A federal appeals court, in Vasquez v. Lewis, has ruled that members of Kansas Highway Patrol cannot stop motorists and search their vehicles for marijuana merely because the vehicle has plates from a state with legalized marijuana use.
Very late one night in mid-December 2011, Peter Vasquez was driving into eastern Kansas on I-70 in a recently purchased 1992 BMW sedan with temporary Colorado tags taped to the inside of the tinted rear window. Because they could not clearly read the tag, the officers hit the patrol car’s flashers to pull Vasquez over. The officer who went over to Vasquez’s car to check his license and registration asked about blankets and a pillow he saw in the car, thinking something might be concealed under them, and was told that Vasquez lived in Aurora, Colorado but was moving to a new home in Maryland.
Back at the patrol car, the officer told his partner that Vasquez seemed nervous. The other officer then went over to the BMW and asked a number of questions about Vasquez’s employment, other cars he owned, and his moving plans. He then asked if Vasquez had any drugs in the car. Told that was not the case, the officer asked if Vasquez would consent to a search. When Vasquez refused, the officers detained him and called for a drug-sniffing dog, but no suspect substance was found.
A lower court dismissed the case Vasquez filed a few months later claiming the search was unjustified and so had violated his civil rights; the decision held the state highway patrolmen did not depart so much from their duties to lose all immunity to being sued.
But when Vasquez’s appeal reached a three-judge panel of the 10th Circuit, the case was reinstated. By a 2-1 margin, the appellate court this August rejected all the varied factors Kansas had cited as justification for conducting the drug search after the initial stop for an unreadable license tag.
The appellate court majority concentrated its fire on what it termed the “most troubling” of these: that Vasquez was coming from Colorado, described as a “drug source area,” on I-70, a highway Kansas called a “known drug corridor.”
The stop and search occurred a year before Colorado voters approved a ballot measure allowing personal use of marijuana, and several years before that law took effect. But state voters authorized medical marijuana in 2000, and numerous marijuana dispensaries were operating in the state.
The unpersuaded appellate court called that argument, alone or in combination with other claimed justification factors, “unconvincing” and “anachronistic” as grounds for inferring a reasonable suspicion for a search.
Justifying a search on the basis of a citizen’s state of residence would, the court held, offer a rationale for searching persons from half the states in the union (since 25 states authorize medical marijuana), adding that to assume a person would be more likely to commit a crime based on where he or she made their residence would be “wholly improper,” so out-of-state plates should not offer any reasonable basis for a non-consensual search.