Asset Forfeiture

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.

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Elko County Sheriff's Office

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.

Nevada Highway Patrol

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.]

NEXT: State of Emergency Extended in Ferguson, U.S. Flag Going Up in Havana, Earth-Like Planet 100 Light Years Away: A.M. Links

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  1. The precogs make more money than they cost.

  2. 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.

    Lying by omission is standard procedure. Any information doesn’t further the desired narrative is conveniently left out.

    1. material omissions

      Also known as fraud, and when done under oath, perjury.

      Indictments in 3 . . . 2 . . .

      Oh, who am I kidding?

      1. Seems to me it is also contempt.

      2. Conspiracy as well.

    2. You know what the judge conveniently left out? The clearly needed court appointed use of a woodchipper.

  3. The government has a duty of candor and fair disclosure to the Court.

    I wonder if disrespecting the court was the prosecution’s ultimate undoing.

  4. My basic lack of understanding: why having cash is illegal in this country?

    1. It allows people to evade the banking system and thus government control.

    2. After decades of Keynesian economics, anybody with any savings left is automatically suspect.

    3. It’s not illegal to have cash, but if cash congregates together in large numbers, it must prove that it won’t use it self to purchase something illegal. If it can’t, then it goes to cash-jail.

      1. This /\ /\ is actually pretty close to the actual legal justification [cite: U.S. v. $153,000]

    4. Because only drug dealers carry cash. Therefore if you have a lot of cash then it must have been from selling drugs (and thus belongs to the government because you didn’t pay taxes on it), and the burden of proof is on you to prove it came from something legal.

      1. He was on his way to pick up Jennifer Aniston and head for the border.

  5. It all comes down to accountability, and this judge hints at that but goes no further. Not even a slap on the wrist for the government prosecutor who withheld evidence connecting the two stops, and nothing for the cops who conspired to commit fraud.

    If failed searches, forfeitures, and charges rebounded on the cops, police, judges, and attorneys in kind, they just might think twice about bogus stops, searches, seizures, and charges.

    When accountability exceeds authority, there are scapegoats. When authority exceeds accountability, there is corruption.

  6. So, they found no drugs. So the dog was clearly wrong. The probable cause should go out the window then, right? I mean, the dog isn’t trained to smell large sums of cash, last I checked.

    Why doesn’t it work this way? I don’t know why I bother commenting or responding. There’s nothing new to say. The answer is always the same. Fuck you, that’s why. They are just crooks. Nothing gets changed, no one is ever held accountable, and it goes on. It’s the cycle of government.

    I can propose a hundred simple punishments that would keep this sort of behavior in check, but no one in power cares, and if voters are even aware of this stuff, they don’t care because drug war. This is our libertarian moment.

    1. So, they found no drugs. So the dog was clearly wrong.

      No, that just means the drugs were cleverly hidden, or the dog was smelling residue from drugs that were there recently. Everyone knows this.

      1. Clearly the dog was smelling drug residue on the cash, which is how they know the cash was involved in illegal drug activity.

  7. And the Feds appealed. Fuck me. What dipshits.

    1. Time, once again, to put forward the Spartacus Amendment proposal: any prosecutors appealing a ruling must hire outside counsel to pursue the appeal and pay for it personally. If the appeal is successful, s/he will get reimbursed.

    2. “Fuck me.”

      They are the federal mafia and they would if they could.

  8. But did the money make it home safely to its little coins?

  9. Can we not show some respect for the cop that was right about the money? I’m actually quite impressed.

    Of course, for all I know he strip searches everyone driving a motor home in Nevada. That must take a lot of time.

    Perhaps he just saw “The Millers.”

    1. We don’t see the false positive rate i.e. how many times this cop says “he’s carrying money” when all the detainee has is a few bucks. So, no, we cannot show some respect for the cop.

      1. He did have money. He said he had $2,000 cash.

        I dont think the cop did anything special other than say “He said he has cash, he has $2,000. Let’s take his $2,000.” He was probably as surprised as anyone else when it was more than $2,000.

    2. Don’t count out parallel construction. Remember that the first cop said he became suspicious because of such utterly mundane answers about Gorman’s employment and girlfriend-visiting.

      NSA + bank reporting + license plate readers = searching your car for ostensibly going too slow in the left hand lane.

  10. So, in the absence of drugs, is it illegal to transport $150k in cash?

    Is the correct answer to tell the cop, “I have a giant pile of cash, fuck off!”?

  11. The correct answer to a cop is “I do not talk to cops.”

    1. “Why are you asking? Are you investigating a crime?”

  12. This is the judge’s website: http://www.nvd.uscourts.gov/bio/larryrhicks.aspx

    If anyone can find an email address or a way to leave him a message, we really ought to reach out to him and say thank you for acting like a human being.

