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Why 5 big pot busts were thrown out of court in North Dakota

An Interstate 94 traffic stop the morning of Jan. 21, 2018, about 8 miles east of Jamestown, N.D., resulted in a Stutsman County deputy seizing 476 pounds of marijuana. Special to Forum News Service

JAMESTOWN, N.D. — Joshua Jensen was driving down Interstate 94 in his rental car with Washington state license plates near Jamestown when he saw a Stutsman County deputy pull up next to him and begin staring at him.

The 38-year-old traveler from Minnesota looked nervous, as anyone probably would, said his defense attorney Scott Sandness, of Jamestown, who described the incident from not only Jensen's words but also from a video camera on Deputy Matt Thom's vehicle.

For the next 10 miles, the deputy followed Jensen, who was traveling at about 73 mph in the 75 mph zone.

Jensen then pulled into a rest stop west of Jamestown, only to have Thom follow him.

After going into the restroom, Jensen said Thom pulled up behind his vehicle, got out and asked him to get into the squad car.

The Minnesotan, who said he had been living in Oregon for quite some time, had a Minnesota driver's license and was given a warning ticket for not changing his license.

Thom then asked Jensen if he could search his vehicle, said Sandness.

His reasoning: Jensen looked very, very nervous.

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Jensen said "no," but despite his answer Thom took his drug-sniffing dog around the vehicle, who alerted the deputy to something in the trunk, Sandness said.

Inside the trunk was about eight pounds of marijuana.

Fellow defense attorney Mark Friese, of Fargo, called the incident "creepy," especially the fact that Thom followed Jensen into the rest area.

North Dakota District Court Judge Jay Schmitz threw out the case because of the Fourth Amendment, citing illegal searches and seizures.

The judge said the search of Jensen's vehicle was illegal because the deputy had no probable cause to stop the driver in the first place. He suggested the illegal search was the first step to a "police state," Sandness said.

At least five cases dismissed

Jensen's is one of at least five marijuana cases along I-94 from Jamestown to Mandan North Dakota judges or prosecutors threw out in the past year because there were no probable causes to search the vehicles.

The cases involved more than 1,000 pounds of marijuana.

In the first of the cases to be dismissed, defense attorney Russell J. Myhre of Valley City became suspicious of the circumstances involving the arrests of Bee Thor and Nhia Lee near Jamestown, who were driving with almost 500 pounds of marijuana in a pickup.

In the case, Myhre, working as a public defender for Thor, learned of several cases in Minnesota along I-94 where judges had thrown out similar marijuana transportation cases, saying it took more than a nervous driver with out-of-state plates to search a vehicle.

Lee, said Myhre, had been driving about 73 mph in the 75 mph zone when Deputy Thom, after following him for 12 miles, stopped him for following too close to a vehicle who had just passed him.

After looking at video from the deputy's car, Myhre said there was no evidence of such a minor traffic violation. Schmitz agreed in this case, also.

The judge wrote in his opinion that when Thom followed them for 12 miles "the defendants did nothing during this time that would give a reasonable law enforcement officer a reason to suspect criminal activity."

Also involved in the cases was Friese, a longtime Fargo defense attorney who was instrumental in finding and pursuing the illegality in the searches and seizures.

'Made up reasons'

Friese represented Xang Thao, 30, of Redding, Calif., who along with his sister, Mae, 32, of St. Paul, had their case dismissed at the request of the Stutsman County sheriff's office.

Friese said the case, involving 198 pounds of marijuana in the back of a van, dragged on for too long as "it was evident very early on that it was a an improper stop."

The lawyer said he believes Thom "made up the reasons for the stop."

Friese and Myhre also believe, although they can't prove it, that racial profiling was going on in the stops as the deputy would begin following the vehicles after running license plate checks and finding out their names.

"It's very easy to lawfully stop a car," Friese said. In these instances, though, Friese said "thank goodness we had video recordings. In a lot of cases, there are no recordings and judges and juries tend to defer to police over a defendant."

