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Illegal searches? Forest Service cop sees half his Utah drug cases tossed
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

A law enforcement officer with the U.S. Forest Service — described as an "overzealous cop" by a defense attorney — accounted for half the simple possession of controlled substance cases dismissed in Utah's federal court in 2012 after evidentiary issues were raised, according to an analysis by The Salt Lake Tribune.

In one instance, Officer Ira Smith was on patrol in December 2011, when he spotted a car parked at a closed gate leading to Squaw Peak Road in Provo Canyon. No one was inside or near the vehicle, but Smith noticed the driver's side window was rolled down a couple of inches. He stuck his face against the crack and detected an "overwhelming" odor of burnt marijuana, which led Smith to track down, search and cite three hikers for simple possession.

Attorney Randy Ludlow, who represented one defendant, later argued Smith engaged in an unlawful search the moment he stuck his nose inside the vehicle, and prosecutors with the U.S. attorney's office for Utah ended up asking a judge to toss all three cases.

Ludlow said in many such cases, people are "intimidated" into consenting to searches and "don't realize they have a choice."

"You have two big cops standing behind you and a third says, 'I want to search your pockets.' What are you going to do?" Ludlow said. "People have to learn how to stand their ground."

In all, 10 of Smith's 26 cases were dropped — out of 19 total cases dismissed in federal court last year by Magistrate Judge Robert T. Braithwaite — after defense attorneys or defendants alleged Smith unconstitutionally searched or detained them.

Among the 19 cases, five were based on citations written by other U.S. Forest Service law enforcement officers. In another case, a defendant was acquitted after a bench trial in which Braithwaite ruled that it had "defects."

Erin O'Connor, director of strategic communications for the U.S. Forest Service's Intermountain Region, confirmed that Smith is assigned as a law enforcement officer in the Uinta-Wasatch-Cache National Forest, but declined to provide any other information about him.

"The Forest Service does not make public comments regarding specific personnel actions or the performance of any individual employee," O'Connor said. The Forest Service also declined to make Smith available for comment.

There were 165 cases for simple possession of a controlled substance on public lands filed in Utah's federal court in 2012 and most — 145 of them — involved small amounts of marijuana. Of those, 66 of the cases were for possession that occurred in one of Utah's national forests — most often in Uinta-Wasatch-Cache, where Smith has worked for four years.

Attorneys with the Federal Public Defender Office in Utah represented a number of defendants in dismissed cases. Kathy Nester, federal public defender, said her staff has a "duty" to challenge any conduct that may violate constitutional rights.

"We take that duty very seriously and have raised and will continue to raise objections when we believe a law enforcement officer has conducted unlawful searches of our client's person or property," Nester said. "Hopefully, the dismissals of cases will send a clear message to law enforcement that the ends do not justify the means and that the Constitution protects folks in Utah forests, just like it does everywhere else in the country."

David Barlow, U.S. attorney for Utah, pointed out that the misdemeanor citations are "officer instigated."

"Unlike felony cases, where agents consult with the U.S. attorney's office before arrests are authorized and charges are filed, [misdemeanor] citations are written before they are screened by the [office]," Barlow said. "As with any kind of misdemeanor ticket or citation, it is not uncommon for the [office] to dismiss some of the citations once the facts have been reviewed and the evidence evaluated."

As for those that proceed to court, most simple possession cases are resolved through plea deals. Challenges are infrequent.

"A lot of people don't want to take the chance ...when they are being offered a plea in abeyance and have a chance to have the case dismissed," said Ludlow, the Salt Lake City attorney.

In the Squaw Peak case, Smith and a Utah County sheriff's deputy located the man and two friends as they were returning after hiking for several hours. In his probable-cause statement, Smith told the three he had smelled marijuana inside their vehicle and asked if they had any pot or pipes.

The vehicle's owner, according to Smith, acknowledged he had a pipe in his coat pocket. Smith searched the man and found two pipes — one for tobacco — on him. The other two individuals denied having any drugs or paraphernalia. According to his report, Smith searched them because both had "red and glossy eyes, a green tint on the back of their tongues and a slow speech pattern."

But the three later testified during an evidentiary hearing that Smith simply stopped and searched them and their vehicle without asking permission. In a court document, Ludlow argued that the search was unreasonable because Smith "had no reason to suspect that [the] automobile contained drugs or contraband. Officer Smith has a practice of randomly sniffing open car windows for drugs."

Prosecutors later asked Braithwaite to dismiss the case because there was "insufficient evidence to proceed in this matter."

In probable-cause statements filed in several other dropped cases, Smith reported he conducted searches after seeing individuals light cigarettes, which "are commonly used to mask the odor of illegal drugs, mainly marijuana."

He questioned and searched numerous hikers near or at the hot springs in Diamond Fork Canyon because "the hot springs can be a 'party spot' for forest visitors."

In March 2012, Smith stopped a vehicle in the canyon because of a cracked windshield. He told the driver he was focused on the area because "the Color Festival was in progress at the Hare Krishna Temple in Spanish Fork" and there was a "high volume of traffic coming from the festival and the large amount of illegal drugs that some festival participants bring to the hot springs."

He then asked the motorist if he had any illegal drugs. When the driver said he did not, Smith asked for consent to search his vehicle.

The driver "asked me why I wanted to search his vehicle. I again explained to [the man] that I was asking him based upon the fact that the Color Festival was in progress and some festival participants bring illegal drugs to the hot springs, which in my opinion, is a high drug use area," Smith wrote in his report.

The man initially refused but, according to Smith, relented after the officer said he planned to give him a warning for the cracked windshield and a citation for not having a driver license.

"I then said to [the defendant] something to the effect of you would rather me search your vehicle than issue you a citation for your drivers license?" Smith wrote, adding the man "excitedly opened the doors to his vehicle and stepped away pointing to his car, saying something to the effect of go ahead and search it."

Smith reported finding hallucinogenic mushrooms, but the case was tossed.

Others cited by Smith were remarkably forthcoming in acknowledging using or having drugs and paraphernalia and agreeing to searches. Smith said one man "granted my request by saying something to the effect of, 'You want to search for open containers? Ya, go ahead.' "

Smith said the man had approached him and asked for directions to the Diamond Fork hot springs — which the man later denied in a court filing and at a suppression hearing. The ranger said his search of the vehicle turned up pot "on the floor boards in plain view" and the man conceded it was his — again, denied by the defendant.

The defendant said he had been to the springs many times and "had no need to ask for directions." He said Smith waved him over as he entered a trailhead parking lot. The man said he never agreed to a search, which he said took place after the ranger threatened to "call the Staties," or local authorities, and remarked that "we can do this the easy way or the hard way."

Braithwaite concluded the stop was illegal because "the officer had not testified to any reasonable articulable suspicion of criminal activity."

Again, the case went nowhere.

brooke@sltrib.com

Drug enforcement training for cops

O Erin O'Connor, spokeswoman for the U.S. Forest Service's Intermountain Region, said new law enforcement officers initially undergo a year of training, including four months at the Federal Law Enforcement Training Center. They also receive advanced training in drug enforcement and go through three months of field training overseen by veteran officers. O'Connor said the officers also must meet annual certification requirements.

U.S. Forest Service • Half of federal controlled substance case dismissals came against 1 officer.
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