Newman v. Wengler

Filing 19

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: The Petition for Writ of Habeas Corpus 1 is DISMISSED with prejudice. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. Signed by Judge Larry M. Boyle. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

STEPHEN D. NEWMAN,
Case No. 1:11-cv-00520-LMB
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
TIMOTHY WENGLER,
Respondent.

Pending before the Court is Petitioner Stephen D. Newman’s Petition for Writ of
Habeas Corpus (Dkt. 1). Respondent has filed an Answer and Brief in Support of
Dismissal (Dkt. 14). Petitioner has filed a Reply (Dkt. 17), and Respondent has filed a
Sur-reply (Dkt. 18). The Court takes judicial notice of the records from Petitioner’s state
court proceedings, lodged by Respondent on June 28, 2012. (See Dkt. 13.)
The parties have consented to the jurisdiction of a United States Magistrate Judge
to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c). Having
carefully reviewed the record, including the state court record, the Court finds that the
parties have adequately presented the facts and legal arguments in the briefs and record
and that the decisional process would not be significantly aided by oral argument.
Therefore, the Court shall decide this matter on the written motions, briefs and record
without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the
MEMORANDUM DECISION AND ORDER 1

following Order dismissing the Petition with prejudice on the grounds that Petitioner’s
Fourth Amendment claim is not cognizable in federal habeas proceedings because he
received a full and fair opportunity to litigate that claim in state court. See Stone v.
Powell, 428 U.S. 465, 494 (1976).
BACKGROUND
After a jury trial in Idaho state court in July of 2008, Petitioner was convicted of
one count of attempted rape. The facts surrounding the initial detention of Petitioner, the
search of his vehicle, and the evidence obtained and presented at trial are not in dispute.
1.

Petitioner’s Arrest and the Search of His Vehicle
The following recitation is taken primarily from Petitioner’s Memorandum of

Points and Authorities in support of his Petition:
On July 27, 2007, Boise resident Gretchan Heller
responded to an ad for an iPod in the “free” section of
Craigslist. A reply at around 3:00 p.m. that day from a person
calling himself Terry explained that the iPod was his wife’s,
that she had cheated on him, and that it was therefore his right
to give it away. At about 10:00 p.m., Ms. Heller received
another message from “Terry” stating that, if she were still
interested in the free iPod, he would send directions to its
location. In a follow-up message, he told her to go to a park at
Eagle and McMillan. She was told that she would find a Porta
Potty there and that the iPod would be inside, on top of a
towel holder.
Ms. Heller believed that something suspicious was
going on. She and her husband traveled to the area of the park
to see if there was a vehicle waiting and, indeed, she saw one
in the park. At that point, the two of them went to an
Albertson’s parking lot near the park and called the police.
MEMORANDUM DECISION AND ORDER 2

Boise Officer Cory Bammert responded to the
Albertson’s lot at 11:52 p.m. A backup unit of Officers
Abercrombie and Coltrin arrived shortly thereafter. After
hearing from Ms. Heller, Bammert and the backup officers
went into the park and observed a maroon SUV with its lights
off. Bammert checked inside a nearby Porta Potty, but found
no iPod.
Officer Bammert then did a passenger-side approach to
the SUV. The SUV had tinted windows and Bammert did not
believe it was occupied. He, nonetheless, knocked on the
window. The driver, later identified as petitioner, rolled down
the window. Petitioner stated that he had been parked for an
hour and a half working on his computer. Although it was a
hot July night, he was wearing a knit cap. Bammert saw a pair
of ski gloves on the passenger seat, which petitioner said had
been there a while.
After a short conversation, Officer Bammert told
petitioner to step out of the car in order to place him under
arrest for being in the park after hours, in violation of Boise
Municipal Code §§ 13-03-05 to 13-03-10. Petitioner was
ordered out of the car and placed under arrest solely for that
offense. Bammert was quite candid about this, explicitly
admitting that he did not arrest petitioner based on probable
cause to believe that petitioner had committed an attempted
rape or kidnaping or any such crime. Indeed, as Bammert’s
testimony would indicate, he personally did not believe he had
such probable cause.[1]
Officer Bammert testified that petitioner was under
arrest from the moment he left his vehicle. At that point,

1

An officer’s belief that he or she lacks probable cause is not determinative of the legality
of a search. “In the mine run of Fourth Amendment cases . . . the subjective motivations of the
individual officer involved are irrelevant in determining whether the circumstances objectively
justified the action taken or the intrusion occasioned.” United States v. McCarty, 648 F.3d 820,
832 (9th Cir. 2011) (noting that actual motivations of officers matter only with respect to
“‘special-needs and administrative-search cases’”) (quoting Ashcroft v. Al-Kidd, 131 S. Ct. 2074,
2080 (2011)).
MEMORANDUM DECISION AND ORDER 3

Officer Abercrombie was at the rear of the vehicle and
Officer Coltrin was on the driver’s side. On his way to meet
petitioner by the driver’s door, Bammert met Abercrombie at
the rear of the SUV, where Abercrombie told him that
petitioner was sticking something behind the seat. Bammert
then observed petitioner placing something between the seats
with his right hand, although he did not testify that he
identified the item. When he reached petitioner on the driver’s
side, Bammert asked what he had placed between the seats.
Petitioner did not say at first.
Petitioner exited the car. Bammert handcuffed him and
sat him on the curb. Having secured him away from his
vehicle on a charge of violating the Boise Municipal Code
provision, and not before, two of the officers searched the
vehicle incident to that arrest. The third watched over
petitioner as the other officers conducted their search.
....
Having placed petitioner under arrest, handcuffed him,
and secured him in a location away from the SUV, the two
officers entered the vehicle. They found a kitchen knife under
the ski gloves that were located on the front passenger seat.
Officer Bammert stated that he had not seen the knife until the
search incident to arrest. The officers seized a pellet gun
located behind the driver’s seat. It was not loaded. The
officers also observed that the back seat of the SUV was
down, where they found a man’s belt.
In addition, the officers found and seized the laptop
computer, which petitioner had told them he worked on
before his arrest. The laptop contained numerous electronic
files that the prosecution ultimately introduced into evidence
at trial to tie petitioner to the free iPod ad, and to support its
claim that he had intended to commit a rape on July 27, 2007.
Again, Officer Bammert was quite candid about his thinking
at the time of the seizure, admitting that he believed it might
contain evidence relating to a crime other than the predicate
crime for the arrest, such as attempted kidnaping or attempted
MEMORANDUM DECISION AND ORDER 4

rape, which he then lacked probable cause to believe
petitioner had committed. He agreed that he seized the
computer “so that it could be looked at to see whether it had
evidentiary value.”
In addition to the pellet gun, laptop, belt, gloves, and
knife, the officers also seized pieces of paper with notations
on them.
(Pet. and Memo., Dkt. 1, at 19-21)2 (internal citations and footnotes omitted).
2.

