LeSocial

Rocky Mountain News

URL: http://www.rockymountainnews.com/drm...183872,00.html


'Drug check' on signpost up ahead? It's white-lie zone

But police ploy legal, appeals court rules

By Karen Abbott, Rocky Mountain News
August 15, 2003

They were driving to a music festival in far southwestern Colorado when they saw the big signs posted along the road.

"Narcotics checkpoint, one mile ahead."

"Narcotics canine ahead."

The passenger tossed something out the window, and they just kept going. That was only the petty offense of littering - a little crime - but it was the start of something big.

It's against the law for police to set up narcotics checkpoints to check whether any randomly passing motorists happen to have illegal drugs.

But it's not illegal for the police to pretend that's what they're doing, the Colorado Court of Appeals ruled Thursday.

On that day in June 2000, the police were pretending.

After they put up the signs warning of the nonexistent narcotics checkpoint, some officers hid on a hill overlooking the road, wearing camouflage clothing, to watch what passing motorists did when they saw the signs.

If anybody threw something out of a car, the officers radioed to their colleagues farther down the road to stop the car for littering. Then a hidden officer would dash down to the road to retrieve the litter.

This time, they retrieved a pipe containing what appeared to be marijuana residue.

That gave the police a legal reason to search the car, the Court of Appeals ruled in the case of Stephen Corbin Roth, 60, who was driving the car that day.

In the car, the police found another marijuana pipe, and a jury convicted Roth of unlawful possession of drug paraphernalia.

Roth appealed, contending the police searched his car illegally, but the appeals court disagreed.

"The police here observed the defendant's passenger commit the offense of littering," the court said. "This offense, while minor, justified the police in stopping defendant's car."

The Colorado Court of Appeals based its ruling on a federal appeals court decision last year in a similar case from Oklahoma.

In that case, according to the Denver-based 10th U.S. Circuit Court of Appeals, Mack Flynn was driving along a highway in Muskogee County when he passed a sign reading "Drug checkpoint 1/3-mile ahead."

Then he passed another sign that said, "Drug dogs in use," and saw a police car parked ahead with its lights on.

Flynn suddenly changed lanes and zipped down an exit ramp. He stopped the car. His passenger opened the door and dropped out a large sack. Then Flynn drove off but was soon stopped by police.

Police hiding in the bushes had pounced on the sack and concluded that it contained what they called "a lot of dope." It turned out to be methamphetamine.

Flynn argued on appeal that it is illegal for police to set up drug checkpoints - and the 10th Circuit agreed, but it ruled against Flynn anyway because there wasn't any drug checkpoint.

"The posting of signs to create a ruse does not constitute illegal police activity," the 10th Circuit said.

"In fact, had Mr. Flynn continued driving eastbound on I-40, he would never have been stopped because the checkpoint warned of by the signs did not exist. Even the police car ahead on I-40 was unoccupied.

"The officers put up the signs only as a ruse to observe suspicious behavior by those who might take the nearest exit after seeing the signs."