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 protégé 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.