Pubdate: Thu, 25 Jun 2015
Source: Spokesman-Review (Spokane, WA)
Copyright: 2015 The Spokesman-Review
Author: Betsy Z. Russell


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."
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MAP posted-by: Jay Bergstrom