes, it is discrimination. That doesn't mean it is illegal or unconstitutional.
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| | | 6 | sarge33rd
ID: 99331714
Tue, Nov 27, 2007, 14:43
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Odd isnt it, that IA Dist Court thinks it is illegal and unconstitutional. I relaize, thats one court, in "fly over land", but I have to wonder in how many jurisdictions such a "law" has been challenged? Get 2 or 3 or 4 such findings as in IA, and the whole thing has to start to topple.
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| | | 7 | Perm Dude
ID: 251012710
Tue, Nov 27, 2007, 14:48
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Different states have different constitutions, sarge. But when you are talking about a license from the state to operate a vehicle on state roads, you trade away the ability to claim a right to privacy in exchange for the license to ride.
And, of course, how the license checks occur is the context that determines whether it is illegal or not. Typically, checking everyone is found to not be an unconstitutional act. (checking, say, only black or women riders would probably not meet the standard).
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| | | 8 | sarge33rd
ID: 99331714
Tue, Nov 27, 2007, 14:59
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Agreed entirely PD. The same LEO that stops, for sake of conversation I'll pick a number, 3 motorcyclists/month JUST to check the status of their license, would find themselves in DEEP hot water, if they stopped 3 Black females every month for that same rerason. Yet, under TX Code, they are allowed to do precisely that.
HOWEVER, since ONLY motorcyclists are being stopped and checked, I maintain that the enforcement is discriminatory and therefore illegal.
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| | | 9 | Doug
ID: 53937413
Tue, Nov 27, 2007, 15:01
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IMHO there's a very substantive difference between the randomness of pulling over vehicles for DUI checks and stopping an entire class of vehicles for license checks.
There are different laws for the licensing and operation of big rigs vs. trains vs. buses vs. motorcycles vs. common passenger vehicles and so on. Accordingly, there are different laws for enforcement of each of these vehicle types.
I'm not saying I support this particular law and don't have the legal understanding to really know the legality and constitutionality of it... nor what the public safety issues are that it supposedly addresses (are unlicensed motorcyclists causing an undue number of pedestrian casualties or something?)
I think the point I'm making is that it seems the proper analogy to the DUI stop ruling in Iowa wouldn't be that every "vehicle" should be stopped to check for licensing, but that every "motorcycle" should be stopped to check for licensing. The "randomness" aspect was what the court seemed to object to as I understand it... and there's nothing "random" about treating motorcycles different that passenger vehicles. I would think the court would want to ensure that motorcyclists aren't being pulled over for some other discriminatory reason (the race of the driver, the model/type of bike, etc.)... but would have no problem with bikes being pulled over separately.
Sorry if that was overly wordy or repetitive. Sort of stream of consciousness. :)
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| | | 10 | sarge33rd
ID: 99331714
Tue, Nov 27, 2007, 15:07
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I can see your point Doug...IF the Officer stopped EVERY bike he/she saw, than that part of the randomness goes away. However, the code doesnt specify stopping only motorcyclists to check for a license. It says "...a motor vehicle...". By implication then, that means ANY motor vehiecle requiring alicense. Thus, stopping only a single class of vehicle, would IMHO, still be discriminatory.
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| | | 11 | Perm Dude
ID: 251012710
Tue, Nov 27, 2007, 15:14
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Of course it is.
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| | | 12 | Myboyjack
ID: 8216923
Tue, Nov 27, 2007, 15:45
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sarge - just so we're all on the same page - what part of the Constitution is that you rely on in saying that "discrimination" against motorcycles is unlawful?
A better analogy would be the fact that commercial trucks are subject to check point inspections and CDL checks, weigh-ins, etc that others are not.
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| | | 13 | sarge33rd
ID: 99331714
Tue, Nov 27, 2007, 16:28
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I'm relying more on what was at the time published, when the IA Courts prohibited the random stops. They found the action discriminatory and ruled to halt it. I'd submit that precedent is established.
Much tha same argument I had with the City Council in Marshalltown, IA some years ago, when they had the City Fire Insoector going through EVERY rental property in town, and would go so far as to confiscate extension cords from within those units, as posing a fire hazard. I asked if they went through homeowners homes doing the same and when they responded in the negative, I held that such an action on their part was discriminatory against renters and thus illegal. (Not to mention a violation of the 4th Amendment.)
