Charles Feldmann, Esq.
On August 23, 2016, the Tenth Circuit held that highway patrol officers
involved in traffic stops cannot use the fact that an individual’s
identification or license tags are from a state that has legalized marijuana
as a justification to detain the person or search the vehicle for drugs.
In addition, the court found that the officers involved in the traffic
stop that gave rise to the lawsuit could not use governmental immunity
to prevent the man they’d detained from suing them.
On the night of December 11, 2011, Peter Vasquez was driving from Colorado
to Maryland on I-70 when he was pulled over by Kansas Highway Patrol Officers
Richard Jimerson and Dax Lewis. Vasquez had recently purchased the 1992
BMW he was using for the trip, and the officers stopped him due to the
poor visibility of his temporary tag, which had been displayed behind
the car’s tinted back window.
As Officer Jimerson approached the vehicle, he noticed that Vasquez was
traveling alone. He also noticed pillows and blankets in both the passenger
and back seats of the car and suspected that something had been obscured
After confirming with Vasquez that no one else was in the car, Officer
Jimerson asked him where he was going. Vasquez replied that, while he
was from Colorado, he had recently moved to Elkton, Maryland, and was
driving there. Jimerson then took Vasquez’s license and registration
and returned to the patrol car, where he told Officer Lewis that Vasquez
looked “notably nervous” and described the blankets and pillows
he had seen in the vehicle. Lewis then went to go “get a feel for”
Vasquez while Jimerson ran his insurance information. He returned to the
patrol car and confirmed to Jimerson that Vasquez “look[ed] all
scared to death.”
Vasquez’s insurance scan revealed that he also held insurance policies
for two newer cars. After Jimerson called in a request for a drug dog,
Lewis returned to the vehicle and questioned Vasquez as to why he wasn’t
driving one of his newer cars cross-country. Vasquez answered that one
of the vehicles had been purchased for his girlfriend. Officer Lewis then
asked him where all his stuff was “if he was moving,” and
Vasquez explained that he had already moved most of his belongings. Lewis
then issued Vasquez a warning and began to walk away.
However, before reaching the patrol car, Lewis turned and re-approached
Vasquez’s BMW to ask if he would answer a few more questions. When
Vasquez agreed, Lewis asked him if he had any illegal drugs in the vehicle.
Vasquez replied that he did not. Lewis then asked if he could search the
vehicle, and Vasquez refused. Stating he thought that Vasquez was “probably
involved in a little criminal activity,” Officer Lewis then detained
him for fifteen minutes until the drug dog arrived. However, the subsequent
search of the vehicle revealed nothing illegal.
A few months later, Vasquez filed suit against the two officers, claiming
that they had detained him and searched his car without reasonable suspicion.
Vasquez argued that the search and detention had been a violation of his
constitutional rights under the Fourth Amendment, which protects individuals
from unreasonable searches and seizures.
Under federal law,police officers must have a specific, objective basis
for suspecting that a person stopped for a traffic violation is involved
in criminal activity. In response to the suit filed by Vasquez, Jimerson
and Lewis argued that several factors made detaining Vasquez reasonable,
including that he was from Aurora, Colorado, which was a “drug source
area” due to the legalization of medical marijuana (recreational
marijuana had not yet been legalized at the time), and he had been travelling
on I-70, which was “a known drug corridor.”
The Tenth Circuit court flatly rejected this argument. Calling it the officers’
“most troubling justification” for the detention and search,
Circuit Judge Lucero pointed out that this rationale would “justify
the search and seizure of the citizens of more than half of the states
in our country,” given that twenty-five states and Washington, D.C.
had legalized medical marijuana. Insofar as I-70 was concerned, Lucero
noted that the highway is a major corridor between Colorado and the East
Coast, and therefore “it could equally be said that it is suspicious to
not drive from Colorado to Maryland along I-70.”
In a final blow to the officers, the court found that Jimerson and Lewis
could not use governmental immunity to bar Vasquez from suing them for
Generally, individuals acting “under the color of law,” i.e.
in an official capacity, enjoy immunity from individual liability for
their actions. This policy stems from the idea that it would be undesirable
for individuals such as police officers or firefighters to not take action
in situations where they’re needed due to the concern that they’ll
later be sued for doing so.
To defeat the immunity protection, the person bringing the suit must show
not only that the officer violated their constitutional rights but also
that the violation was a clearly established one. Put another way, the
person must prove that there was no ambiguity regarding whether or not
the officer could do what he did, at the time he did it. Rather, the officer
clearly should have known that the action was unacceptable when it occurred.
To decide this, courts look to see whether there was major case law clearly
prohibiting the officer’s actions at the time of the incident.
Unfortunately for Jimerson, the court not only found that there
was existing case law that provided clear guidance at the time that Vasquez
was detained—it also found that the defendant in the case was none
other than Officer Jimerson himself.
“We have previously held, under strikingly similar circumstances,
that an officer—in fact, one of the officers before us now—did
not have reasonable suspicion to further detain a defendant after issuing
a speeding warning,” Judge Lucero wrote.The similarities between
the two cases were plenty, and the court spared no detail in recounting
them. The interaction leading to the suit had been between Jimerson and
a Mr. Wood, who had been driving from California when he was pulled over
by Jimerson for speeding:
“After issuing [the] warning, Jimerson told Wood he was free to leave,
but then quickly inquired if he could ask Wood a few questions, to which
Wood agreed. Jimerson asked if [he] had any narcotics or weapons, and
was told no. Despite this, Jimerson asked for Wood’s consent to
search the car, and after it was denied, Jimerson ‘detain[ed] the
car and its contents in order to subject it to a canine search.’
Jimerson justified his detention of Wood based on his observation that
he was ‘extremely nervous’… Jimerson additionally raised
some concern about California being a drug source state.
“We held that Jimerson’s stated reasons did not rise to the
level of reasonable suspicion, and thus detaining Wood after issuing the
warning violated his Fourth Amendment rights.”
Not surprisingly, the Tenth Circuit found that Jimerson and Lewis should
have known that they did not have reasonable suspicion to detain Vasquez
or search his vehicle. Accordingly, because the Tenth Circuit heard the
case only to determine if Vasquez could sue the officers personally, the
case will now return to the district court, where Vasquez may continue it.
“It is time to abandon the pretense that state citizenship is a permissible
basis upon which to justify the detention and search of out-of-state motorists,”
Judge Lucero declared in the court’s opinion. “[It’s]
time to stop the practice of detention … for nothing more than
an out-of-state license plate.”