The Washington Post

The drug war exception to the Fourth Amendment

A Colorado man has filed a lawsuit over a highway stop and subsequent search of his car while he was traveling through Idaho.

Just inside the Idaho border with Oregon at 11:40 a.m. that day, Roseen pulled off Interstate 84 to use the toilet at the rest stop, according to the complaint and demand for jury trial. Just before he exited the interstate, the complaint said, Roseen passed an Idaho State Police trooper parked in the median.

Trooper Justin Klitch, who is listed as the first defendant in the lawsuit, followed Roseen to the rest stop, where he activated the overhead lights on his patrol car and then walked up to the parked Ridgeline.

The complaint claimed Klitch followed Roseen only because of his Colorado license plates, which led the trooper to conclude he must be transporting illegal substances.

Klitch did not initially give Roseen a reason for contacting him, but eventually said that Roseen failed to signal before he exited and that he bumped into two curbs at the rest stop. Roseen insisted that he did signal before the exit. He said he could not distinguish curbs hidden under snow and was distracted when Klitch “suddenly appeared behind him,” the complaint said.

The trooper rejected Roseen’s reason for getting off the highway — that he had to use the bathroom — and insisted that Roseen was attempting to avoid the state police. Klitch then asked Roseen why his eyes appeared glassy and accused Roseen of transporting something “that he should not have in his vehicle,” the complaint said.

Roseen told the trooper that he possessed valid prescription medications. In the complaint, Klitch then asked, “When is the last time you used any marijuana?”

Klitch then claimed to have smelled marijuana from Roseen’s truck. Klitch asked to search the truck. Roseen refused — as he is of course permitted to do under the Fourth Amendment. Roseen and his truck were then taken to the sheriff’s office. He was eventually told he could leave, but he’d have to leave his truck. The police then spent several hours thoroughly searching the truck. They found no pot.

It isn’t entirely clear that Roseen was stopped solely because he had a Colorado license plate. But Matt Ironside, who works for the Seattle Times, had a similar experience last fall.

On Aug. 24, my wife and I were on Interstate 86 just outside of Pocatello, when an Idaho State Police vehicle pulled us over. It had been following us for roughly two miles.

When I saw the cruiser’s rollers light up behind me, I ran through the mental checklist: Speeding? Not even close. Taillight out? I checked them the night before. The tabs were up to date, so I was puzzled as to what it could be about. I had hesitated a bit on the lane change I’d just made, but it was so slight — a brief moment of indecision that caused my tire to cross the lane line. As it turns out, that’s all a curious trooper needs.

The officer’s first question was if I were driving impaired. The remainder of the conversation had to do with one thing and one thing only: marijuana.

I was asked questions such as: Was I in possession of a Washington state medical-marijuana card? Was I aware of Washington state marijuana laws? I was even asked, “Have you ever used marijuana?” (Because what I did on weekends when I was 22 would have a great deal of impact on my driving decades later.)

Notably, Ironside writes that he was never asked if he had consumed any alcohol.

This is really just a new wrinkle in an old problem. The drug war has eviscerated the Fourth Amendment. And because of asset forfeiture policies that allow police to seize cash and other valuable they find on motorists that they can even remotely suggest are connected to some sort of drug activity, usually with the proceeds going back to the police department, nowhere is this more apparent than in the reasons cops have given (and in many cases that courts have accepted) to justify traffic stops based on suspicions of drug activity.

James Bovard was writing about the problem 20 years ago in his terrific and still-relevant book Lost Rights. Bovard wrote about the “drug courier” profiles police departments were using (and still use) to establish probable cause for roadside searches. Among the many otherwise innocuous things that could ostensibly subject you to a search:

  • Speeding, even though just about everyone speeds — and even though drug couriers would seem unlikely to speed, given that it could subject them to getting pulled over.
  • Given the latter, New Mexico included in its drug courier profile, “scrupulous obedience to traffic laws.” So if you speed, you’re a potential drug courier. But if you drive at the speed limit, you’re also a potential drug courier.
  • The Georgia State Police told officers to be on the lookout for motorists with boxes of tissues (indicating cocaine use), empty fast food containers (drug couriers apparently eat on the run), or pillows and blankets in the backseat (they also apparently sleep in their cars).
  • One state judge wrote that the profile used by Florida police was written in a way that cast suspicion (and therefore justification for a search) on any car with out-of-state plates traveling north on I-95.
  • A policeman in New Hampshire stopped and searched any car with a Grateful Dead bumper sticker.

