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Pahrump, Nevada
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March 6, 1997     Pahrump Mirror
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March 6, 1997
 

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2AA Thursday, March 6, 1997 Pahrump Valley Gazette Guest opinion by Victor Shulze I!, Esq. I read with interest the letter in the February 27, 1997 edition of the Pahrump Valley Gazette from Mr. Mallows expressing his concern with sobriety checkpoints. Mr. Mat- lows asked several times, rhetorically I presume, what phras- ing in the Fourth Amendment grants the authority to Sher- iff to conduct these checkpoints. As a Deputy Attorney General, former District Attorney, and current certified EO.S.T. Instructor in the area of Fourth Amendment law, I take great interest in the subject, and in Mr. Mallows' concerns. I would like to respond to Mr. Mallows' questions and let the readers know the state of the law in this area, and some of the history that law is based upon. The Fourth Amendment was drafted and adopted in re- sponse to the feeling of the Founding Fathers that English law in effect during Colonial days allowed agents of the King to arbitrarily search the homes, farms, and shops of colonists without having to show any cause; although there were laws requiring that the King's agents had to obtain warrants before they could search, magistrates could issue those warrants simply upon being asked to. The police did not have to explain why they wanted to conduct a search, and they did not have to show any level of justification for their desire to search. The Fourth Amendment was drafted to ensure that the police could not conduct a search or seizure unless they could actually demonstrate to a detached and neutral mag- istrate that they had just cause, a real reason, to conduct a search. The Founding Fathers put that level of justification at "'probable cause." That means that a magistrate, a judge, must be satisfied that the police have demonstrable evi- dence in their possession that would lead a reasonable per- son to believe that a crime had been committed. The entire purpose of the Fourth Amendment was, and continues to be, to protect people, ordinary citizens, from arbitrary po- lice power. Generally, the police need to obtain a warrant before they can conduct a search or seizure of a citizen. Over many years the federal courts have carved out a few strictly-con- structed exceptions to the warrant requirement in their ef- forts to balance the legitimate needs of society to maintain public safety oll the one hand, and the right of the citizenry to be free and unreasonable searches and seizures. In his letter, Mr. Mallows asked what was the phrase Fourth Amendment00 which permits some searches to be conducted without war- rants. That word is "reasonable." The Fourth Amendment forbids unreasonable searches and seizures; by definition then, it permits reasonable ones. The age-old question for the federal courts has been to distinguish between unrea- sonable and reasonable searches. Obviously, searches con- ducted pursuant to a warrant are presumed to be reason- able, while searches conducted without a warrant are pre- sumed to be unreasonable. The federal courts have carved out several narrowly-tai- lored exceptions to the warrant requirement whereby a search conducted without a warrant will be found to be le- gal. These exceptions are few, and are well-established. For example, a warrantless search will be legal if the per- son consents to the search. Likewise, officers can search a person they have just arrested for weapons and evidence he nmy have concealed on his person; this is referred to as a search incident to arrest. Also, cars can be searched with- out a warrant if the officer has probable cause to believe that there are unlawful goods in the car. This is called the automobile exception, and it is based on two grounds - the courts are concerned that the evidence will disappear if the police have to obtain a warrant because cars are mobile; second, the courts have ruled that people have a reduced expectation of privacy in their cars, as compared with their homes, where the protection is the highest. When Mr. Mallows says that Sheriff Lieseke argues that the federal courts allow sobriety checkpoints, he is correct. One of the narrowly-tailored exceptions to the warrant re- quirement established by the federal courts is for sobriety checkpoints. In the 1990 U.S. Supreme Court case of Michi- gan v. Sitz the Court held that sobriety checkpoints were legal. In that case, the police in Saginaw County, Michi- gan. in conjunction with lhe Michigan State Police, estab- lished a highway sobriety checkpoint program with guide- lines governing its operation. The program was challenged in court by several Michigan residents on Fourth Amend- ment grounds, primarily because it did not require individu- alized suspicion of probable cause that a driver was driving drunk - ever)' driver was stopped. Under the Michigan program, the State Police established a committee which wrote guidelines setting forth proce- dures which would govern checkpoint operations, site se- lection, and publicity. All vehicles passing through the checkpoint were stopped briefly. If signs of intoxication were detected, that driver would be directed to a location out of the traffic flow where an officer would make further inquiry. All other drivers were permitted to resume their journey immediately. The question as defined by the Supreme Court is the same one which concerns Mr. Mallow - "The question thus be- comes whether such seizures are 'reasonable' under the Fourth Amendment." To determine the answer, the Supreme Court balanced the interests of the State in eradicating the drunken driving problem and its inherent costs to society with the legitimate expectations of privacy of the citizens. The Court found that the State had a strong interest in eradi- cating the problem of drunken driving; it found that the societal costs associated with drunk driving in deaths, inju- ries, and financial losses were staggering. On the other side, the court found that the weight bearing on the other side of the scale, the intrusion on motorists stopped briefly at the checkpoint, was slight. The average detention of a vehicle was less than thirty seconds. In balancing the in- terests of both sides, and the level of the intrusion on the motorists, the Supreme Court found the checkpoints were reasonable and Constitutional. So, to finally answer Mr. Mallows' question, checkpoints conducted like Michigan's according to reestablished guide- lines which limit the officers' discretion, and require ev- eryone to stop, and only briefly, are lawful. I am not aware that anyone has accused Sheriff Lieseke of operating checkpoints which violate the terms of the Sitz case. In following those guidelines the Sheriffis completely within his Constitutionally-permissible authority to week out drunk drivers. No one would disagree with the need to control the problem of D.U.I.s in the Pahrump Valley. As the valley has grown, so have the problems of crime and public safety, including D.U.I. In nay personal opinion, Sheriff Lieseke is doing a fine job in watching out for victims of drunk drivers. The slaugh- ter on the highways bears too high a burden on our citizens. I applaud Sheriff Lieseke and his professional staff for look- ing out for my right to drive on Nye County roads free of the danger that the next oncoming driver will kill us both. Thanks, Wade. Editor's Note: the author, Victor Shnlze II is cur- rently a Nevada Deputy Attorney General. He was formerly District Attorney of Esmeralda County and a Deputy Nye County District Attorney. Iq . . MEXIq2AN MUSIC * Admission S3 per per person S5 per couple Music Begins at 8pm, Sat. Mar 7 Visit O Lr Convenience Store Were in the neighborhood We're fully stoc:kq d and we're here to serve you. Open 6a.m. - Midnight 727-4474