A federal appeals court panel ruled Tuesday that a drug checkpoint ruse is not sufficient grounds to justify law enforcement authorities stopping vehicles, a decision that has far-reaching implications for the constitutional rights of motorists.
The ruling is the first in the 10th Circuit Court of Appeals to grapple with the widespread practice by law enforcement agencies nationwide of setting up bogus checkpoint signs along major routes, then stopping all motorists who take rural exits to avoid them. The 10th Circuit comprises the states of Kansas, Oklahoma, New Mexico, Colorado, Wyoming and Utah.
The three-judge panel reversed a lower court’s denial of a motion to suppress evidence and ordered it to toss out the December 2010 drug conviction of Dennis Neff. The Kansas man is serving a five-year sentence for traveling in interstate commerce with intent to distribute cocaine.
In the case, the Kansas Highway Patrol posted signs reading “Drug Check Ahead” and “Drug Dogs in Use” in English and Spanish along Interstate 70 through Wabaunsee County. There was no real checkpoint on the interstate. Troopers instead positioned themselves near an exit ramp just beyond the signs to watch for vehicles attempting to evade the bogus drug check.
Neff’s defense attorney, Christopher Joseph, said the KHP routinely does checkpoint ruses along I-70, particularly in Wabaunsee County, where Neff was stopped. He said troopers find a way to stop everybody who gets off that exit, and then come up with a justification afterward. Tuesday’s decision is a warning to them to rethink that approach, he said.
“It is big business for the Highway Patrol. They make big millions of dollars off of it in forfeitures,” Joseph said. “I probably have had 10-20 cases a year for the past few years off the drug check lane, and that is just a small fraction of them.”
Troopers searching Neff’s vehicle found a duffle bag containing nearly 7 kilograms of cocaine and $10,000 in currency, court records show. Neff conditionally plead guilty to the drug charge, but appealed the district court’s denial of his request to toss out the evidence.
Jim Cross, spokesman for the U.S. attorney’s office, said in an email that prosecutors are reviewing the court’s decision.
“A Fourth Amendment seizure that relies solely on a driver’s decision to use a rural or ‘dead exit’ following checkpoint signs falls short of the requirement of individualized, articulable suspicion of criminal activity,” the appeals panel wrote.
The justices said that an officer must identify additional suspicious circumstances or independently evasive behavior to justify stopping a vehicle.
Their ruling is in line with an 8th Circuit decision in 2002, which said that while some drivers may have taken the exits to avoid getting caught for drug trafficking, many more took the exit for wholly innocent reasons – such as wanting to avoid the inconvenience and delay of being stopped or because it was part of their intended route.
Associated Press (ROXANA HEGEMAN)