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"For sixty years the U.S. Supreme Court avoided trekking through the constitutional minefield accumulated around the long standing practice of police stopping and temporarily seizing people at ‘civil’ traffic stops."
It’s a nice day and you are traveling down the road in your automobile listening to one of your favorite tunes playing on your car stereo when, a frenzied display of psychotropic red and blue pulsating lights appear suddenly in your rearview mirror. It’s a traffic cop! Like a warring bird of prey, he has swooped down upon you at lightning speed from out of nowhere and now he has you hopelessly locked firmly in his clutches.
Millions of Americans each year, traveling upon our nation’s highways and streets, share in a similar unpleasant experience of getting a traffic ticket. In most states, minor traffic offenses are legally classified as infractions. Infractions are considered legally to be ‘petty offenses’ of the law and not a crime. The commission of an infraction is classified as a non-criminal act and, therefore, the infraction is a ‘civil’ breach of the law.
There is little civil about the experience of being chased down like a common criminal by an armed police officer and handed a civil traffic ticket. Most people find the experience to be very unnerving, if not downright frightening. The civil traffic stop is made infinitely more tyrannous in light of the fact that the victim of the cop’s assault committed no crime.
The Fourth Amendment was designed to protect us against unreasonable search and seizures, requiring police to first have probable cause. Although probable cause was not defined by the Fourth Amendment, the Supreme Court has long held that probable cause must include a criminal act to warrant seizure, or arrest. In Terry v. Ohio, 392 U.S. 1 (1968) the U.S. Supreme Court held that police may briefly detain a person if they have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime.
Being that the Supreme Court’s litmus test for probable cause has historically required the element of a crime to be associate with reasonable cause for a seizure, how then is it possible that a traffic stop (seizure) for a non criminal civil infraction not to be a violation of the Fourth Amendment?
In 1967, the Supreme Court cracked open the door to provide legal sanction to what police officers were already doing around the country in violating the Fourth Amendment (performing traffic stop seizures for non-criminal civil infractions). In Delaware v. Prouse, 440, U.S. 648 (1967) the Supreme Court ruled, “The permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.” [writer emphases added]
For over sixty years the U.S. Supreme Court avoided trekking through the constitutional minefield accumulated around the long standing practice of police stopping and temporarily seizing people at ‘civil’ traffic stops. Civil traffic stops (seizures) were unquestionably at odds with people’s Fourth Amendment protection against unreasonable seizures. The Supreme Court’s refusal to take the lead on the constitutional issue of the civil traffic stop left the state courts twisting in the wind of tyrannous constitutional construction and clamoring for a clear constitutional path they could take to safely traverse around the Fourth Amendment roadblock regarding the civil traffic stop and seizure.
The state courts have long and desperately sought the U.S. Supreme Court’s assistance in constitutionally ‘legitimizing’ (tweaking the Constitution) the six decade practice by police officers of seizing people for civil traffic offenses. The state courts had no way of neatly disposing of the highly problematic constitutional requirement that the U.S. Supreme Court had saddled them with. The U.S. Supreme Court had ruled that probable cause for a temporary seizure required a crime and the civil traffic stop was not a crime.
In 1996 the U.S. Supreme Court in the case of Whren v. United States, 517 U.S. 806 addressed head on the question of whether or not the civil traffic stop (seizure) violates a person’s Fourth Amendment rights. Acquiescing to the state courts’ demands, the Court provided the state courts with exactly what they had long sought, ruling; “As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” [writer emphases added]
Politicians are well known for their talent to spin things. ‘Spinning’ is the ability to make things appear to be something that they are not. However, this talent is not limited only to politicians. Supreme Court justices are also very practiced in the art of spinning. Justices of the Supreme Court are lawyers, and lawyers practice a form of spinning known as ‘legal word art’. This form of spinning is created by transforming common words into technical legal jargon with hidden meanings.
