Pee In Forest, Lose Your RKBA??? (Michigan)


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Travis McGee
May 9, 2004, 12:36 AM
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."


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.

Bay City Times, Bay City Michigan

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Nightcrawler
May 9, 2004, 01:12 AM
"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."

The assistance....what, she helped? That brings humorous images to mind, doesn't it? :scrutiny:

Anyhoo, I'll keep an eye out next time I take a leak in the woods. Don't want a forest ranger putting me in jail over it. :rolleyes:

HABU
May 9, 2004, 01:14 AM
Good thing he just went small. Imagine if he had to go big?:eek: :evil:

Stand_Watie
May 9, 2004, 01:14 AM
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.

I'm more than a little concerned about this, it's per se a federal felony to have a firearm in your vehicle in a national forest? Are the highways that go through a national forest state land or federal?

Josey
May 9, 2004, 01:51 AM
Three problems. First, is there a federal DUI law to violate? Second, if the traffic stop was actually allowable. I see no reasonable probable cause. A federal officer cannot enforce state vehicular laws. Third, the possession of a loaded shotgun within a hands reach is technically a concealed weapon. If the only way that the federal officer discovered the shotgun was by the traffic stop which was not allowable, the weapons charge is null and void, fruit of the poisonous tree. I think that the USDA/USFS/DOI needs to train their federal officers better. I am afraid to even comment on HOW the federal officer assisted the disabled female to relieve herself.:what:

crewchief
May 9, 2004, 06:38 AM
I like how they used public urination as a reason the suspect was under the influance of alcohol.:rolleyes: That is the most stupid logic in this whole case. Are you saying that people that drink water or gatorade or even soda don't ever get the urge to urinate. If thats the case then I might want to go see a doctor because I have a problem.:neener:

Tamara
May 9, 2004, 07:05 AM
Step One: Make it illegal for felons to own firearms.

Step Two: Make everything a felony. :uhoh:

Shovelhead
May 9, 2004, 07:16 AM
FWIW,.....Around here, a road going through Federal or National Park property is considered Federal Land.
Federal/Park Police CAN & DO perform traffic stops.

I guess incidents like this are the reason that that we don't support the right to arm bears.
Does a bear pee in the woods?.........:neener:

Ryder
May 9, 2004, 07:47 AM
"Certainly public urination in an urban setting would fall within the scope of Michigan's disorderly person statue," Lawson wrote.

Disorderly? I've heard this can land you on the state's sexual offender list.

Odds are the road was dirt and heavily forested. The reason these people got rousted was because she was bored. People in that area can shoot deer in their back yards. They certainly don't need to go out of their way to find the kind of trouble she was offering.

JohnBT
May 9, 2004, 09:41 AM
"...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.

...a breath test to Hill, which revealed a blood-alcohol content of 0.13 percent"

:banghead:

Hunting them little pink elephants was he?

JT

TallPine
May 9, 2004, 09:43 AM
HE has erected a Multitude of new Offices, and sent hither Swarms of Officers to harrass our People, and eat out their Substance.

BluesBear
May 9, 2004, 10:25 AM
Does a bear pee in the woods? Only when necessary. :D

kernal_panic
May 9, 2004, 01:00 PM
ok let me get this straight:

Its night he and his girlfreind out drinking and driving in the WOODS.
they stop cause he's got to pee. Dirt road middle of BFE IS NOT PUBLIC URINATION. So the officer 5280 feet away sneaks up on him wilst he is doing his business. He's in a national FOREST taking a pee, drinkin some beer and happend to have a snake gun with him since thats all a 410 is useful for anyway. and he gets chaged with weapons violations??


WTH?
i go shooting at the range in the Ocala National Forest all the time! are they saying its illegeal to have a gun in a national forest in michigan but not here in florida? i have even camped in the ONF and there are no stated regulations about not being able to posses a firearm there.

JohnBT
May 9, 2004, 04:21 PM
"...even though his wife, Maureen, was the registered owner of the vehicle."

