United States v. Straughn Gorman , 859 F.3d 706 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 15-16600
Plaintiff-Appellant, 15-17103
v. D.C. No.
3:13-cv-00324-
STRAUGHN SAMUEL GORMAN, LRH-VPC
Claimant-Appellee,
and OPINION
$167,070.00 IN UNITED STATES
CURRENCY,
Defendant.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted April 17, 2017
San Francisco, California
Filed June 12, 2017
2 UNITED STATES V. GORMAN
Before: Stephen Reinhardt and Marsha S. Berzon, Circuit
Judges, and Ann D. Montgomery, * District Judge.
Opinion by Judge Reinhardt
SUMMARY **
Fourth Amendment / Civil Forfeiture
The 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.
The 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.
*
The Honorable Ann D. Montgomery, United States District Judge
for the District of Minnesota, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. GORMAN 3
The 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 claimant’s case.
COUNSEL
Greg 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.
OPINION
REINHARDT, Circuit Judge:
This case is about coordinated traffic stops and the
Fourth Amendment.
In 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
4 UNITED STATES V. GORMAN
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.
A 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.
No 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.
UNITED STATES V. GORMAN 5
BACKGROUND
A.
On the 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.
Trooper Monroe, a local patrol officer, observed
Gorman’s pass attempt from the side of the road and,
deeming it a potential “left-lane violation,” 1 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.
Monroe 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.
1
According to Monroe, a “left-lane violation” occurs when traffic
backs up behind a slow moving vehicle in the left lane.
6 UNITED STATES V. GORMAN
Gorman 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” in
Hawaii.
Monroe 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.
Monroe 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.)
UNITED STATES V. GORMAN 7
Monroe 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 warrant.
Monroe 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.
Twenty 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
8 UNITED STATES V. GORMAN
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 no. Monroe finally sent Gorman on his way,
after nearly half an hour. 2 As he returned to the patrol car,
Monroe muttered aloud to himself, “He’s carrying money.”
B.
Immediately after he released Gorman, Monroe
contacted NHP Communications and stated that “there was
a vehicle headed westbound that [he] strongly suspected was
carrying money.” He specified, “you’re going to need a
dog” because “the only way to get in this vehicle would [be]
with probable cause.” According to Monroe, he hoped the
Elko County Sheriff’s Office would dispatch an officer – and
a dog – to intercept Gorman and find a way to search his
vehicle.
The Highway Patrol dispatcher contacted the Elko
County Sheriff’s Office, which then contacted an officer,
Deputy Fisher. The dispatcher said that Monroe “stopped a
motor home near Wells” and that a canine unit “might want
to take a second look at the car.” The dispatcher provided
Gorman’s license plate number and the location of the initial
2
The video recording of the stop lasted from 9:02am to 9:26am and
was 24 minutes long. The Detail Call for Service Report tracking the
stop, however, shows “trooper [Monroe] releasing vehicle from a stop”
at 9:28am; “will be released in a few minutes” at 9:29am; and “nhp just
released vehicle” at 9:34am. The record is not clear as to whether
Gorman was released at these slightly later times. Monroe did not write
a report on the traffic stop.
UNITED STATES V. GORMAN 9
stop, and noted that Gorman had refused to consent to a
search of the vehicle.
Following his conversation with the dispatcher, Fisher
telephoned Monroe directly and spoke with him for about
five minutes. Monroe advised Fisher of the “particulars of
the stop” and described his “suspicions.” He told Fisher that
he thought there was cash in the vehicle but that he had to
“let the guy go” because “he didn’t think he had much more
to go on … based on his information.”
C.
Fisher was not patrolling the roads when dispatch
contacted him. After speaking with Monroe, however, he
“proceeded out to the highway” in a patrol car to find the
motorhome. He brought along a drug-sniffing dog, which
was trained to alert to the odor of tainted currency as well as
to the odor of drugs themselves. Fisher soon spotted a
motorhome with a small curtain obscuring part of the
driver’s side window, began following the motorhome, and
conclusively established that it was the same vehicle when
he came close enough to view the license plate.
While trailing the vehicle, Fisher noticed additional
problematic traffic violations: the motorhome’s tire partly
crossed onto the fog line three times. Fisher activated his
lights, turned on the siren, and initiated a stop.
Fisher first approached the driver’s side of the vehicle,
spoke to Gorman, and requested his drivers’ license and
registration. After receiving the documents, Fisher
contacted Elko central dispatch to initiate a routine records
check for outstanding warrants and criminal history –
exactly the same check that Monroe had performed.
