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Judge says outdoor urinating no reason for search
Bay City Times ^ | May 7 2004 | Crystal Harmon

Posted on 05/07/2004 7:54:13 PM PDT by msuMD

If a man relieves his bladder in the deep woods in the dark of night, when he thinks there's no one around, is it still indecent exposure? And does it give law officers a reason to search his car?

No, a federal judge has ruled.

U.S. District Judge David M. Lawson has thrown out evidence in a federal case against Donald Whitmore, 50, of Mio.

The judge ruled that a forest ranger did not have just cause to search the vehicle Whitmore was driving even though she "observed the defendant answering an urgent call of nature, alfresco."

(Excerpt) Read more at mlive.com ...


TOPICS: News/Current Events
KEYWORDS: airport; bang; banglist; billofrights; donutwatch; libertarians; news; privacy; privacylist; rights
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1 posted on 05/07/2004 7:54:13 PM PDT by msuMD
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To: msuMD
Geez, can't a guy take a leak in the woods in peace anymore?
2 posted on 05/07/2004 7:55:25 PM PDT by Mr. Mojo
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To: msuMD
Thank God! As a seasoned senior citizen I have to find more emergency pit stops for the hubby's instant urges.

Wonder how old the Judge is? When you get over 60, it's tough just to get to WalMart and home without having to take a pee.
3 posted on 05/07/2004 7:57:20 PM PDT by not2worry
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To: msuMD
Obviously US Forest Ranger "Bearette" should find a life!
4 posted on 05/07/2004 7:59:30 PM PDT by TaMoDee
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To: msuMD
The best part is that even blogs on the other side have the same response: "finally, a sane judge!"
5 posted on 05/07/2004 8:02:37 PM PDT by Peter vE (Ceterum censeo: delenda est Carthago.)
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To: msuMD
Aw print the rest of it and don't make us log on to the site:

Lawson ruled that the federal forest agent violated Whitmore's Fourth Amendment rights to be free of unreasonable searches. He took testimony in the case on March 8 in the U.S. District Court in Bay City and issued his ruling on April 14.

The ruling substantially weakens the government's case against Whitmore, who is charged with carrying a firearm in a motor vehicle, drunken driving and indecent and obscene conduct in a public place.

The weapons charge, a felony, is punishable by up to five years in prison and $250,000 in fines. The other two counts are misdemeanors.

The charges are based on events that occurred on Oct. 18, 2002, in the Huron-Manistee National Forest, in Oscoda County.

U.S. Forest Service Officer Brandy Hill was staking out a section of the forest, just off Lemon Road near Briggs Road, watching for deer poachers.

Shortly after 8 p.m., according to her testimony, Hill spotted a 1989 Nissan Pathfinder stop about a mile down a two-track from her hiding place. Hill slowly drove toward the vehicle, with her headlights off, and spotted Whitmore beside the vehicle, urinating.

Whitmore finished his business and drove off. Hill sounded her siren, turned on her overhead lights and pulled Whitmore's vehicle over. She said Whitmore appeared intoxicated, nervous and irritated as he explained he and his friend, the passenger in the vehicle, were out for an evening drive.

Hill spotted a .410 shotgun, which turned out to be loaded, between the two front seats of the vehicle, as well as opened bottles of liquor in the front seat area.

Oscoda County Sheriff's Deputies responded to Hill's call for backup and administered a breath test to Hill, which revealed a blood-alcohol content of 0.13 percent - above the then-0.10 percent threshold for drunken driving.

Hill was arrested, and on Sept. 24, 2003 - nearly a year later - was indicted on three federal charges. He is free on a personal recognizance bond while awaiting trial on the charges.

Whitmore's attorney, Kenneth Sasse of Flint, filed a motion to have the evidence thrown out, claiming the search was unreasonable and violated Whitmore's right to privacy.

Lawson ruled that, indeed, "the facts ... abundantly establish the defendant's actual subjective expectation of privacy in the Nissan Pathfinder, and that this expectation was legitimate and objectively reasonable," even though his wife, Maureen, was the registered owner of the vehicle.

Assistant U.S. Attorney Janet Parker contended that the ranger was justified in searching the car. Since the car belongs to Whitmore's wife, Whitmore himself had no expectation of privacy while in it, and also his behavior provided grounds for the search, she argued.

"While public urination was itself an offense, the act also gave reasonable suspicion that the defendant may have been under the influence of alcohol," Parker wrote in response to Sasse's motion.

But Lawson noted that Michigan law defines indecent exposure as "exposing private body parts when one reasonably might expect that they would be viewed unwantedly by others."

"Certainly public urination in an urban setting would fall within the scope of Michigan's disorderly person statue," Lawson wrote. "Urinating in the wilderness presents an entirely different matter.

"The act of relieving one's bladder in the woods is not uncommon in northern Michigan, and, ironically, it was repeated a short time later by the defendant's passenger with the assistance or Ranger Hill herself."

Hill's testimony indicated that Kathleen Foreman, the friend who was with Whitmore that night, told Hill that she, too, had to "answer a call of nature" while the two were being detained. Foreman is disabled and required assistance.

"Hill explained that because she was the only female on the scene ... she assisted the defendant's passenger in relieving herself in the woods," the judge wrote.

Lawson concluded that Donald Whitmore's conduct was not illegal, and also did not support a suspicion that he'd been violating other laws.

A jury trial is scheduled for Whitmore to start on June 1, although the judge's ruling will preclude evidence from the vehicle search and the blood-alcohol test from being admitted at trial.

The Times was unable to reach Whitmore for comment.