Do you figure his wife knew somebody at the Forest Ranger office and dropped a dime on him? She probably wasn't too happy he was out in her truck drinking liquor in the woods with his 'friend' Kathleen?

John

Tamara
May 9, 2004, 04:23 PM
he was out in her truck drinking liquor in the woods with his 'friend' Kathleen?

...which is obviously a felony worth losing one's RKBA and voting rights over, of course, all in the name of a well-regimented society. :scrutiny:

Hell, we've had a sitting president and a senator get away with worse. :uhoh:

Standing Wolf
May 9, 2004, 05:02 PM
Step One: Make it illegal for felons to own firearms.
Step Two: Make everything a felony.

Ding, dang, darn it all to heck and back! Stop giving the leftist extremists ideas, will you?

jacketch
May 9, 2004, 05:27 PM
Step three: everything is a reason to search.

sendec
May 9, 2004, 07:00 PM
Forest Service LEOs can and do make vehicle stops and subsequent arrests on a regular basis. Jurisdictions vary but typically state statutes are concurrent or assimilated by CFRs and local rules. Check out the Angeles National Forest and you'll see that they handle everything from littering to homicide.

So we have a drunken driver cruising the backroads with that evening's special friend, a load of liquor and a gun and you call this a RKBA case? C'mon, really. The officer used the urination as PC. Who wants to bet that if he had'nt been drunk, with a truck load of booze with a side of broad, and a loaded gun, he would hve been sent on his way with the cautionary note that you never wipe with 3-lobed leaves?

How many deer poachers do you think are found in exactly the same circumstances?

c_yeager
May 9, 2004, 07:58 PM
Its night he and his girlfreind out drinking and driving in the WOODS.


Um actually they were drinking and driving on a ROAD that goes through the woods. And furthermore how do you think they GOT to that road? And how do you think they planned on getting home?

I don't have any problem at all with arresting drunk drivers.

they stop cause he's got to pee. Dirt road middle of BFE IS NOT PUBLIC URINATION. So the officer 5280 feet away sneaks up on him wilst he is doing his business.

It may not be public urination but, if he is stumbling around and generally acting drunk then isn't it PC to do a stop?

He's in a national FOREST taking a pee, drinkin some beer and happend to have a snake gun with him since thats all a 410 is useful for anyway. and he gets chaged with weapons violations??

WOW this is spin worthy of the Brady Bunch. In truth he was DRUNK DRIVING and had a loaded long-gun on the FRONT SEAT at night. And BTW do you REALLY think that poachers are above using a .410?

This guy makes a POOR poster child for our cause. It appears that he was off in the national forest getting loaded with his girlfriend and likely poaching game from his vehicle. Am i REALLY supposed to think he is one of the "good guys" just because he got charged with a weapons violation?

mtnbkr
May 9, 2004, 10:46 PM
In the National Forests in Va, it is illegal to have a loaded gun in the car anytime or on your person outside of hunting season (unless it's concealed and you have a permit). Heck, it's technically illegal to walk down the forest roads (dirt roads at that) with a loaded gun during hunting season. It's considered "road hunting".

Chris

Tamara
May 10, 2004, 12:52 AM
So we have a drunken driver cruising the backroads with that evening's special friend, a load of liquor and a gun and you call this a RKBA case?

You're right. The cops should be able to ignore the Constitution if the perp is a loathesome toad who should be in jail anyway.



:uhoh:





Please stay off my side. :scrutiny:

cordex
May 10, 2004, 01:29 AM
Step One: Make it illegal for felons to own firearms.

Step Two: Make everything a felony.
But ... but ...
That means the Boston Strangler could have bought a gun! Murderers and rapists shouldn't own guns! However, they should be allowed to wander the streets using everyday items as weapons.

*sigh*


For those keeping score: 3
In no particular order:
1. No felony record
2. Used other weapons
3. Pre-1968

BluesBear
May 10, 2004, 01:30 AM
Is everyone upset because he was charged with a firearms violation or because the evidence was excluded?

