Marijuana license-plate profiling case dropped

BOISE – A discrimination case against the Idaho State Police for targeting a driver for a marijuana search because his license plates were from a state that has legalized the drug has been dismissed at the request of both sides, after it ran into numerous legal hurdles. That means the court won’t weigh in on license-plate profiling in this case. But a legal expert says Darien Roseen’s lawsuit, the release of the state trooper’s dash-cam video under the Idaho Public Records Law, and the subsequent national attention it drew helped shine a light on the practice that may cause law enforcement agencies to take more care, and stick to “more traditional probable cause or observed infraction findings.” David Leroy, former Idaho attorney general and now a Boise defense attorney, said, “The lawsuit may have served its purpose without going to conclusion.” Roseen, then a 69-year-old retired Weyerhaeuser executive who was driving from his daughter’s baby shower in Washington to his second home in Colorado, was followed by an ISP trooper within a mile after he crossed the Idaho border on I-84 from Oregon on a snowy day in January of 2013; he had Colorado license plates. When Roseen pulled into the “Welcome to Idaho” rest area, Trooper Justin Klitch followed him and insisted he must have marijuana in his vehicle. “I believe that you have something in this vehicle that you shouldn’t have,” Klitch told Roseen. “I am going to find whatever it is, I can assure you of that.” Roseen refused to allow a search, saying, “If I have a choice, I can say no, I don’t want you to search it,” and told the officer he’d never used marijuana and didn’t have any. Klitch persuaded him to unload items from his truck and open a hidden compartment; Klitch then claimed to smell marijuana, though Roseen denied it. Klitch called other officers and took Roseen and his vehicle to the Payette County Sheriff’s Office, where Roseen was detained and his truck searched for hours, but nothing was found, and he eventually was released. He filed his lawsuit in April of 2014 against Klitch, the ISP, and numerous officers from various agencies who were involved in the detention and search. He charged that his constitutional rights were violated by illegal search and seizure and detention, the driving of his vehicle from the rest stop to the sheriff’s department without his permission, and selective enforcement that targeted him because of his license plate. “By law, it’s OK for an officer to be wrong, if there’s a reasonable basis for their error,” Leroy said. “But if the trooper was malicious, or is acting habitually without sufficient facts, that is a violation of a citizen’s rights. And where the contest was framed but never decided as to this particular instance, it remains an open question.” After the lawsuit was filed, a Spokane man told the Spokesman-Review he endured a similar detention at the same rest stop when he was driving with Washington license plates, with an ISP trooper demanding to search his car for marijuana. He refused, and eventually was allowed to leave. Unlike Idaho, Washington, Colorado and Oregon all have legalized marijuana. Plus, numerous states surrounding Idaho permit the use of medical marijuana, which Idaho strictly forbids. Roseen’s Boise lawyer, Eric Swartz, said he received numerous calls and emails from others with similar stories. But he was unavailable for comment Wednesday, after his client and the state both agreed to drop the case, with each side bearing its own costs and attorney fees. The case had hit numerous legal hurdles, including objections from the state that ISP and the other law enforcement agencies involved were protected by sovereign immunity. In response, Swartz amended the lawsuit to target only Klitch, who also is the target of two other lawsuits alleging illegal search or seizure. In March, at the state’s request, U.S. Magistrate Judge Ron Bush dismissed one of the five counts against Klitch – the one charging discrimination in violation of equal protection clause of the 14th Amendment to the U.S. Constitution. The judge cited two legal precepts: That Roseen hadn’t provided adequate facts to prove he was a member of an identifiable protected class, and that his constitutional right to interstate travel wasn’t violated, because previous court cases have found that’s not violated by barring only one means of travel, like driving, when others exist, like taking a bus or plane. The judge dismissed that charge without prejudice, advising Roseen that he could amend the complaint to add the missing information, in the form of proof that “other persons from other states could have been followed and pulled over, but were not.” Four other charges still remained in the lawsuit, charging illegal search and seizure, illegal detention, and illegal operation of Roseen’s vehicle without his consent. Leroy said the missing facts about license-plate profiling could potentially have been proven by collecting and analyzing data about traffic stops and license plates. “But collecting that kind of data is a huge and expensive research undertaking,” he said. Plus, if Roseen continued to pursue the lawsuit but lost, he could have been ordered to pay the state’s attorney fees and costs as well as his own. Idaho hired a private law firm, Moore & Elia of Boise, to handle the case, and as of May 15, according to state records, had paid the firm more than $50,000. “It does point out that both civil and criminal litigation against the state or other police departments is typically conducted at considerable expense to the private parties who are bringing or defending that litigation,” Leroy said. “And the price of justice or defending oneself from injustice can be so high that sometimes the best interests of society are not vigorously prosecuted.”