also specially concurring.
There is an old maxim in the law that states, “hard cases make bad law.” Hopefully, the converse is true, i.e. that “easy cases make good law.” This is an easy case! Despite its easiness, however, there are some points of professional concern — -and personal uneasiness — that require additional comments.
If necessary to the decision, I would have been strongly inclined to rule that the initial police encounter with Hernandez, in stopping and forcibly detaining him outside his residence of destination, was not a valid Terry stop because it was based, in my opinion, on nothing more than hunch and conjecture. While the “reasonable suspicion” standard requires less than probable cause, it does mean something more than “speculation” or “instinct” on the part of an officer. State v. Emory, 119 Idaho 661, 664, 809 P.2d 522, 525 (Ct.App.1991); see also State v. Myers, 118 Idaho 608, 613, 798 P.2d 453, 458 (Ct.App. 1990) (knowledge of prior drug activities does not give rise to a particularized suspicion that a crime was being committed). Nor does some vague reference to a so-called “furtive movement” elevate the relatively innocuous and innocent behavior the officer observed (or thought he observed) into the realm of “reasonable suspicion.” See People v. Superior Court of Yolo County, 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449 (1970). In effect, anyone leaving a bar with another individual in the early morning hours would be subject to this type of forced/intrusive stop and accounting for one’s presence over and above a voluntary encounter in the spirit of cooperation which the law clearly allows between law enforcement and the citizenry.
Given the totality of the circumstances outlined in the factual portion of this opinion, Hernandez’s arrest for urination in public— after leaving a bar around 12:42 a.m. and then being detained for up to two hours, having asked twice to relieve himself and being told to “hold it” — is nothing short of constitutional CHUTZPA!13 See United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); State v. Lively, 130 Wash.2d 1, 921 P.2d 1035, 1045 (1996). The officer’s logic, that if he let Hernandez urinate in the alley, he (the officer) would somehow be aiding and abetting a crime of public urination — even at this wee morning hour outside the same residence Hernandez entered — strikes me as legally ludicrous— about as ludicrous as arresting Hernandez for obstructing a police officer by failing to “hold it” (his urine) in response to the command to “hold it!” In effect, to avoid arrest, Hernandez had to literally urinate in his own pants and sit there until the search warrant was fully executed. Surely, our system of justice can do better than this!
After such a prolonged detention, wherein the net result of the search warrant was the finding of large quantities of sugar and flour — substances the Idaho Legislature has not seen fit to criminalize — and being forced to hold his urine until he could no longer hold it, Hernandez just might be entitled to the courtesy of some small word of acknowledgment for his cooperation. Instead, he is unceremoniously hauled off for public urination, and incident to his arrest, .068 grams of methamphetamine is found in his sock. Converting from the metric system to American weights and measures, .068 grams equals less *359than one-four-hundredth (%oo) of an ounce! Because we hold that the arrest was illegal, this minuscule amount of evidence must now be suppressed. Perhaps the United States Supreme Court summed this principle up best when it said:
To repeat, an arrest is not justified by what the subsequent search discloses. Under our system suspicion is not enough for an officer to lay hands on a citizen. It is better, so the Fourth Amendment teaches, that the guilty sometimes go free than that citizens be subject to easy arrests.
Henry v. United States, 361 U.S. 98, 104, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).
As if to add insult to injury, and as if a potential seven-year prison term14 is not enough for the possession of less that %oo of an ounce of methamphetamine, the Canyon County Prosecuting Attorney’s Office elected to charge the defendant as a persistent violator and extend the maximum sentencing jurisdiction to a possible prison term of life imprisonment, with not less than five years to be imposed at a minimum. This is so despite the fact that one of the two prior felonies identified was almost forty years old — a burglary conviction out of Texas in 1955.
Next, Hernandez’s attorney fails to timely file a motion to suppress, so that the issues of the legality of the stop, detention, and arrest cannot even be raised at trial and preserved for appeal in case the motion to suppress is denied. He is thus convicted and sentenced to the Idaho State Penitentiary on November 29, 1994, to serve ten years, with five years fixed before parole eligibility. It is only from prison that Hernandez must begin anew the slow and tedious process of re-litigating his conviction through the Uniform Post Conviction Procedure Act.
Now, over four (4) years later, his conviction is to be overturned and he will be released from an imprisonment based upon an illegal arrest. Unfortunately, Hernandez got chewed up in the system, which seemingly let him down at every juncture. For him, justice took a four-year holiday.
. Chutzpa is a word derived from the Yiddish' language and used frequently in colloquial English to mean or infer unmitigated gall, shameless arrogance, and/or brazen nerve.
. The maximum sentence for possession of methamphetamine is incarceration not to exceed seven years. I.C. § 37-2732(c)(1).