The state road that I use to get to my outdoor shooting area is posted that the entire area is closed after dark. Anyone traveling that road should expect to be stopped by LE if seen.

What is the law in Michigan regarding a loaded shotgun between the front seats. It appears to me that if the weapon was in plain sight that any LEO seeing it would have probable cause.

Now the indecent exposure charge is just plain stupid.




etided for speeling

Tamara
May 10, 2004, 01:42 AM
What is the law in Michigan regarding a loaded shotgun between the front seats. It appears to me that if the weapon was in plain sight that any LEO seeing it would have probably cause.

Well, the judge sure didn't think that Brandy had any cause, probable or otherwise. :uhoh:

(Thank gawd, as I thought that the bill of rights was numbered "1, 3, 5...." these days. :scrutiny: )

sm
May 10, 2004, 01:54 AM
Once everone has commited a felony , like breathing, they will have to let a few "serfs" out on a lease. I mean what is the fun of control if you have no pets?

Someone has to do the the heavy lifting, wait on the elite,nod in agreement when a State speech is given...

Hey if you are Senator , you can drive drunk, and take your date for a swim and the car washed in same "drink". No big deal. Some folks more equal than others is all..

c_yeager
May 10, 2004, 02:06 AM
You're right. The cops should be able to ignore the Constitution if the perp is a loathesome toad who should be in jail anyway.

Last time i checked Felons do indeed loose their constitutional rights. And thats just fine with me.

Travis McGee
May 10, 2004, 02:56 AM
So pissing in the forest should be levereged into a federal felony case, with loss of RKBA for life?

You have never in your life done anything foolish that a zealot cop in the right place could have twisted and levereged and amplified into a felony?

Never? Not one time in your life?

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c_yeager
May 10, 2004, 03:28 AM
So pissing in the forest should be levereged into a federal felony case, with loss of RKBA for life?

No, but how about drunk driving with a loaded rifle in the front seat?

You have never in your life done anything foolish that a zealot cop in the right place could have twisted and levereged and amplified into a felony?

I have never ONCE in my entire life done something as stupid as this character. And i SERIOUSLY doubt that i am an exception either.

BluesBear
May 10, 2004, 04:04 AM
Let's imagine for a moment that we had a new member named "DonW50inMI".
And that "DonW50inMI" started a thread on the order of, "I was driving down a paved road that had a Deer Crossing sign evey ½ mile or so, when I was stopped by a State Trooper. The trooper looked inside my car and noticed my loaded shotgun between the front seats. After he asked me to step out of the car he noticed a few empty beer cans on the floorboard. After I failed the field sobriety test this moron had the nerve to arrest me. They tell me that since I failed the Breathalyzer that I might lose my license and that having the loaded gun is a felony. What should I do? By the way they had to impound my car becaue the woman with me was too drunk to drive it home for me."

How many would feel sorry for the guy?
Quite a few would tell "DonW50inMI" that he was hurting the RKBA cause and his actions only verified the stereotypes that the blissninneys have of us.
I'll wager that most responding posters would be telling him what a imbecile he was for getting himself in that mess.
I can only imagine the fuss y'all would raise because he was drinking and driving much less that he did both with a firearm. Does anyone remember the stir created when one of our members was stopped shortly after his wife had tried to toss a cigarette butt out of the window? The attacks were vicious enough to get the thread locked.


Forget for a moment about the "call of nature" aspect of this. How is this case any different than that of any stop of a suspicious vehicle.

As I understand from the story, the officer didn't stop him because he was answering the call. She stopped him for stopping in an area frquented by poachers. Not for driving through, but for stopping.
She stopped the car after he had gotten back in and drove off.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.
Now here's the dilema. What should she do now? Should she say, "Oh you're just out for a drive with your friend, with a loaded gun and open liquor bottles?"
"Yes ma'am."
"Well then have a nice night and be careful you don't hit a bump, you might spill your drink."