The Supreme Court in the Whren case applied a hefty dose of good ol’ spin doctoring, as the politicians like to say, to make it appear as if the civil traffic stop was not an assault on our Fourth Amendment protection against unreasonable seizure. The Court in Whren capitalized on the use of one tiny, common, ordinary word - a word everyone uses and believes that they know the meaning of – ‘traffic.’
Traffic; the flow of vehicles and pedestrians along public right of ways. True? Yes, quite true when the word traffic is used in its ordinary sense, but not true when the word traffic is used in its legal sense. The word traffic used in its legal sense means an activity involving commerce — transportation of goods and people for profit as revealed in the following definition for the word ‘commerce’ under U.S. Code, Title 42, 21, VI, § 2000e (g). The term “commerce” means trade, traffic, commerce, transportation, transmission…” [writer emphases added]
A little more than a century ago, America had less tyrannous courts. The following 1898 Illinois Supreme Court ruling regarding the licensing of motorized methods of private transport of people not engaged in traffic is great proof of how at least one state supreme court followed the Constitution back then.
“The license is designed to operate upon those who hold themselves out as common carriers, and a license may be exacted from such as a proper exercise of police power; but no reason exists why it should be applied to the owners of private vehicles, used for their individual use exclusively, in their own business, or for their own pleasure, as a means of locomotion.” City of Chicago v. Collins et al., Supreme Court of Illinois. 175 Ill. 445, 51 N.E. 907 (Oct. 24, 1898).
The Illinois Supreme Court in 1898 held firm to the constitutional fact that the states have the power to regulate, license, and tax only those persons engaged in the activity of commerce related to the transport of people and goods upon the public right of ways.
Technically, the Supreme Court did not assail our Fourth Amendment protection against unreasonable seizure. Stopping and temporarily seizing a person engaged in traffic (an activity in commerce) does not per se violate their constitutional rights under the Fourth Amendment. The constitution grants states the right to regulate profit making activities in commerce upon the public right of ways.
In a realest or truest sense, the Supreme Court walloped our Fourth Amendment rights smack between the eyes with Whren (which was the Court’s intention from the get go). The states had long been pressuring the Supreme Court for a ruling such as this. They desperately needed to justify sixty plus years of doing what is not justifiable – their long practice of seizing people not in engaged in commerce at so called civil traffic stops.
Had Whren raised the issue about his not being engaged in commerce and a regulated activity, at the time of his trial, then in all likelihood the Supreme Court would have passed on hearing his case. The Court would have just waited patiently for another case to come along possessing the elements necessary to rule in the same manner as the Court had done in the Whren case.
Traffic boils down to money, power, and control. Traffic tickets are a multi-billion dollar bonanza for state and local governments. Profit making activities allows the government to regulate, license, and tax people under the constitution. The state traps people into traffic in much the same manner as it does regarding the Income Tax – the government just pretends that we all are engaged in a profit making activity.
The Supreme Court acted on the pretense that Whren was engaged in a profit making activity upon the public right of way and therefore, the state had the power to regulate his activity (driving or being in commerce). The police have the right to regulate traffic and, therefore, can constitutionally temporarily seize a person engaged in commerce to issue them a traffic ticket for a civil breach of the state’s driver’s license compact.
The state’s so called driver’s license compact is written for those engaged in commerce. However this fact is cleverly disguised and hidden from people by the lawyers who write the laws using the “spin doctoring” or ‘legal word art.’
Your possessing a driver’s license is not proof or evidence that you are engaged in traffic. You can have a driver’s license and your car can be registered and this does not prevent you from lawfully traveling in your private constitutionally unregulated capacity upon the public right of ways. It’s the activity of engaging in commerce that grants the states the right to regulate traffic and nothing in the Constitution grants the states the right to regulate the people’s right to travel. The right to travel is not and cannot be made a regulated activity. Therefore, the temporary seizure by a police officer at the time of a traffic stop is unquestionably unconstitutional.
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Contact Author: GregS@TicketSlayer.com
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