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A motorist with Colorado license plates who contends the Idaho State Police profiled him because of his plates and fruitlessly detained and searched his car for marijuana can proceed with his federal lawsuit. Lawyers for Darien Roseen amended the lawsuit complaint after the state of Idaho contended the ISP was protected by the state’s sovereign immunity and couldn’t be sued. All sides have now agreed to proceed under the amended complaint, which drops the ISP as a target but includes ISP Trooper Justin Klitch, along with Payette County, the city of Fruitland, and several of their officers who participated in the traffic stop.
Roseen, 69, was pulled over just as he crossed into Idaho on I-84 in January of 2013, and pressed by Klitch to allow a search of his vehicle for drugs, which he refused. He then was detained and his vehicle searched for hours before he was allowed to go; nothing illegal was found.
His lawsuit charges numerous violations of his constitutional rights, along with discriminatory and selective treatment by profiling. He had Colorado plates and a Washington driver’s license; both states have legalized marijuana, while Idaho has not. A trial in the lawsuit filed in U.S. District Court in Boise likely will be set for early 2015, according to court documents.
The Idaho State Police can’t be sued for detaining and fruitlessly searching a motorist with Colorado plates for marijuana in a case of alleged “license-plate profiling,” the state of Idaho argues, because it’s protected by the state’s sovereign immunity. In the state’s initial response to a lawsuit filed by 69-year-old Darien Roseen, Idaho is asking that the ISP and Trooper Justin Klitch be dismissed as defendants in the lawsuit, at least as far as Klitch is accused of acting in his official capacity as a state trooper.
The 11th Amendment grants states sovereign immunity from being sued for money damages. “It’s a very strange area of law with lots of bizarre rules,” said University of Idaho law professor and associate dean Rich Seamon. “It’s really a restriction on lawsuits that try to tap into the state treasury. It extends to not only the state of Idaho, but to state entities like the ISP.” Nevertheless, lawsuits that charge constitutional violations by police and agencies generally do go forward, Seamon said. “Even with all these immunity laws or rules, the courts for the most part want to be able to identify and remedy constitutional violations. … Those lawsuits ordinarily do get decided.”
Roseen was pulled over just as he crossed into Idaho on I-84 in January of 2013, and pressed by Klitch to allow a search of his vehicle for drugs, which he refused. Roseen was detained and his vehicle searched for hours before he was allowed to go; nothing illegal was found. His lawsuit charges numerous violations of his constitutional rights, along with discriminatory and selective treatment by profiling. He had Colorado plates and a Washington driver’s license; both states have legalized marijuana, while Idaho has not. You can read my full story here at spokesman.com.
A Spokane man says he was pulled over by the Idaho State Police on I-84 just inside the Idaho state line last summer, and accused of having marijuana solely because he had Washington license plates and had his car windows open. “At that point, my jaw just dropped,” said Paul Dungan, 58. “I said ‘No.’ I told him, ‘This is the way I cruise in the summer time … so I don’t fall asleep.’ … He said, ‘I want to search your car,’ and I said, ‘No, you have no right to search my car.’”
Dungan said after nearly an hour of “haranguing me … he finally backed off.” Dungan wasn’t cited for anything; he hadn’t been accused of any traffic offenses. “I was definitely profiled,” he said. “I’m a 58-year-old white guy, and I haven’t ever been profiled, even when I was a young teenager in southern California raising hell-type stuff. What a horrible feeling.”
The Idaho State Police could find no record of Dungan’s stop. “I’m not saying that he’s lying at all – we just can’t find it,” said Teresa Baker, ISP spokeswoman. She said the agency conducts numerous traffic stops that in the past year have yielded big drug seizures – 720 pounds of marijuana, 59 pounds of methamphetamine and 30 pounds of cocaine, just in 2013. “There are a lot of drugs coming into the state from other states, whether it’s Oregon, Washington, Nevada, up through Utah, Montana,” she said. “We are constantly patrolling the highways looking for criminal activity. … If someone breaks a traffic law, no matter how minor someone might think the traffic law is, they can be stopped.”
Dungan’s story follows the release this week of ISP’s video of a traffic stop in January of 2013 in which a Colorado man charges he was targeted because of his Colorado license plates, detained at the same rest area, and his vehicle taken to a nearby jail and searched before he was let go after nothing illegal was found. Both Washington and Colorado have legalized marijuana; Idaho hasn’t. In addition, Idaho is nearly surrounded by states that permit the use of medical marijuana, which Idaho strictly forbids. Darien Roseen of Pagosa Springs, Colo. has filed a federal lawsuit against the Idaho State Police over his stop, saying his constitutional rights were violated and he was profiled on the basis of his license plate.
“I’m sure we’re not the only two guys that are in the states now that have legalized marijuana that those guys are harassing down there,” Dungan said. “I find it really annoying. I’ll never drive through that area again. If I’m going down to the Boise area, I’m going down through McCall and Banks and take the scenic route and through.” You can read my full story here at spokesman.com.