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| | | 14 | Myboyjack
ID: 8216923
Tue, Nov 27, 2007, 16:36
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I don't think an Ia court would outlaw random traffic stops as "discriminatory"; the 4th Amendment doesn't outlaw discrimination.
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| | | 15 | boikin
ID: 59831214
Tue, Nov 27, 2007, 16:44
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Much tha same argument I had with the City Council in Marshalltown, IA some years ago, when they had the City Fire Insoector going through EVERY rental property in town, and would go so far as to confiscate extension cords from within those units, as posing a fire hazard. I asked if they went through homeowners homes doing the same and when they responded in the negative, I held that such an action on their part was discriminatory against renters and thus illegal. (Not to mention a violation of the 4th Amendment.)
i can not beleive they could get away with this.
On the question of pulling over only motorcyles to check for licenses. first off is there a special motocycle license in texas seperate from your drivers license? if so i see no reason that they can not check only motocycles if they want to just as they may check only crane operators for there license. now if you can ride with only a drivers license, then i think that may border on discrimination.
on a side note in the state of florida if get a ticket on your bicycle for a moving violation you get pionts on your driving record effecting your issurance rates even though the laws cover bicycle operation are not the same as a vehicles and don't even require a drivers license. i find this extremely unfair.
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| | | 16 | sarge33rd
ID: 99331714
Tue, Nov 27, 2007, 16:46
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But would the search, of an unlawful stop, yield valid evidence if it indeed yielded anything at all?
NC for ex, has a requirement for PC before executing a traffic stop. A stop lacking such PC, but yielding a driver with a suspended license for ex, will not hold up since there was no cause for the stop to begin with. Same in IA, and I would like to think in multiple states a need for PC exists before a stop can be executed.
What does KY say? Does your state require probable cause, before stopping a select vehicle on the roadways? I'd think that to avoid the advancement of a "police state", PC would be an essential element to any enforcement action(s).
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| | | 17 | Tree
ID: 4710172718
Tue, Nov 27, 2007, 19:23
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A better analogy would be the fact that commercial trucks are subject to check point inspections and CDL checks, weigh-ins, etc that others are not.
this is what i was going to say. on any interstate, you see big rigs having to pull into weigh stations for all sorts of checks - is this discriminatory to them?
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| | | 18 | sarge33rd
ID: 99331714
Tue, Nov 27, 2007, 19:28
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No it isnt. They are involved in interstate commerce, and the various DOTs across the nation are charged with ensuring those commercial enterprises comply with applicable laws in shipping.
A more accurate comparison, would be what if Officer Smith, decided to stop you and your family in your car, when you have committed no infractions at all? Then, if unable to present Proof of Insurance for ex (AFAIK, not all states require a driver to carry this), he impounds your car...on the spot?
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| | | 19 | Perm Dude
ID: 251012710
Tue, Nov 27, 2007, 19:51
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??? They aren't pulling over trucks for interstate reasons. They are pulling them over for intrastate ones.
As for your analogy, you've offered no proof (nor made an argument) that people are getting their bikes impounded for illegal reasons. If the law in a state mandates proof of insurance upon request, then the law needs to be followed. You can't hide behind some claim of "privacy" that operators need not fear being asked. Part of the way the law works is that compulsory acts (such as carrying a valid permit) work because there is a penalty for not doing it.
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| | | 20 | rockafellerskank
Dude
ID: 27652109
Tue, Nov 27, 2007, 20:04
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I have contacts and a restriction on my DL. Could these cops pull over cars at random and ask to see if i am wearing contacts based on this same assumption "show me your DL" Wouldn't that be the same type of "stop"?
I'm no legal expert (shock!), but if this is happening it seems like a waste of police time.
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| | | 21 | sarge33rd
ID: 76442923
Wed, Nov 28, 2007, 09:03
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Yes RFS, that would be the same type of thing. BUT, they arent pulling over cars to check...only motorcycles. The fact that motorcycles are being singled out, is why I have a problem with it.
