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I wrote a story this morning about a recent Idaho Supreme Court ruling in a criminal case - I hope you'll find it helpful. Please feel free to spot and notify me of any errors or omissions.

Here is the link to the actual opinion - it's from findlaw.com. You'll have to open a free account in order to access it. Remember the order of clicks: For legal professionals, cases and codes, Idaho Supreme Court.

Here goes:

`Subjective Feeling’ Not Enough to Justify
Search, Idaho High Court Rules

By Ron Bishop

BOISE, IDAHO – The “subjective feeling” of a police officer that his safety was threatened by an individual pulled over for a routine traffic violation is not enough to justify an extended search for a weapon, the Idaho Supreme Court ruled January 26.

The court unanimously reversed a lower court’s denial of a motion by Jeremy Henage to suppress evidence gathered by two Jerome police officers in what Henage argued was an illegal search.

Officer Andrew Johnson stopped a car driven by Henage’s brother, Zach, after noticing a broken taillight. While Johnson talked with Zach, Sergeant Jim Baker arrived on the scene and struck up a conversation with Jeremy, who was still sitting in the car. Baker and Johnson decided this conversation – a “criminal patrol procedure” – was necessary because of the Henages’ previous involvement with drugs.

While Baker, who had known Henage for several years, told Jeremy he was not under arrest, and could leave at any time, he nonetheless said he would like to talk with Henage “about some things.” Henage got out of the car, but refused Baker’s request to search the vehicle, which belonged to the Henages’ father.

Henage agreed to a pat-down search after he told the officer that he had a knife. Baker performed the search, which produced a Leatherman, a multi-tool device. Baker continued the search, and soon found a glass pipe and a cigar tube in Jeremy’s pocket. The tube contained a small quantity of methamphetamine.

Henage was arrested and charged with possession of controlled substance and drug paraphernalia. Through his attorney, Sara Thomas of Idaho’s Appellate Public Defender’s Office, Henage moved to suppress the drugs and paraphernalia found by Baker.

Judge John Butler of the state’s Fifth Judicial District denied the motion. Henage pleaded guilty, but reserved his right to appeal Judge Butler’s ruling.

The Henages had no qualms about the reason for the initial stop. But Jeremy argued that the officers “impermissibly extended” the stop. They had enough time, he claimed, to deal with the broken taillight violation.

Judge Butler incorrectly ruled that the stop had turned into a “consensual encounter,” Jeremy contended, noting that the officers never returned Zach’s license and registration before continuing the stop, and that they did not turn off their flashing lights.

Writing for the court, Justice Jim Jones found no evidence to support Henage's contention. The record suggests that the officers had, in fact, returned Zach’s documentation. The fact that Johnson’s overhead lights were still on after Baker had told Henage could leave “did not preclude the traffic stop from evolving into a consensual encounter,” Jones wrote.

Henage claimed that the encounter became non-consensual after Baker found the Leatherman. Baker continued his search without getting Henage's consent. To Henage, the extension of the search by Baker was an illegal seizure.

In 1980, the U.S. Supreme Court in U.S. v. Mendenhall ruled that a seizure occurs when “a reasonable person would have believed that he was not free to leave.” When an officer brandishes a gun, uses threatening language, or touches a person, a seizure may have occurred.

This part of Henage’s argument was made irrelevant, Justice Jones said, by the court’s finding that the entire search was unconstitutional under the Fourth Amendment to the Constitution.

To determine if a search is reasonable, courts follow the standard set by the Supreme Court in its 1968 ruling in Terry v. Ohio: “Would the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief’ that the action taken was appropriate?"

Searches are permissible only when a law enforcement officer believes that an individual posed a clear danger to the officer and others, Justice Jones wrote.

Neither Jeremy Henage nor the officers properly applied the high court’s ruling in Terry, Justice Jones said. Henage had claimed that a suspect would have to be armed and dangerous before police could pat the suspect down, while the officers contended that a suspect only has to be armed for a search to occur.

“A person can be armed without posing a risk of danger,” wrote Jones. “On the other hand, a person can be dangerous without apparently being armed.”

Baker did not establish that Henage had endangered his safety, or the safety of the public. During the hearing before Judge Butler on Jeremy’s motion, Baker had said that Jeremy was “acting nervous” and had admitted possession of a weapon.

At the same time, however, Baker testified that Henage cooperated with him, and acted politely. Baker characterized his conversation with Jeremy as “friendly.” Further, the first stage of the stop occurred when the potential danger to Johnson and Baker “might have been the greatest,” Jones said.

Of particular importance was Baker telling Henage he would not be arrested. In addition, Baker did not suspect that Henage was under the influence when the car was stopped. Nor did Henage make any sudden or threatening moves during the stop. Baker “did not connect Jeremy’s nervousness with anything tending to demonstrate a risk to his safety,” the justice wrote, noting later that Baker returned the Leatherman to Henage.

Just having a weapon is not enough to satisfy the Terry standard, Jones said, rejecting an argument by Baker. What Baker described in court, he said, was “an amiable non-threatening encounter.”

A search cannot be justified solely on the basis of an officer’s “subjective feeling” that he might be in danger, Jones found, especially when the officer is unable to articulate why a person might cause such danger.

Jerome Police Chief Dan Hall said "he had no reason to believe" that Johnson and Baker "were not concerned for their safety" when the decision to search Henage was made.

In a February 2 email, Hall suggested that the justices might not have had "an appreciation of the reality of dealing with people using methamphetamine and the risks involved."

About a year ago, police on several occasions during a 48-hour period came into contact with a man who had been using methamphetamine. He was polite each time he encountered the officers, Hall said.

But during their last encounter, the man pulled a knife on the officers, and was shot.

"Fortunately, the man survived the encounter but it demonstrates the unpredictable nature of policing and the presence of any weapon should be of concern to officers," Hall said.

Hall acknowledged, however, that Johnson and Baker "failed to adequately articulate the concern for their safety" during the case. Hall's department will remedy this problem through "ongoing and updated training in arrest, search, and seizure," he said.

Chief Justice Gerald Schroder concurred in the court's ruling. Once Henage was told he was free to go, “this encounter was no different from any person going to work or shopping or using leisure time," Schroeder wrote.

Police may ask people questions, but “that does not mean that the encounter can be escalated into a search without a reasonable belief that the person poses a danger."

In a separate concurring opinion, Justice Daniel Eismann noted that Baker and Johnson did not suspect Henage of committing a crime when they pulled the brothers over. Henage’s admission that he had the Leatherman in his pocket “did not justify a pat down search,” he wrote.