Video of an Idaho State Police traffic stop obtained by The Spokesman-Review under the Idaho Public Records Law shows an ISP trooper pulling behind a pickup truck with Colorado plates as soon as he sees it, following it into the “Welcome to Idaho” rest stop, then badgering the 69-year-old driver to allow a search for drugs. The hard-rock radio station that the trooper was listening to provides a soundtrack, interspersed with commercials; when the trooper first sees Darien Roseen’s truck, the radio is blaring the Scorpions’ “No One Like You.”
“Why’d you pull in here so rapidly?” trooper Justin Klitch asks Roseen in the January 25, 2013 dash-cam video. “Uh, I had to go to the bathroom,” Roseen responds. “You didn’t have to go to the bathroom before you saw me,” the officer says, to which Roseen responds, “That’s true - No, I did have to.” “I’m telling you, you pulled in here to avoid me, that’s exactly what you did,” the trooper says. “I mean, you almost hit the curb, you almost ran off the road. You definitely didn’t want me around you for some reason. … Why are your eyes glassy today?”
The traffic stop led to hours of detainment and a fruitless search of the truck that yielded nothing illegal; Roseen has filed a federal lawsuit over it, alleging he was profiled and illegally searched because of his license plate – which was from Colorado. He also has a Washington state driver’s license. Both Washington and Colorado have legalized marijuana; Idaho hasn’t.
The ISP said in a statement last week that it is conducting an internal investigation into the allegations in the lawsuit. “We would like to assure the citizens of Idaho and the visitors to our state that the Idaho State Police holds all of its employees to a high standard which includes following the Constitution of the United States and the laws and constitution of the State of Idaho,” the agency said. You can watch the video and see our full story here.
The Idaho State Police has issued the following statement on the 'license-plate profiling' lawsuit filed against it by Darien Roseen:
Idaho State Police to Review Allegations in Lawsuit Stemming From Traffic Stop in January 2013
MERIDIAN - The Idaho State Police has learned that the department and one of its Troopers were named in a lawsuit filed by Darien Roseen for an alleged incident that occurred during a traffic stop on January 25, 2013. ISP did not receive a complaint from Mr. Roseen prior to the filing of this lawsuit.
We would like to assure the citizens of Idaho and the visitors to our state that the Idaho State Police holds all of its employees to a high standard which includes following the Constitution of the United States and the laws and constitution of the State of Idaho.
The allegations made by Mr. Roseen are now a pending legal matter, as well as, the subject of an internal investigation. Therefore, ISP will not be able to comment on the allegations or the facts of this specific incident until the matter is resolved.
Here’s a link to the Idaho State Police incident report on the Jan. 25, 2013 traffic stop in which a 69-year-old Washington man, whose vehicle had Colorado plates – he has a second home in Colorado – was pulled over as he entered Idaho on I-84, detained, and his vehicle extensively searched, as officers insisted he must have marijuana. Nothing illegal was found and Darien Roseen eventually was released. ISP released the report today pursuant to a request under the Idaho Public Records Law; the agency has not yet responded to a federal lawsuit over the incident.
In the report, ISP Trooper Justin Klitch wrote that he observed that Roseen’s eyes were glassy and “his hands were shaking uncontrollably as if he were extremely nervous.” He wrote, “I informed Roseen his behavior was consistent with someone who had illegal items in their vehicle.” He told Roseen he planned to call for a drug dog, and “he indicated that was fine and that I wouldn’t find anything.” Then, after Klitch urged Roseen to open a sub-trunk compartment under his pickup truck’s bed – because the officer knew “from prior experience” that the Honda Ridgeline truck had such a compartment – Roseen eventually agreed. Klitch said at that point he smelled the odor of marijuana.
The lawsuit says no one else smelled such an odor, and it was raining, windy and snowy at the time. The incident report says when Klitch told Roseen he smelled an odor of marijuana, Roseen “acted as if he were shocked.” No marijuana was found.
Mark Coonts, the attorney for Darien Roseen, the retired executive with Colorado license plates who was pulled over, detained and fruitlessly searched for drugs just inside the Idaho border as he passed through the state on I-84, said, “This driver was singled out because of the fact that he had a Colorado plate. … But there’s a bigger implication of any state having a particular characteristic or association with that, being used as justification for law enforcement contact.” You can read my full story here at spokesman.com,
“For instance, Idaho is known as a pretty gun-friendly state, pro-gun,” Coonts told Eye on Boise. “It would be like me going to Oregon and being pulled over because of my Idaho plates, and law enforcement assuming that I had a gun, as soon as they walked up to the car, ‘Where’s the gun?’ I think that’s the much broader picture of this case.”
Coonts, who is with Jones & Swartz in Boise, said since news came out about Roseen’s case – and his federal lawsuit against the Idaho State Police – his firm has received a number of emails about similar incidents. “Quite a few people have emailed in about similar interactions,” he said. “In Idaho, people being stopped and questioned … the same type of scenario, people being targeted because of the plates of their vehicle.”
He added, “This is, we feel, a civil rights issue. It’s not a political issue about people’s particular ideas about marijuana, we didn’t file it about that at all. And we are not also passing judgment on all law enforcement, because they do have a difficult job. … If somebody’s speeding in our state, law enforcement should be able to issue a citation. It’s when it goes beyond that to start profiling, and people become associated with their state of origin, that’s when it becomes a civil rights violation.” For Idahoans, he said, “the risk is that they could experience the same treatment in other states.”