If Officer Smith pulled over "X" bikers last month and checked their licenses, my question is how many cars did he pull over while lacking PC and check THEIR licenses? If there is a gross disparioty between those two numbers, then what we have is "selective" enforcement and I have a huge problem with that.
How many here, would argue that its OK for LEOs to stop only Black drivers and check their licenses? Its the same thing.
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| | | 22 | Perm Dude
ID: 81011289
Wed, Nov 28, 2007, 10:13
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No, it isn't. Blacks are a protected class, bikers are not.
You are throwing around the words "discimination" and "unconstitutional" well, indiscriminately. They don't mean the same thing.
According to your first post, police have the right to stop and detail drivers without any other cause. Since the group they are stopping are not a protected class (under the Texas or US Constitution) they aren't doing anything illegal.
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| | | 23 | sarge33rd
ID: 99331714
Wed, Nov 28, 2007, 10:48
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Does every class, have to be delineated as a "protected class"? Why can common sense and consistent application of the same laws, not be the "rule of the land"? I believe such is the true intent behind the laws. To establish what is and is not acceptable. If its not aceeptable to stop only Black drivers, or only Hispanic drivers, then it is not acceptable to stop only motorcyclsists. In practice, there is no difference between stopping only Black drivers, or only motorcyclists or only Chevy drivers etc etc.
As for the impounding...That was the statement made by the Officer;
"I stopped to see if you had your motorcycle endorsements. If not, I was going to impound your bikes."
Are you truly willing, to grant the authority to stop someone without cause? The 4th Amendment reads:
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.
Effects. What is/are the legal definition for that term? Obviously at the time, cars didnt exist. Wagons did though. What did colonial law, say about authorities searching a travellers wagon?
The VA Declaration of Rights, written in 1776 I believe, states:
That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.
According to WIKI (FWIW):
The Fourth Amendment to the United States Constitution requires that searches and seizures conducted under government authority be "reasonable". Toward that end, the amendment specifies that judicially sanctioned search and arrest warrants must be supported by probable cause and be limited in scope according to specific information supplied by a person (usually a peace officer) who has sworn by it and is therefore accountable to the issuing court.
The amendment applies only to governmental actors; it does not guarantee to people the right to be free from unreasonable searches and seizures conducted by private citizens or organizations.[11] More specifically, the Bill of Rights only restricts the power of the federal government, but the Supreme Court of the United States has ruled that the Fourth Amendment is applicable to state governments by operation of the Fourteenth Amendment.[12] Moreover, all state constitutions contain an analogous provision. For an example, see Article 1, § 7 of the Tennessee Constitution.
So, the 4th Amendment applies against State agency searches w/o cause via the 14th Amendment. All state constitutions contain a clause similar to that I reefer to above in VA. Since in the course of any stop, "open to view" areas are routinely searched, it would seem an extension of ogic that PC must exist to excercise the stop, since a search IS going to result from that stop and said search is contrary to the Constitution w/o a warrant and/or PC.
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| | | 24 | Perm Dude
ID: 81011289
Wed, Nov 28, 2007, 11:21
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Does every class, have to be delineated as a "protected class"
Yes.
As for the rest, you can't mix and match your constitutions to get the effect you want. If Texas requires operators to show a license upon request, and the traffic stops are not aimed at a protected class, then it is not unconstitutional to ask members of a non-protected class to show the permits, even if the requests are being made of all of them.
Again, "discrimination" does not mean "unconstitutional." What you are seeing is certainly the former only.
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| | | 25 | sarge33rd
ID: 99331714
Wed, Nov 28, 2007, 12:06
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And the resulting warrantless search w/o PC?
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| | | 26 | Perm Dude
ID: 81011289
Wed, Nov 28, 2007, 12:14
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The policeman doesn't need a warrant if, as a condition of getting a license, you agree to such searches beforehand. And my reading of the Texas statute is that they don't need probable cause to make the stop.
Other states might be different--we're going on state constitutions only. By way of example, some states (NJ, for instance) allows policemen to pull over a car with a driver using a cell phone that isn't hands-free. This is called "primary cause" in NJ. In PA there is no such law, but if they pull you over for something else (headlight, for instance) and see you on the phone they can get you for that.
So state law can certain vary quite a bit on traffic laws and how they can be enforced.
