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The Tenth Circuit Offers A Recent History Of Fake Drug Checkpoints And The Fourth Amendment

No one likes a liar.

Well, almost no one. Chief Judge Kozinski seems to like liars, at least some of the time.

But, generally, lying leaves a bad taste in our societal mouth. This is true even when the police do the lying.

1377780_highway_in_the_sky.jpgDriving Through Rural Kansas

Dennis Neff was driving through rural Kansas on the interstate around noon in late July. He passed signs that warned of a drug checkpoint ahead in Spanish and English. The signs warned that drug dogs were in use.

Instead of continuing to the checkpoint, Mr. Neff pulled off at the next exit onto Spring Creek Road.

Spring Creek Road is “a rural, gravel road speckled with residences but no businesses.”

It may go without saying that Mr. Neff was not from around those parts.

The Police Lied

As it happens, there was no drug checkpoint. That would have taken time, resources, and money.

Instead, the police were watching who pulled off onto Spring Creek Road to avoid the drug checkpoint, especially cars that didn’t seem to be from the area.

A trooper in a marked police car followed Mr. Neff’s car after it turned off onto Spring Creek Road. Mr. Neff passed a driveway, then turned into a second driveway.

As he started to back his car out of the second drive way to turn around, back in the direction of the interstate, he saw the trooper.

The trooper said later that Mr. Neff looked startled to see him.

Mr. Neff tried to drive back toward the interstate, but the trooper ordered him to stop. The trooper approached Mr. Neff’s car, pulled him out and gave him a pat down search. He found nothing.

Mr. Neff, pretty close to immediately after the pat down, told the trooper that he was carrying a crack pipe.

In a search of the car a few minutes later, they trooper found seven kilogram-sized bags of cocaine in the car.

The District Court Proceedings

Mr. Neff was charged with conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine.

He filed a motion to suppress, challenging his stop. At the hearing, the trooper explained why he thought he had reasonable articulable suspicion to stop Mr. Neff:

The reason I stopped him is they got off the interstate after seeing the drug check lane ahead signs, it was a Shawnee County car went into a rural Wabaunsee County area, pulling into a driveway where I don’t think the vehicle belonged, the surprised look that the driver gave me, the short time that they stayed there, the surprised look that he gave me. I thought something is very suspicious about this that I didn’t really care for or didn’t like. Therefore, I stepped out of the vehicle when he pulled out. That’s when I stopped them.

The district court thought that was good enough and denied the motion. Mr. Neff convicted and sentenced to five years in prison.

The Appeal to the Tenth Circuit

In United States v. Neff, the Tenth Circuit reversed.

The standard is well-known, but here’s how the 10th Circuit explained it,

This case presents the familiar question of what level of proof is required to establish reasonable, articulable suspicion of criminal activity. As a general matter, “police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S. at 30). In reviewing an investigatory stop for reasonable suspicion, we must consider “the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). While certain facts, taken in isolation, may be “quite consistent with innocent travel,” these facts may, in the aggregate, add up to reasonable suspicion.

Of course, an actual drug checkpoint is unconstitutional – according to the Supreme Court in City of Indianapolis v. Edmond.

But the “ruse” drug check point is a clever twist – maybe that’s ok!

As the Tenth Circuit explained, fake drug checkpoints v.1.0 worked like this:

In the wake of Edmond’s rebuke of suspicionless drug checkpoints, some lawenforcement organizations began the practice of setting up ruse drug checkpoints. In what may be understood as the first generation of post-Edmond drug checkpoints, police would set up “drug checkpoint ahead” signs on the highway but then operate a full-scale checkpoint at the next (likely rural) off-ramp. The theory behind this alteration was that the police would have an element of individualized suspicion for every vehicle that took that ramp because there were few “legitimate” reasons for using an exit in an isolated area.

The Eighth Circuit said these are generally not ok – here’s how the Tenth Circuit summarized the Eighth Circuit’s opinion:

The court recognized that while the modified program differed from the practice in Edmond, the same constitutional problems persisted. While some drivers may have taken the exit to avoid police conduct, that did not “create individualized reasonable suspicion of illegal activity as to every one of them.” Id.
“Indeed, as the government’s evidence indicated, while some drivers may have wanted to avoid being 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.”

Mr. Neff was caught in version 2.0 of the fake drug checkpoint – one has to love the way law enforcement innovates. Version 2.0 is some signs in front of a rural road that no one would want to turn off on (perhaps including those who lived along it).

This turned out not to be ok.

The Tenth Circuit, agreeing with the Eighth Circuit, noted that

a driver’s decision to use a rural highway exit after seeing drug checkpoint signs may serve as a valid, and indeed persuasive, factor in an officer’s reasonable suspicion analysis. (listing as one valid factor that “the defendants took an exit which was the first exit after a narcotics check lane sign, and an exit that was seldom used”). But standing alone, it is insufficient to justify even a brief investigatory detention of a vehicle.

There wasn’t anything else present that tipped things over the edge into reasonable articulable suspicion for the court of appeals. Indeed,

The connection between the checkpoint signs and Neff’s decision to use the nearby Spring Creek Road exit was tenuous. There was no testimony that Neff suddenly swerved to make the exit, changed lanes abruptly, or otherwise drove erratically in response to the signs.

As to Mr. Neff’s decision to turn around in a driveway:

Neff’s decision to turn around in a driveway is plausibly evasive. The government suggests turning around in the driveway was part of Neff’s pattern of evasive conduct, but without some evidence Neff was even aware of the trooper’s presence, his turning around in the driveway provides minimal support to justify the stop. In contrast, the defendant in Carpenter realized he was being followed, made a U-turn, and pulled to the side of the road and stopped. Similarly, Neff’s “startled look” adds little of value to the equation. Exhibiting surprise at the sudden appearance of an officer on a rural road is hardly comparable to . . . “nervous, evasive behavior.”

So, the Tenth Circuit concluded that the stop was not permissible.

These facts, when taken together, do not fairly suggest that Neff was attempting to evade police. To be sure, an officer is “entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area’s inhabitants.” But even considering the totality of the circumstances, Neff’s conduct conformed to the patterns of everyday travel.

Because he shouldn’t have been stopped in the first place, Mr. Neff’s conviction was vacated, and he is free to go.

According to the BOP webpage, he was released from custody on Monday.