Another case near Mandan

The controversy over law enforcement stops on in the interstate hasn't been confined to Stutsman County, however. Late this summer, a judge in the south-central part of the state threw out a case against a father and son who had been arrested in February with 210 pounds of marijuana in their pickup near Mandan.

In the stop by a deputy from the Morton County Sheriff's Department, District Court Judge Bruce Romanick suppressed evidence, according to a report in the Bismarck Tribune. Deputy James Ellefson had a hunch that there was illegal activity by the defendants because they were traveling to the Super Bowl the same day of the game, they were from a drug-source state and one of the men rubbed his leg as if nervous when stopped.

"Based on this type of information, every out-of-state plate or rental car would be subject to a drug sniff if stopped on our highways," the judge ruled in dismissing charges.

A different view

While defense lawyers and those hauling marijuana across the state have reason to be relieved and proud of what they say is sticking up for the Constitution, law officers see things a different way.

Deputy Thom has resigned from his duties to seek other career opportunities, said Stutsman County Sheriff Chad Kaiser.

And although his stops were ruled improper and it was a "tough deal," the sheriff believes criminal interdiction cases on the interstates and highways in the state are going through a "learning curve."

"This is kind of something new to North Dakota," he said. "It's a whole new ballgame for our area."

As for the cases thrown out, Kaiser said, "Everybody together needs to look at why this is happening and figure out where the malfunction is."

He said judges and state's attorneys need to be involved in addition to increasded training for law officers.

The sheriff doesn't believe some of the stops in Stutsman County were done illegally and that in the cases along the interstate it is similar to officers looking for indicators when they make a DUI arrest.

Kaiser said some of his deputies have now undergone more training on criminal interdiction and that successful busts can involve getting the right people in the right positions.

With more states in the western U.S. legalizing recreational marijuana, it's going to be an ongoing problem, he said.

North Dakota Highway Patrol Capt. Bryan Niewind agrees.

"It's becoming a major corridor for not only marijuana, but narcotics, burglary rings, scamming and human trafficking," he said about the state's interstates.

He pointed to a pound of cocaine found in a vehicle west of Fargo just a few weeks ago as an example of narcotics being transported into or across the state.

The western states, he said, are producing more marijuana than they are selling in their markets and thus transporting it to other states.

He wouldn't comment on the cases thrown out involving the deputies, but said about the Highway Patrol, "we train our people from day one to respect civil rights and the Fourth Amendment. They are taught to make legal, valid traffic stops."

However, if "officers see indicators that are suspicious, they can take it a step further — not haphazardly but with reasonable suspicions."

One example is if officers do smell marijuana in a vehicle, it is a probable cause to search the vehicle further, according to prior court rulings and Niewind..

"We want to make our roads safer and remove the criminal element, but also be protective of civil rights," Niewind said.

Civil rights shortcut?

Myhre, who defended those civil rights, said he is proud of what he does.

"We have to keep challenging things to keep our constitutional rights," he said. "There's a temptation to shortcut our civil rights, our constitutional rights. I don't want to see our rights be eroded. It should be of concern to all citizens."

Judge Schmitz agreed in dismissing the Lee and Thor case. In quoting former Supreme Court Justice Robert Jackson in a decision decades ago about the Fourth Amendment, Schmitz said, "Justice Jackson knew first-hand the danger of which he wrote — the demoralization of a previously civilized and free citizenry by unchecked police search and seizure — because he had just returned from serving as the United States' chief prosecutor at the Nazi war crime trials in Nuremberg."

Schmitz also said inevitably that judges are accused of letting criminals go on a "technicality" and that he was aware of the "havoc that our widespread and stupid abuse of drugs is wreaking upon our society."

He wrote that he had been a drug prosecutor before, and said he also then believed that law enforcement officers and prosecutors have "an equally serious duty to recognize that we were members and guardians of a free citizenry, not their superiors and masters."

Schmitz added that "widespread marijuana use presents real risks to our society. But the dangers of turning a blind eye to official abuses of our fundamental freedoms in the name of a 'war on drugs' are far greater."

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