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| | | 27 | sarge33rd
ID: 99331714
Wed, Nov 28, 2007, 12:20
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Precisely my point PD. The TX statute DOES allow for stops absent any PC. It is that allowance, which I maintain is not "above board". It is the duty of the Judiciary, to determine the legality of legislation. I maintain, that legislation allowing police detention, absent any PC, is unconstitutional, in that a search inevitably results and said search is conducted then absent PC and/or a warrant.
As we all know, just because a piece of legislation is written/passed/signed, does not by definition make it "legal".
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| | | 28 | Perm Dude
ID: 81011289
Wed, Nov 28, 2007, 12:34
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That's true. But (as noted above) the lack of any stops concentrating on protected class(es) makes such a challenge pretty much moot. The government is allowed to discriminate. Just not against protected classes.
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| | | 29 | sarge33rd
ID: 99331714
Wed, Nov 28, 2007, 12:55
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Protected classes. Where does that come from? What I am asking for here, is no different from what the Black man asked for in the 60s and/or the gay community today. DOnt treat motorcyclists differently, dont treat gays differently, dont treadt races differently...treat them the same. Where on earth does the notion derive, that we have to establish "protected classes", in order to dserive consistent treatment by law enforcement?
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| | | 30 | Seattle Zen
ID: 49112418
Wed, Nov 28, 2007, 13:43
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I'm jumping in here late, so I'm not going to point over every mistake Sarge and PD made. PD is right, every state has a different constitution, so pointing to caselaw or practice in Iowa and expecting it to control in Texas is a mistake.
In the great state of Washington, we have a wonderful constitution. I am particularly happy with Article 1, section 7: INVASION OF PRIVATE AFFAIRS OR HOME PROHIBITED.
No person shall be disturbed in his private affairs, or his home invaded, without authority of law.
Yes, in WA, we have a declared "right to privacy". Our Supreme Court has ruled that sobriety checkpoints, where the police stop every single car to check for sobriety, violated this right to privacy and therefore are not legal in WA. I know that other states have rights to privacy written in their constitutions, but I don't know if any other state has ruled upon sobriety checkpoints the same way.
PD is right when he says that motorcycle riders are not a protected class. So, if Texas tells its officers that they may pull over any motorcycle to check their license, as long as they truly pull over cyclists in a random way, this is acceptable. They cannot and should not arbitrarily pull over minority bikers, women bikers, Harley riders, leather-clad Hell's Angels types, the officer should be pulling bikers over to simply check their license, otherwise it would be a pretextual stop - an excuse to investigate for other crimes, and that's not allowed. Of course, proving a stop was pretextual is next to impossible, cops are great liars.
By the tone of your posts, Sarge, I have a feeling that you are going to disagree with me, complain, bitch and moan and not listen. Look, I'm with you, I think that Texas law sucks and totally flies in the face of our country's proud tradition of individual rights and privacy. I'm just telling you what the law is, not why it is right.
I completely disagree with your notion that stopping Blacks for no reason is analogous to stopping motorcyclists. Blacks have been subjected to horrible discrimination enforced by state authorities throughout history. Detaining someone who is Black just to see that "everything is in order" is a gross abuse of power because it tells the person that simply by the color of their skin, they are a suspect and need special attention.
Driving a motorcycle, on the other hand, is a privilege reserved for those who have met certain requirements. Driving a motorcycle without having first proven that you are capable is dangerous and the state has an interest in making sure that only capable drivers are on the road. There is no special certification needed to drive a car while you are Black, there is for motorcycles. Again, I don't like it, but there it is.
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| | | 31 | sarge33rd
ID: 99331714
Wed, Nov 28, 2007, 13:58
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I meant no slight to the wrongs suffered by Blacks by my comparative. And I agree when you say "thats the way it is". Another of those "IT may not be right, but IT is reality all the same". My point and energies then, would be directed to trying to "change" the state of "IT".
I acknowledged above, that IA law would not prevail in TX. That part is clearly understood. My point in bringing it up at all, is to show that multiple courts, in multiple states, have ruled the same way. If thats the case, then there must be something behind that ruling. With every state constitution containing the clause I cited in the wiki quote above.......extension of logic says that it should apply equally here too.
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