The Evidence Obtained from the SUV
A later search of Petitioner’s computer (executed pursuant to a warrant), as well as

the handwritten notes found in Petitioner’s SUV, revealed much about Petitioner’s
activities that day, as well as his intent with respect to Ms. Heller that night:
[There were] two movies downloaded from the seized
computer depicting petitioner and a woman engaged in sex
acts on what appeared to be two separate occasions. During
the defense case [at trial], the woman depicted in the video as
Ruby testified that her participation in the role-playing was
entirely consensual. In the video, petitioner and Ruby roleplay long rape scenes. Petitioner is seen and heard berating,
beating, and (seemingly) forcibly penetrating Ruby. In
addition to the sexual acts, petitioner threatens Ruby with a
knife.
In e-mails between petitioner and the woman he calls
Ruby, he told her that he would love to rape her and asked
how rough he could get with her. In another, he described a
fantasy in which he rapes a college student whose car has
broken down.

2

The page numbers listed in the Petition and supporting memorandum, as well as
Petitioner’s Reply, are different from the electronic page numbers assigned by CM/ECF. For
convenience, the Court will refer to the electronically assigned page number.
MEMORANDUM DECISION AND ORDER 5

A detective described commercially produced videos
that were located on the laptop, . . . [including] a video in
which a woman walks into a bike repair shop and two men
sexually assault her in various ways. That video had an
identifier at the bottom of the screen: www.rapeserver.com.
[On the computer, police discovered] various e-mails
petitioner apparently sent from his laptop and Internet
searches he conducted during the twenty-four hours prior to
his arrest. . . .
In the early hours of July 27, 2007, “Sara” answered
from petitioner’s computer a Craigslist ad for someone
looking for a female roommate. In the e-mail, Sara asked
whether she could come see the apartment. Sara also sent an
e-mail to another woman looking for a roommate. Later, Sara
inquired about a prom dress that was listed for sale. Next,
Sara sent a message asking whether a wedding dress that had
been listed was still available. Sara sent another message
regarding yet another wedding dress a short time later.
A few hours later, shortly before 9:00 a.m. on July 27,
2007, petitioner checked responses to an ad he had posted
regarding free therapy. He then sent another message
checking on the availability of one of the wedding dresses. He
then accessed one of the videos on the laptop. At around 9:30
a.m., Craigslist sent him a message confirming that his iPod
listing had been posted. In some of the correspondence
relating to the iPod, petitioner used an e-mail address at
“anonymous speech.com,” which would make it difficult for
the government to locate the person attached to the address.
A person named Amanda responded to the iPod ad
and, shortly thereafter, petitioner conducted a search on
Myspace for [her] e-mail address . . . . Ms. Heller responded
to the iPod at about 3:30 p.m. Petitioner also conducted a
search for the name “Carly Bovee,” which was the name of
one of the people selling a wedding dress. Later that day, he
checked Amanda’s Yahoo.com profile.

MEMORANDUM DECISION AND ORDER 6

Amanda e-mailed at 4:48 p.m. to ask whether she
could pick up the free iPod. Petitioner conducted additional
people searches between 5:48 and 6:19 p.m. At 6:18 p.m., he
searched for an address . . . .
Petitioner sent an e-mail to Ms. Heller at 10:03 p.m. in
which he said, “I know it’s late, I’ll wait 15 minutes.” He sent
a similar message to Amanda a short time later. At 10:06
p.m., he sent Ms. Heller a message saying no one had claimed
the iPod. She wrote back to say that she would love to have it.
He then conducted searches to try to identify her, finding
pictures of her on Myspace. He eventually sent her the e-mail,
ultimately provided by her to the police, which gave
directions to the park and told her where she could find the
iPod.
Police also identified various Google searches
conducted on petitioner’s computer in the days before his
arrest, which included the following: Boise student housing
(which corresponded to one of the ads for a roommate), the
definition of sexual assault, the average sentence for rape,
rapist, details of rape, as well as numerous other searches
related to rape, rape statistics, and air guns.
(Id. at 25-26) (internal citations omitted).
The documents seized from the SUV were part of a flight itinerary with
handwritten notes on them. “Some of the handwritten notations on the seized documents
appeared to be license plate numbers.” (Id. at 13.) For example, one of the notes
contained the words “one girl” along with what looked like a license plate number (it
began with the 1A code for Ada County), and the description “90s Black Taurus.”
(State’s Lodging A-1 at 86.) “[I]nvestigating detectives came to suspect, after identifying
individuals and addresses associated with those numbers and conducting interviews, that

MEMORANDUM DECISION AND ORDER 7

petitioner had been following young women to their homes.” (Pet. and Memo. at 13.)
3.

Motions to Suppress
Before trial, Petitioner moved to suppress the evidence obtained from the SUV.

