Case 1:15-cv-00172-BLW Document 1 Filed 05/21/15 Page 1 of 16

Craig H. Durham
Deborah A. Ferguson
FERGUSON DURHAM, PLLC
223 N. 6 t h Street, Suite 325
Boise, Idaho 83702
T: (208)-345-5183
F: (208)-906-8663
chd@fergusondurham.com
daf@fergusondurham.com
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
JOSE CASTILLO,
Plaintiff,
v.

Case No.
CIVIL COMPLAINT

JUSTIN KLITCH, in his individual

capacity; CHRISTOPHER
COTTRELL, in his individual
capacity; and the IDAHO STATE
POLICE, a political subdivision of the
State of Idaho,

DEMAND FOR JURY TRIAL

Defendants.
INTRODUCTORY STATEMENT
1.

Having violated no laws, Plaintiff Jose Castillo was nevertheless pulled over by
Idaho State Police Trooper Justin Klitch under the pretext of a traffic violation

COMPLAINT1

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during heavy afternoon traffic on Interstate 84 near Boise on May 16, 2014.
Trooper Klitch then asked Mr. Castillo a series of intrusive questions unrelated to
the reason for the stop, ordered him from his car, and authorized a drug dog and
his handler, Trooper Christopher Cottrell, to look for drugs or contraband. The
troopers found no evidence of illegal activity during this lengthy roadside
detention. Mr. Castillo now brings this action seeking remedies for violations of
his federal civil rights under 42 U.S.C. 1983, his rights under the Idaho Tort
Claims Act, Idaho Code 6-901 6-929, and his rights as a disabled person
under the Americans with Disabilities Act (the ADA), 42 U.S.C. 12101, et
seq.
JURISDICTION
2.

This Court has jurisdiction over Plaintiffs federal claims pursuant to 28 U.S.C.
1331 and 1343. The federal action is authorized by 42 U.S.C. 1983 (civil
rights) and 42 U.S.C. 12101 et seq. (the ADA).

3.

The Court has supplemental jurisdiction over the state law claim under 28 U.S.C.
1367(a) because it is so related to the federal claim within the Courts original
jurisdiction that it forms part of the same case or controversy.
VENUE

4.

The Defendants reside in the District of Idaho, and Plaintiffs claims for relief
arose in this District. Accordingly, venue in the District of Idaho is proper under
28 U.S.C. 1391.

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PARTIES
5.

Plaintiff Jose Castillo, a resident of Arizona, is a Hispanic and Native American

United States Citizen.

6.

Defendant Klitch was at all relevant times acting under color of state law through
his employment as an Idaho State Police law enforcement officer. On information
and belief, he is a resident of the state of Idaho. He is sued in his individual
capacity for civil rights violations under 42 U.S.C. 1983.

7.

Defendant Cottrell was at all relevant times acting under color of state law through
his employment as an Idaho State Police law enforcement officer. On information
and belief, he is a resident of the state of Idaho. He is sued in his individual
capacity for civil rights violations under 42 U.S.C. 1983.

8.

Defendant Idaho State Police is a political subdivision of the State of Idaho within
the Executive Branch. The Idaho State Police is sued under the Idaho Tort Claims
Act for negligently training and supervising Troopers Klitch and Cottrell and
under the ADA for violations of Mr. Castillos right to be free from discrimination
as a disabled person.
FACTS RELEVANT TO ALL CLAIMS

9.

On Friday afternoon, May 16, 2014, Jose Castillo was traveling from Arizona
through Idaho in his Chevrolet Blazer on his way to meet a friend in Oregon.

10.

Mr. Castillo was driving westbound on Interstate 84 near Boise within the lawful

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speed limit when an Idaho State Police patrol car, driven by Trooper Klitch, began
to follow him.
11.

Trooper Christopher Cottrell, a dog handler for the Idaho State Police, was
patrolling Interstate 84 in the same area. His drug detection dog was riding in the
patrol car with him.

