United States v. Gorman

• Citation: 859 F.3d 706
• Decision Date: 12 June 2017
• Docket Number: Nos. 15-16600,15-17103,s. 15-16600
• Parties: UNITED STATES of America, Plaintiff-Appellant v. Straughn Samuel GORMAN, Claimant-Appellee and $167,070.00 In United States Currency, Defendant
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

859 F.3d 706

UNITED STATES of America, Plaintiff-Appellant

v.Straughn Samuel GORMAN, Claimant-Appelleeand$167,070.00 In United States Currency, Defendant

Nos. 15-16600

15-17103

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 17, 2017, San Francisco, California

Filed June 12, 2017

Greg Addington (argued), Assistant United States Attorney; Elizabeth O. White, Appellate Chief; United States Attorney's Office, Reno, Nevada; for Plaintiff-Appellant.

Vincent Savarese, III (argued), Gentile Cristalli Miller Armeni Savarese, Las Vegas, Nevada, for Claimant-Appellee.

Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, Minnesota, for Amicus Curiae Americans for Forfeiture Reform.

Before: Stephen Reinhardt and Marsha S. Berzon, Circuit Judges, and Ann D. Montgomery,^* District Judge.

OPINION

REINHARDT, Circuit Judge:

This case is about coordinated traffic stops and the Fourth Amendment.

In January 2013, a police officer stopped Straughn Gorman on Interstate-80 outside Wells, Nevada for a minor traffic infraction. The officer came to think that Gorman might be carrying drug money. Acting on this concern, he unsuccessfully attempted to summon a drug-sniffing dog and then prolonged Gorman's roadside detention, which lasted nearly half an hour, as he conducted a non-routine records check. Unable to muster a justification for searching the vehicle, he questioned Gorman further and finally released him without a citation. Undeterred, the officer then developed the bright idea of contacting the sheriff's office in Elko, a city further along Gorman's route, to request that one of their officers stop Gorman a second time. The first officer conveyed his suspicions that Gorman was carrying drug money, described Gorman's vehicle and direction of travel, and reported that his traffic stop had provided no basis for a search. "You're going to need a dog," he said.

A second officer, who had a dog with him, then made a special trip to the highway to intercept Gorman's vehicle. The second officer saw Gorman and eventually believed he had found a traffic reason to pull him over. Following the second stop, the second officer performed a series of redundant record checks and conducted a dog sniff. The dog signaled the odor of drugs or drug-tainted currency. On the basis of the dog's alert, the second officer obtained a search warrant, searched the vehicle, and found $167,070 in cash in various interior compartments.

No criminal charges arising from this incident were ever brought against Gorman. Instead, the government attempted to appropriate the seized money through civil forfeiture. Civil forfeiture allows law enforcement officials to "seize ... property without any predeprivation judicial process and to obtain forfeiture of the property even when the owner is personally innocent." Leonard v. Texas , ––– U.S. ––––, 137 S.Ct. 847, 847, 197 L.Ed.2d 474 (2017) (Thomas, J., respecting denial of certiorari). Gorman contested the forfeiture by arguing that the coordinated stops violated the Fourth Amendment. He prevailed. The district court ordered that his money be returned and also awarded him attorneys' fees. The government appealed. We affirm the district court.

BACKGROUND

A.

On the morning of January 23, 2013, Gorman was driving a motorhome westbound on Interstate-80 near Wells, Nevada. In this area, I-80 is a four lane highway with two lanes on each side of the center divider. Gorman had been driving in the right lane. According to Gorman, he pulled briefly into the left lane in an attempt to pass a semi-truck, but was unable to complete the pass because of the truck's continued speed. He returned to the right lane shortly thereafter. At no point during this maneuver was Gorman speeding.

Trooper Monroe, a local patrol officer, observed Gorman's pass attempt from the side of the road and, deeming it a potential "left-lane violation,"¹ accelerated so as to approach the motorhome from behind. Monroe turned on his lights, caught Gorman's attention, and pulled him over. Gorman stopped the vehicle at the side of the highway.

Monroe approached the driver's side window and made contact with Gorman. He told him that he pulled him over because of a "left-lane violation." Gorman explained that the trucks in the right lane were driving slowly and that he intended to return to the right lane once he completed the pass. Monroe replied that if he was unable to pass the vehicles in the right hand lane, he should not have attempted to do so in the first place.

