What It Takes for a Judge to Reject a Dog-Authorized Cash Seizure
There are still some limits on cops' license to steal, provided courts are willing to enforce them.
Let me start by saying I do not know what Straughn Gorman was doing with $167,070 in cash stashed throughout his motor home, including bundles in the freezer and the microwave. Maybe he really was planning to buy marijuana with it in California, as the cops suspected. But the way they managed to take his money starkly illustrates how law enforcement agencies can conspire to evade constitutional limits with the help of canine accomplices. The forfeiture case, which is documented by dashcam video of two coordinated traffic stops, also shows there still are some limits on cops' license to steal, as long as judges are willing to enforce them.
On the morning of January 23, 2013, Gorman was driving west on Interstate 80 in Nevada when he was pulled over by Trooper Greg Monroe, ostensibly because he was driving too slowly in the left lane. Instead of simply issuing Gorman a ticket or warning and sending him on his way, Monroe asked him about his occupation and destination. Gorman said he worked for a paddle board company on Maui and was on his way to visit his girlfriend in Sacramento. He added that he was thinking about moving to California. Monroe thought those answers were suspicious, so in addition to doing a record check he called for a drug-sniffing dog, but there were no available K-9 units in the vicinity.
Monroe returned to Gorman and told him he was free to go but continued to grill him, asking about his income. Gorman declined to talk about his finances. Monroe asked if there was anything illegal in the motor home and if he was carrying large amounts of cash. Gorman said he had about $2,000. "Do you mind if we search the vehicle?" Monroe asked. "I do mind, yes," Gorman replied. At that point, about 23 minutes after the stop, Monroe reiterated that Gorman was free to go and walked back to his patrol car, saying aloud to himself on the way back, "He's carrying money."
Monroe knew he did not have probable cause to search the motor home, but he was not about to let the Fourth Amendment stop him from taking advantage of a profitable opportunity. He called Nevada Highway Patrol (NHP) dispatch to pass along his suspicions and explain that a dog would be needed to justify a search of Gorman's potentially money-laden vehicle. NHP then contacted Elko County Sheriff's Deputy Doug Fisher to suggest that he and his drug-detecting dog might want to stop Gorman further down the road. Fisher also spoke directly with Monroe, who gave him Gorman's name and license plate number, described the traffic stop, and told him he had to let the motor home go because Gorman would not consent to a search and no drug dogs were available.
Fisher lay in wait for Gorman about 45 miles west of the first traffic stop and pulled him over again 40 minutes after Monroe let him go, ostensibly because a curtain was obstructing the driver's side window. Gorman complained that he had just been pulled over for 20 to 30 minutes and resisted answering Fisher's questions, saying, "I've been asked a lot of other questions at the other place….Am I getting a ticket? Am I detained?" Fisher said he was being detained for the moment because a record check had not been completed yet. In the meantime, he wondered, would Gorman mind if he walked his dog around the vehicle? "I have opposition, if that means anything," he said. It didn't, because the Supreme Court has said police do not need permission or any special justification to walk a dog around a vehicle during a traffic stop.
Fisher reported that his dog sat down and stared at the motor home's back right compartment, which he described as a clear alert signal. Informed that he would be free to go once his record check was complete but that the motor home would have to stay because the dog had alerted to it, Gorman expressed disbelief. "Did you make him alert?" he asked. "No," Fisher replied. "I did not make him alert." Gorman volunteered to open the back rear compartment, which he said contained "charcoal and stuff like that." He suggested that Fisher "look in it, because there's no drugs." Fisher responded that the dog's alert, regardless of where it happened, gave him probable cause to search the entire motor home.
After Fisher obtained a warrant by phone from a local justice of the peace, he searched the vehicle with help from the dog and another officer. They seized the money, Gorman's laptop, and the motor home, which belongs to his brother. Later the laptop and the motor home were returned, but the Justice Department agreed to adopt the forfeiture of the money, an arrangement under which the feds generally keep 20 percent of the proceeds and leave 80 percent for the local agencies that initiated the seizure.
