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

Courtney has today's blog entry - and she looks at probable cause.

I just found out I’ve been driving around with only one working tail light and it got me thinking about reasonable suspicion and DUI. The only thing a police officer needs to pull you over is reasonable suspicion that a crime has been or is being committed. One of the most common complaints we hear when a person has been charged with driving under the influence is that their driving was fine, they can’t imagine why the officer had reason to pull them over, and it must be entrapment. Reasonable suspicion is easy. It can be as obvious as my burned out tail light or as minute as not having a turn signal on for at least five seconds after a stop sign (which is the law in Idaho, by the way). Most DUI stops occur early in the morning after the bars have closed. People cry entrapment because an officer parked near the bar and followed them after leaving. That’s not entrapment. Just leaving the parking lot of a bar is not generally enough for an officer to pull you over. They’ll just follow you for a bit and wait until you do something that gives them the right to pull you over. There’s your reasonable suspicion. Once you’re pulled over for "weaving inside the lane" or going one mile over the speed limit, they’ve got a chance to see if you’re under the influence. Stop leads to field sobriety tests, a breathalyzer demand and maybe - a DUI.

Here's one more thought:  When a police officer pulls you over, what is the first thing he or she always asks? Even before you're asked for your license and registration, it’s the same question every time.

“Do you know why I pulled you over?”

And do you know what you should say every time they ask you? NOTHING. Absolutely nothing. The officers are looking for an admission. They want you to tell them why they should have pulled you over. If they’ve got you for failing to use your blinker and you tell them you were speeding, how many tickets do you suppose you’ll get? My guess is two.

Have a question relating to a traffic stop?  DUI?  Reckless or inattentive driving?  Give us a call.

Charged with a DUI and wonder if the stop was legit? Give us a call.

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 Let's just say that your are leaving the parking lot of your favorite convenience store.  Slurppy in one hand, cell phone in the other. An unmarked car stands by and hidden from view an officer watches your moves. You get into your car and back out. The unmarked runs interference and a couple of squad cars appear.  

"Do you know why I stopped you," the officer asks.

"No...."

"You've got a broken tail light. Please step out of the car."

You do and the officer asks if you have anything in the car that might be a "problem."  You read that as drugs and remember that there is a little bit of pot hidden in a glove box.  Better to take the hit then extend the contact you reason, so you admit to the pot and the cop retrieves the marijuana and your cell phone.  He taps the text message icon and sees "1lb 4 1000" flash across the screen. Later the cops find that there is a pound of marijuana hidden in the spare tire in your trunk.  Can the text message be used as evidence at trial? The officer says the text translates to "one pound for $1000."

The California Supreme Court says it can in a case (People v. Diaz)  decided in January. The text on the phone read "6 4 80" referring to six ecstasy pills for $80.  Ohio has come to a different conclusion in Ohio v. Smith, decided in 2009. There the State's highest Court held that unless the officer's safety is at stake or there is an emergency, the Fourth Amendment prohibits a warrantless search of a cell phone seized during a lawful arrest.  

The general rule is that officers may search a person incident to arrest. Assuming they get the cell phone lawfully, they may be required to wait for a warrant (Ohio) or may be able to search immediately (California).  The matter is likely headed to the Supreme Court for consideration.

Two things seem clear to me: first, the search of a cell phone has nothing to do with the original exception to the warrant requirement for the search incident to arrest. Officer safety is not the issue when the police are going through your phone. Second, there is so much data on our "smart" phones that a search will really get to potential "private" information.  

What would our Idaho Supreme Court rule? Hard to tell but increasingly it seems that they are writing decisions that more strictly follow the constitutional requirements for search and seizure. 

And if you are a lawyer - think about all the stuff we have on our phones that comes from clients. Email, photos, text messages and documents relating to our cases are all there for the taking. Time to get careful with the way we store information.

Have a phone story? Send me your comment.