12.

On information and belief, Trooper Klitch believed that Mr. Castillo a Hispanic
man driving an SUV with Arizona plates fit a profile of a possible drug courier,
and he formed an intent to pull Mr. Castillo over to conduct a random search for
drugs or other contraband.

13.

Mr. Castillo was traveling in the right-hand lane on the four-lane, divided highway
in heavy traffic. He became aware that he was being followed by a law
enforcement officer, and he continued to scrupulously follow all traffic laws.

14.

Trooper Klitch followed Mr. Castillo for many miles and for more than ten
minutes. Plaintiff believes that during this time Trooper Klitch contacted Trooper
Cottrell and requested that Cottrell proceed to Klitchs location in anticipation of a
drug search.

15.

Before Trooper Klitch had formed any legal cause to pull Mr. Castillo over, he
activated his dashboard video recorder to record the events that followed.

16.

Ahead of Mr. Castillo and Trooper Klitch on the highway was another law
enforcement vehicle parked on the right-hand shoulder of the road with its

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emergency lights flashing, apparently assisting or investigating another motorist.

17.

Mr. Castillo saw the parked vehicle and, as he approached it in the flow of traffic,
another car passed him on the left in the passing lane.

18.

At approximately the same time, Trooper Klitch accelerated rapidly toward the
rear of Mr. Castillos Blazer before moving his patrol car into the passing lane.
He was not far from Mr. Castillos left-rear bumper as both he and Mr. Castillo
passed the stopped emergency vehicle.

19.

Mr. Castillo slowed his speed as required by law but was unable to move safely
into the passing lane because of the traffic conditions, which included Trooper
Klitchs own purposeful maneuvers.

20.

Trooper Klitch pulled his patrol car back closely behind Mr. Castillos Blazer and
turned on his emergency lights. Mr. Castillo immediately pulled over to the right
hand shoulder and stopped his vehicle.

21.

Plaintiff believes that by this time Trooper Klitch had communicated with Trooper
Cottrell and instructed him to join him with his drug detection dog, before there
was any cause to believe that Mr. Castillo was transporting drugs.

22.

Trooper Klitch approached the passenger side and asked Mr. Castillo to open the
door, which he did. Klitch then stuck his head well into the Blazers passenger
compartment.

23.

Trooper Klitch asked Mr. Castillo why he did not pull over into the left lane when

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they passed the parked emergency vehicle, and stated: I have been following you
for a while.
24.

Rather than issue a warning or a citation, however, or taking Mr. Castillos license
and registration back to his patrol car to run a warrants check, Trooper Klitch
asked Mr. Castillo where he was from, where he was going, and why he was going
there. Mr. Castillo calmly said that he was from Arizona and that he was going to
meet a female acquaintance in Oregon. Trooper Klitch then wanted to know how
he had met her.

25.

Trooper Klitch noticed that Mr. Castillo was wearing shorts that had multiple
snaps, and he asked Mr. Castillo about them. Mr. Castillo explained that he had a
disability, Obsessive Compulsive Disorder (OCD), which caused him to be very
sensitive to any lack of cleanliness in his environment. He said that he had
modified his shorts so that they could be removed without touching the ground.

26.

Trooper Klitch next asked Mr. Castillo whether the soap residue on his legs was
lice. Mr. Castillo explained it was soap on his dry skin.

27.

Trooper Cottrell had arrived and walked up to where Trooper Klitch was standing.
While he did so, Trooper Cottrell peered into the rear passenger compartment of
the Blazer.

28.

Trooper Klitch finally asked for Mr. Castillos drivers license, which he
immediately provided. He then ordered Mr. Castillo out of the Blazer and directed
him to stand between the rear of the Blazer and Trooper Klitchs ISP patrol

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vehicle. As recorded on the video, he asked Mr. Castillo, apparently in light of his
disability, whether he would melt in the air by exiting the vehicle.
29.

