Judge sides with Boise man sued over the city’s loitering law after arrest

When Boise officers one night saw a man sitting in his Jeep Cherokee in a self-service bay of a 24-hour car wash, they decided to investigate the vehicle. Within minutes of pulling into the West Boise business, one of the officers drew his firearm, and the man was detained for loitering, and a drug dog was called to search his vehicle, according to court records.

The K-9 detected drugs, records showed. Police discovered methamphetamine and marijuana in the Luke Schuchardt’s vehicle, and he was charged with a felony.

But how could they know Schuchardt was violating the law? They couldn’t, U.S. District Judge B. Lynn Winmill ruled in an order this week.

In a lawsuit Schuchardt filed against the city, arguing that police violated his Fourth and Fourteenth Amendment rights that day, Winmill sided with Schuchardt and deemed that the city’s loitering ordinance is “unconstitutionally vague.” While Schuchardt was likely at Snake River Car Wash in March 2022 to deal drugs, Winmill wrote, the responding officers, Ryan Pollard and Craig Sousa, didn’t know he had drugs on him until they detained him for loitering. Before then, all the officers knew was that Schuchardt was parked in a dark car wash, not washing his car.

“The ordinance fails to coherently define unlawful loitering and instead vests police with tremendous discretion to determine when an individual’s presence on private property becomes a crime,” he wrote. “The vast sweep of the law contradicts basic principles of due process.”

The ordinance prohibits “loitering, prowling or wandering” on someone’s private property without permission, according to the city code. Anyone who violates the law could be charged with a misdemeanor for disorderly conduct, which is punishable by up to six months in county jail and a $1,000 fine.

Boise’s spokesperson Maria Ortega said city officials were still evaluating the ruling. She didn’t answer questions on whether they plan to appeal the decision or bar officers from enforcing the ordinance. Such an ordinance would need to be removed or changed by the Boise City Council.

Monday’s ruling falls in line with other legal precedents. The U.S. Supreme Court, the 9th Circuit Court and the Idaho Supreme Court have all struck down similar laws in other cities, including Pocatello, concluding that loitering ordinances are vague and give law enforcement the ability to target one class of people over another, Winmill wrote in his ruling.

His attorneys accused the responding officers of using the city’s loitering ordinance to gain access to Schuchardt’s vehicle and conduct an “unlawful” search. Officers have a “practice or custom” of using the loitering ordinance to conduct drug investigations without reasonable evidence, his attorneys asserted in their filings.

Winmill will still have to take up several other allegations against the city and individual officers, since Monday’s decision only settled one of the three remaining claims filed in the lawsuit. But Pete Wood, one of Schuchardt’s attorneys, told the Idaho Statesman this ruling is “the big one.”

Loitering laws are often used as general warrants, Wood said, allowing officers to circumvent individuals’ constitutional right to be protected from unreasonable searches and seizures. It gives officers unlimited discretion, Wood said.

“In theory, everyone’s loitering,” he told the Statesman.

Michael Reardon, the judge who presided over Schuchardt’s criminal case, also concluded that the officers’ search of his vehicle was unlawful and suppressed all of the evidence collected by police, including the suspected drugs. Reardon went even further in his July 2022 order to suppress the evidence, calling the officers’ conduct “flagrant.”

All criminal charges against Schuchardt were dismissed.