Wink Wink, Nudge Nudge, Say No More

The Court of Appeals follows the Purdum case (see April 20th SCOIDBlog) to uphold a stop of a vehicle. The police suspected the vehicle contained a probationer who had consented to be searched.

Of special interest is the concurrence of Judge Schwartzman where he "note[s] that Hedgecock's [standard boilerplate] terms of probation carry the potential of transforming every police officer in the State of Idaho into a de facto probation/parole officer." The Judge states that "[t]he potential for arbitrary, capricious or harassing enforcement is self-evident."

He then goes on to give defense lawyers some food for thought in his penultimate paragraph:

"Just how far this type of probationary term can be stretched, because of the subject's diminished expectation of privacy, remains to be seen. See Samson v. California, 547 U.S. 843, 850-856 (2006) (while upholding suspicionless search of parolee on a public street conducted by a police officer, Supreme Court disavowed the proposition that parolees, like prisoners, have no Fourth Amendment rights, and recognized California's prohibition against "arbitrary, capricious or harassing" parole searches); compare State v. Purdum, ---Idaho, ----, --- P.3d ---- ---- (2009) ("While the United States Supreme Court has not yet addressed whether a probationer may waive his Fourth Amendment rights through acceptance of probationary search conditions (fn.1), this Court has determined that a probationer's consent to searches constitutes a waiver of Fourth Amendment rights.") (citing State v. Gawron, 112 Idaho 841, 736 P.2d 1295 (1987). Footnote one of Purdum cites to United States v. Knights, 534 U.S. 112, 118 (2001) and Samson, 547 U.S. at 852 n. 3, both of which refer to consent in the Schneckloth [ v. Bustamonte, 412 U.S. 218 (1973) ] sense of a complete waiver of Fourth Amendment rights. This leaves for possible future consideration such issues as voluntariness, understanding, revocability, and serving the legitimate ends of probation which I only mention in passing." (emphasis in original)

He concludes: "I suspect that the appellate courts of Idaho have not seen the last of this term of probation."

A nod's as good as a wink to a blind bat. KnowwhatImean?

State v. Hedgecock, http://www.isc.idaho.gov/opinions/Hedgecock,%20William.pdf