State of Idaho v. David Pruss Motion to suppress evidence obtained from a warrantless search
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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 33617
STATE OF IDAHO,
Plaintiff-Appellant,
v.
DAVID PRUSS,
Defendant-Respondent.
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Boise, March 2008 Term
2008 Opinion No. 39
Filed: March 27, 2008
Stephen W. Kenyon, Clerk
Appeal from the District Court of the Second Judicial District of the State of
Idaho, in and for Clearwater County. The Hon. John H. Bradbury, District Judge.
The order of the district court is affirmed.
Hon. Lawrence G. Wasden, Attorney General, Boise, for appellant. Ralph R. Blount
argued.
Molly J. Huskey, State Appellate Public Defender, Boise, for respondent.
Thomas argued.
Sara B.
EISMANN, Chief Justice.
This is an appeal from an order suppressing evidence obtained from the warrantless
search of a “hooch” constructed by the Defendant on public forest lands. We hold that the
district court did not err in holding that the Defendant had a reasonable expectation of privacy in
his hooch and that the search cannot be justified as incident to his lawful arrest where it occurred
after he had been arrested, handcuffed, and removed from the scene.
I. FACTS AND PROCEDURAL HISTORY
During the summer of 2005, the Clearwater County sheriff’s department was
investigating a series of burglaries and property damage crimes. The damaged property included
logging equipment and public utility facilities that had been shot with a high-powered rifle and a
handgun. Sheriff deputies learned from confidential informants that the person responsible was
one David Pruss (Pruss), that he was armed with a .357 caliber handgun and a MAK-90 semi-
automatic rifle, and that he talked about shooting public utilities facilities in order to draw law
enforcement personnel so he could ambush them. According to the informants, Pruss was living
in a “hooch” in the forest.
Based upon the information obtained during the investigation, the State filed a complaint
on July 12, 2005, charging Pruss with felony crimes of malicious injury to property and burglary.
On the same date, a warrant was issued for Pruss’s arrest, with bond set in the amount of
$150,000.
A house near the site of the vandalized logging equipment had been burglarized twice,
with coffee being stolen. In an attempt to locate Pruss, a deputy put a transmitter in a coffee can
at the home. The can was stolen in another burglary, and on August 30, 2005, a group of eight to
ten deputies tracked the signal to a steep, heavily-wooded ravine adjacent to the logging site.
There they found a frame structure camouflaged with tree branches that was about six feet square
and three to five feet high. The frame was made of sections of limbs or small trees that were
lashed together. The frame was covered by a plastic blue tarp, which was then covered by the
tree boughs. A backpacking tent was erected inside the wooden frame, which extended a few
feet beyond the front of the tent to form a small vestibule. For simplicity, the word “hooch” will
be used to refer to both the tent and wooden structure.
When they approached the hooch, deputies could hear noise coming from inside it. 1 One
deputy ordered the occupant to come out, and when there was no response he fired two rounds of
CS gas into the hooch. The deputy moved closer and saw someone partially exposed at the
hooch’s doorway. He ordered the person to come out and show his hands, and the person began
crawling out. As he was doing so, the deputy could see a MAK-90 rifle lying on the tent floor
near the person’s leg. When the person was about halfway out of the hooch, he paused and
appeared about to re-enter it. The deputy then forced him to the ground and ordered him not to
move. When other officers covered the person, the deputy handcuffed him, searched him for
weapons, and then had him stand up outside the structure. The person turned out to be Pruss.
The deputies immediately escorted Pruss to an all terrain vehicle, which they used to transport
him out of the ravine up to a nearby road. He was then put in a patrol car and taken to jail. After
deputies had removed Pruss from the scene, other deputies searched the hooch without a warrant.
1
The noise included the sound of a zipper, which may have been Pruss unzipping the door of the tent.
2
On March 21, 2006, the State filed an amended criminal complaint charging Pruss with
twenty-one felonies and fourteen misdemeanors. After a preliminary hearing, Pruss was bound
over to answer to the charges in district court.
