Police officers approached James Mark Popp as he sat on the passenger side of the front seat of a vehicle in the parking lot of a bar in Coeur d’Alene, Idaho.  Popp was resting his arm out of the vehicle's window while flicking ash from his cigarette onto the parking lot.  An officer informed Popp that, by dropping his cigarette ash onto the lot, he was littering.

Barry Shanoff

March 7, 2024

6 Min Read
Steve Stock / Alamy Stock Photo

          Cigarette ash is a terrible thing to waste.  Instead, reuse and recycle.

          According to an article in the Journal of the National Medical Association, August, 1937, “an ointment made of two drams of ash to one ounce of lanolin . . . allays the severest itching almost immediately. * * *  As a dentifrice it is also useful. What is simpler than lighting a cigar or a cigarette after a meal, which is customary, and saving the ash for brushing your teeth. It removes the film, gives a fine luster to the teeth and leaves a pleasant taste and feel in the mouth.” 

          Take that, Listerine!

                                                       ___________________

          As expressed in Latin, a very old legal maxim says: De minimis non curat lex.  Roughly translated, the law should not get involved in circumstances where what has occurred is extremely trivial.  Must a prosecutor hold someone accountable for an assault consisting of a gentle jab or for a theft of one dollar?  And just so you know, an individual cigarette contains no more than one gram of tobacco.  The ash produced from one cigarette weighs less than 0.2 grams. 

          Police officers approached James Mark Popp as he sat on the passenger side of the front seat of a vehicle in the parking lot of a bar in Coeur d’Alene, Idaho.  Popp was resting his arm out of the vehicle's window while flicking ash from his cigarette onto the parking lot.  An officer informed Popp that, by dropping his cigarette ash onto the lot, he was littering.

          An officer took Popp's driver’s license and ran a standard identification check.  Meantime, another officer conducted a dog sniff on the vehicle.  When the detection dog signaled a positive alert, an officer asked Popp to exit the vehicle, which he did, and Popp consented to a search of his body and clothing. The search initially yielded a rolled-up dollar bill with white residue in Popp’s pocket. When the residue tested positive for cocaine, Popp was arrested for possession of drug paraphernalia. After officers handcuffed Popp and conducted a more thorough search, they found a bag containing a white substance that subsequently tested positive for cocaine.

         Prosecutors charged Popp with possession of a controlled substance, possession of drug paraphernalia, and, to boot, violating the Coeur d’Alene anti-littering ordinance.  Popp then filed a motion to suppress, that is, to exclude evidence from trial, arguing the anti-littering ordinance does not mention cigarette ash and, that even if it did, it does not forbid his conduct in a private parking lot. Responding to the motion, the State argued that Popp's conduct violated a state criminal statute outlawing the placing of debris on public or private property.

          Kootenai County District Judge Lansing L. Haynes denied Popp's motion, concluding that the officers lawfully stopped and searched him on reasonable suspicion of violating the anti-littering ordinance and the state statute. Subsequently, Popp entered a conditional guilty plea to possession of a controlled substance, reserving his right to appeal the denial of his motion to suppress. (A conditional guilty plea allows a defendant to appeal an issue in the case to a higher court.  A defendant can later withdraw the guilty plea if the appeals court rules that the trial judge was wrong.) In exchange for Popp's guilty plea, the State dismissed the other charges. 

          On appeal, Popp argued that the police officers unlawfully detained and searched him because discarding cigarette ash is not littering under the city ordinance or the state statute. He further asserted that, even if cigarette ash is considered litter under the ordinance, the incident did not occur in a public area as required by the ordinance. With respect to the state statute, Popp

argued that, even if disposing cigarette ash is prohibited, prosecutors failed to prove that the owner of the parking lot did not authorize his actions.  

          A three-judge appellate panel found that Popp's conduct did not occur in a location covered by the city ordinance, but it upheld the denial of Popp's motion to suppress because the conduct took place in a location covered by the state statute.

          The Coeur d'Alene Municipal Code provides that it "is unlawful for any person to dispose of, throw away or leave any empty container or other litter on any public park, grounds, parking facility or thoroughfare within the city."  Judge Haynes concluded that the ordinance covers the parking lot where Popp dropped his cigarette ash.  As he saw it, the parking lot is a "parking facility" that is "open to the public" and is, therefore, a "quasi public and quasi private facility; open to the public, owned privately."  The appeals court disagreed.

          “The ordinance as written only precludes littering on a public park, grounds, parking facility or thoroughfare within the city,” said the panel. “It is undisputed, and the district court found, that the parking lot on which Popp disposed of his cigarette ash is privately owned. That the parking lot is open to the public does not bring it within the purview of the ordinance. * * *

Because the parking lot on which Popp deposited his cigarette ash is privately owned, it is not owned by the city and does not qualify as a parking facility for purposes of [the ordinance].”

          The justification for Popp’s detention under state law was a different matter altogether.

          Idaho Code Section 18-7031 prohibits "deposit[ing] upon any public or private property within this state any debris, paper, litter, glass bottles, glass, nails, tacks, hooks, hoops, cans, barbed wire, boards, trash, garbage, lighted material or other waste substances on any place not authorized by any county, city, village or the owner of such property." (Emphasis added)

          Popp argued that "discarded cigarette ash" is not "litter," but, the panel noted, he "assum[es], without conceding, that burnt cigarette ash constitutes 'lighted material,' under the plain language of [I.C. § 18-7031]."  The appeals court rejected his claim that, because the statute also requires that the depositing of such material be unauthorized by the property owner, the seized drugs and paraphernalia could not be introduced into evidence because the State failed to present evidence that the owner of the parking lot "did not authorize people to smoke there and deposit the burnt ash onto the ground."

Under Idaho law, whether an investigative detention is permissible depends on two aspects of the police officer's action:  Was it based upon facts that justify suspicion that the detained person is, has been, or is about to be engaged in criminal activity? Was it reasonably related in scope to the circumstances? 

          “Because the officers witnessed Popp discarding his cigarette ash onto a parking lot, there was reasonable suspicion to believe he was violating I.C. § 18-7031,” the panel concluded. “The dog sniff provided officers with reasonable suspicion that Popp was, had been, or was about to be engaged in criminal activity. Furthermore, Popp consented to the subsequent search of his person which revealed he was in possession of drug paraphernalia.”

State v. Popp, No. 49415, Idaho Ct. App., Jan. 9, 2024.        

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