The Volokh Conspiracy
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Coordinated traffic stops and the Fourth Amendment
A new decision from the U.S. Court of Appeals for the 9th Circuit, United States v. Gorman, touches on an interesting question: If an officer pulls over a car for a traffic violation and suspects the car has drugs, but he can't get the drug-sniffing dog to come in time to sniff it, can the officer end the traffic stop and call ahead to another police officer to get a dog and watch for the car to pull it over for a second violation? Specifically, if the second officer gets a dog and spots a second traffic violation, can the second officer pull over the car and use the drug-sniffing dog to get probable cause to search the car?
In Gorman, there was a twist: The first officer held the driver for too long. The officer pulled over Straughn Gorman's motor home for a traffic offense and then he held Gorman for almost a half-hour. He called for a drug-sniffing dog but was told there weren't any available. Twenty minutes into the stop, the officer gave Gorman his documents back and told him he was not issuing a ticket. The officer continued to question Gorman, however, based on suspicion that Gorman was carrying drug money in the motor home. The stop went on for too long under the time-limiting doctrine articulated by the Supreme Court in Rodriguez v. United States, 135 S.Ct. 1609 (2015).
The officer became convinced that there was drug money in the motor home, but he did not have sufficient probable cause to search the car. He let the driver go, and he then called ahead to a second officer in the next county to get a dog and watch the vehicle. The second officer did so, later pulling over the motor home for a second traffic violation. The dog alerted, and a warrant was obtained to search the motor home. The search revealed $167,070 in cash in various interior compartments. The government brought a civil forfeiture action seeking to keep the cash as the proceeds of illegal drug activity, and Gorman moved to suppress the fruits of the search so it could not be used in the civil forfeiture action.
Held, per Judge Reinhardt: The evidence found following the second stop was a fruit of the unconstitutionally prolonged first stop. As a result, the money was suppressed.
From the opinion:
Here, there is an indisputable "causal connection" between Gorman's concededly unlawful detention and the dog sniff and its fruits. See id. at 245. The detention unquestionably served as "the impetus for the chain of events leading to" the discovery of the currency. See id. It is clear, moreover, that [the first officer]'s suspicions from the first stop "significantly directed" [the second officer's] actions in making the second stop and conducting the sniff and search. See id. The close connection between the constitutional violation (the first detention) and the seizure of the currency is apparent.
On the basis of suspicions that accrued during the course of Gorman's unlawful detention, [the first officer] alerted a separate law enforcement agency, informed [the second officer] of the basis for his suspicions, and requested that he attempt to stop Gorman for a second time, this time with a drug-sniffing dog. [The second officer] promptly estimated Gorman's location and made a special trip to the highway for the purpose of apprehending him and conducting the dog sniff—the sniff which led to the discovery of the currency. To repeat, there was a direct connection between the Fourth Amendment violation and its fruits. Thus, any evidence obtained from the sniff and search is inadmissible under the "fruit of the poisonous tree" doctrine.
The government does not contend that the "fruit of the poisonous tree" doctrine is applicable only if the impetus for the second stop came from the unlawful portion of Gorman's detention. Even if it did, however, our conclusion would be the same, because the facts here show clearly that part of the impetus for the second stop did come from the unlawful portion of Gorman's detention. It was only after the stop's mission had been completed that [the first officer developed suspicion that the car motorhome was being used to carry drug money. . . . ] Given that sequence, we need not determine whether it would be appropriate to divide an unlawful detention into lawful and unlawful parts for purposes of "fruit of the poisonous tree" analysis
The coordinated action at issue in Gorman's case offers a prime illustration of the value of the "fruit of the poisonous tree" analysis. The analysis allows us to see the officers' conduct in Gorman's case as what it is: a single integrated effort by police to circumvent the Constitution by making two coordinated stops. When the result of one stop is communicated and, on that basis, another stop is planned and implemented, the coordinated stops become, in effect, one integrated stop that must as a whole satisfy the Constitution's requirements. An illegal police venture cannot be made legal simply by dividing it into two coordinated stops. . . . The Constitution guards against this kind of gamesmanship because the Fourth Amendment's protections extend beyond the margins of one particular police stop and can extend to the integrated and purposeful conduct of the state.
Putting aside whether this "fruit of the poisonous tree" analysis is correct under Utah v. Strieff, I'm more interested in whether the second stop would be allowed if the first stop had not been prolonged. That is, can officers coordinate stops, watching for new traffic violations to stop a car to make sure a drug-sniffing dog will be present?
Reinhardt drops the following footnote on this issue:
Because we conclude that the seized currency is inadmissible as the "fruit of the poisonous tree," we do not consider the argument that the second stop, taken independently, was itself unconstitutional. It could well be argued, for example, that performing the routine records checks during the second stop (which in Gorman's case took significantly longer than usual because the central dispatch was delayed in responding to [the second officer]'s inquiry) unreasonably prolonged Gorman's roadside detention because [the second officer] knew in advance what the results of those redundant checks would be, as he correctly assumed [the first officer] already had done them and knew [the first officer] had found no probable cause to search the vehicle. [The second officer's] checks therefore served no purpose other than to prolong the traffic stop.
I'm not sure what I think of this, but it seemed like an interesting question worth flagging for the Fourth Amendment nerds among our readership.