(State’s Lodging A-1 at 39-40.) The trial court held an evidentiary hearing, at which
Officers Bammert and Abercrombie testified. (State’s Lodging A-3 at 2, 59.) Petitioner
asked questions of both officers.
Petitioner argued primarily that the arrest itself was unlawful (a claim he does not
raise in his federal Petition). (State’s Lodging A-1 at 39-40.) However, Petitioner also
argued that even if the arrest was lawful, the search itself was not. (State’s Lodging A-3
at 36-37, 84-88.) The state argued that, under then-applicable Fourth Amendment
principles, the arrest was lawful and the search of the SUV was constitutional as a search
incident to that arrest. (Id. at 96-97.) See New York v. Belton, 453 U.S. 454, 460 (1981)
(“[W]hen a policeman has made a lawful custodial arrest of the occupant of an
automobile, he may, as a contemporaneous incident of that arrest, search the passenger
compartment of that automobile.”) (footnote omitted), limited by Arizona v. Gant, 556
U.S. 332 (2009).
Petitioner noted that the Supreme Court had granted certiorari in Arizona v. Gant,
which involved the proper scope of a search incident to an arrest of a recent occupant of a
vehicle and in which the Court would eventually limit the Belton rule. (State’s Lodging
A-3 at 36.) The trial court held that until the Supreme Court revisited it, the Belton rule

MEMORANDUM DECISION AND ORDER 8

continued to apply. (State’s Lodging A-1 at 66.) Therefore, the court denied Petitioner’s
motion to suppress the evidence obtained from the search of the SUV.
However, the trial court noted that, apart from the initial search of the vehicle,
which turned up the knife, belt, and pellet gun, the “issue of the seizure and subsequent
search of the defendant’s laptop computer, as an incident of his arrest for being in the
park after dark, has not been fully argued.” (Id.) The court expressed “grave misgivings”
about the detectives’ search of the computer’s storage drives “on the theory that they
could do so incident to [Petitioner’s] arrest,” and allowed the parties to submit additional
briefing on that issue. (Id. at 66, 67.)
Petitioner then filed a supplemental motion to suppress, arguing that the police
“lacked probable cause to seize either the computer or the miscellaneous papers found in
the vehicle.” (Id. at 71-72.) Petitioner asserted that “[t]hough the ensuing warrantless
search was justified as an incident to arrest, the officers had no probable cause allowing
for the seizure of the defendant’s laptop computer because it was not immediately
apparent that the laptop was associated with any criminal conduct.” (Id. at 77) (internal
quotation marks omitted). Petitioner noted that one of the officers stated “he had no
knowledge that the computer contained evidence of criminal wrongdoing, but seized it
simply to see what it might contain.” (Id. at 78.) Petitioner also contended that the seizure
of the documents with Petitioner’s handwritten notes was not supported by probable
cause. (Id. at 83-84.) Petitioner did not challenge the eventual search of the computer,

MEMORANDUM DECISION AND ORDER 9

stating that “in the instant case the defendant challenges the seizure of his laptop
computer, rather than its search.” (State’s Lodging A-1 at 81.)
The trial court held another evidentiary hearing to consider the supplemental
motion to suppress. (State’s Lodging A-2 at 1.) At this hearing, Petitioner called Officer
Bammert as a witness, but his testimony related to the time of Petitioner’s arrest, an issue
not raised in Petitioner’s habeas petition. (Id. at 2-19.) Petitioner does not claim that he
requested any other witnesses or any further factual development, and he does not
contend that he was prohibited from developing the record at this second evidentiary
hearing with the respect to the seizure of the computer, the seizure of the documents, or
the delay between the seizure and later search of the computer.
Petitioner argued to the trial court that the incriminating nature of the computer
was not evident at the time of the search and, therefore, “without regard to validity of the
search incident to the arrest doctrine the officers should not have seized the computer.”
(Id. at 20.) See Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (stating that officers
may seize an object without a warrant under the plain-view doctrine “if police are
lawfully in a position from which they view an object, if its incriminating character is
immediately apparent, and if the officers have a lawful right of access to the object”).
Petitioner’s argument included an extensive dialogue with the trial judge. During this
dialogue, in response to the judge’s questions, Petitioner acknowledged that before
Petitioner told the police that he had been working on his computer, Ms. Heller had told

MEMORANDUM DECISION AND ORDER 10

them she received an email with instructions on how to retrieve the iPod. (State’s
Lodging A-2 at 28.) Petitioner nonetheless argued that the search was invalid for lack of
probable cause:
The Court:

Don’t you have a situation here where you have a
witness that has told the officers that she is there
because of e-mails that she has exchanged relating to
an iPod that’s going to be in one of these porta potties
so that there’s correspondence that has occurred that
utilizes a computer?
And the defendant is present in his car with a computer when
the officers approach. They then see in plain view, when they
approach the car, these various items in the car. He’s got the
stocking cap on. He’s got gloves. It’s a very warm night. And
he also has a computer that he apparently closes very soon
after he realizes that it’s the police officers there.
What’s unreasonable about the police believing—given the
totality of those facts—that this computer could have been
involved in bringing this individual to the scene for the
potential commission of a rape?

[Defense Counsel]: Well, I certainly understand your question, and we gave a lot
of thought to that kind of issue. And I think it’s important to
separate—always in this situation—what the situation on the
scene was and what we might now be looking at. Because
they did seize the computer and later on they searched the
computer, and it becomes an issue in our case. But at that
time, yes, the witness, [Ms. Heller], said that she had had email correspondence with this individual. “We talk about the
porta potties and the iPod.”
Then [the officers] went over there and they saw . . .
[Petitioner] in his vehicle, and he has the items that you
suggest. But they didn’t—but there was nothing about that—I
mean, they questioned him. They didn’t have information that
he had sent her e-mails. He didn’t admit that he had. They
MEMORANDUM DECISION AND ORDER 11

