The Common Law #12

The Common Law #12
(The following column originally ran in a December, 2010 edition of the Moody County Enterprise.)

The Common Law:
Leave Me Alone!

By N. Bob Pesall 
Attorney At Law 
Flandreau, SD 

With apologies to the readers for the delay, this month we turn our attention to searches, seizures, and the federal Fourth Amendment. This Amendment states, “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized.” In South Dakota, we felt that this right was so important, we included it verbatim in Article 6 Section 11 of our state constitution. 

Interestingly, even though both constitutions contain the same words, our courts have held that they do not mean exactly the same thing. The subtle distinctions between the two could fill volumes. However, space for this column is limited and our modern attention spans are short. So for now let us limit our discussion to the basic principle behind it all: The Right to be Left Alone.

The most common place where this right comes into play is the traffic stop. A traffic stop is a “seizure” under our state and federal constitutions. Police officers stop drivers and write tickets. Most of us have been on the receiving end of this process at one time or another, and most of the time it is relatively painless. As long as the officer had a legitimate reason to bother us, we pay our tickets and go on with our lives. What makes our South-Dakotan blood boil, however, is getting stopped without a legitimate reason.

For the most part, the right to be left alone is directed at police officers, and we protect that right in a number of ways. Constitutionally, it works like this: an officer can stop you if he has objectively “reasonable suspicion” that a crime is being committed. The crime does not need to be anything major. Speeding, swerving out of one's lane, or a missing headlight are all legitimate reasons for an officer to make a stop. The officer does not need to be positive that a crime has been committed. But he must be able to state some facts that make his suspicion reasonable. The officer cannot make a stop based on a gut feeling, idle curiosity, or whim. This is true even if the officer observes the town drunk walk out of a bar at 2:00 AM and get into a car. That officer must observe some signs that the man is actually intoxicated, or observe him commit some other traffic offense before he makes a stop. If he fails to do this, the Court may exclude the evidence obtained from the stop, or even dismiss charges outright.

There are exceptions, however. Where there is an immediate and serious threat to the public, we sometimes permit police to make stops without having reasonable suspicion first. Sobriety checkpoints are a good example. In some states, including South Dakota, police conduct DUI checkpoints, stopping drivers to see if they have been drinking. These stops are permitted under the federal constitution, even though there is no reason to suspect that specific motorists have been drinking, because drunk drivers pose an immediate and serious risk to the public, and because these checkpoints serve an educational purpose. Before conducting these checkpoints, however, law enforcement must give advance notice to the public. That way, if a person really wants to avoid being stopped he can still do so. In South Dakota, police often comply with the notice rule by publishing radio advertisements which list the counties where checkpoints will be conducted each month. 

On the other end of the spectrum, some traffic offenses cause little or no risk to the general public, and we expressly prohibit traffic stops based upon them. Our adult seatbelt law is a good example. Most of our traffic laws exist to protect innocent third parties from unsafe driving behavior. So a police officer can stop a vehicle for having an unbuckled child in the car, or for speeding, or for failure to signal. All of these behaviors put innocent third parties at risk, and justify the intrusion of a police officer in making a stop. 
By contrast, a lone adult's decision not to use his own seatbelt does not place any third parties at risk, so the intrusion of a police officer is no longer justified. Because of this, while our law requires adult motorists to wear seat-belts, we do not permit police officers to stop them if they fail to do so, unless they commit some other offense first. This way, we protect the right of adult motorists to be left alone, buckled-or-not, as long as they don't put other people at risk in the process.

The right to be left alone, like all of our constitutional rights, requires us to balance issues like these both in our courts and in our laws. Historically, South Dakota has always preferred to trust our citizens to make the best decisions, rather than to have police and governments make them for us. However, we should not abuse our right to be left alone, or use it as an excuse for excuse reckless behavior. In the end, our safety is our own responsibility.
The foregoing column is for information only and does not constitute legal advice.  For more information, N. Bob Pesall can be reached at P.O. Box 23, Flandreau, South Dakota, 57028, by telephone at (605) 573-0274, or on the web at