Is a Colorado
license plate the new “Legalize It” bumper sticker? According to a
federal lawsuit filed last week, an Idaho state trooper
stopped a motorist on Interstate 84 near the Oregon border and
searched his Honda Ridgeline truck for marijuana because the
vehicle carried tags from Colorado, which had legalized possession
and cultivation for recreational use the previous November. The
Denver Post
reports that police searched the truck for hours but found
nothing illegal. Although press coverage of the case so far has
focused on the license plate angle, the justification for the
search is at least as troubling as the alleged motivation for the
stop, since it seems to give cops carte blanche to search a vehicle
whenever they claim to smell something funny.
In his complaint, Darien E. Roseen, a 70-year-old retiree who
lives in Washington state and has a second home in Colorado, says
Idaho Trooper Justin Klitch was parked in the median of I-84,
watching eastbound traffic, on the morning of January 25, 2013.
“Immediately after Mr. Roseen passed his location,” the complaint
says, “Trooper Klitch pulled out from the Interstate median,
rapidly accelerating to catch up with Mr. Roseen’s vehicle.” Klitch
followed Roseen into a rest stop, where he “activated his overhead
lights only after Mr. Roseen had come to a complete stop in the
rest area parking space.”
At first Klitch did
not say why he was detaining Roseen. Later he claimed that Roseen
had failed to signal as he left the highway (which Roseen denies)
and that his tires had bumped the curb in the rest area as he
parked (which Roseen admits and attributes to snow accumulation
that made the curb difficult to see). Roseen says Klitch accused
him of pulling into the rest area to avoid police contact—strange
if true, since by Klitch’s account there was no justification for
police contact until Roseen left the highway.
After claiming that Roseen’s eyes looked “glassy,” the trooper
accused him of carrying contraband and threatened to bring in a
drug-detecting dog if Roseen did not consent to a search of his
truck. After repeated accusations and requests for permission to
search the truck, Roseen said Klitch could look in the trunk,
hoping he could get back on the road sooner if he allayed the
trooper’s suspicions. “When Mr. Roseen opened the trunk
compartment, and despite the strong gusts of wind and
precipitation that day,” the complaint says, “Trooper Klitch
claimed he could smell the odor of marijuana.” Based on that
alleged odor, Klitch proceeded to search the entire truck. He
called for assistance from local police, who drove Roseen’s truck
to the Payette County Sheriff’s Sally Port, where the search
continued. After thoroughly rifling Roseen’s belongings, the cops
let him go with a citation for careless/inattentive driving.
Roseen’s lawyer
told The Denver Post that Roseen “does not use
marijuana and never has.” So where did this mysterious,
search-justifying odor come from? When a police dog alerts to a
vehicle in which no drugs can be found, police
claim the canine’s superhuman olfactory sense must have
detected molecules left behind by contraband that used to be in the
vehicle. Are courts prepared to accept similar claims about smells
allegedly detected by mere humans? Maybe a pot smoker gave one of
the presents Roseen was carrying from his daughter’s baby shower,
and Klitch smelled the remnants of smoke that had wafted by the
gift as it was wrapped. Or maybe a pot-smoking mechanic worked on
the truck.
Courts are not as skeptical of such claims as fan of the Fourth
Amendment might like. The day after Roseen filed his lawsuit, a
Virginia judge deemed it “quite believable” that a Norfolk
police officer could smell marijuana emanating from a car he was
following on city streets, even though the car’s windows were
closed and even though the car did not in fact contain marijuana.
Officer Robert Frenier testified that he pulled the car over solely
because of the alleged cannabis odor. A search of the car found a
handgun illegally possessed by a passenger with a felony record—but
no marijuana. According to The Virginian-Pilot, Frenier
said “the driver told police occupants had previously smoked pot in
the car.”
The newspaper first reported on this
practice of sniffing out contraband while driving down the
street a couple of years ago. It says police have had mixed success
in defending searches based on such remote sensing.
If such unfalsifiable assertions qualify as probable cause for a
search, cops do not need to bother with drug-sniffing dogs. They
can search any vehicle at will simply by saying they themselves
detected a whiff of cannabis.
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