didn’t have information that he had advertised an iPod. They
suspected that he could have and that he could have used that
computer, if he was even the person who had done this. They
didn’t know any of that. They didn’t know any of that.
Because if they had, they would have behaved differently.
They would have arrested him for a more serious matter than
being in the park after dark, for example. They just didn’t
know. . . .
They couldn’t look at that computer sitting on the seat and
say, “That’s evidence of a crime,” any more than if it was my
computer, your computer, anybody’s computer. It’s just a
computer. And therefore, I think that’s the reason why they
couldn’t do it.
(Id. at 27-29.) Petitioner focused his oral argument on the seizure of the computer, not
the documents. The court took the matter under advisement.
The trial court next held a hearing on the government’s notice of intent to
introduce, pursuant to Idaho Rule of Evidence 404(b), evidence obtained from
Petitioner’s computer. (State’s Lodging A-3 at 104.) The government called two
detectives about the search of the computer, one of whom Petitioner cross-examined. (Id.
at 108-203; 204-14.) Though Petitioner did not call a witness at this hearing, he does not
contend that he was prohibited from doing so.
After hearing argument from the state and from Petitioner, the court ruled from the
bench on Petitioner’s supplemental motion to suppress, stating that the computer would
“not be suppressed on either the basis that the computer was improperly seized or that the
computer was improperly searched.” (Id. at 254-55.) The court did not explicitly mention
the seized documents other than to determine that they were admissible in evidence as
MEMORANDUM DECISION AND ORDER 12

more probative than prejudicial. (Id. at 254.)
4.

Proceedings on Appeal
After the jury convicted Petitioner of attempted rape, but before he filed his

opening brief on direct appeal, the United States Supreme Court decided Arizona v. Gant,
556 U.S. 332 (2009). Without purporting to overrule Belton, the Court in Gant rejected a
“broad reading of Belton” with respect to vehicle searches incident to arrest, holding that
an officer may “conduct a vehicle search when an arrestee is within reaching distance of
the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of
arrest.” Id. at 346 (emphasis added). It is undisputed that Petitioner was handcuffed away
from the vehicle, under arrest for being in the park after dark, at the time the officers
searched the SUV.
In his opening brief on appeal, Petitioner challenged the trial court’s denial of his
first motion to suppress, arguing that the search was invalid under Gant. (State’s Lodging
B-1 at 12-13.) Petitioner asked that his conviction be reversed and the case remanded for
further proceedings. He did not challenge the trial court’s denial of his supplemental
motion to suppress.
In its answering brief, the government argued that even if the search of the SUV
was not a valid search incident to arrest under Gant, the evidence was still properly
admitted. (State’s Lodging B-2 at 5.) The government argued, among other things, that
the vehicle search could be upheld under the automobile exception to the warrant

MEMORANDUM DECISION AND ORDER 13

requirement, which allows the search of a vehicle if there is probable cause to believe that
it contains evidence of a crime. (Id. at 23-25.)
Petitioner argued in his reply brief that the automobile exception did not apply
because the officers did not have probable cause to believe the SUV contained evidence
of a crime: “[The officers] had no way to connect [Petitioner] with the supposed IPod
[sic] in the porta potty or the e-mails until they searched his vehicle, seized his computer,
and downloaded materials from it.” (State’s Lodging B-3 at 11.) Petitioner contended that
“[e]ven if it could be argued that prior to the search there was probable cause to justify
the issuance of a search warrant to search [Petitioner’s] vehicle for evidence of some
crime, there was at that time simply no conceivable probable cause to authorize the
seizure of [Petitioner’s] laptop computer.” (Id. at 13-14). This is the same argument
Petitioner raised in his supplemental motion to suppress. Petitioner did not raise in his
reply brief the issue of the seizure of the documents or the delay between the seizure and
the later search of the computer. (Id. at 10-14.)
5.

The Decision of the Idaho Court of Appeals
The Idaho Court of Appeals affirmed Petitioner’s conviction. The court did not

address whether the search of the SUV was valid as a search incident to arrest under
Gant, but affirmed on a different ground. Noting that it had the authority to uphold the
search on grounds not argued by the prosecutor or asserted by the officers,3 the court
3

The court of appeals stated:

MEMORANDUM DECISION AND ORDER 14

agreed with the government that the search of the SUV was supported by probable cause
and was therefore valid under the automobile exception to the warrant requirement.
(State’s Lodging B-5 at 7.) Petitioner does not argue otherwise in his Petition.
With respect to the seizure of the computer, the court made the following factual
findings:
[I]n this case, there is a direct nexus between the computer
and the suspected criminal activity. [Petitioner] admitted to
officers that he was sitting in his car working on his computer
around the same time that the victim reported receiving
e-mails directing her to a portable restroom in the park. The emails triggered the investigation, and were the very means by
which the victim was lured to the park in the first place. The
suspicious circumstances of this case—[Petitioner’s] dress,
demeanor, and gun—coupled with [Petitioner’s] admission to
recently working on his laptop computer, created a direct
nexus between the suspicious e-mails and [Petitioner’s]
computer.
(Id.) The court of appeals concluded that “[b]ecause the search of [Petitioner’s] vehicle
was supported by probable cause to believe that evidence of a crime would be discovered,

During the proceedings below, the prosecutor did not argue
the . . . automobile exception to justify the search. However, on
appeal, this Court is not limited by the prosecutor’s argument or
absence thereof. See State v. Bower, 135 Idaho 554, 558, 21 P.3d
491, 495 (Ct. App. 2001). Further, an officer’s explanation for the
search is not controlling. State v. Shepard, 118 Idaho 121, 124, 795
P.2d 15, 18 (Ct. App. 1990). The lawfulness of a search is to be
determined by the court, based upon an objective assessment of the
circumstances which confronted the officer at the time of the
search. Id.
(State’s Lodging B-3 at 4 n.1.)
MEMORANDUM DECISION AND ORDER 15

and because the computer could reasonably be considered to be evidence of a crime, . . .
the seizure of the computer was proper under the Fourth Amendment.” (Id.) The court did
not address the seizure of the documents or the delay in the computer search, presumably
because Petitioner did not discuss either issue in his opening or reply brief.
Petitioner next filed a petition for rehearing in the Idaho Court of Appeals, arguing
that the court should not have decided this new Fourth Amendment issue on appeal
because, although Petitioner conceded that the facts relevant to the “search incident to
arrest” issue were not disputed, he had never conceded any facts relevant to “the probable
cause issue, which was first put in play by the state’s opposing brief on appeal.” (State’s
Lodging B-7 at 4.)
Petitioner also claimed that “[t]he critical constitutional issue of the validity of the
search warrant for the laptop search has never been decided by an Idaho court.” (Id. at 5.)
However, Petitioner’s supplemental motion to suppress expressly disavowed a challenge
to the search of the computer. (State’s Lodging A-1 at 81.) In any event, Petitioner’s
argument that no Idaho court addressed the issue is plainly refuted by the transcript of one
of the evidentiary hearings. The trial court held that the computer would “not be
suppressed on either the basis that the computer was improperly seized or that the
computer was improperly searched.” (State’s Lodging A-3 at 254-55) (emphasis added).
Because the search of the computer was conducted pursuant to a warrant, the trial court
necessary held that the search warrant was valid.