Neither attorney in the case returned messages left by The Times inquiring about the status of the case now that the evidence has been thrown out.

6 posted on 05/07/2004 8:02:53 PM PDT by Vigilanteman (crime would drop like a sprung trapdoor if we brought back good old-fashioned hangings)
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To: msuMD
You really can't make this stuff up!
7 posted on 05/07/2004 8:04:12 PM PDT by ladyinred (Kerry has more flip flops than Waikiki Beach)
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To: ladyinred
I guess this case wouldn't hold water, either!
8 posted on 05/07/2004 8:07:09 PM PDT by hunter112
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To: Vigilanteman
To make a short story long....................
9 posted on 05/07/2004 8:08:49 PM PDT by nuconvert ("America will never be intimidated by thugs and assassins." ...( Azadi baraye Iran)
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To: Mr. Mojo
Seriously. What is the big deal if no one can see?
10 posted on 05/08/2004 12:07:52 PM PDT by valkyrieanne
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To: msuMD
My goodness a JUDGE with common sense.
11 posted on 05/08/2004 12:10:31 PM PDT by PISANO (Our troops...... will NOT tire...will NOT falter.....and WILL NOT FAIL!!!)
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To: Vigilanteman; *Privacy_list; *libertarians; *Donut watch
Assistant U.S. Attorney Janet Parker contended that the ranger was justified in searching the car. Since the car belongs to Whitmore's wife, Whitmore himself had no expectation of privacy while in it, and also his behavior provided grounds for the search, she argued.

Say what?! Does that mean that I should have no expectation of privacy while visiting my parents at their house? (Meaning, a cop can search me while there?) Does it mean that, since I have to pay the government money each year to drive my car on public roads, and to "own" my house, that I don't really own either, and have no expectation of privacy there either? This is just sick.

12 posted on 05/08/2004 9:00:45 PM PDT by coloradan (Hence, etc.)
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To: *bang_list; Joe Brower; Travis McGee
The ruling substantially weakens the government's case against Whitmore, who is charged with carrying a firearm in a motor vehicle, drunken driving and indecent and obscene conduct in a public place.

The weapons charge, a felony, is punishable by up to five years in prison and $250,000 in fines. The other two counts are misdemeanors.

Hill was arrested, and on Sept. 24, 2003 - nearly a year later - was indicted on three federal charges. He is free on a personal recognizance bond while awaiting trial on the charges.

Apparently, carrying a gun in your vehicle is such an egregious crime that, if you are convicted of it, should lose your right to keep and bear arms permanently thereafter. Then again, what right can anyone say you had, if carrying a firearm in your car isn't protected?

Also, note that the article calls this a "federal charge." What federal law prohibits firearm possession in cars?

13 posted on 05/08/2004 9:05:33 PM PDT by coloradan (Hence, etc.)
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To: coloradan; wardaddy; Squantos; Eaker
The real underlying agenda is patently clear: to strip as many Americans as possible of their RKBA. They will use any flimsy pretext.


14 posted on 05/08/2004 9:29:00 PM PDT by Travis McGee (----- www.EnemiesForeignAndDomestic.com -----)
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To: Travis McGee
This story sounds like a good reason to pee in a beer bottle.
15 posted on 05/09/2004 6:42:54 AM PDT by B4Ranch ( If everything appears to be going well, you obviously don't know what the hell is going on.)
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To: Vigilanteman
The weapons charge, a felony, is punishable by up to five years in prison and $250,000 in fines.

WTF? Is this America or the Soviet Union?

16 posted on 05/09/2004 7:08:15 AM PDT by Mulder (Fight the future)
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To: coloradan
Apparently, carrying a gun in your vehicle is such an egregious crime that, if you are convicted of it, should lose your right to keep and bear arms permanently thereafter. Then again, what right can anyone say you had, if carrying a firearm in your car isn't protected?

This place is becoming more and more like communist Russia with each passing day.

One of these days, they 'enemies of the Constitution' are going to try this crap on the wrong person.

17 posted on 05/09/2004 8:05:06 AM PDT by Mulder (Fight the future)
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To: msuMD
Once, back in my wilder days, I was riding around with a bunch of yahoos in rural Texas. We stopped at a convenience store for more liquid refreshments, not knowing that the store had been robbed minutes before.

It was pitch black out so one old cowboy wandered out into the lot behind the store to drain his lizard. Suddenly there were six cop cars surrounding him with six searchlights illuminating his activities and six cops with shotguns across the hood. He was left standing there with his hands in the air and his pride dangling in the breeze.

There was absolute silence while both sides tried to figure out just what the heck was going on. Suddenly there was a plaintive drawl that you could hear for blocks, "Gaaawwd, you folks take pissin' SERIOUS!

18 posted on 05/09/2004 10:18:57 AM PDT by MARTIAL MONK
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To: Mulder
Yeah I thought that was strange too. Unless the perp has a felony conviction, it is w-a-y out of line.
19 posted on 05/09/2004 10:49:03 AM PDT by Vigilanteman (crime would drop like a sprung trapdoor if we brought back good old-fashioned hangings)
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To: Vigilanteman
"Whitmore appeared intoxicated...""as well as opened bottles of liquor in the front seat area. "

Hummm...One wonders just how much searching this officer had to do. Sounds to me like no searching was required if these things were in OPEN sight. The gun was located between the seats along with OPEN bottles of liquor. I think the public urination was just a side track when other obvious offenses like DUI and open containers of alcohol were in plain open sight.

20 posted on 05/09/2004 11:01:51 AM PDT by LowOiL (Christian and proud of it !)
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