The U.S. Constitution and the Maine Warden Service
I’m really hoping the Maine Supreme Judicial Court finally answers a question that’s been plaguing the outdoors community for decades: Does the U.S. Constitution apply to the Maine Warden Service?
On January 14, the court heard oral arguments in the case of Brent McKeen of Mars Hill, a 51-year-old ATV rider who was stopped on an abandoned railroad track on Aug. 5, 2007. Warden Joshua Smith didn’t stop McKeen because he suspected – at least not as defined by law – McKeen was doing anything wrong. He stopped him because wardens routinely stop boaters, snowmobilers and ATV riders to check registrations. Of course, those stops have the added – and wardens believe essential – benefit of allowing a closer look for any possible violations.
Smith gave McKeen a field sobriety test, then charged him with operating an ATV while under the influence of alcohol. McKeen pled not guilty and his attorney argued the stop was illegal. Superior Court Justice E. Allen Hunter agreed, ruling that Maine’s law allowing wardens to stop ATV riders without a reasonable suspicion of illegal conduct is unconstitutional. The State of Maine appealed, which placed the issue – finally! – before Maine’s highest court.
Warden vehicle stops have always been a source of controversy and complaints. One of the most public battles came in 2000, when former Col. Tim Peabody (admitting he was “kicking up a hornets’ nest”) asked the Legislature to specifically authorize wardens to stop vehicles if they suspected its occupants had simply been hunting, fishing or trapping.
Peabody said he was seeking clarification of the law, but it actually had been clarified the year before – just not to his satisfaction. Legislators passed a law allowing wardens to stop vehicles only if they had reasonable suspicion that a fish and wildlife law had been violated or when “necessary to protect a person from the threat of death or personal injury.”
The colonel’s rationale for requesting a constitutional dispensation was that wardens worked in a highly regulated industry and that “regulatory” stops are permitted in highly regulated industries (such as commercial trucking) and when legitimate government interests (fish and wildlife pro-tection) outweigh an individual’s Fourth Amendment protection against unreasonable searches and seizures.
In the case now before the state’s highest court, Assistant Attorney General Todd Collins argued, according to the Bangor Daily News, that such stops are legal because “ATVs are basically big toys, (which) should be subject to a greater degree of scrutiny. An ATV can pretty much go anywhere – fields, streams, off roads, in the woods — on what is primarily privately owned land. I’ll be asking the Law Court to look at the Legislature’s intent in using these kinds of stops as a tool to curb abuses so that private land remains open to the public.”
McKeen’s lawyer, Alan Harding, argued – just as opponents did in 2000 – that the Legislature can’t authorize an action that is unconstitutional.
“You don’t simply make random stops without articulable suspicion,” Harding said.
Back in 2000, legislators, officials and lobbyists were all arguing the finer points of Fourth Amendment law at the bill’s public hearing. Some admitted they were confused, but many said they’d spent a few hours studying the Constitution and felt they understood the legal issues per-fectly. Several commented on how simple it all was.
Well, it didn’t seem simple to me. So I went in search of a legal expert and for the next three months I had private lessons on the Fourth Amendment from David Gregory, a University of Maine law professor and one of the most respected legal scholars in Maine.
I smile as I write that description, because Gregory would have tried to convince me to tone it down. He said his colleagues kidded him about how brilliant I made him sound. But his opinion was so highly respected that it changed the entire debate. He said Maine game wardens do not have and cannot be given the power to stop vehicles randomly. Nor does it matter if the stop is, as Collins argued last week) a brief one.
“In my opinion, the power that they’re asking for is an unconstitutional power,” Gregory said. “It is not too much to ask that they have a factual basis for suspecting an offense or a violation in order to seize somebody and deprive them of their liberty and detain them.”
After a no-holds-barred battle over what wardens do and how well or poorly they do it, the Maine House overwhelmingly rejected the bill. Wardens were told they had the same powers — to stop vehicles – no more, no less — as other officers. But as part of an 11th-hour compromise, legislators agreed wardens could stop recreational vehicles or hunters, anglers and trappers on foot. And the law that the high court is now considering (12 M.R.S. § 10353(2)(G)) is the result of that compromise.
Gregory considered the compromise a big mistake, saying it was “designed to validate an unconstitutional procedure.” There’s nothing in U.S. Supreme Court rulings, he said, to justify a lesser standard for stopping recreational vehicles or hunters, anglers or trappers in the field.
He thought the issue would and should end up before Maine’s highest court. I would love to talk to him about the current case, but, sadly, he died in 2001. But I suspect his opinion would be the same as it was eight years ago.
“I would be very surprised,” Gregory told me, “if a court bought the idea that there should be an exemption for fish and game wardens from the ordinary principles that apply to law enforcement officers who are of – let’s admit it – a bit more elevated station than game wardens are, like state troopers and the FBI, for instance.”
Roberta Scruggs has been writing about Maine's environment for more than two decades.