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by Richard Schroeder

Injustice, we midwesterners assume, only happens in places like southern Georgia. But every once in a while it makes its way to Minnesota. Here’s a courtroom drama that reaffirms one’s belief in the U.S. Constitution and reminds all motorists how our constitutional rights “travel” with us when we are out on the open highway.

“Just the facts, ma’am.”

A Minnesota state trooper was on routine patrol when he noticed Thomas George and a passenger motorcycling west, destination Sturgis. The state trooper decided to stop George, because he determined that the motorcycle appeared to have three headlights, which the officer believed to be illegal.

Upon being pulled over, George presented his driver’s license. He received a warning card for the alleged illegal headlights (which, in fact, were not illegal. There was one headlight and two low beam auxiliary passing lamps, all of which were factory-installed by Harley-Davidson.) and having an old address on his license.

The trooper asked George to remove his jacket and the folding knife on his belt. He complied. Then the trooper asked George if he was carrying any weapons, open containers of alcohol or controlled substances. George said he was not. The trooper issued warnings to George for the above violations and then asked if George had any objections if he took a look at the bike for the previously mentioned items.

According to court documents, George did not give his full consent of “go ahead,” but put up some dissent, telling the trooper it would be “a waste of [his] time.” The trooper stated that it was his time and he would search the bike anyway. The trooper’s search uncovered a box of .22 magnum ammunition, a revolver, and three homemade cigarettes. George advised him he had forgotten about the gun, which was in his jacket. The trooper again asked George whether he had any weapons, controlled substances or booze. George responded that there was another handgun, ammunition, a pipe and a canister with marijuana in the bike’s travel pack.

Why did this case go to the Minnesota Supreme Court?

Two issues rose out of this exchange:

First, the Minnesota Supreme Court ruled that the traffic stop was not justified. Stops, according to the U.S. Supreme Court, must be “justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.”

George’s lawyers made clear that the head lamps which the trooper deemed to be illegal meet all state requirements. Harley-Davidson certifies this compliance before it sells its machines. Minnesota law permits two headlamps and two auxiliary passing lamps. In short, the trooper had no objective reason whatsoever for stopping George. This action, in itself, would have been enough to throw out any further charges that stemmed from the search of George’s bike.

Second, the Minnesota Supreme Court took this case a step further. They questioned the lawfulness of the search, since George had not given valid consent. To make George’s “consent” stick, the state needed to prove that his consent was given freely and voluntarily.

In the 1994 case, State of Minnesota vs. Dezso, the dynamics of the police-citizen encounter are spelled out, premised on the fundamental notion that the police, in their jobs, must seek cooperation and ask questions while we, as citizens, have a constitutional right to liberty and protection from unreasonable prying. The Court said, “So it is that an officer has a right to ask to search and an individual has a right to say no. It is at the point when an encounter becomes coercive, when the right to say no to a search is compromised by a show of official authority, that the Fourth Amendment [of the U.S. Constitution] intervenes. Consent must be received, not extracted.”

In Thomas George’s case, the Minnesota Supreme Court found that his responses were more in the nature of “an effort to fend off a search” rather than freely giving consent to a search. It seems George was unaware that he had a right to refuse consent to the search of his bike or to merely leave the scene.

Consent can be requested in a number of ways like, “Would you mind if I take a look in your trunk/bags/pack?” If you do not want to grant that permission answer, “Yes, I do mind. You do not have my permission.” You have rights in these matters; use them.

Big Turf

One other recent court decision spells out more clearly than ever another long questioned area of the law involving road cops. Under common law, an officer ordinarily only has the arrest powers of a private citizen when outside of his or her jurisdiction. Twenty years ago, state law was written so licensed peace officers, in the course of their duty tasks or in fresh pursuit may do so outside of his or her jurisdiction. That officer is serving in the regular line of duty regardless of turf.

A few years ago, there was a question about whether an officer in a small town investigating a complaint, could cross municipal boundaries to question, and in fact give chase to and arrest, the person and vehicle identified in the complaint. The Court determined that the officer was acting within the course and scope of his employment, and was justified in his or her actions.

Drive safely. Get insured, and carry proof. Enjoy our Minnesota spring.



Richard Schroeder is an attorney with Michaelson, Schroeder & Mandel. Licensed in Minnesota and Wisconsin, Mr. Schroeder handles cases involving motorcycle and auto accidents, personal injury, insurance disputes, and product liability.

This column is intended to provide general information and is not to be construed as legal advice or legal opinion on any certain facts or circumstances. Minnesota Motorcycle Monthly encourages readers to consult legal counsel on any specific legal questions or matters.

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