MEMORANDUM DECISION AND ORDER 16

The petition for rehearing also asserted that the officers lacked probable cause to
seize the documents from the SUV—an issue he had not raised in his appellate briefing.4
(State’s Lodging B-7 at 5.) Petitioner further argued that the resolution of his case
required factual findings by the trial court, particularly on the question whether the
“laptop had the capacity to send emails” to Ms. Heller on the night of the incident. (Id. at
11.) Petitioner requested a reversal or, alternatively, an opportunity for “full briefing on
the probable cause question.” (Id. at 5.)
The Idaho Court of Appeals denied the petition for rehearing without comment.
(State’s Lodging B-8.) Petitioner then filed a petition for review in the Idaho Supreme
Court, in which he reiterated the arguments he had raised in the petition for rehearing.
(State’s Lodging B-10.) The Idaho Supreme Court denied the petition.
6.

The Federal Petition
Plaintiff filed his federal Petition on October 28, 2011. Petitioner asserts a single

claim in his Petition: that the trial court “prejudicially violated petitioner’s right to be free
of unlawful searches and seizures, guaranteed him by the Fourth and Fourteenth

4

Petitioner also claimed in his petition for rehearing that “[t]he critical constitutional
issue of the validity of the search warrant for the laptop search has never been decided by an
Idaho court.” (Id. at 5.) If this contention were true, it would hardly be surprising, as Petitioner’s
supplemental motion to suppress expressly disavowed a challenge to the search of the computer.
(State’s Lodging A-1 at 81). But Petitioner’s assertion that no Idaho court addressed the issue is
plainly refuted by the transcript of one of the evidentiary hearings. The trial court held that the
computer would “not be suppressed on either the basis that the computer was improperly seized
or that the computer was improperly searched.” (State’s Lodging A-3 at 254-55) (emphasis
added). Because the search of the computer was conducted pursuant to a warrant, the trial court
necessarily held that the search warrant was valid.
MEMORANDUM DECISION AND ORDER 17

Amendments, when it refused to suppress all evidence garnered from a search of his
laptop computer.” (Pet. and Memo. at 12.) Within that claim are three “sub-claims”: (1)
that “the officers who searched petitioner’s vehicle lacked probable cause to seize the
documents they found therein”; (2) that “the officers lacked probable cause to seize the
computer”; and (3) that “the officers detained the computer for an unreasonably lengthy
period of time before applying” for a search warrant and, therefore, the search of the
computer was unconstitutional. (Id. at 28.)
DISCUSSION
1.

Standard of Law: Stone v. Powell
The threshold issue for a Fourth Amendment claim presented in a federal habeas

corpus petition is whether the state provided the petitioner an opportunity for full and fair
litigation of his claim in state court. Stone v. Powell, 428 U.S. 465, 494 (1976). Under
Stone, if the federal district court determines that full and fair litigation of the claim took
place in state court, then it cannot grant habeas corpus relief on the ground that the
evidence was obtained in violation of the Fourth Amendment. Id. The Stone rule is based
on the principle that the exclusionary rule is “not a personal constitutional right” but is
instead a practical way to deter police conduct that violates the Fourth Amendment. Id. at
486. The social costs of the exclusionary rule are heavy: the rule “deflects the truthfinding
process and often frees the guilty.” Id. at 490. On collateral review of a criminal
conviction, “the contribution of the exclusionary rule, if any, to the effectuation of the

MEMORANDUM DECISION AND ORDER 18

Fourth Amendment is minimal, and the substantial societal costs of application of the rule
persist with special force.” Id. at 494-95.
To determine whether a petitioner had a full and fair opportunity to challenge his
Fourth Amendment claim in state court, a federal district court “inquire[s] into the
adequacy and fairness of available state court procedures for the adjudication of Fourth
Amendment claims.” Sanna v. Dipaolo, 265 F.3d 1, 8 (1st Cir. 2001). If the court
determines that the state court procedures are adequate, the inquiry ends there. Id. at 8-9.
That is, “[s]o long as a state prisoner has had an opportunity to litigate his Fourth
Amendment claims by means of such a set of procedures, a federal habeas court lacks the
authority, under Stone, to second-guess the accuracy of the state court’s resolution of
those claims.” Id. at 9. Stated another way, “[t]he relevant inquiry is whether petitioner
had the opportunity to litigate his claim, not whether he did in fact do so or even whether
the claim was correctly decided.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir.
1996). Petitioner bears the burden of establishing that the state courts did not consider his
Fourth Amendment claim fully and fairly. Mack v. Cupp, 564 F.2d 898, 901 (9th Cir.
1977).
Petitioner argues that the Stone doctrine does not apply for two reasons. First, he
claims that because the Idaho Court of Appeals upheld the search on a different ground
than the trial court, he was denied a full and fair opportunity to litigate his Fourth
Amendment claim in state court. Second, he claims that even if he did receive such an

MEMORANDUM DECISION AND ORDER 19

opportunity, Stone is no longer good law following the passage of the Anti-Terrorism and
Effective Death Penalty Act of 1996 (AEDPA). The Court addresses both arguments in
turn.
2.

