Councilman Tobler, Police Chief Finn, and City Attorney Olsen:
This is a follow up email regarding the mandatory car seat inspection, which I addressed at
the City Council meeting. Like I said at the meeting, both my North and South entries into the checkpoint were video taped. It is my opinion the officers gave instructions, which they have no lawful authority to give.
Both officers told me I had to go through the second phase of the inspection which required
a search of my vehicle, even though there was no child in the car seat which is contrary to
NRS 484.474. The statute only addresses circumstances where there is a child in the seat, so
therefore the officer had no authority to demand compliance with the checkpoint:
|NRS 484.474 Child less than 6 years of age and weighing 60 pounds or less to be secured in child restraint system while being transported in motor vehicle; requirements for system; programs of training; fees; penalties;
1. Except as otherwise provided in subsection 7, any person who is transporting a child who is less than 6 years of age and who weighs 60 pounds or less in a motor vehicle operated in this State which is equipped to carry passengers shall secure the child in a child restraint system which:
(a) Has been approved by the United States Department of Transportation in accordance with the Federal Motor Vehicle Safety Standards set forth in 49 C.F.R. Part 571;
(b) Is appropriate for the size and weight of the child; and
(c) Is installed within and attached safely and securely to the motor vehicle:
(1) In accordance with the instructions for installation and attachment provided by the manufacturer of the child restraint system; or
(2) In another manner that is approved by the National Highway Traffic Safety Administration.
The below Paragraph 7, page 3 is found in the Boulder City Public Safety Checkpoint Guidelines. It reads as follows:
As traffic moves into the checkpoint location, officers shall approach each driver and identify themselves. They shall inform the driver that a checkpoint is being conducted before requesting driver's license, registration and insurance verification. Non-impaired drivers with no apparent vehicle equipment deficiencies will generally not be delayed for more than a minute. Officers working the checkpoints will maintain a high level of professionalism. Motorist will be treated courteously and respectfully, and delays and inconvenience will be minimized.
As stated in the paragraph above, if the officer can not identify an apparent vehicle equipment deficiency, thus establishing probable cause, he has no authority to demand the driver go through the search regardless if a child is in the seat. Additionally, a car seat is not part of the vehicle.
In Vehicle Search 101, the police must have one of the following before conducting a legal search:
- Search prior to arrest
- Frisk for weapons
- Vin Inspection
- Vehicle inventory after arrest
Forcing a citizen to go through an inspection constitutes a search. With no warrant and no probable cause, please identify the statute which gives authority to the police to seize and search the vehicle? Any item in plain sight does not constitute a search, however once the police enter the vehicle and move the car seat to reinstall it, this is a search.
Demanding a driver to have their car seat installed by only the checkpoint car seat installer is akin to limiting a citizen to where he/she can repair their busted taillight. The BCPD are clearly over stepping their position by limiting the repair options only to themselves.
My friend, who is a Metro cop (he would rather not be identified for obvious reasons), went through the checkpoint on the 19th. He refused to have his car inspected even though his child was in a car seat. After reading to him paragraph 7, page 3 of the Public Safety Checkpoint Guidelines, he opined this was not what he encountered with the officer. It is both of our opinions the frontline officers believed they had the lawful authority to give the commands.
We suggest the following to make this inspection legal. Make the inspection voluntary, rather than using force. Inform the vehicles the city is providing the service. We all want the same thing and that is for our children to be safe, however that does not mean we must subjugate our rights to achieve this objective.
"Government big enough to supply everything you need is big enough to take every thing you have" -Thomas Jefferson