Are Colorado Drivers Being Profiled?

In the past, we’ve written about policing for profit.  “Policing for profit” may sound like a too-clever catchphrase (or perhaps the name of a punk band), but the term is far more than a hollow quip. On the contrary, it’s a reflection of the very real, very unsettling trend of police officers seizing cash and property from innocent civilians in the interest of fattening force budgets.  The technical term for this phenomenon is civil asset forfeiture, and as the word “civil” implies, these property seizures victimize law-abiding citizens who have committed the heinous crime of… absolutely nothing.

While apparently any and every vehicle on the road makes a suitable target for impromptu searches (and sometimes confiscation), certain vehicles tend to attract special notice from members of law enforcement: vehicles with Colorado plates.  On the heels of the Rocky Mountain State’s controversial marijuana legalization, officers from surrounding jurisdictions are allegedly clamping down on Colorado motorists — whether it’s lawful or not.  Are Colorado drivers being profiled?

“Do You Mind if I Search Your Vehicle?”

Usually, the word profiling is preceded by the word racial.  In the news, it often manifests as “stop and frisk” disproportionately targeting Blacks and Latinos, or unethical Muslim surveillance in the aftermath of 9/11.

In this case, there’s another kind of profiling at work: Colorado license plate profiling.  This particular type of targeting may not be as widely known as racial profiling is today; but if incidents continue to plague the Colorado area, it will be.

Colorado man Darien Roseen is just one of many to be hassled over a thin sheet of metal.

Roseen was at a roadside rest station when he was stopped by Justin Klitch, an officer with the Idaho State Police.

“The reason I’m stopping you,” Klitch initially explained, “is you failed to signal properly when you pulled in here.  […]   You made jerky, erratic movements back here.  …Why’d you pull in here so rapidly?”

“Uh, I have to go to the bathroom,” Roseen responded.

The conversation escalated rapidly.

“I’m telling you, you pulled in here to avoid me. That’s exactly what you did,” Klitch insisted.

“Why are your eyes glassy today?” he asked.

Roseen did not think his eyes were particularly glassy, but complied with the officer as the pair returned to Roseen’s vehicle.  Just as Roseen told him he would, Klitch then discovered legitimate prescription medications in the car.  But that wasn’t his objective.

“When’s the last time you used any marijuana, sir?” Klitch abruptly asked Roseen.

“I have not used marijuana in my entire life,” Roseen responded.

“No?  Do you mind if I search your vehicle?”

A police officer watching traffic

A Violation of the Fourth Amendment?

Darien Roseen was 70 years old.  He was the retired vice president of a real estate company, on the road home from his daughter’s baby shower.  While these wholesome details alone do not assure innocence, they certainly do not paint Roseen as a suspicious marijuana trafficker who should have been singled out, questioned, and searched.

Roseen does not think so, either.  He believes he was targeted solely on the basis of an unfortunate license plate.

In fact, he believes so strongly he has filed a lawsuit against the Idaho State Police alleging violations of his Constitutional rights.

The rights Roseen’s suit refer to are those addressed by the Fourth Amendment.  For those who need a quick refresher in U.S. History, the Fourth Amendment is meant to protect American citizens “against unreasonable searches and seizures,” and “shall not be violated… but upon probable cause.”

But did Klitch have probable cause?

Attorney Joseph Filicetti doesn’t think so.  “Just because a vehicle’s plate is from Colorado or Washington,” says Filicetti, “does not mean that every person from that state with those license plates is carrying or using marijuana.  That’s not necessarily an assumption that you can make.”

More importantly, Filicetti points out that drivers do not have to consent to searches of their vehicles.  If there is probable cause — such as the actual scent or sighting of a drug — then consent can be eclipsed by the presence of evidence.  But Klitch saw and smelled nothing in Roseen’s vehicle.

How could he have?  There was absolutely nothing there — nothing except a Colorado license plate.

Colorado Drivers Routinely Stopped Without Reason

Unfortunately, Roseen is not the only person who has been harassed on the (absolutely unacceptable) basis of Colorado plates alone; nor is Idaho the only state guilty of profiling.

“There was no reason for him to pull us over,” Dave Adkins says of one brush with a Nevada officer.  “Why did he pull us over?  Only because we had a Colorado license plate, and he stuck his head in there and started sniffing as soon as he came up to the car.”

Mark Jennings had a similar experience while traveling through Illinois.

“I believe it was either three or four other state troopers pulled up in other vehicles.  The Colorado license plates didn’t hit me until I was sitting in the car and watched the other vehicles pull up.  Then at that point I knew for sure it was absolutely them thinking I was taking drugs from Colorado into another state.”

I Was Stopped and Searched, What Can I Do?

First, the bad news.  If you haven’t been paying attention so far, it’s that police officers in jurisdictions close to Colorado routinely stop drivers who are “guilty” of traveling with the wrong sort of license plate.  Even if you are local to Utah, you may find yourself being stopped and searched anyway, particularly if you’re close to the Colorado border.  Interstate 70, which forges a direct link between Utah and Colorado, is especially suspect.

There are two worst case scenarios here.  In one, you may be entirely innocent, but still lose your money and/or property (e.g. your car) to civil asset forfeiture.  In the other, the police discover drugs in your car, seize them, and place you under arrest.

Now, for the good news: even in the worst case scenarios, you still have powerful legal recourse.

As the ordeals suffered by Darien Roseen and dozens of others make painfully clear, police officers do not always conduct seizures and searches in a lawful, valid manner.  Officers may ignore the critical “probable cause” clause of the Fourth Amendment, as in Roseen’s case.

They may even proceed to conduct vehicle searches despite an objective denial of legal clearance.  If you can’t bring yourself to believe it, consider the recent case of Lawrence v. Alton. In 2010, motorist Jeffrey Lawrence — care to guess at his license plate? — was stopped by Utah Highway Patrol Corporal Shawn Alton.  Not to be deterred by the initial red light from an attorney regarding probable cause, Alton simply fudged the attorney’s response and lied on a warrant application.  Did the attorney approve the search?  No.  Did Alton indicate that?  Remarkably, the answer is no again.

Even man’s best friend has been dragged into the mess.  Dogs are indispensable drug-sniffers on many police forces, but they cannot speak.  They are trained to signal the presence of drugs in a certain way, which the human officers must then interpret and act upon.  Unfortunately, K-9 handlers do not always make the appropriate translation, and there have been documented cases of officers claiming a dog signaled for drugs even when no such signaling occurred. (Former Associate Justice of the U.S. Supreme Court David Souter has said that the “infallible dog” is a “creature of legal fiction.”)

When officers violate the provisions of the Fourth Amendment, falsify warrant applications, or misrepresent a drug dog’s signal in order to raise charges against you, those charges may not hold up in court.  If your Constitutional rights were violated, the evidence against you can often be suppressed, and in many cases, the case can be dismissed altogether.

Utah criminal defense attorney Darwin Overson specializes in handling these matters.  If you feel that your rights were in any way violated during a vehicle search, contact our law offices immediately to see how we can help.  Our phone lines are always staffed, so call (801) 758-2287 any time of day or evening to schedule your free, confidential case evaluation today.