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 beneath them.
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 their actions.
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.”