Application of Stone v. Powell to Petitioner’s Fourth Amendment Claim
In determining whether Petitioner received a full and fair opportunity to litigate his

Fourth Amendment claim in state court, it is helpful to clarify what Petitioner is not
arguing. Petitioner is not arguing that the initial search of the SUV was invalid; indeed,
Petitioner assumes that “the search of his vehicle was justifiable under the automobile
exception to the warrant requirement, and that the officers, therefore, were lawfully inside
the vehicle when they located the documents containing the handwritten notations and the
laptop computer.” (Pet. and Memo. at 28.) Thus, he does not challenge the seizure of the
knife, belt, or pellet gun. Rather, he argues that the state courts either did not address, or
did not find crucial facts related to, his three sub-claims: (1) whether there was probable
cause to seize the documents; (2) whether there was probable cause to seize the computer;
and (3) whether the computer was held for an unreasonable length of time before it was
searched. (Id.) As the Court explains below, however, Petitioner received a full and fair
opportunity to litigate all three of these issues in the state trial court, the state court of
appeals, and the state supreme court.
As can be seen from the transcript of the hearing on Petitioner’s supplemental
motion to suppress, the trial court was actively engaged with Petitioner’s argument that,

MEMORANDUM DECISION AND ORDER 20

even if the officers could legally search the vehicle, they lacked probable cause to seize
the computer. (State’s Lodging A-2 at 27-29.) The court’s questions were focused on the
suspicious circumstances leading up to the search of the SUV: An ad for a free iPod in a
porta potty, a car waiting by that porta potty, in which a man—who admitted working on
his laptop computer—is wearing a knit cap on a hot summer night and in which the
officers find a knife, a belt, and a pellet gun. (Id.) The judge fully considered Petitioner’s
arguments but denied the motion. That the trial court ruled from the bench without
elaborate analysis does not mean that Petitioner was denied full and fair consideration of
his Fourth Amendment claim regarding the seizure of the evidence; rather, the transcript
reflect the full extent of argument and Petitioner’s opportunity to present all relevant
issues.
Furthermore, Petitioner has not shown that he was prohibited from fully
developing the facts that he now complains are missing from the record. For example,
Petitioner contends that he should have been able to develop facts supporting his
argument that the delay between the seizure and search of the computer was too long,
thus rendering the search invalid notwithstanding that it was executed pursuant to a
warrant.
But Petitioner filed a supplemental motion addressing the issue of probable cause
to seize the computer and documents. In this motion Petitioner could have challenged the
length of time between the seizure and the search of the computer, but he did not. In fact,

MEMORANDUM DECISION AND ORDER 21

he explicitly stated that he was not challenging the search of the computer. (State’s
Lodging A-1 at 81) (“[I]n the instant case the defendant challenges the seizure of his
laptop computer, rather than its search . . . .”). Petitioner was also allowed a second
evidentiary hearing, at which he presented evidence by calling a witness (albeit to testify
about an unrelated matter). (State’s Lodging A-2 at 2-19.) He could have developed facts
relevant to his sub-claims, but, again, he did not. Yet another hearing was held on the
government’s motion to introduce Rule 404(b) evidence, and it was only after argument
at that hearing that the trial court determined that the computer was neither unlawfully
seized nor unlawfully searched. (State’s Lodging A-3 at 254-55.)
The key question in this case is whether Petitioner had the opportunity to litigate
his sub-claims. See Ortiz-Sandoval, 81 F.3d at 899. Petitioner obviously had that
opportunity in the trial court. That he did not develop the facts related to his sub-claims is
not the question; Petitioner has failed to establish that he was prevented from doing so.
See Yakovac v. Underwood, 2010 WL 3735708, *6 (D. Idaho Sept. 4, 2010)
(unpublished) (“Here, although Petitioner’s trial counsel did not file a motion to suppress
in state court on Fourth Amendment grounds, Petitioner has not shown that her counsel
was deprived of an opportunity to do so. Therefore, the Court must dismiss Petitioner’s
habeas claim as not cognizable under Stone.”)
Petitioner also had the chance to argue his sub-claims to the Idaho Court of
Appeals. But in his opening brief, Petitioner argued only that the search incident to the

MEMORANDUM DECISION AND ORDER 22

arrest theory no longer justified the search—which was the issue of his first motion to
suppress. He did not argue that the trial court’s denial of his supplemental motion to
suppress—which challenged the seizure of the evidence—was erroneous. Because the
supplemental motion was decided adversely to Petitioner, he could have appealed that
decision. He chose, however, to rely solely on Gant, without preserving the issue of the
seizure of the evidence. Petitioner thus decided not to raise in his opening brief on appeal
the very claim that he now wants this Court to address: whether the officers had probable
cause to seize the computer or the documents. (See Pet. and Memo. at 28.)
In his reply brief on appeal, Petitioner had another opportunity to argue his
claim—including all three sub-claims. But he argued only that the seizure of the computer
was not justified by an exception to the warrant requirement. (State’s Lodging B-3 at 1014.) He did not argue anything similar with respect to the documents until he filed his
petition for rehearing, nor did he challenge the delay in searching the computer. That
Petitioner chose not to include these arguments in his reply brief is not the fault of any
state court.
Petitioner acknowledges that the Idaho Court of Appeals addressed the seizure of
the computer. However, he argues that the court did so without an adequate factual basis
because “[w]hat was or was not immediately apparent to the Boise police officers with
respect to petitioner’s laptop computer is currently unknown.” (Pet. at 44.) Petitioner
criticizes the court of appeals for finding probable cause without any evidence of whether

