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LICENSE PLATE PROFILING LAWSUIT DROPPED

BOISE - A discrimination case against the Idaho State Police for targeting a driver for a marijuana search because his license plates were from Colorado has been dismissed at the request of both sides.

That means the court won't weigh in on license-plate profiling in this case.  But a legal expert said 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 and may cause law enforcement agencies to stick to "more traditional probable cause or observed infraction findings."

"The lawsuit may have served its purpose without going to conclusion," said David Leroy, former Idaho attorney general and now a Boise defense attorney.

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 Interstate 84 from Oregon on a snowy day in January 2013.  When Roseen pulled into the "Welcome to Idaho" rest area, Trooper Justin Klitch followed him and insisted he must have marijuana in his vehicle.

Roseen refused to allow a search, but 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.  Nothing was found and he eventually was released.

He filed his lawsuit in April 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 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."

Since the case is at an end, Leory added that "it remains an open question" if Roseen's rights were violated.

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 have moved to legalize marijuana, and most states surrounding Idaho permit the use of medical marijuana, which Idaho 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.

Klitch is the target of two other lawsuits alleging illegal search or seizure.

In March, U.S.  Magistrate Judge Ron Bush dismissed the discrimination charge against Klitch, saying there weren't sufficient facts presented to support the claim.  Other charges still remained in the lawsuit illegal search and seizure, illegal detention and illegal operation of Roseen's vehicle without his consent.  But the case had hit numerous legal hurdles, including arguments by the state that law enforcement agencies have sovereign immunity.

Leroy said the missing facts about license-plate profiling could potentially have been proven by 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."