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Ask Our Lawyer - June 2010

Safety Checks – a Bikers Guideline for Police Compliance in the Midwest

What Part of the 4th Amendment Is Hard for Them to Understand?

Is it Berlin 1939 (Papers, please!) time? America's finest is out doing “compliance and safety” checks instead of chasing muggers, robbers, rapists and child molesters. Now they wish to rid the mid-west of bikers who may have left their insurance card, (registration papers in Indiana and Ohio) in the desk at home, and check your MC endorsement. Of course, while they have you stopped on the way to your favorite biker event, riding your favorite means of transportation, on your day off, they want to take that opportunity to go for a “hat trick” – to provide you as many possible citations as possible. Here are the rules when you forced into a line of bikes for a police inspection.

1. Have your paperwork out and ready to provide to the officer. If you have lockable bags, get your paper work and relock the bags as quickly as you can. If you have a windshield storage unit, retrieve your insurance, registration ( Indiana and Ohio) and relock it – if it locks. Have your driver’s license in hand and insurance papers in hand. The cops will try to inspect and look into everything within reach – they claim that it is for their own safety.

2. Have a copy of the 4th Amendment in hand and register your objection at being detained without probable cause. Keep that part brief – no speeches. They know where you are coming from. Chances are, they may ride as well, and they may just be doing their job. Hopefully, and most likely they will advise their superiors of the objection you made. This will help us in the long haul to head off these kinds of 4th Amendment violations.

3. Although cops have claimed the right to search in the immediate access area for their own protection, they can not search locked bags, trailer campers etc. that are outside your access to weapons, and their so-called danger zone. If they ask for your permission, then they likely do not have a reason to search. NEVER PERMIT A VOLUNTARY SEARCH OF YOUR PERSON OR BIKE. If you wear a helmet, DO NOT TAKE IT OFF. If they ask you to unlock, refuse and cite your 4th Amendment rights to be free from “unreasonable searches and seizures.” Some officers will continue to ask for your permission and will say something like “if you do not have anything to hide, why object to a search?” Just tell them that you do not permit inspections of your personal stuff. If they persist, ask to see the warrant “specifically describing the place to be searched and persons or things to be seized.” If they do not have a warrant, ask about the probable cause for the search. Pay attention to exactly what is said and memorize it. If they say they have none, hand them your paperwork and wait while they inspect it. The intrusion should be over then and you should be free to be on your way. If not, ask if you are under arrest. If you are not under arrest, go about your business – quickly. If they threaten to haul you downtown, then you have a decision to make. Either go along with the violation of your rights and save your Saturday or be a hero and tell them to pound sand. Depending on how far “downstate” you are, I am uncertain as to what to promise you that will happen after that, but you will be a star with many of us. If you are arrested or “detained” assert your 5th and 6th Amendment rights by saying the following “I have nothing to say until I speak with my lawyer.” Then call me ASAP.

4. Remember that you have the right to terminate your police encounter unless you are being detained under police custody or have been arrested. Ask the officer “Can I go?” If he says yes, get the hell out of there as quickly and legally as you can. After you leave the area advise others that we have a “Rambo” cop so they can avoid the area.

5. Remember that most cop cars are equipped with audio and video devices and are activated on most if not all stops, so be on your best behavior. No lawyer wants to go to court with you and see a video that shows you giving the cop the finger or talking about the cop’s family heritage – unless it was really worth it. As a youth, I remember spending some time in the Danville, Illinois, jail thinking it was worth every minute of it. I got an apology out of that one.

Nailed Doing Her Nails

On May 2nd of last year, Anita Zaffke was on her motorcycle stopped at a traffic light when Lora Hunt slammed into her at roughly 50 mph. The police – and today a jury – found that Ms. Hunt was painting her fingernails when she approached the intersection where Anita Zaffke was stopped. Today – one year and four days after this tragedy – a jury in Waukegan ( Lake County, IL) found Lora Hunt guilty of reckless homicide for killing Anita Zaffke. Sentencing is scheduled for June 15 th. This senseless, shameful, criminal act by Ms Hunt has caused an outcry for justice in the motorcycling community. Justice would not have been served if ABATE members had not attended the many hearings regarding this case. Dramatically, many of them showed up at the courthouse with their fingernails painted black!

Papers, Please – by Mail!

Q: Today in the mail I received a form from the Illinois Secretary of State Office with my driver’s license number, plate number, make, year, and VIN of my motorcycle. The form stating that I must fill in the form verifying that I have insurance on my motorcycle or my license will be suspended. Is it legal for the state to require this information, and why only on my motorcycle when I have two other plated vehicles? Is this another way for the state to make road site type inspections on motorcycle owners only without actually having to have reasonable cause to investigate?

– Dave DeMik, ABATE of Illinois

A: Dave, yours is a good question. We have been having several of what I term “intrusions” by government officers checking on us, whether it be “safety checks,” “operation checks” or in your instance “a compliance check” from afar. At first blush, the request is confusing; on further reflection, it is unreasonable. Why should you have to go through a compliance check when you are not riding your motorcycle? You have the right to own and not ride as many bikes as you choose. As you know, many of us have more than one bike that may be in the process of repair/modification. George Tinkham, ABATE lawyer, has several in his garage that are in various stages of repair. While the law is clear that we must have insurance on our motorcycles when we ride them on public streets, it is equally clear that we are not required to have insurance otherwise. That means that we can have as many non-road bikes in our garage as we want without getting threatening letters from the government.

What is disturbing about the notice you received is that it TARGETS MOTORCYCLISTS. As you point out, you did not receive similar notice for your other non-motorcycle vehicles. What gives with that? When is the last time you heard of a motorcyclist causing any serious injury to a person in a car or truck? Last time I checked, it still is not a fair fight between a Harley and Mack truck, so why are they asking for the motorcycle insurance information and not the automobile insurance information? We will find out and report. I suspect some government funding is at the root of this latest episode.

Will you? You should.

I got this note from a reader and I wanted to share it with you. As you already know, I think everyone should have a will, which is why we offer free wills and living wills to ABATE members. - Rod

After reading the letter from the person that got his will done, it reminded me that I need to do that also. Can you send me the paperwork to do this? I want to do a Living Will as well as a regular Will. I am not sure if they are one and the same. I just want to have a say on how things will be done if I am not gone but not able to take care of things myself. It is all about quality of life to me. No artificial means to keep me alive. When it is my time, then it is my time.

– Mike Meyers, ABATE member

Wise thoughts, and wise advice. If you need a will or a living will, contact us and we will get it for you.

Ride Safe and Free,
Rod Taylor
ABATE Legal Services

Remember, injured ABATE members pay only 28 ½% of total recovery and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. And, ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number.

If you have any questions you would like to ask the lawyer, please submit them to ASK OUR LAWYER, at rodtaylor@abatelegal.com © 2010, A.B.A.T.E. Legal Services

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