TOKIN' VICTORY

A Guilty-As-Sin Stoner Beats the Rap, but the Sheriff Won't Discuss
the One That Got Away.

May 2004, Doug Woods packed up his 1982 Volkswagen Vanagon and, with
his trusty pooch Sadie riding shotgun, headed home to Boulder, Colo.
He'd spent the previous six months with friends and family in
Fremont, Calif., after his mother succumbed to pancreatic cancer.
Before hitting the road, though, the 40-year-old bohemian scored a
half-ounce of top-shelf bud from a California grower--for a steal, he boasts.

En route, he stopped off in Las Vegas to visit his dad, a retired
New York City cop. Woods did a three-year stretch for burglary in
the mid-'90s, so he and the old man don't always see eye to eye.
Woods maintains he was guilty of nothing more than jilting an
ex-lover. In any event, he refused a plea deal, defended himself
at trial and proved the axiom about having a fool for a client.

"When I went away for three years," he said, "I learned the law, and
I said this will never happen to me again."

Woods learned more than that. In prison, he picked up religion and
an increased animus toward authority. During his five-year parole,
he claims to have dutifully smoked pot without failing a single
random drug test. His secrets--among them lots of tea, frequent
saunas and something called burdock root--are revealed for $17.95 in
Passing Drug Tests: The Gospel of Getting Clean for UAs
[urinalyses], which he wrote under the pseudonym Kenn A. Biscranium
during his extended hiatus in Fremont. About 1,000 copies have sold
in head shops, independent bookstores and online at UADetox.com. Now
he's contemplating a companion volume on how to beat traffic-related
drug searches.

Sevier County Sheriff's Deputy Adrian Hillin was clocking traffic on
Interstate 70 when Woods' Vanagon whizzed past. Hillin hit the
lights, flipped around and gassed it.

"The speed limit is 65; you were only going 67," the deputy is heard
telling Woods on a video recording of the stop. "I just thought I'd
stop and make sure all your information is correct."

As Woods fished out his license, registration and proof of
insurance, Hillin asked if he owned the van, where he was headed and
where he'd been. To the untrained motorist, Hillin's small talk
would seem innocuous enough. But, in fact, he was pumping Woods for
incriminating information and scanning the van for indicators of
drug trafficking. Did he borrow the van? Are his travel plans
plausible? Is he coming from a source city or headed to a
destination city? Are his hands trembling? Is he perspiring? Is the
vein in his neck pulsating wildly? What's that smell? Are there
any hidden compartments?

"OK, just sit tight," Hillin said as he turned back toward his
police cruiser with Woods' papers in hand. "I'll run it and let you go."

Throughout the late 1980s and '90s, a fearsome foursome of highway
drug cops grabbed headlines for sniffing out one motherlode after
another on southern Utah interstates. But they made the papers
almost as often when judges suppressed evidence the officers had
seized in violation of Fourth Amendment protections
against unreasonable searches and seizures.

That fraternity included former Utah Highway Patrol Trooper and
current Sevier County Sheriff Phil Barney and now-retired UHP
troopers Paul Mangleson, Lance Bushnell and Jim Hillin, Adrian Hillin's dad.

Using tactics derived from the Drug Enforcement Administration's
controversial Operation Pipeline program, Barney and company were
tasked with cutting off the enemy's supply lines in the protracted
War on Drugs. Key to the operation is stopping as many motorists as
possible through strict enforcement of the traffic code. Based on
even the most trivial violations, officers move in to screen a high
volume of potential bad actors for a battery of
criminal indicators, which may or may not give them just cause for
a further contraband investigation or roadside search. If they're
unable to turn up anything more than a hunch, which is often the
case, the officers are trained to request drivers' "consent" for a search.

Chewing on the resulting Fourth Amendment nuances gave judges no
small amount of heartburn. Scores of high-profile seizures stemming
from minor traffic and equipment violations were challenged under
the "pretext doctrine," which deemed such stops
unconstitutional unless a "reasonable officer" would have made the
stop without an "invalid purpose" in mind. Evidence was routinely
suppressed, convictions overturned and drug mules cut loose. But in
1995, the 10th Circuit Court of Appeals torpedoed the standard
altogether in reviewing one of Barney's cases.