10 UNITED STATES V. GORMAN
Dispatch did not immediately respond to Fisher’s
request. Apparently, the dispatch office was delayed in
replying to Fisher’s request because of a concurrent medical
emergency that temporarily consumed the office’s
resources. Fisher asked Deputy Prall, an officer dispatched
to the scene to assist him, to initiate the records check again
to see if “he could get through.” Fisher asked Prall to “stick
around” because he “didn’t know where the traffic stop was
going to lead.”
Still awaiting the results of the records check, Fisher
approached the motorhome to speak with Gorman again. He
told Gorman that he was being detained “until the records
check was done.” Fisher asked if he was opposed to a canine
assessment, and Gorman replied that he was, “if that means
anything.”
Fisher nevertheless prepared to begin the dog sniff. He
first asked Gorman to step out of the vehicle and patted him
down to ensure that he was not armed. He then returned to
the patrol car and released the dog, which walked to the side
of the road and began urinating. While it was doing so,
Fisher initiated another redundant records check – this time,
the same non-routine EPIC check that Monroe had
performed. The results of that search were, of course,
identical to those Monroe received at the time of the first
stop.
Fisher finally brought the dog forward to begin its sniff.
The dog alerted to the right rear fender and rear cargo area.
This alert gave Fisher probable cause to obtain a search
warrant. He then made a telephone call to apply for a
warrant from the Elko County Justice Court. Fisher
explained the positive alert to Gorman and informed him that
the motorhome was being detained pending the warrant
application. He said that while the motorhome was being
UNITED STATES V. GORMAN 11
held, Gorman would be free to leave once his records check
returned without problems.
The records check finally came back and – again –
revealed that Gorman had no arrests and no warrants. The
officers offered to give Gorman “a ride to a coffee shop or
somewhere in town where he could stay warm” while they
waited for the warrant application to be processed. Gorman
declined the offer, choosing to stay with the motorhome.
The Elko County court granted Fisher’s application for a
search warrant roughly twenty minutes later. Fisher took the
motorhome to a sheriff’s station where he searched it and
found currency in white envelopes and bundles, “each bound
with rubber bands and sealed inside plastic vacuum-sealed
bags.” He also discovered fifteen pages of papers and notes
with entries that resembled “pay/owe” sheets, an inhaler,
directions to Garberville, California, and “two large empty
canvas duffle-type bags and a large empty hard-sided storage
‘Pelican’ case.” Fisher discovered and seized a total of
$167,070 in cash.
D.
No criminal charges were brought against Gorman
arising from this incident. Instead, the federal government
pursued civil forfeiture of the $167,070. 3 In the forfeiture
action, Gorman filed a motion to suppress the currency on
the ground that it was obtained in violation of the Fourth
Amendment. The district court held an evidentiary hearing
at which it “viewed the video of both traffic stops and heard
3
The state turned over the money to the federal government, the
party pursuing forfeiture here, under a revenue sharing program in which
the state may keep as much as 80% of the forfeited sum.
12 UNITED STATES V. GORMAN
deposition testimony from the officer who effectuated the
first stop, and live testimony from the officer who
effectuated the second stop.” In light of that evidence, the
court considered Gorman’s arguments that the seized
currency represented the “fruit of the poisonous tree” and
that his roadside detentions were unreasonably prolonged,
and ruled in Gorman’s favor. The court held that “the two
traffic stops [were] inextricably connected and that
Gorman’s total detention was unreasonably prolonged” in
violation of the Fourth Amendment, and granted the motion
to suppress. In a separate order, the court awarded Gorman
$146,938.50 in attorneys’ fees.
The government appealed both the order granting the
motion to suppress and the order awarding attorneys’ fees.
The two appeals are consolidated here. 4
STANDARD OF REVIEW
“We review de novo the district court’s ruling on a
motion to suppress and for clear error the district court’s
underlying findings of fact.” United States v. Evans,
786 F.3d 779, 784 (9th Cir. 2015).
DISCUSSION
We hold that the search of Gorman’s vehicle following
the coordinated traffic stops violated the Constitution and
affirm the district court’s order granting Gorman’s motion to
4
Meanwhile, the court entered judgment in Gorman’s favor, ordered
the funds returned to him, stayed that order pending our consideration of
the government’s appeal, and stated that during appeal, the seized funds
shall accrue interest from the date of seizure calculated pursuant to
28 U.S.C. § 2465(b)(1)(C)(i)–(ii) and post–judgment interest as set forth
in 28 U.S.C. § 1961.
UNITED STATES V. GORMAN 13
suppress. Gorman’s first roadside detention was
unreasonably prolonged in violation of the Fourth
Amendment. The dog sniff and the search of Gorman’s
vehicle, in turn, followed directly in an unbroken causal
chain of events from that constitutional violation. As a
result, the seized currency is the “fruit of the poisonous tree”
and was properly suppressed under the exclusionary rule.