Gorman promptly produced his license and registration. In response to Monroe's inquiries, he said that he was on his way to visit "his chick" in Sacramento, that he was moving to California, and that the motorhome belonged to his brother. Gorman also responded that he earned money by selling paddleboards at "Beach Activities of Maui" in Hawaii.

Monroe found this information suspicious because he found the term "chick" to be "unusual" given Gorman's age, because he thought that the statement about visiting California and the statement about moving there were inconsistent, and because Gorman curtly answered "yep" when asked whether he was going to work in California. Monroe was also suspicious because Gorman could not recall his girlfriend's address and had to refer to his GPS before reporting his precise destination. As for Gorman's description of his previous employment in Hawaii, Monroe thought that "the way he said it sounded rehearsed." Further, Monroe found it puzzling that someone who sells paddleboards could afford to drive cross-country in a motorhome, given the large vehicle's poor gas mileage. He also thought it suspicious that Gorman's stated destination was Northern California, a place known for cultivating marijuana.

Monroe returned to his patrol car. He contacted Nevada Highway Patrol ("NHP") Communications and requested a drug-detection dog, a driver's license warrant check, and a criminal history report on Gorman. According to Monroe, "the dog ... would give [him] probable cause to apply for a search warrant" if the dog "alerted." An alert could indicate the presence either of drugs or of drug-tainted currency. (Currency retains the odor of certain drugs with which it has come into contact.)

Monroe soon received the results of the routine warrant and criminal history checks. They revealed that Gorman had no prior arrests and no outstanding warrants. NHP Communications also informed Monroe that a dog was not available in Wells. "Without a dog I'm not even going to get into this one," Monroe replied. In short, Monroe concluded that there was insufficient probable cause to obtain a search warrant.

Monroe then initiated a non-routine record check. He asked the El Paso Intelligence Center, a multi-jurisdictional bureau known as EPIC, to compare Gorman's home address with its database of information related to drug and weapons smuggling, money laundering, and human trafficking. EPIC returned a notification that there was a Drug Enforcement Agency "hit" on Gorman involving the transfer of $11,000 in 2006. EPIC also indicated that Gorman had entered or exited the United States four times, on one occasion flying from Madrid, Spain to John F. Kennedy Airport in New York. Monroe told the EPIC operator that he did not "have a dog on [him]" and that he was "going to try to gain consent" and would "call and let [EPIC] know" whether he succeeded in gaining Gorman's consent to search the vehicle. Monroe also asked EPIC to run a search on a different address associated with Gorman, which returned the same results.

Twenty minutes into the stop, Monroe returned to the side of the motorhome, gave back Gorman's documents, and said that he was not issuing a citation. Monroe did not, however, advise Gorman that he was free to go. Instead, Monroe prolonged the roadside detention even further by questioning Gorman more pointedly. He asked how he could afford to drive a motorhome across the country given the high price of gas, and he asked how much money Gorman made from his paddleboard business. Gorman responded, "I don't want to talk about how much I make." Monroe then asked directly if there was anything illegal in his car and if he was carrying cash. Gorman replied that he was "just carrying $2,000." Monroe "thought he was lying." Monroe then asked Gorman if he could search the vehicle. Gorman said no. Monroe finally sent Gorman on his way, after nearly half an hour.² As he returned to the patrol car, Monroe muttered aloud to himself, "He's carrying money."

B.

Immediately after he released Gorman, Monroe contacted NHP Communications and stated that "there was a vehicle headed westbound that [he] strongly suspected was carrying money." He specified, "you're going to need a dog" because "the only way to get in this vehicle would [be] with probable cause." According to Monroe, he hoped the Elko County Sheriff's Office would dispatch an officer—and a dog—to intercept Gorman and find a way to search his vehicle.

The Highway Patrol dispatcher contacted the Elko County Sheriff's Office, which then contacted an officer, Deputy Fisher. The dispatcher said that Monroe "stopped a motor home near Wells" and that a canine unit "might want to take a second look at the car." The dispatcher provided Gorman's license plate number and the location of the initial stop, and noted that Gorman had refused to consent to a search of the vehicle.

Following his conversation with the dispatcher, Fisher telephoned Monroe directly and spoke with him for about five minutes. Monroe advised Fisher of the "particulars of the stop" and described his "suspicions." He told Fisher that he thought there was cash in the vehicle but that he had to "let the guy go" because "he didn't think he had much more to go on ... based on his information."

C.

Fisher was not patrolling the roads when dispatch contacted him. After speaking with Monroe, however, he "proceeded out to the highway" in a patrol car to find the motorhome. He brought along a...