Drug stop in limbo

Drug stop in limbo

May 19, 2001

By Jim Mimiaga
Journal Staff Writer

Organizers of the popular Telluride Bluegrass Festival will file for a court injunction next week to try to stop a controversial drug checkpoint from occurring again on a highway leading to the event in neighboring Dolores County.

"Our main concern is for the 900 or so of our customers and their families who were stopped and searched and sniffed by dogs but were innocent," said Planet Bluegrass director Craig Ferguson. "We did not want to make a federal case about it, but we have no choice. I think it is clearly not legal."

Attorneys for Planet Bluegrass will argue that the narcotics checkpoint faced by motorists last June while traveling on Highway 145 near Rico violated the U.S. Constitution’s Fourth Amendment, which insures protection from unreasonable searches and seizures by police.

"You can expect a filing next week," confirmed Jason Slade Spillman, attorney for Planet Bluegrass. "We will be seeking damages for the constitutional violations perpetrated at last year’s stops and we will be asking the court to enjoin the drug task force from conducting the (drug) stops any further."

Acting as the 22nd Judicial Drug Task Force, the Montezuma, La Plata and Dolores County sheriff’s departments participated in the checkpoint. All three counties are named in preliminary lawsuit procedures and will be listed in the official lawsuit filing set to be submitted early next week in Denver federal court, Spillman said.

At issue is whether police can set up such drug checkpoints without violating the civil liberties of those subjected to them.

Motorists traveling north past Rico in June first came upon two signs, one announcing a narcotics checkpoint ahead, and another indicating drug-sniffing dogs would be present.

Camo-clad police hid in the nearby woods and videotaped some drivers throwing out drugs, and lookouts reported drivers who conducted illegal U-turns or acted suspiciously after the posted signs. At the checkpoint, others were pulled over for a variety of traffic violations, and were then asked by police for permission to have their vehicles searched for drugs and weapons.

"It is a proactive approach that we have to do for our communtiy," said Montezuma County Sheriff Joey Chavez on Friday. "Drugs are running rampant and we are trying to get it stopped."

But conducting drug checkpoints goes too far, Spillman said, because they coerce citizens into illegal behavior and are deceptive in that they use traffic violations as a pretex to search for drugs.

"They (law officers) are attempting to create their suspicions that they then think are basis for a stop," he said. "I do not think that the Fourth Amendment will allow police to make up a reason that is legitimate (traffic stop) when really they are trying to do something else."

Planet Bluegrass and Spillman point to a U.S. Supreme Court decision passed down in November that ruled narcotics checkpoints were unconstiutional. The court opinion stated that while sobriety checkpoints meet constitutional standards and have been upheld by the courts, narcotics checkpoints do not because drug offenses are considered too general of a crime to justify a roadway checkpoint specifically for them.

According to the high court’s ruling, "We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion."

But that case is still up to interpretation, say proponents of the checkpoint.

Chavez said he believes the officers were within the bounds of the law when the checkpoint was conducted. But said he would wait for legal advice before deciding to participate again this year.

"If it is decided it is unconstitutional, then we are not going to do it, but right now we do not think we did anything wrong."

Ferguson said that concert-goers felt they were specifically targeted for the checkpoint, and that the timing was not a coincidence. But Chavez asserted that public safety was the main factor.

"If we know that there is a large amount of traffic on a roadway, isn’t it our job to make sure things are done safely?" he said. "We had probable cause for a traffic violation, and that makes it lawful."

La Plata County Sheriff Duke Schirard also said that it is unclear if his officers will participate again.

"We have not been asked to do so, but once the papers are served our lawyers will determine if there is any liability in it," he said, adding that the Supreme Court case does not pertain because it ruled against a roadblock, not a checkpoint.

"What we did was put up a sign and then contact immediately anyone with traffic violations," Schirard said.

But it is the sign that puts the checkpoint on shaky legal ground, Spillman said.

"It is deceiving to motorists to say that they are being pulled over for a traffic violation, when there is a sign that says ‘Narcotic Checkpoint’ ahead. I do not think that boat will float."

San Miguel County, home to Telluride, refused to participate in last year’s checkpoint. Sheriff Bill Masters, known as the highest-ranking Libertarian in the country, has said he refuses to participate because of the tenuous legal ground and invasive nature of drug checkpoints.

Dolores County Sheriff Jerry Martin did not return phone calls.

Ferguson said that Planet Bluegrass could be agreeable to dropping the class-action suit if members of the task force gave them assurances that the drug checkpoint would not occur again. But efforts to find a resolution fell on deaf ears, he said.

"I have yet to hear a reason why they feel we should not fight this or why they feel it is lawful," Ferguson said. "The damages would be expensive for violating civil liberties, and it is clear to me that this activity is illegal. So it is a mystery why they did not want to discuss it, especially in light of the recent Supreme Court ruling."

At any rate, Chavez said that his office "is not intimidated by the lawsuit" and does plan to at least conduct sobriety checkpoints around the time of the festival. Sobriety checkpoints require advance notice in the newspaper, and have been upheld by the courts as legal.

Spillman said that a hearing date will be set on the injunction request. But he was unsure if it would take place before the Telluride Bluegrass Festival, scheduled to begin June 21.