See Wong Sun v. United States, 371 U.S. 471, 487–88
(1963).
A.
1.
Traffic stops are “presumptively temporary and brief.”
Berkemer v. McCarty, 468 U.S. 420, 437 (1984). In fact,
“[t]he vast majority of roadside detentions last only a few
minutes.” Id. When a motorist “sees a policeman’s lights
flashing behind him,” he expects “that he will be obliged to
spend a short period of time answering questions and waiting
while the officer checks his license and registration, that he
may then be given a citation, but that in the end he most
likely will be allowed to continue on his way.” Id.; see also
Illinois v. Caballes, 543 U.S. 405, 406, 410 (2005) (“less
than 10 minutes” was acceptable).
The Supreme Court has made clear that traffic stops can
last only as long as is reasonably necessary to carry out the
“mission” of the stop, unless police have an independent
reason to detain the motorist longer. The “mission” of a stop
includes “determining whether to issue a traffic ticket” and
“checking the driver’s license, determining whether there are
outstanding warrants against the driver, and inspecting the
automobile’s registration and proof of insurance.”
Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015). A
14 UNITED STATES V. GORMAN
stop that is unreasonably prolonged beyond the time needed
to perform these tasks ordinarily violates the Constitution.
This is so because the “[t]emporary detention of
individuals during the stop of an automobile by the police,
even if only for a brief period and for a limited purpose,
constitutes a ‘seizure’ of ‘persons’ within the meaning of
[the Fourth Amendment].” Whren v. United States, 517 U.S.
806, 809–10 (1996). The observation of a traffic infraction
provides “[a]uthority for the seizure” of the driver only until
the “tasks tied to the traffic infraction are – or reasonably
should have been – completed.” Rodriguez, 135 S. Ct. at
1614 (citing United States v. Sharpe, 470 U.S. 675, 686
(1985)). Thus, “[a] seizure justified only by a police-
observed traffic violation . . . become[s] unlawful if it is
prolonged beyond the time reasonably required to complete”
the stop’s mission. Id. at 1611 (internal quotation marks
omitted) (quoting Caballes, 543 U.S. at 407).
The Supreme Court has indicated that within “the time
reasonably required to complete” the stop’s mission, the
Fourth Amendment may tolerate investigations that are
unrelated to the purpose of the stop and that fall outside the
scope of that mission. Id. at 1615. The Court is clear,
however, that these “unrelated investigations” are
impermissible if they “lengthen the roadside detention.” Id.
at 1614. Police simply may not perform unrelated
investigations that prolong a stop unless they have
“independent reasonable suspicion justifying [the]
prolongation.” Evans, 786 F.3d at 787 (citing Rodriguez,
135 S. Ct. at 1612).
Non-routine record checks and dog sniffs are paradigm
examples of “unrelated investigations” that may not be
performed if they prolong a roadside detention absent
independent reasonable suspicion. These inquiries “[l]ack[]
UNITED STATES V. GORMAN 15
the same close connection to roadway safety as the ordinary
inquiries.” Rodriguez, 135 S. Ct. at 1615. We have held that
prolonging a traffic stop to perform an ex-felon registration
check or a dog sniff is unlawful because these tasks are
“aimed at detecting evidence of ordinary criminal
wrongdoing” and are not “ordinary inquir[ies] incident to the
traffic stop.” Evans, 786 F.3d at 788 (original brackets
omitted) (quoting Rodriguez, 135 S. Ct. at 1615). “[T]he
Government’s endeavor to detect crime in general or drug
trafficking in particular . . . cannot justify prolonging an
ordinary traffic stop . . . .” Id. (internal quotation marks
omitted) (quoting Rodriguez, 135 S. Ct. at 1616). “Such on-
scene investigation into other crimes detours from an
officer’s traffic mission.” Id. (internal quotation marks and
alterations omitted) (quoting Rodriguez, 135 S. Ct. at 1616).
2.
The government concedes that Gorman’s roadside
detention following his first stop – the stop initiated by
Monroe on the basis of the left-lane violation – was
unreasonably prolonged in violation of the Fourth
Amendment. The stop should have taken only a short time
– enough time to warn Gorman about left lane rules,
determine whether to issue a traffic citation, and perform
routine checks on his driver’s license and registration.