  13. Concerning the dogs alerting, haven’t these moron judges ever heard of Clever Hans? If you haven’t, Google it, it’s pretty interesting and the same type of nonverbal cues certainly account for a bunch of these “alerts.”

    1. I swear I remember a study that said these dogs have a false positive rate of 40% or so. Little better than a coin toss, IOW.

      OTOH, that makes them a much better limit on cops doing searches than magistrates and judges, who will sign off on any warrant request, period.

      1. I’d actually be surprised if the false positive rate was that low, particularly if the dogs are picking up on unintended or, and I’m sure this never happens, intended nonverbal cues.

        If the dog senses its handler has a hard on for an alert, it will aim to please.

      2. Actual in-the-field numbers (which are hard to come by and calculate) suggest it’s as high as 80% false positives..

        1. If that’s the case, they should just use a magic 8 ball, it’d be much more reliable.

    2. How does a defendant in a case involving a dog “alert” get “to be confronted with the witnesses against him”? (6th amendment)
      He gets to look at the dog in court?
      This is supposed to mean that one can cross-examine a witness being used to prove one’s criminal activity, something one cannot do to a dog.
      Can the dog answer why he/she sat down, or whatever other, possibly normal, behavior indicates an “alert”?
      For drug-sniffing dogs to have been allowed to provide probable cause is completely unconstitutional.
      But, then again, we can’t let a silly thing like the Constitution get in the way of the very important, and highly successful WOD, can we?

  14. Withholding information, even if it is fatal to your case, is SUPPOSED to trigger an ethics investigation into the attorney. It is also subject to FRCP Rule 11 sanctions against him. None of these things seems to be forthcoming.

    As horrible as these 4th amendment violations are; I am more concerned by attorneys, especially US attorneys, who engage in these willful acts of deceit.

    1. Why wouldn’t they? Nothing bad will happen. To them, I mean.

    2. Trigger an ethics investigation by whom?
      The local bar association?
      It is to laugh.
      Lawyers, on both sides of the equation are the biggest criminals around and continue in that realm with a wink and a nod by the court system, full of judges, who used to be lawyers.
      Want to talk about a group who are protected by immunity so that they can go home safely – and much more wealthy – to their families every day?
      The cops are pikers compared to those in the Judicial System.

  15. Yes, these gummint hooh hahs need to be taken out to the woodchipper barn for some “readjustment” up to and including being disbarred for deliberatly lying to the court under perjury by withholding material evidence. Cheating should carry harsh adverse consequences. And the copper who triggered the false alert needs the same readjustment.. HE needs to find the soupline in Elko COunty for his crime.

    The biblical punishment for lying/false testimony (obvious, here) is to pay the penalty the one against whom you fabricated eivdence would have suffered had the lie not been exposed. In other wirds, mister Copper by falsely alerting the dog lied, and WOULD hav cost this guy his $150K as a result of that lie. Thus HE (the dirty copper) should have to pay the $150K he nearly cost his victim…AND lose his job with Elko COunty Sheriff. And theUS Attorneys should share in that penalty, actualy, EACH ONE conspiring to steal that money needs to be on the hool dof the fill amount. AND be disbarred.

  16. Oh, and there needs to be a neutral study done on the=REAL effectiveness of those “drug dogs”. Some dogs are “trained” to sniff cash, as well…. or instead of. But the false hit rates, and the ease with which dogs can and are trained to hit on command needs to be exposed… and dealt with. Reality is, dogs have been converted into trained weapons against the citizenry, to perform on command of their handlers. Someone somehow needs to bust this fraud wide open.

    I also wonder if that clown sheriff from Elko COunty Nevada has been through the seizure training schools run by the former CHP officer raking in the big bucks teahinc cops across the country how to steal money from the travelling public. THAT guy needs to be in prison for his fraud.

  17. Warrant on a leash, all the dogs are for it seems. Well that and chewing on compliant suspects and sometimes left in cars to die, 7 times so far this summer IIRC.

  18. I’m so numb to reading about civil forfeiture abuses that I actually overlooked the true dark humor in this story – Gorman was never in danger of being charged with an actual crime. It didn’t even cross the Nev cops’ minds. I know that’s commonplace, but it’s still mind-blowing to get reminded.

    Gorman had $167K and had the misfortune to run into Route 80 pirates. It’s that simple.

  19. Just another story that makes me hate the unconstitutional, anti-rightist federal government and all the state governments that go along with it. At least the victim didn’t get shot and killed, will get his money back, and, hopefully, the appellate court will deny the government’s appeal regarding paying the victim’s legal fees. (Yes, in America we are free…free to do whatever the government allows us to do. All hail the Almighty Government. Dissenters will be shot.)

  20. They whine and cry about people not showing then respect, they are no better than N. Korean police or the nazi gestapo.

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