Idaho Criminal Defense Blog : Idaho Criminal Lawyer & Attorney : Chuck Peterson Law Firm : Civil Rights, Trial, Felonies, Assaut, DUI : Boise, Idaho Falls, Pocatello, Idaho

 I am working on a case in which a private citizen reported to the police that his neighbor had been drinking, got in an argument and left in his car. The tipster reported that the neighbor was drunk and driving. He gave the likely direction of travel and type of car. Cops notified by dispatch saw a car that matched the potential offender's vehicle and stopped it to investigate. Sure enough they smelled the odor of alcohol, recognized the glassy eyed stare of too many beers and concluded that the occupant should submit to field sobriety tests. End result - DUI. 

So is the BAC that was derived from the failed field sobriety tests and the officer's observations admissible at trial? There was no warrant for arrest or to search. They only had an anonymous tip by a neighbor that the occupant had been drinking and was driving to town.

Survey says: probably.

The Fourth Amendment to the US Constitution protects against unreasonable searches and seizures. When you challenge the validity of a vehicle stop or other seizure the burden is on the State to prove the stop was justified. The stop is either reasonable or not depending on the totality of the circumstances. The police must have had a particularized and objective basis for suspecting that the person they stopped was engaged in a crime - like drunk driving. That suspicion may be supplied by an informant's tip or a citizens' report, and it all comes down to the content provided and the reliability of the informant.

In Idaho there is a case (State v. Etherington) that says an anonymous tip alone, without sufficient indicia of knowledge and veracity is insufficient to justify a stop. However, a later case (Wilson v IDOT) held that the opinion of the tipster that the driver was drunk, based on her observations, was enough to validate the stop.

So be careful out there. Do not drink and drive. Call a cab or a friend or use the feet attached to your legs. If you drive and are drunk and get reported and arrested you will spend a lot of time and money trying to get your driving privileges back.

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 A recent Idaho Court of Appeals decision follows recent United States Supreme Court precedent, allowing a search of a car incident to arrest, even if the defendant is in custody at the time of the search, and unable to reach into the vehicle at the time of the search. The Idaho case is State v. Cantrell, decided by Judge Gratton and joined by Judges Lansing and Gutierrez. The facts in the case are fairly simple: driver of a car is stopped for going the wrong way down a one-way street in Boise. As my pal Merris says - "it was dark, he was drunk, and he was driving downtown." Probable cause to stop? Sure. Officers approach and the driver admits he was drinking, has the "glassy" eyes (aren't all of our eyes glassy) that happen to also be bloodshot, and the "thick" speech. He says he has been drinking and he "knows where this is going." Failed gaze nystagmus added to the equation equals arrest for driving while intoxicated (DUI). Cuffed and placed into the cruiser, the officers call for a tow and proceed with a search incident to arrest. Under the seat they find some marijuana and read the defendant his rights. Does he remain silent? 

NOT ON YOUR LIFE - but that is the usual way of doing business. He admits that the pot is his and a bong will be found in the trunk. The officers find the bong, and a duffel bag loaded with mary-jane. He is charged with trafficking - for which there are mandatory minimum sentences in Idaho. 

The district court denied the motion to suppress the evidence because it was either incident to arrest or because of the inevitable discovery exception. On appeal the question is whether that ruling stands in view of the United States Supreme Court decision in Arizona v. Gant, where the Court held that the automobile exception to the warrant requirement authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search, OR when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.‟ 

The Idaho Court of Appeals finds that the search of Cantrell's vehicle is permitted here because it was reasonable for officers to believe that evidence of the DUI might be found in the car. The search is good, conviction stands. 

So what do we learn from this case? 

First - when you drink, do not drive. It really is that simple; isn't it? If Cantrell had not been drinking and driving the wrong way down a one-way street, he and his pot would not have been found that night.

Second - stop trafficking in marijuana. I know it is legal in California, but this is Idaho. Stop already. Prison is not that interesting as you will discover if you are convicted of trafficking. Mandatory sentences mean mandatory time in the can.

Third - when they say you don't have to talk; don't. Silence is a good thing, especially if you have been violating the law. The police do not need your help to convict you. In fairness, they likely would have gotten to the same place even if Cantrell had remained silent. But that just takes us back to points one and two.

Finally - we learn that although a warrantless search of your car is per-se unreasonable, and arguably a constitutional violation if you could reach into the car at the time it is searched, or if the police believe you may have left evidence of your crimes in that rig, they get to search without a warrant. 

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 In US v. Pinedo-Moreno, decided January 11, 2010, the 9th Circuit Court of Appeals held that: (1) there is no expectation of privacy in a car parked in your driveway. Police officers had attached a tracking device to the underside of the appellants car, while it sat awaiting the return of its owner. The court said that the homeowner had no gate, no signs barring trespassers and the car was visible from the street. As importantly, it also reiterated that (2) use of the tracking device is not a search.  

I always laugh at the notion that the 9th Circuit Court of Appeals is some whacked out group of libs and socialista just looking for the chance to outlaw American currency and require we all stop wearing fur! Here again the bottom line crosses the Circuits - no reasonable expectation of privacy means no actionable search.

Factually, this one of those marijuana grow operation cases where DEA has identified a potential suspect but is looking for the grow. They attached tracking devices on seven occasions, and not one of them was a search. The US conceded that the car was parked within the curtilage of the home but the driveway was "only a semi-private" area. No reasonable expectation of privacy follows. If there was a reasonable expectation of privacy, there was no search when they followed the driver because the US Supreme Court has already held that a person who travels on public roadways has no reasonable expectation of privacy in his travels. 

So there we are - full circle and back to criminal law. I may not post again for a couple weeks as I head to an island for warmth, sun, a little bone fishing and some time reading trashy novels.  And there will likely be a country song or two: "Got my toes in the water...." 

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