Instead, Monroe detained Gorman for a total of nearly half
an hour, not an insignificant portion of which occurred after
the routine checks returned a clean license and criminal
history report. During that additional period, Monroe
performed non-routine investigative inquiries and
questioned Gorman about matters unrelated to the traffic
infraction. These actions and inquiries fell beyond the scope
of the stop’s “mission.” They were, instead, impermissibly
16 UNITED STATES V. GORMAN
“aimed at detect[ing] evidence of ordinary criminal
wrongdoing.” Evans, 786 F.3d at 788 (citation omitted).
Monroe claims to have found Gorman suspicious, but, as
the government concedes, nothing he discovered in his
initial questioning of Gorman provided independent
reasonable suspicion for these “unrelated investigations” or
provided probable cause for a search warrant. Detaining
Gorman longer than it took to complete the stop’s mission
unquestionably violated the Constitution.
B.
Although Gorman’s first roadside detention violated the
Fourth Amendment, the currency that Gorman seeks to
suppress was discovered pursuant to the second stop – the
stop initiated by Fisher after his telephone call with Monroe.
We must therefore consider the effect of the first, concededly
unconstitutional, detention on the second stop. We conclude
that the illegality of the first detention “tainted” the evidence
obtained during the second stop. 5
5
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 Fisher’s inquiry) unreasonably prolonged Gorman’s
roadside detention because Fisher knew in advance what the results of
those redundant checks would be, as he correctly assumed Monroe
already had done them and knew Monroe had found no probable cause
to search the vehicle. Fisher’s checks therefore served no purpose other
than to prolong the traffic stop.
UNITED STATES V. GORMAN 17
1.
The exclusionary rule encompasses “evidence seized
during an unlawful search,” and also the “indirect . . .
products of such invasions.” Wong Sun, 371 U.S. at 484.
Evidence derivative of a Fourth Amendment violation – the
so-called “fruit of the poisonous tree,” id. at 488 – is
ordinarily “tainted” by the prior “illegality” and thus
inadmissible, subject to a few recognized exceptions. United
States v. Washington, 490 F.3d 765, 774 (9th Cir. 2007).
We addressed the “fruit of the poisonous tree” doctrine
in United States v. Johns, 891 F.2d 243 (9th Cir. 1989). In
Johns, officers suspected that illegal activity was taking
place at a small airstrip near Tucson, Arizona. After
receiving a tip, officers stopped a truck leaving the airstrip
and searched it without a warrant. The government
conceded that this stop was illegal. Id. at 244. “As a result
of the stop,” however, “the officers learned the identity” of
the driver and passenger, and began to surveil them, which
led to the discovery and seizure of marijuana. Id. We held
that the marijuana evidence “must be suppressed because the
illegally obtained identification significantly directed the
investigation which led to the marijuana.” Id. at 245.
We explained that evidence qualifies as the “fruit of the
poisonous tree” when “the illegal activity tends to
significantly direct the investigation to the evidence in
question.” Id. (quoting United States v. Chamberlin,
644 F.2d 1262, 1269 (9th Cir.1980)). “The focus,” in other
words, “is on the causal connection between the illegality
and the evidence.” Id. (citation omitted). Because “[t]he
illegal stop was the impetus for the chain of events leading
to the marijuana,” the marijuana evidence was inadmissible.
Id. at 245–46. We also noted in Johns that “the burden of
18 UNITED STATES V. GORMAN
showing admissibility rests on the prosecution.” Id. at 245
(quoting Chamberlin, 644 F.2d at 245).
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 Monroe’s suspicions from the first
stop “significantly direct[ed]” Fisher’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, Monroe alerted a separate
law enforcement agency, informed Fisher 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. Fisher
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 Monroe learned from the
UNITED STATES V. GORMAN 19
EPIC report that there had been a “DEA hit” on Gorman
involving the transfer of a large amount of money.
Similarly, it was only after the stop’s mission had been
completed that Monroe questioned Gorman about his
finances, and that Gorman refused to consent to a search of
the motorhome, provoking Monroe to mutter to himself as
he returned to his patrol car, “He’s carrying money.” 6 It was,
moreover, following the end of Gorman’s first detention,
both the lawful and unlawful parts, that Monroe conveyed to
Fisher the “particulars” of the stop, including information
based on the unlawful part of the stop – for instance, that
Gorman refused to consent to a search – and also conveyed
his conclusion that, even after his “second lineup of
questions” relating to drug interdiction, a dog sniff would be
required to produce probable cause for a search. As a direct
result, Fisher went out on the road with his dog to look for
Gorman. 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. 7
6
Monroe asked how he could afford to drive a motor home cross-
country when gas prices were over $3.00 per gallon and inquired about
his compensation in the paddleboard business. Gorman responded, “I
don’t want to talk about how much I make.” Monroe then asked directly
if there was currency in the vehicle, to which Gorman replied that he was
carrying only $2,000. Finally, when Monroe asked “do you mind if we
search the vehicle,” Gorman responded, “I do mind, yes.” Monroe spoke
to Fisher shortly after this interaction and conveyed to him the
“particulars” of the stop’s full duration.
