Tennessee law allows a highway patrol officer to stop someone apart from any perceived or alleged offense for the “sole purpose” of checking that person’s driver license.
How is that possible? Don’t we have a constitution that forbids unwarranted arrests and unwarranted searches?
By David Tulis / NoogaRadio 92.7 FM
Yes, we do. But there’s no offense under the constitution for a seemingly arbitrary stop / arrest because the trooper is pulling over someone who has agreed beforehand to be pulled over.
And that is a person behind a steering wheel who is involved in transportation (freight, shipping, hauling, trucking, bussing — you get the idea).
Licensees are subject to on-spot arrest
The only reason a THP officer has authority to stop someone for the sole purpose of checking a DL is that the person in the car has agreed BEFOREHAND as a licensee exercising a state privilege to be stopped, because he is acting in equity, via covenant or contract, with the state in the exercise of a state-granted privilege.
He is the state’s party, the state’s servant, the state’s partner in transportation on the public way. He is subject to THP at the beginning.
The constitution doesn’t apply.
The THP officer doesn’t have to have probable cause of an offense or crime committed. No probable cause required. The stop isn’t necessarily an arrest, and doesn’t necessarily have to have a crime allegation antecedent to the stop.
Why?
Because the stop of the person in transportation is in equity, prearranged, a mere wellness check in the public interest, of a licensee.
Any other officer (local cop, deputy sheriff) cannot stop a person on the highway unless he has probable cause that “an offense has been committed” (under Title 39, criminal code). That’s a pretty high wall over which he must climb to stick himself into the face of a Tennessee citizen.
Highway patrol authority is 100 percent commercial, upon commercial users (and not, let’s insist, on noncommercial private users).
This power is recognized at Tenn. Code Ann. 40-7-103, grounds for arrest by officer without a warrant. Here are the relevant portions.
(c) Unless a law enforcement officer has probable cause to believe that an offense has been committed, no officer, except members of the Tennessee highway patrol acting pursuant to § 4-7-104, shall have the authority to stop a motor vehicle for the sole purpose of examining or checking the license of the driver of the vehicle.
Exercising rights? Traveling privately?
What about private users who have tags on the back of the car and driver licenses? Most private users have Class D licenses (transportation in motor vehicles up to 13 tons). Are they commercial, and subject to this arbitrary power of “authority to stop a motor vehicle for the sole purpose of examining or checking the license of the driver of the vehicle”?
We know THP routinely stops private users without establishing commercial activity by the person behind the wheel. A Chattanooga THP officer did that to Coca-Cola sales rep Kaitlin DeFoor.
Key in state policy is presumption.
THP operates on a presumption that all users are commercial, all are in commerce. A tax receipt metal plate on the back of a car is prima facie evidence of commerce, evidence that must be rebutted by the user if not true in fact.
A dead tag light under rules of the roads is cause for stop. “It’s always presumption,” says Arthur Jay Hirsch of Lawrenceburg, Tenn., who has endured years of police abuse trying to travel the roads privately.
How to overturn the presumption that one is in commerce? There’s no way of telling whether a person is or is not, unless officers ask the question about the use of the car at that moment. (This protocol is part of my proposed police power reform in Hamilton County and Chattanooga.)
Mr. Hirsch says the Loretto, Tenn., cop in a May 16 case, No. 21741-cr-1-4, did not ask anything about Mr. Hirsch’s use of the road, did not ask the question about whether he was carrying goods or people for hire.
Officer Zackary Watson had no X-ray vision to look into the car to see if he had packages for hire or paying passengers. He pulled over Mr. Hirsch’s car for a dead taglight, and threw him to the tarmac when Mr. Hirsch rose out of his seat as ordered.
A proposal in New Hampshire offers ideas that might help Chattanooga and the rest of Tennessee find a way out of this trouble. The state helps make the two types of travelers distinct — the transporter and the traveler. A state-issued tag that attests to the high status of the private user, one on the road but not in commerce, and not subject to such an arrest power as given in Tennessee to troopers upon truckers. Such a measure is struggling to come out of the New Hampshire general assembly.