MEMORANDUM DECISION AND ORDER 23

the laptop was capable of sending emails to Ms. Heller. Notably, Petitioner identified this
supposedly crucial missing fact only in his petition for rehearing. He did not raise it in his
opening or reply brief in the court of appeals.
Indeed, Petitioner had the opportunity to explore this issue as early as the first
evidentiary hearing. Officer Bammert testified that he believed Petitioner’s computer
“was a WiFi system” and that Petitioner could access the internet from that computer.
(State’s Lodging A-3 at 16-17.) Though in the context of his testimony it appears that
Officer Bammert held this belief at the time he seized the computer, it could be
argued—but was not—that his knowledge was based on a later examination of the
computer. Petitioner could have—but did not—question Officer Bammert regarding what
he believed about the computer’s capability to access the internet at the time the computer
was seized. Petitioner did ask Officer Bammert why he seized the computer (id. at 35),
but did not follow up with any other questions.
Petitioner raises much alarm at the alleged “total absence of careful and thorough
analysis of the facts” from the decision of the Idaho Court of Appeals. (Reply, Dkt. 17, at
18.) But as set forth above, that court decided every argument Petitioner submitted to it. It
did not address the seizure of the documents, or the delay between the seizure and search
of the computer, presumably because Petitioner did not raise those questions in his
opening or reply brief. The issue is not whether Petitioner availed himself of every
opportunity to argue his Fourth Amendment claim, nor whether Petitioner fully developed

MEMORANDUM DECISION AND ORDER 24

the facts at the multiple evidentiary hearings held in the trial court. It is whether he could
have done so, and he most certainly could.
Although Petitioner scolds the Idaho Court of Appeals for subjecting him to a
“procedural ambush” by affirming the district court based on the automobile exception
(Reply at 17), there is nothing fundamentally unfair about affirming a denial of a motion
to suppress on a different ground than that advanced in the trial court, so long as that
basis is supported by the record. Federal appellate courts do so frequently. See, e.g.,
United States v. Ruiz, 428 F.3d 877, 880 (9th Cir. 2005) (“We may affirm a district
court’s denial of a motion to suppress on any basis supported in the record.”). Further,
Petitioner’s claim that he was procedurally ambushed by the state court of appeals is
disingenuous, for several reasons. First, the government offered several alternative
grounds for affirmance in its answering brief on appeal, and Petitioner had the chance to
challenge those arguments in his reply brief. Second, Petitioner took the opportunity at
oral argument to, in his words, “vigorously argue[] that the facts crucial to the probable
cause issue had never been addressed by the trial court.” (State’s Lodging B-7 at 4.) And
finally, Idaho appellate courts have a specific procedural rule in the Fourth Amendment
context—established well before Petitioner’s appeal—that a search may be upheld under
the Fourth Amendment on an alternative ground, even if neither the prosecutor nor the
trial court relied on that ground.
In State v. Bower, 21 P.3d 491, 494 (Idaho Ct. App. 2001), the defendant made the

MEMORANDUM DECISION AND ORDER 25

same argument to the Idaho Court of Appeals as Petitioner: that the search could not be
upheld based on a ground different from that asserted by the prosecutor in the trial court.
The defendant contended he was “prejudiced because he was not put on notice of the
need to present evidence pertinent to this issue.” Id. The court of appeals rejected that
argument:
We find Bower’s position to be untenable for a number
of reasons. First, the overarching “issue” presented both to the
trial court and on appeal was raised by Bower’s motion, not
by the State. That issue is whether the officers’ entry into the
motel room violated the Fourth Amendment. Second, the
State was not obligated to notify Bower in advance of the
hearing of each of the warrant exceptions the State deemed
applicable nor to give him advance notice of all its legal
arguments respecting those exceptions. When a defendant has
demonstrated that a warrantless search or seizure occurred, it
becomes the State’s burden to prove through presentation of
evidence that an exception to the warrant requirement applied.
It then becomes the judge’s duty to determine whether the
proven facts demonstrate that the search met the
reasonableness standard of the Fourth Amendment. While
prosecutors may customarily address some written or oral
argument to the court presenting the State’s legal theories as
to why the search or seizure was lawful, the prosecutor is not
obligated to do so; nor is the trial court precluded from ruling
that the evidence was lawfully acquired on a theory different
from that advanced by the prosecutor. We have held that a
court’s analysis of the constitutionality of a search is not
circumscribed by the intent or belief of the officer at the scene
regarding the reason or justification for the search. Similarly,
the court is not limited by the prosecutor’s argument or the
absence thereof. The lawfulness of a search is to be
determined by the court, based upon an objective assessment
of the circumstances which confronted the officer at the time
of the search.

MEMORANDUM DECISION AND ORDER 26

Id. at 494-95 (internal quotation marks, citations, and footnote omitted) (second and third
emphases added). Thus, Petitioner cannot be heard to complain that he was sandbagged
either by the government’s alternative arguments on appeal or the state court’s acceptance
of one of those arguments.
Petitioner laments that the trial court “did not find any facts as a predicate” to its
order denying the supplemental motion to suppress the computer and documents and that
“the state appellate court merely repeated the facts that the trial court had assumed in its
order.” (Pet. and Memo. at 21; Reply at 11.) Strangely, Petitioner includes this criticism
even though the trial court relied on Petitioner’s version of the facts. (Pet. at 21-22).
Petitioner goes on to state that he “has no problem with the [factual] portion of the state
appellate opinion,” but “makes this point to highlight . . . the absence of such findings that
is at the core of the habeas petition.” (Reply at 11) (emphasis added). But the court of
appeals relied on admittedly undisputed facts to determine that there was probable cause
to search the computer:
[Petitioner] admitted to officers that he was sitting in his car
working on his computer around the same time that the victim
reported receiving e-mails directing her to a portable restroom
in the park. The e-mails triggered the investigation, and were
the very means by which the victim was lured to the park in
the first place. The suspicious circumstances of this
case—[Petitioner’s] dress, demeanor, and gun—coupled with
[Petitioner’s] admission to recently working on his laptop
computer, created a direct nexus between the suspicious emails and [Petitioner’s] computer.
(Id. at 7.) Petitioner did not, and does not, dispute any of these facts.
MEMORANDUM DECISION AND ORDER 27

Finally, even if the state courts had made no express findings, that would still not
be enough to overcome the Stone bar. “All Stone v. Powell requires is the initial
opportunity for a fair hearing. Such an opportunity for a fair hearing forecloses this
court’s inquiry, upon habeas corpus petition, into the trial court’s subsequent course of
action, including whether or not the trial court has made express findings of fact.”
Caldwell v. Cupp, 781 F.2d 714, 715 (9th Cir. 1986) (emphasis added) (internal citations
omitted).
3.

