On September 12 Maine game wardens will be prohibited by law from stopping ATV riders without “reasonable and articulable suspicion” that a violation of law has occurred.

This new law, enacted by the legislature, takes effect just one month after the Maine Supreme Court decided that game wardens could stop ATV riders without suspecting a thing, randomly, anywhere, anytime, without violating Fourth Amendment Constitutional rights. Some ATV riders were outraged by the Supreme Court decision, and some private landowners are irate about the checkmate delivered to the Court by the legislature.

Let’s start with the court case, State of Maine vs. Brent L. McKeen.

On August 12, 2007, Game Warden Joshua Smith stopped McKeen at the intersection of an ATV trail and U.S. Route 1 in Mars Hill. Smith did not suspect McKeen of any law violations. He told the court he wanted to check McKeen’s ATV registration and safety equipment.

Smith observed that McKeen wasn’t operating on all cylinders, and noticed a beer can in one of the compartments McKeen opened while looking for his registration. After McKeen failed a field sobriety test, Smith arrested him and ultimately charged him with operating an ATV while under the influence.

The Superior Court granted McKeen’s motion to suppress all of the evidence obtained as a result of the search and seizure, on the grounds that the warden’s stop was constitutionally unreasonable and violated McKeen’s Fourth Amendment rights. The State appealed that decision to the Maine Supreme Court and, by a narrow four-to-three decision, that court overturned the Superior Court ruling, reinstating the evidence against McKeen.

Justice Robert Clifford, writing for the majority, said, “The intrusiveness of the stops authorized by (the law) is minimal when compared with the State’s legitimate and substantial interests in regulating ATVs.”

Clifford pulled out all the stops in defending his decision, citing the need to protect private property from ATV abuse in order to retain the use of that property for public recreation, the warden’s difficulty in making sure ATV riders have the required permission of private landowners to be on their property, the importance of checking on compliance with ATV safety regulations, and even the need to confirm that children driving ATVs are at least ten years old and have completed a safety course.

All were cited as reasons to set aside the privacy protections in the Fourth Amendment.

Justice Warren Silver, writing for the three dissenters, destroyed all of Clifford’s arguments. “The Court today infringes on the liberties of Maine citizens by allowing unconstitutional stops of ATVs, which the Legislature itself no longer finds appropriate” wrote Silver.

The decision “is one that flouts the Fourth Amendment rights of ATV riders and sends a message to Maine citizens and the Legislature that this Court tolerates regulations that plainly infringe upon individuals’ Fourth Amendment liberties,” said Silver. He noted that many of Clifford’s examples did not exist in the McKeen case. For example, “It was certainly possible for the warden to distinguish fifty-three-year-old McKeen from a child driver without actually stopping his ATV,” wrote Silver.

In fact, most of the State’s ATV-related safety concerns may be addressed without stopping an ATV, including a check of the registration whose numbers are prominently displayed in both the front and back of the ATV. And the concern about the abuse of private land did not apply to the McKeen case, because he was stopped at the intersection of an established ATV trail and a public highway.

Anticipating the Court’s decision, State Representative John Martin sponsored legislation forbidding wardens from stopping ATVs without suspicion of a violation of law. Martin’s law won overwhelming approval of both the House and Senate and was signed into law by Governor John Baldacci on June 12. It takes effect September 12.

The new law is actually an amendment to existing law that gives wardens the right to stop ATV riders. The amendment adds to existing law the requirement that the warden have “reasonable and articulable suspicion to believe that a violation of law has taken place or is taking place,” before stopping an ATV to check for compliance with all existing rules and laws.

The new language also makes it clear that this same standard applies to “other law enforcement officers” as well.

Although this issue will continue to be hotly debated, for now the State of Maine has delivered this message to ATV riders: Ride on!

The views expressed on this Web site are those of the authors alone and do not necessarily represent the views of Down East Enterprise or its employees.