By Dawn Trivolis

The work of criminal defense attorneys necessarily involves some type of analysis of whether the government’s action in a case complies with constitutional requirements, including applicability of the Fourth Amendment.[1] The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”[2] The Fourth Amendment has been incorporated and applies to the States through the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.[3]

The purpose of the Fourth Amendment is to “impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials, including law enforcement agents, in order to ‘safeguard the privacy and security of individuals against arbitrary invasions . . . .’”[4] This right only extends to conduct by the government or an agent of the government. The majority of situations public defenders look at are those where clients interact with police officers. In that situation, a public defender evaluates the conduct of a bona fide government agent. There may be instances, however, when an individual acts at the direction of the government. For example, a police officer may instruct a Walmart Loss Prevention employee to hold someone suspected of theft until the officer gets there. In that case, any action taken by the employee may be scrutinized as “governmental.”[5]

Although the U.S. Supreme Court has stated that it is a “usual requirement” that a warrant be obtained prior to a search or seizure, most searches and seizures are warrantless ones.[6] If a search or seizure happens without a warrant, it is presumed unreasonable under the Fourth Amendment.[7] Despite this presumption, courts have articulated guidelines for what is or is not reasonable. These guidelines include what is considered a “reasonable exception.”[8] In some situations, courts have said, that there is not enough time for police to obtain a warrant, the person is not truly seized, the person consented to the search or seizure, etc. These “reasonable exception” situations have grown considerably over the years. This article discusses two well-recognized exceptions to the warrant requirement and suggestions for discussing with clients that their Fourth Amendment rights may be diminished in their particular case.

Consent

Police do not need a warrant or probable cause if they get consent to search something. If a person consents to an officer’s actions, the waiver has to be voluntary. Courts have said that the waiver does not have to be knowing and voluntary—which is required when pleading guilty. The waiver of one’s Fourth Amendment right to be free from unreasonable searches and seizures based on consent just has to be voluntary. On the other hand, consent that is given under threats of harm or compulsion does not constitute consent. Consent is evaluated under the totality of the circumstances. Finally, it is the State’s burden to show that consent was freely and voluntarily given.

Schneckloth v. Bustamonte is the seminal case on consent. In that case, the Supreme Court grappled with “what must the prosecution prove to demonstrate that a consent was ‘voluntarily’ given.”[9] “[N]either linguistics nor epistemology will provide a ready definition of the meaning of ‘voluntariness.’”[10] After a further discussion about whether a defendant’s will was over-borne, the Court stated that analyzing the totality of the circumstances would lead to a determination if consent was given voluntarily.[11] The Court also stated that proof of knowledge of the right to refuse to give consent is not a prerequisite.[12] The Court ultimately held that when a person who is not in custody is searched, the State can justify the search based on consent if it can demonstrate that the consent was voluntarily given, and not the result of duress or coercion, express or implied.[13]

Idaho courts have also examined consent. Consent has to be voluntary, and coercive actions by an officer may lead to a finding that consent was involuntary.[14] “A voluntary decision is one that is ‘the product of an essentially free and unconstrained choice by its maker.’”[15] Factors that control the determination of voluntariness include: the number of officers involved; the location and conditions of the consent (including if it is nighttime); if the police hold on to someone’s identification, if the person is free to leave; and if the person knows of his or her right to refuse consent.[16] Even a defendant saying, “That’s fine” to an officer’s action may not be voluntary.[17]

The scope of consent may be limited. In State v. Greub, the defendant tried to take her purse with her when she exited the vehicle.[18] Although the defendant consented to an officer searching her car, the court found that a search of her purse was unlawful because the defendant tried to limit the area to which her consent applied.[19]

In State v. Jaborra[20] and State v. Zapp[21], the Idaho Court of Appeals looked at whether an individual’s action displayed consent. A head nod or a shrug of the shoulders is not enough to imply consent. A “minimal affirmative gesture” may not equal consent, but rather mere acquiescence.[22] The individual’s response may be dispositive to the officer’s question of “Is it okay if I take a quick peek in [insert the name of any a number of places officers try to search].”

In reality, individuals consent to police officers’ questions more often than they realize. Individuals may not want to frustrate an officer and end up voluntarily giving the officer permission to search their car or bag. Being compliant with an officer sometimes has the unintended effect of diminishing one’s Fourth Amendment rights.

Plain View

Another well-recognized exception to the warrant requirement is the plain view doctrine. An item that is in public view may be seized without a warrant because there is not a reasonable expectation of privacy in things that are exposed to the public.[23] This applies to physical characteristics, vehicle identification numbers, or items in open fields. Items in private view, though, may have a reasonable expectation of privacy. In those situations, a police officer may still seize an item that is plain view of the officer if certain circumstances exist.

In Horton v. California[24], the U.S. Supreme Court clarified guidelines about “plain view” seizures that were articulated in Coolidge v. New Hampshire, 403 U.S. 443 (1971). Plain view requires: (1) an officer to be lawfully located at a particular place; (2) the incriminating character of the item must be “immediately apparent,” and (3) the officer has lawful access to the item.[25]

Idaho has adopted the same criteria for plain view seizures: “(1) An officer must legitimately be in a position to view the object. (2) It must be immediately apparent to the officer that the object may be evidence of a crime. (3) The officer must not have known previously that the object was located where he seized it.”[26] It is not required that an object’s connection to criminal activity is “immediately apparent,” or that an officer has “absolute certainty”.[27] In State v. Tamez, the court held that it is enough for an officer to have a probable basis that it is contraband or connected to criminal activity.[28] The officer can rely on his training and experience to determine that.[29] As defense attorneys understand, a “probable basis” may lead to the wrong conclusion on the part of an arresting officer.

