Too Much "Randomness"; Not Enough Fourth Amendment

Hello. By now many of you have heard of a high profile "Boating While Intoxicated" allegation being aimed at Chicago Bears running back Cedric Benson. Benson apparently was stopped on a Texas lake by "lake police" for a "random safety check". It is unclear from early reports about what caused the lake police to believe that Mr. Benson needed a "safety check", or how he was selected for the intrusion by police.

Whatever happened to the Fourth Amendment might be the first question you ask. Can police, whether on a lake, a road or your driveway stop you for no reason at all? Just to be "random"? The Fourth Amendment to the United States Constitution reads:

“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 Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”

I rather doubt that the Framers of our Constitution would find this "random" check of Mr. Benson's boat to be a "reasonable" seizure. Nonetheless, all boaters should be prepared for an unwanted intrusion into their privacy when police order them to submit to these types of "checks" while operating a boat.

It is important to have all safety equipment and lights in working order, and to have all required safety equipment readily available to avoid problems. Even if the boater has all the required items though, the encounter does not always end quickly, as evidenced by Mr. Benson's case, who it seems passed the inspection.

Many boaters end up being ordered to board the marine patrol or lake police boat for a battery of "marine field sobriety tests", which are sometimes referred to as the "afloat battery of tests". This usually consists of all or part of the following 6-part medley of exercises:

1. The "alphabet test".

2. The "25 to 1 Count"

3. The "Finger Count"

4. The "Palm Pat"

5. The "Finger to Nose"

6. The "Horizontal Gaze Nystagmus/Vertical Gaze Nystagmus" test

I will describe all these in detail in another post in the near future, including the list of "possible indicators of impairment" some officers are trained to look for.

Additionally, officers in BWI stops are trained to look for other "indicators of impairment" during these "random" stops. For example, the manual used during BWI training for many officers is the "Boating While Intoxicated" Manual, a December 1997 publication from the USCG Reserve Training Center in Yorktown, Virginia. This manual instructs officers to observe, among other things, the following to determine whether the driver might be drunk:

"Behavior of the operator and occupants.

Examples: loud or boisterous,

quiet and subdued,

calm and relaxed, or

any combination of the above.

(This is found at page 7-D-3 of the manual).

So let's see. If he (or his occupants) was "loud or boisterous" he was drunk, if he (or his occupants) was "quiet and subdued" he was drunk, if he (or his occupants) was "calm and relaxed" he was drunk, or if he (or his occupants) was "any combination" of these moods and behaviors he was drunk.

So, it would seem, any mood, behavior or attitude would equate, under this method of investigation, to a conclusion that that the driver was intoxicated. Can you look at those four types of behavior listed in the manual and come up with a type of behavior by either the driver or his occupants that would NOT lead to a conclusion that he was drunk? Good grief!

I will post more on the "floating field sobriety tests" within a few days.

In the meantime, I hope everyone keeps an open mind about Cedric Benson.

Have safe weekend,

Mark Stevens




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