On June 6, Pruss moved to suppress the items obtained from the search of the hooch on
the ground that the warrantless search and seizure violated the Constitutions of the United States
of America and the State of Idaho. The State contended that Pruss did not have a reasonable
expectation of privacy in the hooch; that the search was incident to a lawful arrest; that the
portability of the hooch removed it from protection of the Fourth Amendment to the United
States Constitution and Article 1, § 17, of the Idaho Constitution; and that the MAK-90 rifle and
coffee can were lawfully seized because they were in plain view. After an evidentiary hearing,
the district court held that the search and seizure violated the Fourth Amendment and ordered all
of the items seized suppressed from evidence. The State then timely appealed.
II. ISSUES ON APPEAL
1. Did Pruss have a reasonable expectation of privacy in his hooch?
2. Were the MAK-90 rifle and the coffee can seized as part of a lawful search incident to Pruss’s
arrest?
III. ANALYSIS
Pruss alleged in his motion to suppress that the search of his hooch violated both Article
1, § 17, of the Idaho Constitution and the Fourth Amendment to the Constitution of the United
States. The district court based its decision upon the Fourth Amendment and did not address the
Idaho Constitution. The guarantee against unreasonable search and seizure under Article 1, § 17,
is substantially similar to the guarantee under the Fourth Amendment, although this Court has at
times construed the provisions of our Constitution to grant greater protection than that afforded
under the United States Supreme Court’s interpretation of the federal Constitution. State v. Fees,
140 Idaho 81, 88, 90 P.3d 306, 313 (2004). Because Pruss relied upon the provisions of both
Constitutions, our opinion in this case is based upon both the Idaho and federal Constitutions.
“When we review an order granting or denying a motion to suppress, we accept the trial
court’s factual findings, unless they are clearly erroneous. We exercise free review, however,
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over the trial court’s determination of whether or not those facts require suppression of the
evidence.” Fees, 140 Idaho at 84, 90 P.3d at 309 (citations omitted).
A. Did Pruss Have a Reasonable Expectation of Privacy in His Hooch?
A person challenging a search has the burden of showing that he or she had a legitimate
expectation of privacy in the item or place searched. Rawlings v. Kentucky, 448 U.S. 98, 104
(1980); State v. Cowen, 104 Idaho 649, 651, 662 P.2d 230, 232 (1983). That involves a two-part
inquiry: (1) Did the person have a subjective expectation of privacy in the object of the
challenged search? and (2) Is society willing to recognize that expectation as reasonable?
California v. Ciraolo, 476 U.S. 207, 211 (1986); State v. Donato, 135 Idaho 469, 473, 20 P.3d 5,
9 (2001).
The first inquiry under the two-part test is an issue of fact. Did Pruss have a subjective
expectation of privacy in his hooch? The district court found that he did. That finding is
supported by substantial and competent evidence. Pruss attempted to camouflage his hooch so
that it would not be readily observable. More significantly, one can certainly infer that a person
has a subjective expectation of privacy in his dwelling, even if it is a temporary structure like a
tent, travel trailer, or the hooch in this case.
The second inquiry is an issue of law. Is society willing to recognize Pruss’s expectation
of privacy as being reasonable?
Stated differently, “the correct inquiry is whether the
government’s intrusion infringes upon the personal and societal values protected by the Fourth
Amendment.” Oliver v. United States, 466 U.S. 170, 182-83 (1984).
“[N]either history nor this Nation’s experience requires us to disregard the overriding
respect for the sanctity of the home that has been embedded in our traditions since the origins of
the Republic.” Payton v. New York, 445 U.S. 573, 601 (1980). The respect for the sanctity of
the home does not depend upon whether it is a mansion or hut, or whether it is a permanent or a
temporary structure. As stated eloquently by William Pitt, “ ‘The poorest man may in his cottage
bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may
blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—
all his force dares not cross the threshold of the ruined tenement!’ ” Miller v. United States, 357
U.S. 301, 307 (1958) (quoting remarks attributed to William Pitt).
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A structure need not be one’s “home” in order for the occupant to have a legitimate
expectation of privacy there. Minnesota v. Olson, 495 U.S. 91, 96 (1990). “‘[T]he Fourth
Amendment protects people, not places,’ and provides sanctuary for citizens wherever they have
a legitimate expectation of privacy.” Id. at 96 n.5.