In 1993, then-Deputy Barney pulled over Carlos Botero-Ospina for
straddling the center line--a common precursor to many of his
busts--on I-70, also known as "Cocaine Lane." In a subsequent
consent search, Barney discovered 163 pounds of blow in a hidden
compartment. By an 8-3 vote of an en banc panel--in which all of the
court's judges consider a weighty question of law--the 10th Circuit
mooted arguments that the stop was pretextual, holding that any stop
is legal if a traffic violation is observed, no matter how minor,
and regardless of an officer's ulterior motive. Botero-Ospina, who
maintains he was an unwitting mule when he said, "sure," to Barney's
search request, is currently serving 20 years in federal prison. In
an impassioned dissent, circuit court Chief Judge Stephanie K.
Seymour predicted that the U.S. Supreme Court would not stand for
the dramatic departure which, she wrote, "does nothing to curb the
ugly reality that minority groups are sometimes targeted for
selective enforcement." Nevertheless, the high court adopted the new
standard about six months later.

The effect, says Oklahoma criminal-defense attorney John David
Echols, is that traffic stops became virtually unchallengeable on
grounds that police singled someone out for the way he looks.
"Common sense makes no difference," he wrote in a 2004 review of
Botero-Ospina's implications to the Fourth Amendment. "Credibility
makes no difference. All Deputy Barney needs to do is say that he
witnessed a violation."

Woods came back clean on a check for wants and warrants. However,
Hillin learned that he served time and had a criminal record
peppered with minor offenses. The dispatcher also reported that
Woods had two listed birthdays within three days of each other.
Hillin keyed in on the discrepancy.

"All right, Douglas, how come you have two different dates of
birth?" Hillin asked upon returning to the van. Woods had no idea.

"Is there anything in the vehicle that shouldn't be?" Hillin
inquired a few breaths later. "Do you mind if I search it?"

Woods, whose voice was too low or distorted to make out in much of
the video, says today he declined Hillin's repeated requests to
search, but Hillin wouldn't take "no" for an answer. To that end,
Hillin's part in the conversation was undoubtedly persistent.

"I just want to look in the vehicle to make sure there ain't
anything that shouldn't be [there], OK? Like weapons, drugs,
anything of that type. ... If there's nothing in the vehicle, you
have nothing to worry about."

The verbal judo intensified. "I'm not saying you're guilty," Hillin
told Woods, who by then couldn't decide whether to plead or protest.
"I just want to look through your vehicle, if you'll let me, and
send you on your way."

Woods relented, sighing, "You can if, like,..." and within seconds
the driver-side door swung open. Woods made a final, feeble attempt
to un-fry the egg. "Can I just be on my way?"

Deaf to the appeal, Hillin asked Woods to empty his pockets.

"How long is this going to take?" Woods asked.

"Take your dog up front," Hillin responded. "Just sit right there
and I'm going to look through your car, OK?"

Woods said something out of range, and Hillin apparently got it.
"You don't want me to?"

"Sir, this is wrong. Sir, please, I want to be on my way."

"Step back in the vehicle," Hillin ordered.

Hillin radioed for a canine unit, and Woods grew desperate. "Sir,
can we please talk about this? I'm begging you. I'm begging you."
But to no avail.

"I got a good one here," Hillin told the arriving dog handler. "From
L.A. Stopped him for speed. Nervous as hell. He's hiding something."

When the dog found the stash in a dresser Woods was hauling, he
broke into near hysterics. "This is wrong!" Woods wailed. "Because I
don't want you to search my truck is not probable cause."

About 50 minutes into the stop, Sheriff Barney ambled into the frame
to congratulate Hillin on a nice bust. Barney spoke to Woods
briefly, something like, "We don't like marijuana in this town,"
Woods recalled. "So I quoted the Bible to him: 'Well, the book of
Timothy says, for everything made by God is good, and nothing is to
be rejected if it is received with thanksgiving.'

"He's like, 'You're going to jail.'"

Chalk up Woods' dramatics to knowing he was right and couldn't do a
damned thing about it.

"He's a cowardly criminal who uses his badge and abuses his power to
search innocent people's vehicles on a hunch, on a suspicion, by
profiling people," Woods said. "I happened to be in an '82
Volkswagen Vanagon with long hair, and he thought I fit the profile
for carrying drugs."

Right as Hillin's hunch may have been, "He doesn't get to do that,"
Woods said.