Monroe and Fisher took full advantage of Supreme Court rulings allowing pretextual traffic stops, routine use of drug-sniffing canines, and dog-authorized searches. But it seems they overlooked what turned out to be an important sentence in Illinois v. Caballes, the 2005 decision in which the Court said cops may deploy dogs at will during traffic stops. "A seizure that is justified solely by the interest in issuing a warning ticket to the driver," the Court warned, "can become unlawful if it is prolonged beyond the time reasonably required to complete that mission." Last April the Court elaborated on that principle in Rodriguez v. U.S., finding that an eight-minute delay for the purpose of facilitating a canine inspection violated the Fourth Amendment's ban on unreasonable seizures. That decision proved to be Monroe and Fisher's undoing.
In a June 12 decision, U.S. District Judge Larry Hicks cited Rodriguez in rejecting the seizure of Gorman's money, saying his detention, which spanned two separate stops, had been unreasonably delayed so that the cops could find and take the cash. The first stop took 23 minutes, and the dog sniff happened 12 minutes into the second stop. All together, Hicks said, "Gorman was detained for a total of approximately thirty-five minutes without convincing independent reasonable suspicion—before the officers conducted a canine sniff of the motor home and obtained probable cause for the search." He noted that Fisher knew Monroe had already conducted record checks on Gorman but "conducted additional redundant checks in order to prolong the stop to allow for a canine sniff."
Hicks also questioned the breadth of the search, saying "the Court is not convinced that the dog's positive alert to the compartment gave the officers probable cause to search the entire motor home." He noted that "the officers did not even begin their search of the motor home with the compartment" but instead went directly to the main cabin. Because the unreasonable delay was sufficient reason to throw out the seizure and order the return of Gorman's money, Hicks did not resolve this issue.
Had he not been constrained by the Supreme Court's excessive faith in police dogs and their handlers, Hicks might also have wondered whether the dog's purported alert provided probable cause for anything. Despite the alleged alert, no drugs were found in the compartment that supposedly attracted the dog's attention or anywhere else in the motor home. So what exactly triggered the purported alert? The smell of money? More to the point, how could Monroe and Fisher be confident that a drug-detecting dog would alert to a motor home that they suspected was carrying cash but not drugs?
It's almost as if a dog's alert, which (as Gorman suggested) can easily be invented or triggered by a handler's deliberate or subconscious cues, is nothing but a bullshit excuse for a search that cops are already determined to perform. My former colleague Radley Balko recently noted a federal appeals court case featuring a dog that alerted to 93 percent of the cars it examined. That is not the sophisticated screening device described by the Supreme Court. That is "basically a probable cause generator," as Balko put it. The appeals court, by the way, thought the dog was good enough for government work, although it was wrong four times out of 10 even when examining cars preselected by suspicious cops.
Hicks did not merely throw out the seizure of Gorman's money and question (however tentatively) the magical legal powers of dogs. He also rebuked the federal prosecutors who adopted the forfeiture for trying to conceal the conspiracy between Monroe and Fisher:
The Court is disappointed that the United States would aggressively pursue this forfeiture action while all of its moving documents for summary judgment and supporting affidavits contained material omissions concerning the history leading to the traffic stop and canine sniff at issue. The government's Motion for Summary Judgment, with supporting affidavits from Deputy Fisher and the Assistant United States Attorney, made no disclosure of anything which would have suggested that Fisher's stop was a follow-up on Monroe's stop and was based upon suspicion of a drug-related offense….
The government's nondisclosure of the information regarding Monroe's initial stop is troublesome for many reasons, but certainly because the relationship between the two stops is so obviously relevant to the legal issues before the Court….
The government has a duty of candor and fair disclosure to the Court. The Court expects and relies upon the United States Attorney's Office to be candid and forthcoming with material information uniquely held only in possession of the government and clearly relevant to central issues before the Court. That did not occur here.
Hicks indicated that Gorman, having successfully challenged the forfeiture, was entitled to have the government cover his legal expenses. According to his lawyer, they total $153,000—almost as much as the amount of money seized from the motor home. That gives you an idea of why so many forfeiture victims give up rather than challenge seizures in court. Unsurprisingly, federal prosecutors do not want to pay Gorman's legal fees, and this week they announced that they plan to appeal Hicks' rejection of the seizure as well.
[Thanks to Chris Reade for the tip.]