Throughout our State’s history, its citizens have engaged in various types of outdoor
recreational activities on public lands. Idaho’s first game laws were enacted by the Territorial
Legislature in 1864. Idaho’s state park system will celebrate its centennial this year. While
engaging in outdoor recreational activities on public lands, our citizens often use various types of
portable shelters such as backpacking tents, wall tents, tent trailers, and travel trailers. The
central purpose of the constitutional protection against unreasonable searches and seizures
forecloses any distinction between such types of shelters. See, United States v. Ross, 456 U.S.
798, 822 (1982) (“a constitutional distinction between ‘worthy’ and ‘unworthy’ containers would
be improper”). If the travel trailer is protected against government intrusion, then so is the tent.
Utilizing public lands for outdoor recreational activities is a longstanding custom in this
State that is recognized as valuable to society. For example, on May 1, 2007, the Governor of
Idaho issued a proclamation declaring June 2007 to be “Great Outdoors Month” and “invit[ing]
citizens to observe this month by taking advantage of the many opportunities our state offers for
family outdoor recreation activities.”
As the Governor recognized in his proclamation,
“[O]utdoor activities contribute to the physical well-being and happiness of the people of the
state.” We hold that a person using a temporary shelter 2 on public lands as his or her living
quarters has a reasonable expectation of privacy in that shelter and that the government may not
intrude into the shelter without a search warrant, absent an exception to the warrant requirement.
We recognize that such temporary shelters will often be located far from courthouses. 3
In this case, the deputies were in radio contact with the sheriff’s office. Idaho law permits
telephonic applications for a search warrant and authorizes the magistrate to have a peace officer
sign the magistrate’s name on the warrant. State v. Zueger, 143 Idaho 647, 152 P.3d 8 (2006);
State v. Fees, 140 Idaho 81, 90 P.3d 306 (2004); I.C. § 19-4406. In addition, many permanent
2
By “temporary,” we mean not permanent. Temporary does not refer to the length of time the person utilizes the
temporary shelter as his or her abode.
3
The activity log of radio transmissions maintained by dispatch indicates that it would be about an hour drive from
where Pruss was put into the patrol car to the sheriff’s office.
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homes in our State are located in remote areas. Remoteness does not justify waiving the warrant
requirement.
Relying upon Idaho Code § 58-312, 4 the State argues that Pruss did not have a reasonable
expectation of privacy because he was a squatter 5 and trespasser on state land. The applicable
part of that statute provides, “All persons using or occupying any state land without a lease from
the state . . . shall be regarded as trespassers.” We need not address the scope of that statute
because the deputies in this case were not the owners of the land or in charge of it. There is
nothing in the record indicating that the Department of Lands had told Pruss to leave or had
asked the deputies to evict him.
The State next contends that the place where Pruss had established his camp was not a
designated campground. That has no relevance to whether his expectation of privacy was
reasonable. The longstanding tradition of camping on public lands in Idaho is not limited to
camping at designated campgrounds. Many backpackers, fishermen, hunters and others seek
isolated areas far from designated campgrounds to engage in their activities.
The State also asserts that Pruss should not have a reasonable expectation of privacy in
his hooch because he was not engaged in ordinary outdoor recreation. Rather, he was using his
hooch as a base from which to commit the crimes of burglary and malicious injury to property
and he was a danger to others. In addition, the State adds that Pruss wrongfully cut tree branches
to construct his hooch and left trash around his campsite.
4
The protections of the Fourth
That statute provides:
All persons using or occupying any state land without a lease from the state, and all
persons who shall use or occupy state lands for more than thirty (30) days after the cancellation or
expiration of a lease, shall be regarded as trespassers, and upon conviction shall be fined in a sum
of not less than twenty-five dollars ($25.00) nor more than $500, or shall be punished by
imprisonment in the county jail for a term of not to exceed six (6) months, or by both such fine
and imprisonment. Any criminal suit under this section may be instituted by any person against
any trespasser, and regardless of the fact whether or not the said land is under lease to any person
other than the trespasser, and in case of a lessee, the sureties of his bond shall be liable to a civil
suit for all damages sustained by the state by reason of the trespass. Any suit for civil damages
against a trespasser, may be instituted by the attorney general in the name of the state, or in the
event the land trespassed upon is leased, such suit for civil damages may be brought by the lessee
in his own name: provided further, it shall be the duty of the prosecuting attorney to commence
and prosecute all criminal actions under this section, arising in his county.