Back at the station, Woods says Hillin approached with a plastic cup
and an offer. Submit to a urinalysis and get charged with three
misdemeanors--simple possession, paraphernalia and driving with a
marijuana metabolite in his body. Don't submit and the possession
gets bumped up to a felony with intent to distribute.

"'Give me that cup,'" Woods told him. "Even though I know it won't
stick, it's a pain in the ass to get bailed out on a felony," he
explained. "And right then, I knew it was useless to demand my rights."

As soon as Woods turned over the specimen, he said Hillin proposed
another deal: Plead guilty on the spot, pay an $800 fine in 20 easy
monthly installments and be on your way.

"Everybody else takes the deal, because it's much easier and
cheaper," Woods said. "But I say, 'No, give me a phone.'"

A friend bailed him out to the tune of nearly $2,000, and Woods
later came back to Sevier County for arraignment. He claimed
indigent status and, this time, requested a public defender. The
judge asked how he knew he was indigent and gave a chuckle at
Woods' answer: "I live in a van down by the river."

A few months later, the state moved to dismiss all charges "due to a
lack of currently available evidence." If a foul-up, neo-hippie
stoner like Woods could tell the search wouldn't hold up under legal
scrutiny, it should follow that Hillin also would know better. It
would be unlikely to think Sheriff Barney didn't fill in his
protege on decades' worth of search-and-seizure practice. But who's
to say? Barney didn't respond to numerous messages requesting
comment for this article left at his home and office over several
weeks, including an e-mailed list of questions. A message left for
Hillin, who was said to be on vacation, also was not returned by press time.

To Marcus Taylor, a criminal defense attorney based in Richfield for
30 years, it's clear why a prosecutor would balk at the case. Hillin
noted in a police report that Woods refused a search but was "acting
very nervous" and "paranoid." As Taylor pointed out, the courts
have held that "nervousness alone is not sufficient to justify
further detention," let alone a search.

"Me and my friends were thinking about all the really wacko things I
might have been nervous about besides drugs," Woods said. "This is
not the case, but say I'm like this transvestite, and I have a whole
bunch of women's clothes in the back of my van -- I would not want
these cops rifling through that."

And while police can legally run a drug-sniffing dog around the
outside of a vehicle without reasonable suspicion of a crime, they
can't make an otherwise "free-to-leave" motorist wait for the dog to
arrive. Hence, Woods' dope, paraphernalia and urine sample became
fruit of the poisonous tree.

UHP's Criminal Interdiction Team uses vigilant traffic enforcement
to weed out drug runners, but a sergeant in the unit who wished to
remain anonymous said, "Two miles over the speed limit doesn't sound
reasonable for a stop." And, although the UHP perfected drug
interdiction in the state, about five years ago, it stopped asking
for consent to search vehicles without reasonable suspicion of
another crime, the sergeant said. He added, however, that many local
police departments across the state have adopted their own highway
interdiction programs and still rely heavily on consent searches.

To that end, city police in Salina and Richfield, along with the
Sevier County Sheriff's Office, each have their own approaches to
interdiction. The result, said Taylor, is that "we see a lot of
stops on I-70 where the motorists are driving cars with out-of-state
plates, and the drivers or the occupants are dark-complected,
indicative of Hispanic or black."

Indeed, a couple of years before UHP abandoned suspicionless
searches, a California legislative task force issued an extensive
report on the California Highway Patrol's interdiction efforts
throughout the 1990s, finding that between 80 percent and 90 percent
of those arrested were minorities, while only 10 percent were white.
The probe also determined Operation Pipeline's efficacy to be
grossly overstated. For example, one hapless interdiction officer
made upwards of 100 stops per month for two years and,
despite performing hundreds of consent searches, went months on end
without a single "hit." The task force determined that, on the
whole, consent searches yielded contraband about 10 percent of the
time, and it questioned whether the intrusion on so many law-abiding
motorists was justified by the results. In 1998, one trooper
issued 1,239 verbal warnings to motorists while writing a miniscule
six citations for the year, casting doubt on the traffic
"enforcement" value of the program.

