Dual-Stop Technique Results in Voided Asset Forfeiture

United States v. Gorman, (9th Cir. 2017)

A trooper stopped Gorman for a left lane passing violation on the interstate freeway. The trooper’s conversation with Gorman caused the trooper to suspect that Gorman was carrying drug money. The trooper requested a drug detector dog team, but no team was available in that area.

After a series of computer checks, the trooper returned Gorman’s documents to him and told him that he was not issuing a citation. The trooper didn’t tell Gorman that he was free to leave, and he continued to question Gorman. The trooper also contacted EPIC (El Paso Intelligence Center) and found a “hit” on Gorman as a suspected drug courier, but with no warrants or holds.

The trooper asked Gorman questions about how he made money and whether he was carrying money. Gorman claimed to have about $2,000 in cash. When the trooper asked for consent to search the motor home, Gorman declined. The trooper then released Gorman. Walking back to his car, the trooper muttered, “He’s carrying money.”

The trooper called ahead to a neighboring jurisdiction and said he suspected Gorman was carrying drug money, but that only a drug detector dog was likely to produce probable cause for a search. Down the road, a deputy sheriff heard the dispatch broadcast. The deputy telephoned the trooper and learned the facts of the first stop. The deputy then drove to the freeway to watch for Gorman.

The deputy spotted Gorman’s motor home on the freeway. As soon as the deputy observed a traffic violation, he stopped Gorman. The deputy requested the same computer checks on Gorman, including the EPIC inquiry. The deputy deployed his detector dog for an exterior sniff. The dog gave a positive final response at the rear cargo area exterior.

After obtaining a search warrant based on the dog sniff, the deputy searched the motor home. He found $167,070 in cash, two large empty duffle bags and a large empty hard-sided storage case. Gorman was not charged with any crime. The federal prosecutor initiated an asset forfeiture action for the cash.

The prosecution conceded the prolonged detention of the first stop was illegal. A stop for a traffic violation may take the time necessary to determine “whether to issue a traffic ticket” and “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance” (Rodriguez v. United States, 135 S.Ct. 1609 (2015)). Extending the stop beyond that time requires an independent reason to further detain the driver.

The appellate court applied the “fruit of the poisonous tree” analysis to the second stop, asking whether the illegality of the prolonged first stop tainted the evidence obtained after the dog sniff. The “fruit of the poisonous tree” asks whether “the illegal activity tends to significantly direct the investigation to the evidence in question … The focus, in other words, is on the causal connection between the illegality and the evidence.”

The court opined that the trooper’s and deputy’s dealings with Gorman were “a single integrated effort by police to circumvent the Constitution by making two coordinated stops.” The court did not separately analyze the lawful portion and the unlawful portion of the first stop, concluding instead that “the facts here show clearly that part of the impetus for the second stop did come from the unlawful portion … There is an indisputable ‘causal connection’ between Gorman’s concededly unlawful detention and the dog sniff and its fruits … We conclude that the illegality of the first detention ‘tainted’ the evidence obtained during the second stop.”

Even where the “fruit of the poisonous tree” doctrine may apply, the Supreme Court has outlined certain exceptions to the doctrine, including:

• The independent source doctrine, in which a court considers whether evidence discovered in an unlawful search was also independently obtained from a separate, independent source.

• The attenuation doctrine, applicable when the connection between the illegal act and finding the evidence is so attenuated that it dissipates the taint caused by the illegal act. When determining whether to apply the attenuation doctrine, courts consider the temporal proximity of the illegal conduct and finding the evidence in question; whether, and to what degree, there are intervening circumstances; and “the purpose and flagrancy of the official misconduct.”

• The inevitable discovery doctrine, which permits a court to admit evidence that would have been inevitably discovered even without a constitutional violation.

• The inapplicability of the exclusionary rule to civil proceedings or probation hearings.

• The use of the evidence to impeach a defendant. The appellate court held that no exception applied. Thus, the second stop and the subsequent detector dog sniff were illegal. Gorman was entitled to the money and his attorney fees.

Note: Special thanks to Dr. Terry Fleck for his insights on the detector dog sniff. To follow the latest developments in all matters related to police service dogs, visit his site: www.k9fleck.org.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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