5
There was evidence in the record that Pruss had been living in the woods for slightly over two months, although no
finding was made or requested as to whether he had been living in the same place during that time. The parties
assumed that Pruss’s hooch was located on State land.
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Amendment and Article 1, § 17, extend even to those who are engaged in illegal activities.
Virtually all of the judicial decisions interpreting and applying those constitutional provisions
arise out of criminal cases in which a search or seizure produced evidence showing that the
person claiming the protection of the Constitution had committed a crime. Any holding that the
protection against a warrantless search depends upon whether it produced evidence of criminal
activity would diminish the rights of law-abiding citizens.
The State noted several times in its brief and argument that Pruss was armed with a rifle
and handgun, apparently asserting that persons with firearms do not have a reasonable
expectation of privacy on public lands. Many people utilizing public lands in Idaho carry
firearms for hunting, protection, or simply recreational shooting. When doing so, they do not
lose their rights under the Fourth Amendment and Article 1, § 17.
Finally, the State contends that Pruss did not have a reasonable expectation of privacy
because the place where he was camping was subject to the “open fields doctrine” stated in
Oliver v. United States, 466 U.S. 170 (1984). In Oliver, the Supreme Court held that the
government’s intrusion upon an open field located outside the curtilage of the home did not
violate the Fourth Amendment, even if the field was posted with “No Trespassing” signs. The
State argues, “Because the forest land upon which Pruss pitched a tent and covered with
branches was accessible to the public, and the police, it was subject to the open fields doctrine.
Pruss had no expectation of privacy in his activity on that land.” Although the State is correct
that Pruss did not have a reasonable expectation of privacy in the forest land surrounding his
campsite, the interior of Pruss’s hooch was not an open field. Police officers acting without a
warrant are entitled to the same intrusion as a reasonably respectful citizen. State v. Christensen,
131 Idaho 143, 147, 953 P.2d 583, 587 (1998). A reasonably respectful citizen would not make
an uninvited entry into another’s tent pitched on public lands. Although the police could
certainly have walked up to Pruss’s hooch and while doing so could have lawfully observed
anything in plain view, the open fields doctrine would not justify their entry into the hooch.
B. Were the MAK-90 Rifle and the Coffee Can Seized as Part of a Lawful Search Incident
to Pruss’s Arrest?
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During the search of Pruss’s tent, the deputies seized his MAK-90 rifle and the stolen
coffee can in which the transmitter had been placed. The State argues that those items should at
least be admissible in evidence. Because Pruss had a reasonable expectation of privacy in his
hooch, the State has the burden of showing an exception to the warrant requirement. United
States v. Jeffers, 342 U.S. 48, 51 (1951); State v. Curl, 125 Idaho 224, 225, 869 P.2d 224, 225
(1993). The State argues two exceptions.
First, the State contends that the search of Pruss’s hooch can be justified as a search
incident to his arrest. When making a lawful custodial arrest, law enforcement personnel are
entitled to search an arrestee and the area immediately surrounding him. Chimel v. California,
395 U.S. 752 (1969); State v. Watts, 142 Idaho 230, 127 P.3d 133 (2005). “This rule was
justified by the need to remove any weapon the arrestee might seek to use to resist arrest or to
escape, and the need to prevent the concealment or destruction of evidence.” Thornton v. United
States, 541 U.S. 615, 620 (2004); accord, State v. LaMay, 140 Idaho 835, 838, 103 P.3d 448, 451
(2004).
In this case, the district court found that Pruss was arrested at about 7:16 a.m.; 6 that he
was immediately transported by all-terrain vehicle out of the ravine to a road, which took twenty
to twenty-five minutes; that by about 8:12 a.m. he was being transported in a patrol car to the
sheriff’s office; and that the search began at about 9:00 a.m. 7
“[A] warrantless search must be ‘strictly circumscribed by the exigencies which justify its
initiation.’ ” Mincey v. Arizona, 437 U.S. 385, 393 (1978) (quoting from Terry v. Ohio, 392 U.S.
