'DRUG CHECK' ON SIGNPOST UP AHEAD? IT'S WHITE-LIE ZONE

But Police Ploy Legal, Appeals Court Rules

They were driving to a music festival in far southwestern Colorado
when they saw the big signs posted along the road.

"Narcotics checkpoint, one mile ahead."

"Narcotics canine ahead."

The passenger tossed something out the window, and they just kept
going. That was only the petty offense of littering - a little crime -
but it was the start of something big.

It's against the law for police to set up narcotics checkpoints to
check whether any randomly passing motorists happen to have illegal
drugs.

But it's not illegal for the police to pretend that's what they're
doing, the Colorado Court of Appeals ruled Thursday.

On that day in June 2000, the police were pretending.

After they put up the signs warning of the nonexistent narcotics
checkpoint, some officers hid on a hill overlooking the road, wearing
camouflage clothing, to watch what passing motorists did when they saw
the signs.

If anybody threw something out of a car, the officers radioed to their
colleagues farther down the road to stop the car for littering. Then a
hidden officer would dash down to the road to retrieve the litter.

This time, they retrieved a pipe containing what appeared to be
marijuana residue.

That gave the police a legal reason to search the car, the Court of
Appeals ruled in the case of Stephen Corbin Roth, 60, who was driving
the car that day.

In the car, the police found another marijuana pipe, and a jury
convicted Roth of unlawful possession of drug paraphernalia.

Roth appealed, contending the police searched his car illegally, but
the appeals court disagreed.

"The police here observed the defendant's passenger commit the offense
of littering," the court said. "This offense, while minor, justified
the police in stopping defendant's car."

The Colorado Court of Appeals based its ruling on a federal appeals
court decision last year in a similar case from Oklahoma.

In that case, according to the Denver-based 10th U.S. Circuit Court of
Appeals, Mack Flynn was driving along a highway in Muskogee County
when he passed a sign reading "Drug checkpoint 1/3-mile ahead."

Then he passed another sign that said, "Drug dogs in use," and saw a
police car parked ahead with its lights on.

Flynn suddenly changed lanes and zipped down an exit ramp. He stopped
the car. His passenger opened the door and dropped out a large sack.
Then Flynn drove off but was soon stopped by police.

Police hiding in the bushes had pounced on the sack and concluded that
it contained what they called "a lot of dope." It turned out to be
methamphetamine.

Flynn argued on appeal that it is illegal for police to set up drug
checkpoints - and the 10th Circuit agreed, but it ruled against Flynn
anyway because there wasn't any drug checkpoint.

"The posting of signs to create a ruse does not constitute illegal
police activity," the 10th Circuit said.

"In fact, had Mr. Flynn continued driving eastbound on I-40, he would
never have been stopped because the checkpoint warned of by the signs
did not exist. Even the police car ahead on I-40 was unoccupied.

"The officers put up the signs only as a ruse to observe suspicious
behavior by those who might take the nearest exit after seeing the
signs."