Coming upon a state-issued Tennessee private tag, a trooper doesn’t have to impose police power upon travelers who’ve committed no crime under Title 39, and who are not subject to the THP’s inspection power. To a person exercising rights, such a stop is clearly a violation of his constitutional rights.
Deputies, cops lack authority if ‘public offense’ absent
This provision suggests that THP has authority only upon CMVs, commercial motor vehicles, that department’s sole object of enforcement power. Implied in this extreme grant of arbitrary and summary power is that city police and sheriff’s deputies do not have legal authority to enforce the transportation code.
The THP power is total upon its subjects and upon state creatures — those licensed to exercise the state privilege of transportation. Police departments and sheriff’s departments, it appears, lack this absolute authority to stop a traveler “for the sole purpose of examining or checking the license of the driver of the vehicle,” and so lack authority whatsoever to use Title 55 to harass members of the traveling public.
To restate, since the regulatory power by THP over motor vehicle licensees is absolute, that power is reserved to troopers, and in no way delegated. The commissioner of safety annually attests that the THP is the “sole agency” in the state that enforcers the federally aligned state transportation law at Title 55 and Title 65. Jeff Long will sign this year’s statement.
Under socialism and Marxism, the use of the roads for profit are subsumed into the state. The sixth plank of the communist manifesto holds to centralization of the means of communication and transportation in the hands of the state. That is to say, travel and movement.
Under our constitution, the centralization is complete in the area of the for-profit use of the roads with no offense to liberty of the people, at least in theory. But in practice the state has taken its footwide authority under Titles 55 and 65 and operated upon all travelers as if its authority were a yard wide.
No one is free.
All free users are harassed and eaten out, their substance seized from them illicitly, as by a criminal cartel or gang. For now, the people accept this arrangement against themselves.
Sue cop as oppressor, defend self in traffic court: Transportation Administrative Notice
—————————————————————–
40-7-103. Grounds for arrest by officer without warrant.
(a) An officer may, without a warrant, arrest a person:
(1) For a public offense committed or a breach of the peace threatened in the officer’s presence;
(2) When the person has committed a felony, though not in the officer’s presence;
(3) When a felony has in fact been committed, and the officer has reasonable cause for believing the person arrested has committed the felony;
(4) On a charge made, upon reasonable cause, of the commission of a felony by the person arrested;
(5) Who is attempting to commit suicide;
(6) At the scene of a traffic accident who is the driver of a vehicle involved in the accident when, based on personal investigation, the officer has probable cause to believe that the person has committed an offense under title 55, chapters 8 and 10. This subdivision (a)(6) shall not apply to traffic accidents in which no personal injury occurs or property damage is less than one thousand dollars ($1,000), unless the officer has probable cause to believe that the driver of the vehicle has committed an offense under § 55-10-401;
(7) Pursuant to § 36-3-619;
(8) Who is the driver of a vehicle involved in a traffic accident either at the scene of the accident or up to four (4) hours after the driver has been transported to a health care facility, if emergency medical treatment for the driver is required and the officer has probable cause to believe that the driver has violated § 55-10-401;
(9) When an officer has probable cause to believe a person has committed the offense of stalking, as prohibited by § 39-17-315;
(10) Who is the driver of a motor vehicle involved in a traffic accident, who leaves the scene of the accident, who is apprehended within four (4) hours of the accident, and the officer has probable cause to believe the driver has violated § 55-10-401; or
(11) Pursuant to § 55-10-119.
(b) If a law enforcement officer has probable cause to believe that a person has violated one (1) or more of the conditions of release imposed pursuant to § 40-11-150, and verifies that the alleged violator received notice of the conditions, the officer shall, without a warrant, arrest the alleged violator regardless of whether the violation was committed in or outside the presence of the officer.
(c) Unless a law enforcement officer has probable cause to believe that an offense has been committed, no officer, except members of the Tennessee highway patrol acting pursuant to § 4-7-104, shall have the authority to stop a motor vehicle for the sole purpose of examining or checking the license of the driver of the vehicle.