Conversations with Clients

A common situation that an attorney may encounter is meeting with a client in preparation for an upcoming hearing but prior to receiving discovery, hearing that “the cops violated my rights!”, later receiving and reviewing discovery, and concluding that the client, in fact, consented to the police officer searching the vehicle, bag, coat, or other item where contraband was found or the contraband itself was in plain view of the officer.

That may lead to a conversation where the attorney has to explain that the client gave permission for the officer to search whatever was searched or the item was covered by the plain view doctrine. Some clients readily acknowledge they gave the officer a “sure, go ahead” and consented to a search. Other clients may realize the pipe or baggie was right there on the center console of their vehicle. Some clients may not remember the circumstances surrounding the police interaction. That client may benefit from going over specifics in the discovery.

If a client denies consenting to the search, or that plain view does not apply, the attorney may find some help in the rules governing discovery. Idaho Criminal Rule 16(b)(9)(A)(ii), (B) provides that defense counsel may show the defendant unredacted digital video with the prior consent of the prosecutor or “may allow the defendant to view and retain a copy of any media that is redacted by the prosecuting attorney.” Although it can take time for the prosecutor to redact on-body video or get the go-ahead from the prosecutor to show the client unredacted on-body video, sometimes the client needs to see the moment in question. In other situations, the client may need to be walked through how consent or plain view works in Idaho, highlighting relevant facts from his or her case. Simply because “my buddy got out of his charge”, does not mean those same facts exist in the present case. If all else fails, an attorney may find success by agreeing with the client that consent may be involuntary in some situations and you wish that was true here, but it is not. Clients typically appreciate an honest assessment of their case.

Clients have many emotions when coming to terms with their situation. Clients may be facing a long period of incarceration. Others may be losing relationships with family and friends due to their pending charges. Some may lose current or prospective jobs. And others may lose their driving privileges. Attorneys have a difficult task of helping clients walk through criminal cases. It can be even harder when the attorney realizes that a motion to suppress is not viable because of these (or other) exceptions to the warrant requirement. In those moments, regroup and change direction. Clients who lose at trial or end up pleading guilty are sometimes the most thankful for the efforts of attorneys who “work the case.”

Dawn Trivolis is a trial attorney with the State Public Defender’s Ada Office. After graduating from law school, Dawn clerked for the Honorable Derrick O’Neill in Ada County and has been a public defender since December 2022. She is an active member of the Idaho State Bar where she is a volunteer bar exam grader. She enjoys spending time with her children and dog.

[1] Part of the work of criminal defense attorneys is also helping clients understand that “no, in fact, the police did not violate your rights.”

[2] U.S. Const. Amend. IV.

[3] Mapp v. Ohio, 367 U.S. 643, 654–55 (1961).

[4] Delaware v. Prouse, 440 U.S. 648, 653–54 (1979) (citation omitted).

[5] Further discussion about acts by a private person directed by the government are outside the scope of this article.

[6] Birchfield v. North Dakota, 579 U.S. 438, 456 (2016) (citing Kentucky v. King, 563 U.S. 452, 459 (2011)).

[7] State v. Wulff, 157 Idaho 416, 419, 337 P.3d 575, 578 (2014).

[8] Brigham City v. Stuart, 547 U.S. 398, 403 (2006).

[9] Schneckloth v. Bustamonte, 412 U.S. 218, 223 (1973).

[10] Schneckloth, 412 U.S. at 224.

[11] Schneckloth, 412 U.S. at 233.

[12] Schneckloth, 412 U.S. at 234.

[13] Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973).

[14] State v. Rector, 144 Idaho 643, 646, 167 P.3d 780, 783 (Ct. App. 2006).

[15] Rector, 144 Idaho at 645, 167 P.3d at 782.

[16] Id.

[17] State v. Sarah Ann Ayers, CR01-25-27251 (Ada Cty. Dist. Ct. Dec. 30, 2025).

[18] State v. Greub, 162 Idaho 581, 587, 401 P.3d 581, 587 (Ct. App. 2017).

[19] Id.

[20] State v. Jaborra, 143 Idaho 94, 97–98,137 P.3d 481, 484–485 (Ct. App. 2006).

[21] State v. Zapp, 108 Idaho 723, 726, 701 P.2d 671, 674 (Ct. App. 1985).

[22] Jaborra, 143 Idaho at 98, 137 P.3d at 485 (Ct. App. 2006).

[23] Arizona v. Hicks, 480 U.S. 321, 325 (1987).

[24] 496 U.S. 128 (1990)

[25] Horton, 496 U.S. at 137.

[26] State v. Caldero, 109 Idaho 80, 84, 705 P.2d 85, 89 (Ct. App. 1985).

[27] State v. Tamez, 116 Idaho 945, 946, 782 P.2d 353, 354 (Ct. App. 1989).

[28] Tamez, 116 Idaho at 946, 782 P.2d at 354.

[29] Id.