Police Can't Split One Illegal Stop Into Two: $167,070 Suppressed

Police cannot get around the Fourth Amendment by splitting one illegal stop into two. In United States v. Gorman, the Ninth Circuit upheld a judge's order suppressing (throwing out) evidence found that way.

The Two Stops

A Nevada state trooper stopped Straughn Gorman's motorhome for an alleged "left lane violation." The trooper suspected Gorman was carrying a lot of cash, but Gorman refused a search and had no criminal history. The trooper eventually let him go after holding him much longer than the stop required; the original article put the stop at more than 30 minutes.

The trooper then called ahead to another police department. He said he believed Gorman was hauling cash but had no probable cause to hold him. He said a drug dog, trained to detect the scent of drugs, would be needed to develop probable cause for a search.

Another officer then stopped Gorman for a traffic violation. A dog sniffed the motorhome and alerted. Police got a warrant and found $167,070 in cash.

The Forfeiture Case

Gorman was never charged with a crime. Instead, the government filed a civil forfeiture case to take the cash, claiming it was tied to drug activity. Federal law allows the government to seize money and property earned from drug activity.

Gorman fought back. He argued the cash was found because of an illegal search. The district court agreed, ordered the money returned, and awarded Gorman $146,938.50 in attorney's fees. The government appealed, and the Ninth Circuit affirmed.

"Fruit of the Poisonous Tree"

On appeal, the government admitted the trooper unlawfully extended the first stop. But it argued the money came from the second stop, so it was not "fruit of the poisonous tree," meaning evidence that flows from an illegal search.

The Ninth Circuit firmly disagreed:

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. See, e.g., United States v. Peters, 10 F.3d 1517, 1522–23 (10th Cir. 1993); United States v. Ilazi, 730 F.2d 1120, 1125 (8th Cir. 1984); United States v. Morin, 665 F.2d 765, 768–69 (5th Cir. 1982), abrogated on other grounds by United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988) (en banc). 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.

The court upheld the suppression order and the fee award in full. United States v. Gorman, No. 15-16600 (9th Cir. 2017).

Raising a Suppression Issue

In a federal criminal case, a motion to suppress evidence generally must be filed before trial, by the deadline the court sets. Federal Rule of Criminal Procedure 12(b)(3)(C). Missing that deadline can forfeit the issue unless the court finds good cause. Details like the length of a stop, who called whom, and when a dog was requested can matter, so get the police reports, dash-camera video and dispatch records early.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.