Trooper Klitch ordered Mr. Castillo to stick out his hands for observation, which
he did. Trooper Klitch continued to question Mr. Castillo about his travel plans.
He also asked him what he does for a living. Mr. Castillo explained that he was a
retired United States Park Ranger.

30.

At no point was Mr. Castillo nervous, uncooperative, furtive, or hostile to Trooper

Klitch. At no point did he act in a way that would suggest he was under the
influence of drugs or alcohol. He calmly explained where he was from and where
he was going. He also indicated to Trooper Klitch he did not drink, smoke, or use
illegal drugs. In short, nothing Mr. Castillo said or did gave Troopers Klitch or
Cottrell an objective reason to suspect that he was engaged in criminal activity.

31.

Regardless, Trooper Klitch continued to extend the unlawful detention and

informed Mr. Castillo that Cottrell was going to run a canine around his vehicle.

32.

Once again, Mr. Castillo explained that he suffered from OCD and was compelled
to control his contact with germs in his environment.

33.

Trooper Cottrell directed the drug dog around the exterior of the Blazer. At one
point, the dog sat down near the passenger side door, wagging its tail. On the
pretext that this was an alert, Cottrell opened the door and allowed the dog to
search inside of the Blazer, where it did not respond to the presence of illegal
drugs. The dog then exited the vehicle and was directed to go back inside to search

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further.
34.

While Trooper Cottrell continued the search with the drug dog, Trooper Klitch
asked Mr. Castillo how he was going to be romantic with [the woman that he was
going to meet in Oregon] if he was not able to touch her due to his disability. Mr.
Castillo remained calm, and patiently further explained his disability.

35.

Trooper Cottrell stopped his search with his dog and indicated to Trooper Klitch
that the dog had shown interest in the passenger side door handle.

36.

Trooper Klitch patted Mr. Castillo down for contraband and later demanded to
know how much cash Mr. Castillo was carrying.

37.

Trooper Klitch quickly checked the front passenger side compartment and then
went to a different area of the Blazer from where the dog allegedly alerted,
opened the rear cargo door, and proceeded to rummage through Mr. Castillos
personal property, putting it on the highway payment. Trooper Klitch stated that
his own doctor had told him that he had more germs than anyone he had ever met
before apparently to increase Mr. Castillos anxiety about Trooper Klitch
handling his property.

38.

When Trooper Klitch did not find any drugs or other contraband, he approached
Mr. Castillo to inform him that he had repeatedly urinated in the Blazer during the
search, stating that he had only peed in there a couple of times.

39.

After this detention, which lasted approximately 25 minutes, Trooper Klitch then

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indicated Mr. Castillo was free to go.

40.

Trooper Klitch did not cite Mr. Castillo for failure to pull over to the left lane
when passing a stopped emergency vehicle or for any other traffic violation.

41.

Mr. Castillo was shaken by this unlawful stop and search and the degrading,
humiliating, and discriminatory manner in which he had been treated. By the side
of the highway he repeatedly applied hand sanitizer to his hands and forearms, in
an attempt to decontaminate himself. He made several attempts to re-enter his
vehicle, before he was able to summon the ability to do so, as he coped with the
demands of his OCD.

42.

On information and belief, Trooper Klitch has history of stopping vehicles and
detaining citizens particularly those with out-of-state license plates or more
specifically from states that have lenient marijuana use and possession laws on
pretextual or fabricated reasons in order to conduct exploratory searches for drugs
and contraband.

43.

As but one example, before the stop in this case, Trooper Klitch was sued by a
resident of Colorado for a similar illegal search and seizure. Roseen v. Idaho
State Police, et al., 1:14-cv-00118-REB. In that lawsuit, the plaintiff has alleged
that Trooper Klitch unlawfully detained him, subjected him to a roadside
interrogation, falsely claimed that he could smell marijuana coming from his
vehicle, and impounded his vehicle. No marijuana or other illegal substances were
found. Id.

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44.

