and Submitted April 17, 2017 San Francisco, California
from the United States District Court for the District of
Nevada D.C. No. 3:13-cv-00324-LRH-VPC Larry R. Hicks,
District Judge, Presiding
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.
Amendment / Civil Forfeiture
panel affirmed the district court's order in a civil
forfeiture action granting claimant's motion to suppress
evidence seized pursuant to a traffic stop; affirmed the
award of attorneys' fees; and held that the search of
claimant's vehicle following coordinated traffic stops
violated the Constitution.
panel held that the first stop of claimant's vehicle was
unreasonably prolonged in violation of the Fourth Amendment;
the dog sniff and search of claimant's vehicle during the
coordinated second vehicle stop followed directly in an
unbroken causal chain of events from that constitutional
violation; and consequently, the seized currency from the
second stop was the "fruit of the poisonous tree"
and was properly suppressed under the exclusionary rule.
panel also held that none of the exceptions to the
"fruit of the poisonous tree" doctrine - the
"independent source" exception, the
"inevitable discovery" exception, and the
"attenuated basis" exception - applied to
REINHARDT, Circuit Judge
case is about coordinated traffic stops and the Fourth
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.
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.
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, 137
S.Ct. 847, 847 (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.
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.
Monroe, a local patrol officer, observed Gorman's pass
attempt from the side of the road and, deeming it a potential
"left-lane violation, " 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.
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.
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"
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.
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.)
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
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.
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 ...