'FAKE' DRUG CHECKPOINTS OK'D

Judges Endorse Vehicle Searches After Motorists Are Tricked Into
Dumping Drugs

Colorado law enforcement officers can use fake or "ruse" checkpoints
to ferret out drug dealers and drug users, the Colorado Court of
Appeals ruled Thursday, even though real drug checkpoints are
unconstitutional.

Judges said the difference involves stopping cars without reasonable
suspicion versus stopping them when there is reason to believe a crime
has been committed. In this case, officers posted signs on a road
leading to Telluride warning that a drug checkpoint lay ahead, and hid
nearby. They watched to see if anyone suddenly turned around or
appeared to toss drugs or drug paraphernalia out a window.

They pulled over Stephen Corbin Roth when they saw what turned out to
be a marijuana pipe tossed from the car.

He appealed his conviction, claiming that fictitious checkpoints
violate protections against unreasonable searches and seizures.

Roth's lawyers said they will appeal the case to the U.S. Supreme
Court if necessary.

"It's huge," Robert J. Mulhern, one of Roth's lawyers, said of the
case's importance. "It's of national interest; it affects everybody."

Officers erected signs saying "Narcotics Checkpoint, One Mile Ahead,"
and "Narcotics Canine Ahead" on June 12, 2000, in hopes of preventing
people from taking drugs to the Telluride Bluegrass Festival.

Roth was pulled over for littering. His car was searched over his
protests, and officers found a marijuana pipe and psilocybin
mushrooms. Another marijuana pipe was discovered in Roth's backpack.

He was convicted of unlawful possession of drug paraphernalia.

Colorado Court of Appeals Judge Sandra Rothenberg wrote that drug
checkpoints where vehicles are stopped without reasonable suspicion
constitute illegal police conduct.

But she said use of fictitious checkpoints presents a different
issue.

She said it is constitutional for police to create a ruse that causes
defendants to abandon property that, when found, gives investigators
the legal right - called "reasonable suspicion" - to stop a vehicle.

The stopping of Roth's car was based on "an individualized suspicion
of criminal activity," Rothenberg wrote and, was therefore legal.

Dolores County Sheriff Jerry Martin, president of the County Sheriffs
of Colorado, hailed the decision.

Martin said his jurisdiction is the only one in Colorado that has used
fake checkpoints. He said four fake checkpoint operations were
conducted but were suspended pending the appellate court's ruling.

Martin said he will probably start using them again, because they were
effective.

"We didn't dream it would be that effective. I'm telling you, they
tossed stuff out that you couldn't believe," Martin said.

Martin said no civil rights were violated because cars were stopped
only after the occupants violated some regulation such as littering.

The sheriff said the course of a case depended on whether the litter
turned out to be illegal drugs.

Ken Lane, spokesman for the state attorney general's office, said the
ruling is "simply an affirmation of the authority of law enforcement
officers to follow up on suspicious unlawful activity."

"As the court noted, the defendant was stopped not because of any
illegal checkpoint where cars are randomly stopped ... but because of
an individualized suspicion of unlawful activity (littering) observed
by law enforcement personnel," he added.