Trooper Klitch has also been quoted in the media, or has been the subject of media
reports, about his practice of stopping vehicles from Oregon and other states that
have more lenient marijuana laws. See, e.g., Idaho Arrests Highlight Medical
Marijuana Divide, AP, https://www.youtube.com/watch?v=g8_Wg200LSk.

45.

Therefore, on information and belief, Trooper Klitch has a pattern, practice, or

policy, known to the Idaho State Police, of unlawfully stopping citizens traveling
on Idahos public highways based on unlawful profiles rather than on reasonable
suspicion or probable cause to search for drugs, violating their Fourth and
Fourteenth Amendment rights.
CLAIMS FOR RELIEF
I.
42 U.S.C. 1983: Violation of the Fourth and Fourteenth Amendment
Unreasonable Search and Seizure
Against Troopers Klitch and Cottrell in their Individual Capacities

46.

Mr. Castillo re-alleges and incorporates paragraphs 1 45.

47.

Mr. Castillo has a right under the Fourth Amendment, made applicable to the
states through the Fourteenth Amendment, to be free from unreasonable searches
and seizures.

48.

Trooper Klitch, while acting under color of state law, seized Mr. Castillo by
activating his emergency lights and causing Mr. Castillo to stop his vehicle.

49.

Trooper Klitchs stated reason for stopping Mr. Castillo was a supposed failure to
change lanes when he passed a stopped police car.

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50.

Idaho Code 49-624 governs a drivers duties upon approaching a stopped police
or emergency vehicle:
If the driver is traveling on a highway with two (2) or more lanes carrying
traffic in the same direction, [the driver shall] immediately reduce the speed
of his vehicle below the posted speed limit, proceed with due caution and,
if traveling in a lane adjacent to the stationary police vehicle displaying
flashing lights or the authorized emergency vehicle displaying flashing
lights, change lanes into a lane that is not adjacent to such vehicle as soon
as it is possible to do so in a manner that is reasonable and prudent under
the conditions then existing, with regard to actual and potential hazards.
(Emphasis added.)

51.

Given the obvious actual and potential traffic hazards at that time, which included
Trooper Klitchs maneuver of his own patrol car to a close and unsafe distance
from the left-rear of Mr. Castillos vehicle, it was not reasonable and prudent
under the existing conditions of heavy and fast moving traffic, for Mr. Castillo to
move into the passing lane when he passed the stopped police car.

52.

Trooper Klitch lacked a lawful basis to stop Mr. Castillo for this statutory
violation or for any other violation.

53.

Because the initial seizure was unlawful under the Fourth and Fourteenth
Amendments, all of Trooper Klitchs and Trooper Cottrells actions that restrained
Mr. Castillos liberty after that point were unlawful.

54.

As an independent constitutional violation, Trooper Klitch and Trooper Cottrell

prolonged the detention far beyond the initial reason for the stop without
reasonable suspicion or probable cause to believe that Mr. Castillo was engaged in

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criminal conduct.
55.

Trooper Klitch questioned Mr. Castillo extensively about matters wholly unrelated
to the reason for the stop. Mr. Castillo was not nervous, belligerent, furtive, or
hostile to Trooper Klitch, and there were no objectively reasonable facts available
to Trooper Klitch to suggest that Mr. Castillo was using or transporting drugs or
contraband. Mr. Castillo repeatedly, patiently, and respectfully explained to
Trooper Klitch that he was disabled and suffered from OCD.

56.

Moreover, Trooper Klitchs and Trooper Cottrells decision to detain Mr. Castillo
while the dog sniffed the exterior Mr. Castillos vehicle unlawfully expanded the
detention far beyond its initial scope and unlawfully prolonged the restraint on Mr.
Castillos liberty.

57.

As an independent constitutional violation, the drug dog failed to alert in a

manner that would support probable cause to search the vehicle.

58.

Alternatively, if the drug dogs behavior in sitting near the passenger side door
provided an indication or an alert to Trooper Cottrell, its failure to alert once
inside the vehicle negated any suspicion or probable cause that the initial
indication may have provided.

