Tuesday, August 04, 2009

U.S. v. Fraire (9th Cir. - Aug. 4, 2009)

First there's the border exception, which allows suspicionless stops of everyone who's anywhere within hundreds of miles of the border (or even beyond). Then there's the DUI exception, which allows everyone to be stopped at random checkpoints. Lest that be enough, now there's the hunter exception as well.

What's that, you may ask? That's Judge Silverman's holding that the U.S. may validly stop everyone entering Kings Canyon National Park to inquire of and "educate" drivers about hunting restrictions in the Park. Oh, and -- tangentially, of course -- arrest anyone who's committing a crime, as was the drunk driver here.

I don't have any problem at all stopping people to collect a fee or pass out a brochure if they want it. But I do have a problem with stopping and questioning everyone in the world under the plethora of pretenses the government can imagine. Do I believe there's a potential problem with hunting in the Park? That's plausible to me. But it seems to me the direct solution thereto is to put up big "No Hunting" signs, not to stop every driver and engage them in required questioning.

Judge Silverman believes that the stop here was not motivated by the government's "interest in general crime control" -- which would invalidate the stop pursuant to the Supreme Court's drug checkpoint holding in Edmond -- but instead had a goal "of prevention, not arrests." Call me a cynic. Call me unfairly suspicious. But I have a definite sense that there's a reason that the government decided to establish an expensive checkpoint manned by officers over easily-established signage as a means of "educating" the public. And that reason had everything to do with "arrest" and very little to do with education.