More recently, police in Tennessee pulled over a couple as they were driving home to Texas because the couple had put a sticker of a buckeye leaf on their car. They were fans of Ohio State football. The police had mistaken the buckeye leaf for a marijuana leaf. As if that weren’t bad enough, the police warned the couple to remove the sticker to avoid the risk of other police departments mistaking them for drug couriers — as if drug couriers would advertise their activities by affixing pot stickers to the car in which they’re transporting contraband.

In 1998, the U.S. Supreme Court ruled that police can’t stop random motorists at roadblock checkpoints to search their cars for drugs. (The Court has upheld such roadblocks to help police find alleged drunk drivers.) So instead, some police agencies have devised schemes in which they post signs warning of such drug checkpoints. The checkpoints don’t really exist. But if a motorist does a U-turn or exits the highway prior to where the advertised but nonexistent checkpoint was supposed to be, those motorists are then pulled over and inevitably searched. A legal U-turn or exit from a highway isn’t cause for a stop. But a savvy officer can always devise a reason to pull someone over.

Officer Klitch claimed to have smelled pot coming from Roseen’s truck. There was no pot. But at least Klitch waited until he had actually stopped Roseen to make that claim. In May 2012, Dominic Fornal, a deputy in Sarasota, Fla., claimed he could smell pot coming from the car traveling in front of him at 35 mph, even though that car’s windows were up. This wasn’t pot smoke. It was the pot itself. After four searches of the car by several deputies came up empty, Fornal turned off the lapel microphone from his dashboard camera and somehow managed to find a joint in the trunk that all the other cops and two drug dogs had missed. A spokesman for the sheriff’s department said Fornal “operated entirely within department policy.”

Fornal isn’t alone. In 2012, a stop of two women in Irving, Tex., made national news. The women were stopped for allegedly tossing cigarette butts out a car window. But because the officer claimed to have smelled marijuana coming from the car, the women were subjected to a thorough search of their car, and then a humiliating roadside cavity search. There was no pot.

In Virginia, a judge recently upheld the stop and search of a car in which an officer claimed he could smell pot coming from a car he was following, even though the windows in the suspect’s car and the police car were rolled up, and even though a subsequent search turned up no pot.  Last October, another judge in the same state threw out a search in which an officer made a similar claim. There have been several other recent incidents in which cops have made questionable claims about smelling the waft of pot. See here, here, here, and here.)

At his blog, defense attorney Scott Greenfield writes:

While most of us share the “common sense” of smell, it’s the one sense that almost invariably evades proof beyond testimonial.  Sure, there are means to detect odors, but cops don’t have them, unlike cameras to record sound and image.  If a cop says he smelled something, how can he be proved wrong?

The problem is that the claim doesn’t fall within the normal parameters of human senses.  Any city dweller is familiar with the experience of walking down the street and catching the odor of weed from somewhere in the crowd.  The smell is not exactly unfamiliar.  But then, have you had the experience of smelling pot as you’re driving down the road in a car?  Has the judge? The cop says so, but how is one to measure whether his claim is true or total crap?

The juxtaposition of the two recent Virginia cases (and yes, there are dozens, maybe even hundreds of other cases around the country) brings the problem to a head: one judge finds the claim incredible, while another finds it “quite believable.”

Whether the officer is credible is invariably fact specific, so precedent isn’t of much help.  Rather, the determination seems to be more likely grounded upon how likely a judge is to assume the officer is telling the truth.  For the judge who is inclined to believe the cop, the cop is believable. For the judge who is more skeptical, the story is less persuasive.

Of course, it goes without saying that your odds of getting pulled over for any of these “drug courier” characteristics increase substantially if you also happen to be black or Latino. In Bovard’s book, he quotes police officials from a number of agencies explicitly stating that race and ethnicity in and of themselves were enough to justify a stop. Today they’re more savvy about admitting that sort of thing. But the numbers don’t lie.

Reforming the civil asset forfeiture laws would help a lot here. There isn’t much that can be done from a policy standpoint about the courts’ reluctance to protect the Fourth Amendment. But we could at least make it so that violating the Fourth Amendment isn’t so damned lucrative.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."



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Radley Balko · March 31, 2014