59.

To the extent that the dog gave an indication or an alert at the passenger side door,
he did not do so in the interior or at the rear of the vehicle. Trooper Klitch lacked
reasonable suspicion or probable cause to search the rear cargo compartment or
Mr. Castillos personal property contained within the compartment.

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60.

The entire length of the detention was unreasonable under the Fourth and
Fourteenth Amendments.

61.

The acts of Trooper Klitch and Trooper Cottrell resulted in an injury to Mr.
Castillo, which includes pecuniary and non-pecuniary damages and attorney fees
and costs.
II.
Negligent Supervision and Training
Against the Idaho State Police
Idaho Tort Claims Act, Idaho Code 6-901 6-929

62.

Mr. Castillo re-alleges and incorporates paragraphs 1 - 61.

63.

Idaho has waived its sovereign immunity for state law claims seeking money
damages from governmental entities or their employees, acting within the course
and scope of their employment, for negligent or other wrongful acts. Idaho Code
6-903(a).

64.

The Idaho State Police has a duty to the public, including Mr. Castillo, to exercise
ordinary care in the training and supervision of its law enforcement officers.

65.

The Idaho State Police, through its director or supervisors, knew or should have
known that Trooper Klitch had a history of unlawfully stopping citizens to search
for illegal substances.

66.

The Idaho State Police breached its duty to exercise ordinary care in the training
and supervision of Troopers Klitch and Cottrell.

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67.

Trooper Klitch and Trooper Cottrell unlawfully seized Mr. Castillo and searched
his vehicle while acting in the course and scope of their employment.

68.

The Idaho Polices breach of its duty to exercise ordinary care to train and
supervise its law enforcement officers was the but for and proximate cause of
Mr. Castillos injuries, which include pecuniary and non-pecuniary damages and
attorney fees and costs.
III.
Violation of the Americans with Disabilities Act, Title II
Against the Idaho State Police
42 U.S.C. 12132

69.

Mr. Castillo re-alleges and incorporates paragraphs 1 68.

70.

Mr. Castillo is a qualified person with a disability Obsessive Compulsive

Disorder under the ADA.

71.

The Idaho State Police, as a department of the Executive Branch of the State of
Idaho, is a public entity for purposes of the ADA.

72.

Troopers Klitch and Cottrell, acting on behalf of the Idaho State Police, either
knew or should have known that Mr. Castillo was disabled.

73.

Mr. Castillo was (a) either excluded from participation in or denied the benefits of
the Idaho States Polices services, programs, or activities; or (b) was otherwise
discriminated against by the Idaho State Police; (c) by reason of his disability
when Troopers Klitch and Cottrell restrained his liberty based on legal conduct or

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behavior associated with his OCD disability.

74.

The Idaho State Police further violated the ADA by failing to train and supervise
its troopers, including Troopers Klitch and Cottrell, regarding their interactions
with members of the public who are disabled with mental health conditions.

75.

These violations resulted in Mr. Castillos injury, which includes pecuniary and
non-pecuniary damages and attorney fees and costs.
PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment:

1.

Finding and declaring that Plaintiffs protected federal and state rights were
violated as set forth in this Complaint;

2.

Awarding Plaintiff monetary damages, in an amount to be determined at trial, that

will fully and fairly compensate the Plaintiff for his injury and losses, pain and
suffering, and emotional distress and anguish;

3.

Awarding Plaintiff punitive damages, in an amount sufficient to punish them and

deter others from like conduct;

4.

Awarding Plaintiff his reasonable attorney fees and costs against Defendants;

5.

Setting a jury trial on all questions of fact or combined questions of law and fact
raised by this Complaint.
//

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6.

Any other relief that the Court deems appropriate.

SUBMITTED ON THIS 21st day of May 2015.

/s/ Craig H. Durham

/s/ Deborah A. Ferguson
Attorneys for Plaintiff

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