1, 25-26 (1968). The search in this case began about forty-five minutes after Pruss had been
driven away in the patrol car. At that time, there was absolutely no danger that Pruss could have
used any weapon in the hooch or could have destroyed any evidence of a crime. The district
court did not err in holding that the intrusion into Pruss’s hooch could not be justified as a search
6
The time stated for the arrest may be a typographical error. The testimony was that the arrest occurred at about
7:36 a.m., which would be consistent with the immediate transport to the waiting patrol car taking twenty to twentyfive minutes and the car being en route to the sheriff’s office at 8:12 a.m. The difference between 7:16 a.m. and
7:36 a.m. is not of constitutional significance in this case. The times of the arrest and transport were based upon
entries in dispatch activity log recording radio transmissions from the deputies.
7
The district court found that the search occurred about an hour after Pruss’s arrest. During oral argument, the State
contended that the search began fifteen minutes after Pruss’s arrest and that the trial court’s findings to the contrary
were clearly erroneous. Because the State did not raise that issue in its opening brief, we will not consider it on
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incident to his arrest. Chambers v. Maroney, 399 U.S. 42, 47 (1975) (“the reasons that have
been thought sufficient to justify warrantless searches carried out in connection with an arrest no
longer obtain when the accused is safely in custody at the station house”); LaMay, 140 Idaho at
839, 103 P.3d at 452 (where defendant had been arrested, handcuffed, and placed in a hallway
under guard, the search of a backpack located fifteen feet away in another room was not justified
as a search incident to his arrest merely because the backpack had been in his immediate control
prior to his arrest).
The State argues that the MAK-90 rifle and the coffee can were plainly visible when
Pruss was crawling out of his hooch. “The plain view exception allows police officers to make
warrantless seizures of evidence viewed from a location where the officer has a right to be.
Thus, the plain view exception applies to warrantless seizures of readily visible items, not
warrantless searches.” State v. Christensen, 131 Idaho 143, 146, 953 P.2d 583, 586 (1998);
accord, Horton v. California, 496 U.S. 128, 134-36 (1990). “[A]pplication of the plain view
exception also requires that officer have ‘a lawful right of access to the object itself.’ ” State v.
Buti, 131 Idaho 793, 799, 964 P.2d 660, 666 (1998) (quoting from Horton at 137). The deputies
did not enter Pruss’s hooch prior to the warrantless search. Their observation of the items from
outside the hooch was lawful and could have been information submitted to obtain a search
warrant, but it does not justify the warrantless intrusion into the hooch in order to search it.
Second, the State contends that concern about the possibility of booby-traps was a valid
reason for not immediately searching the hooch incident to Pruss’s arrest. The confidential
informants had stated that Pruss was fascinated with and knowledgeable about bombs and
booby-traps, and the information that the deputies had learned about him certainly justified
caution. The deputies did not need a warrant to search the area around Pruss’s hooch for any
possible booby-traps. However, the State has not pointed to anything in the record indicating
that they were concerned enough to do so. It likewise has not pointed to any evidence indicating
that the deputies believed the interior of Pruss’s hooch may have been booby-trapped or that it
contained explosives. The State did not raise this argument in the trial court and has not shown
that it justifies the warrantless search in this case. A more likely reason for the delay, based upon
appeal. Hogg v. Wolske, 142 Idaho 549, 557-58, 130 P.3d 1087, 1095-96 (2006); Rowley v. Fuhrman, 133 Idaho
105, 108, 982 P.2d 940, 943 (1999); State v. Lewis, 126 Idaho 77, 82, 878 P.2d 776, 781 n.2 (1994).
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the testimony presented, is that the deputies desired to make a methodical search of the hooch
and its contents, photographing and recording the various items found.
IV. CONCLUSION
The order of the district court suppressing the items seized during the search of Pruss’s
hooch is affirmed.
Justices BURDICK, J. JONES, W. JONES and Justice Pro Tem WALTERS CONCUR.
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