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 Did you know that a person can be seized? Of course you knew that - you've undoubtedly heard of "arrest." But what about that seizure that is somewhere between arrest and "no where to run." All of this matters because if you have been "seized" there is a duty to advise you of your right to remain silent if the police are interrogating you. Consider this scenario - cops come to your door and say they smell marijuana. They have a tip that you possess and maybe sell mary jane. "Can we come in," they ask.

"No way, Dude," you respond.  

"Why not? You got something to hide?"

"Nothing I want to share with you."

So do they leave? Not a chance. Instead they give you the "knock and talk" line:  "Look, we smell marijuana. We can make you sit here while we get a warrant and that could take hours, or you could sign the consent. Unless we find the Lindberg baby, we won't arrest anyone today if you let us search. If not - well Dude, you get the picture, right? So sign right here."

If you sign and consent to the search, you may still have a claim that will invalidate the search. The short answer here is that the officers "seized" you when they showed up at your door and would not let you leave ("we can get a warrant"). If you don't think you can scoot (officers, and uniforms and guns and such) then you likely have had your liberty restricted. That may lead to the suppression of any evidence the police found inside the apartment and any incriminating statements you made - like "hey that's medical marijuana, I'm from Oregon." 

If the cops have knocked at your door and you have talked your way into criminal charges, call a lawyer and check out the law on your particular situation. If you have this situation occur, I suggest that you tell them to get a warrant. The mere smell of marijuana is not probable cause to arrest without more, and likely there won't be more. Protect your rights to be free from an unreasonable search with these power words:

"Get a warrant, if you can, please."

And be polite.

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 The recent Idaho Supreme Court decision in State v. Skurlock answers the question of when daytime ends - at least when it comes to conducting a search pursuant to a "daytime" search warrant. Skurlock was residing in a motel in Sandpoint, and the police executed their "daytime" warrant about a half hour after sunset. They found drugs and Skurlock was charged with possession with the intent to deliver. 

The question on appeal (as preserved by Skurlock's conditional guilty plea) was whether or not to follow an earlier decision (from State v. Burnside, 113 Idaho 65(1987)), that daytime ends at the point at which there is insufficient natural light to clearly identify individuals without the aid of artificial light. The State presented evidence that when the search began, there was sufficient light to identify individuals - so the search was within the law as understood by the officers and previously announced by the court of appeals. 

You might wonder why this matters. Night time searches place everyone at a greater risk of harm, as anyone who has been startled from sleep by a knock on the door can attest. So searching during the day has the advantage of officer safety and it is arguably less an invasion of privacy. Idaho law, however, does not specifically define "daytime." Skurlock argued that the Court should adopt the same rule as Utah, that daytime warrants may not be served one-half hour after sunset to one-half hour before sunrise. The concurring opinion suggested a third alternative used by the federal government - relying on a particular time. 

The Supreme Court affirmed Skurlock's conviction, noting that he had not contested the facts of the case nor presented an argument that the application of Burnside violated his constitutional rights, or amounted to misapplication of Idaho law. Sorry Skurlock, but that search was not unreasonable.

So now the question is this: Should there be a criminal rule that defines "daytime?"

As a member of the Idaho Criminal Rules committee I would love to hear your opinion. Personally, I don't think any change is necessary. The Court in Skurlock leaves open the possibility that we might adopt a "bright line" rule, but is any such rule going to be better than the current precedent? Skurlock might have put on evidence that the officers needed a flashlight to identify persons at the scene. He did not do so. He might have argued some set of facts to establish a reasonable basis for overruling Burnside. He did not. And is a rule that says daytime ends at a certain time likely to lead to a more "reasonable" search? I doubt it.

I would leave the law as it is - even though neither the legislature nor any rules committee has defined "daytime." The courts are certainly capable of giving us a rule that seems to work, and that is what we have in Burnside.

Have a different opinion? Let's hear it.

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 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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