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.
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.
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?
WTF? Is this America or the Soviet Union?
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.