Stone Survived the Passage of AEDPA
Petitioner argues that even if he received a full and fair opportunity to litigate his

Fourth Amendment claim in state court, this Court should still review that claim because,
after AEDPA, Stone v. Powell is no longer good law. For this argument, Petitioner cites
Carlson v. Ferguson, 9 F. Supp. 2d 654, 656 (S.D.W.Va. 1998), in which the District
Court for the Southern District of West Virginia concluded that AEDPA’s two-tiered
unreasonableness approach “replace[d] the full and fair opportunity test” of Stone. The
Carlson court based its decision on the language of § 28 U.S.C. § 2254(d), which states
that a habeas petition “‘shall not be granted with respect to any claim that was
adjudicated on the merits in [state court].’” Id. at 657 (quoting 28 U.S.C. § 2254(d))
(alteration in original).
The Court rejects Petitioner’s argument that Stone is no longer applicable. The two
circuit courts to address the issue have both held that the Stone doctrine survives AEDPA

MEMORANDUM DECISION AND ORDER 28

and that the full and fair opportunity test still applies. See Hampton v. Wyant, 296 F.3d
560, 563 (7th Cir. 2002) (“[T]he Antiterrorism and Effective Death Penalty Act does not
affect Stone. The AEDPA’s changes to § 2254(d) apply only to cases within the scope of
§ 2254(a), which was not amended in 1996, and Stone is based on an interpretation of §
2254(a) that treats inaccurate administration of the exclusionary rule as outside the scope
of that statute.”); Herrera v. Lemaster, 225 F.3d 1176, 1178 n.2 (10th Cir. 2000) (“We
are not persuaded . . . that by enacting AEDPA Congress intended to expand in any way a
habeas petitioner’s right to overturn a state court decision.”).
Moreover, the Supreme Court has continued to cite Stone with approval after the
passage of AEDPA. See Williams v. Taylor, 529 U.S. 362, 375 (2000) (citing Stone for
the proposition that “[i]t is, of course, well settled that the fact that constitutional error
occurred in the proceedings that led to a state-court conviction may not alone be sufficient
reason for concluding that a prisoner is entitled to the remedy of habeas.”) Though the
Williams Court was not deciding the issue of whether Stone survived AEDPA, federal
courts “afford ‘considered dicta from the Supreme Court . . . a weight that is greater than
ordinary judicial dicta as prophecy of what that Court might hold.’” Managed Pharmacy
Care v. Sebelius, 716 F.3d 1235, 1246 (9th Cir. 2013) (omission in original) (quoting
United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en banc)).
Further supporting this Court’s conclusion that Stone still applies to Fourth
Amendment claims in federal habeas proceedings is that the Supreme Court has

MEMORANDUM DECISION AND ORDER 29

determined, in other contexts, that AEDPA leaves room for judicially-created doctrines.
In McQuiggin v. Perkins, 133 S. Ct. 1924, 1932 (2013), the Court held that a sufficient
showing of actual innocence can cure an untimely habeas petition, notwithstanding that
AEDPA’s one-year statute of limitation has no explicit exception. The principle that “a
prisoner otherwise subject to defenses of abusive or successive use of the writ of habeas
corpus may have his federal constitutional claim considered on the merits if he makes a
proper showing of actual innocence” was established by the courts, yet survived the
passage of AEDPA. Id. at 1931 (internal quotation marks and alteration omitted).
Finally, the Court agrees with Herrera’s reasoning that Congress could not have
intended for AEDPA—the purpose of which was to restrict a habeas petitioner’s ability
to obtain federal review of constitutional claims—to expand a petitioner’s ability to
obtain federal review of a fairly litigated Fourth Amendment claim. See 225 F.3d at 1178
n.2.
For all of these reasons, the Court concludes that the rule of Stone v. Powell was
not affected by AEDPA.
CONCLUSION
The Constitution is not offended by the refusal of a federal habeas court to review
a Fourth Amendment determination of a state court so long as the petitioner had a full and
fair opportunity to raise his arguments in state court. Here, Petitioner had many chances to
challenge the constitutionality of the search and seizure of the computer and the

MEMORANDUM DECISION AND ORDER 30

documents. The trial court allowed Petitioner to supplement his motion to suppress by
arguing that probable cause did not exist to seize the computer. Petitioner took this
opportunity, adding an argument that the seizure of the documents was unconstitutional as
well. Petitioner disclaimed any argument that the search of the computer’s hard drives
was unconstitutional. At more than one evidentiary hearing, Petitioner could have
developed the “missing” facts he now contends are critical to his Fourth Amendment
claim. He did not.
On direct appeal, once the government argued for affirmance based on the
automobile exception, Petitioner had the opportunity to set forth his opposing position in
his reply brief. Petitioner took this opportunity with respect to the seizure of the
computer, but he did not challenge the seizure of the documents or the delay between the
seizure and the search of the computer. He had another opportunity to litigate his claim
when he petitioned the Idaho Court of Appeals for rehearing, and yet another when he
petitioned the Idaho Supreme Court for review. The fact that those courts denied the
petitions without analysis does not presume as a matter of law that they failed to consider
Petitioner’s arguments. See Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011).
Petitioner had ample opportunities to litigate his Fourth Amendment claim fully
and fairly in the state courts. The fact that he failed to do so does not lead to the legal
conclusion that he should be successful in this action. Therefore, the Court will dismiss
Newman’s Petition as asserting a non-cognizable claim under Stone v. Powell.

MEMORANDUM DECISION AND ORDER 31

ORDER
IT IS ORDERED:
1.

The Petition for Writ of Habeas Corpus (Dkt. 1) is DISMISSED with
prejudice.

2.

The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If Petitioner
files a timely notice of appeal, the Clerk of Court shall forward a copy of
the notice of appeal, together with this Order, to the United States Court of
Appeals for the Ninth Circuit. Petitioner may seek a certificate of
appealability from the Ninth Circuit by filing a request in that court.
DATED: November 27, 2013.

Honorable Larry M. Boyle
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER 32