When she saw the car stop she had no idea if she was watching a pair of romantic teenagers or a poacher or someone disposing of an old sofa or a rapist with his next victim or Christopher Moltisanti and Paulie Walnuts looking for a soft spot to bury a wounded Russian.


Just how do you armchair Law Enforcement experts think she should have handled it?

Orthonym
May 10, 2004, 04:47 AM
If they're in the deep woods, there's obviously no traffic problem, and no excuse for a traffic stop. If they're in the deep woods, a firearm is a Good Thing. Going driving with a woman you're not married to when married to another woman is a Bad Thing. Wooo! Let's leave it to the jury of their peers and their vicinage.

JohnBT
May 10, 2004, 07:45 AM
quote:
--------------------------------------------------------------------------------
he was out in her truck drinking liquor in the woods with his 'friend' Kathleen?
--------------------------------------------------------------------------------



...which is obviously a felony worth losing one's RKBA and voting rights over, of course, all in the name of a well-regimented society.

_____________

My question was whether his wife dropped a dime on him for joy riding in her truck.

Talk about taking a statement out of context.

JT

nero45acp
May 10, 2004, 09:00 AM
I think that most people would agree that this guy was a bonehead for driving drunk with a loaded shotgun between the front seats of his car. Should this necessitate a felony charge and the loss (very likely permanent) of many of his constitutional rights? I recently read an article that some bonehead legislator here in florida wanted to pass a law making "cow tipping" a felony! And it's a sorry state of affairs when pissing in the woods is a pretext for being rousted by the police.
I laugh when I hear people talk about being afraid that our nation will turn into a police state. IT ALREADY HAS! This is a nation of sheep that's been sold a bill of goods that it is necessary to surrender our freedom for the war on drugs and now the war on terrorism. I got news for you, surrendering your freedoms ain't gonna take the inherent dangers of being alive away! Everytime you hear some ambitous politician campaigning on a law and order platform what he's really saying is I want to incarcerate more and more of your fellow citizens (and possibly love ones), for longer periods of time, and for lesser and lesser offences. Ben Franklin said it best when spoke of those who surrender their freedoms for the promise of security and how they often ended with neither. Baahhh, Baahhh.:uhoh:



nero

rbrowning
May 10, 2004, 08:25 PM
BluesBear,
I don't think anyone would disagree that driving under the influence is a bad thing. So is carrying a loaded gun in the car. Maybe the loaded gun isn't so bad considering that he is "out for a drive" with someone other than his wife, after all she just might catch them!

It is the fact that a federal law enforcement officer, sworn to uphold the constitutional laws of the land, blatently disregarded the 4th ammendment. And the prosecutors involved were going to go along with it instead of prosecuting the officer for violating the 4th ammendemt. If the officer had came in durring the bush hydration exercise, she would have had grounds to approach the vehichel, stopped on federal property, in an area reputed for poaching. Then if the gun had been visable the bust could have proceeded without a hitch. But she waited until after they left the area. She stopped them as they were driving down the raod (presumably leagly except for the DUI which wasn't appearant until latter). She stopped them without cause. She screwed up. Thank God and our founding fathers that the police can't walk in on you just any time they want for no reason.
The judge made a rightous judgment. The only other thing he could have / should have done is to require the prosecutors and law officers involved to take a class in constitutional law, just like someone with too many points on their liscenses has to take a drivers education class. Those sworn to enforce the law darn well better know it and live up to it.

S_O_Laban
May 11, 2004, 04:37 AM
Cow tipping a felony... wow, I would have been in some serious trouble while attending college in Iowa:D

Stevie-Ray
May 12, 2004, 09:45 PM
Good thing he just went small. Imagine if he had to go big? :D That reminds me of a friend of mine that reports he had to "go big" while hunting. He staked out a likely spot and proceeded to relieve himself-and got the shock of his life when he heard from a well concealed ground blind just a couple feet behind him................


Hey buddy, you wanna do that somewhere else?


I still laugh when I think of that.

I've watered the Hiawatha National Forest hundreds of times in my life. I shudder to think of the criminal I've become.:D

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