The American Civil Liberties Union of Northern California filed a
class-action lawsuit against the CHP after studying 1 million
traffic stops that showed Latinos were three times more likely than
whites, and twice as likely as blacks, to be pulled over.
Latinos were also the most likely racial or ethnic group to
be searched when innocent and released with a verbal warning,
according to a CHP report. In a negotiated settlement in 2001, the
CHP agreed to no longer seek consent searches where no reasonable
suspicion of a crime beyond a traffic violation exists. Several
other states have followed suit.

"You've heard of DWB, driving while black or brown," offers local
civil-rights attorney Andrew McCullough. "In Utah, especially
southern Utah, we expand it to read, 'driving while different.' ...
You can't be a hippie in Sevier County and not get pulled over."

McCullough said he gleaned as much deposing then-UHP Sgt. Paul
Mangleson in a civil-rights lawsuit against fellow trooper Lance
Bushnell in 1998. Mangleson was acting as an expert witness for
Bushnell's defense. The case involved the stop of a Denver-bound
trio along I-70. A middle-age man with a criminal record and
his travel companions, two younger women, one wearing a dog collar,
were stopped for speeding, and a drawn-out consent search yielded no
contraband.

In a wide-ranging interview, McCullough asked Mangleson if Hispanics
driving a car with out-of-state plates would spark his suspicion. "A
lot of Hispanics are transporting narcotics," Mangleson answered.
"That's common knowledge." He also said that some factors
that might make a trooper more apt to question a motorist beyond
the scope of a simple traffic violation would include earrings--on
men, presumably--nose rings, eyelid rings and tattoos. "Those are
things that are common denominators with people that are involved
with crimes," he said.

Vouching for Bushnell's honesty, Mangleson offered: "We're both
Mormons in the church. It may not mean anything to you, but to me,
that adds quite a bit of credibility." And more specific to the
case, Mangleson testified that an unmarried woman wearing a dog
collar and carrying birth-control pills might indicate that she was
involved in illegal pornography.

While Taylor thinks today's highway patrol is, by far, more
professional than the local agencies, he doesn't believe Barney or
Hillin or any officer in particular in Sevier County is deliberately
skirting Fourth Amendment protections. "In the thick of the work out
in the field, officers are trained to ferret out crime," Taylor
said. "Sometimes when they are trying to do their jobs in good
faith, they cross over this obscure constitutional line that all of
us lawyers play with in court.

"You've got to hand it to Barney," he added. "Even though he had a
lot of cases that got reversed ... if you look at the volume of
cases that he was handling, I'm not sure that the rate of reversal
on appeal is that out of line."

Still, Barney managed to get cases tossed out even after the 10th
Circuit Court's about-face. In an opinion issued only a month after
its landmark Botero-Ospina decision, the court suppressed 50 grams
of crack cocaine Barney seized from Terry Lewis Lee--a black male
whom Barney pulled over for straddling the center line "for about
one second"--ruling a subsequent consent search was illegal. Barney
failed to return Lee's documents before asking permission to search
his vehicle, a minimum requirement for acquiescence to be legally consensual.

"While the stop in this case appears to be clearly pretextual, our
inquiry into the officer's justification is severely limited by our
recent decision in" Botero-Ospina, the court wrote. "The facts in
this case are almost identical to Botero-Ospina. In each case,
Deputy Barney had pulled over a non-Anglo motorist for crossing over
the center line."

For Earl O. Morris, also black, it was that he was going 5 mph over
and driving without a front license plate. After catching up with
Morris, Barney flagged down another motorist also missing her front
license plate. Barney sent the women on her way with a warning and
held Morris for further investigation. In 1996, U.S. District Court
Judge Bruce Jenkins overturned Morris' 1993 conviction for
possession of 42 kilos of cocaine, ruling that Morris' consent to
search wasn't given freely.

"There's a law against just about everything," said John David
Echols, the Oklahoma defense attorney, in an interview with City
Weekly. "And the most dangerous laws are the ones that are not
enforced, because just about everybody violates them, and the
government's free to pick and choose whomever they want to confront."

Furthermore, Taylor wonders if the thousands of so-called consensual
searches that led to Barney's busts were, in fact, consensual. "The
vast majority of motorists ... hold some misconceptions about the
law," he said. "Almost always, they think they're not free to go."

Woods thought he should have been free to go. Now he's suing Sevier
County, Barney and Hillin in federal court for allegedly violating
his civil rights. "My troubles with the law just might pay off," he said.