7
We note, however, that had the government attempted to argue that
only the legal portion of the initial detention provided the impetus for the
second stop, it would need to make a clear showing to carry its burden
in this respect, in light of the district court’s finding that “Fisher never
would have pulled Gorman over if Monroe had not relayed information
20 UNITED STATES V. GORMAN
2.
None of the exceptions to the rule that evidence derived
from an antecedent Fourth Amendment violation must be
suppressed applies to Gorman’s case. “[T]he Supreme Court
has developed three exceptions to the ‘fruit of the poisonous
tree’ doctrine which allow the admission of evidence derived
from official misconduct” in some special circumstances.
United States v. Ramirez-Sandoval, 872 F.2d 1392, 1396
(9th Cir. 1989). These exceptions are the “independent
source” exception, the “inevitable discovery” exception, and
the “attenuated basis” exception. Id.
“First, the independent source doctrine allows trial
courts to admit evidence obtained in an unlawful search if
officers independently acquired it from a separate,
independent source.” Utah v. Strieff, 136 S. Ct. 2056, 2061
(2016) (citing Murray v. United States, 487 U.S. 533, 537
(1988)). The currency here, however, was not separately
discovered through an independent source. To the contrary,
as explained above, it was discovered only because Fisher
followed up on Monroe’s request, which derived directly
from Monroe’s unlawfully prolonged stop.
“Second, the inevitable discovery doctrine allows for the
admission of evidence that would have been discovered even
without the unconstitutional source.” Id. (citing Nix v.
Williams, 467 U.S. 431, 443–444 (1984)). Here, there is no
evidence whatsoever to suggest that the currency would have
about the first stop, a description of the white motor home, Monroe’s
suspicion that the vehicle contained large amounts of currency, and that
a canine sniff would likely be required in order to obtain probable cause
for a search.” See Johns, 891 F.2d at 245. Often, the factors contained
in the two portions of the detention may, in fact or in law, be inextricably
linked.
UNITED STATES V. GORMAN 21
been discovered in the absence of the unconstitutional
conduct involved.
Finally, under the “attenuation doctrine,” evidence is
admissible when “the connection between the illegality and
the challenged evidence” has become so attenuated “as to
dissipate the taint caused by the illegality.” Ramirez-
Sandoval, 872 F.2d at 1396; see also Strieff, 136 S. Ct. at
2061. In evaluating whether the connection between an
antecedent Fourth Amendment violation and subsequently
discovered evidence is sufficiently attenuated to “purge” the
“taint,” we consider “the temporal proximity” of the illegal
conduct and the evidence in question, “the presence of
intervening circumstances,” and “the purpose and flagrancy
of the official misconduct.” Brown v. Illinois, 422 U.S. 590,
603–04 (1975).
Here, nothing attenuated the connection between
Gorman’s unlawful detention and the seized currency.
Gorman’s first detention and the sniff and search of his
vehicle were separated by less than an hour. That short
period represented only the time necessary for Fisher to
receive Monroe’s information and proceed to the highway to
intercept Gorman. Similarly, there were no intervening
circumstances that might purge the taint. The only
“intervening” event of any possible significance was
Fisher’s stop of Gorman for a traffic code violation. This
stop, however – even assuming it was predicated upon a
legitimate, if trivial, traffic infraction – was a direct result of
Gorman’s prior unlawful detention. Moreover, the
investigation that followed the second stop, in which Fisher
conducted a dog sniff and search rather than simply issuing
a warning or citation, was entirely a product of Monroe’s
report – a product that was directly and deliberately planned
and intended. The second stop was thus not an intervening
22 UNITED STATES V. GORMAN
circumstance; rather, it was itself a direct result of Gorman’s
earlier unlawful detention.
In this regard, we agree with the reasoning and holding
of the Second Circuit in United States v. Foreste, 780 F.3d
518 (2d Cir. 2015). In Foreste, the Second Circuit stated that
it “misses the point” to think that a second traffic infraction
and stop automatically legitimate a subsequent search when
that search was conducted pursuant to information obtained
during a prior stop. Id. at 525–26. It explained:
Ordinarily, of course, stops for separate
traffic infractions are unrelated, and any
extensions of those stops for investigation are
unrelated as well. But looking only to
whether independent traffic violations
support successive traffic stops would create
a rule subject to . . . gamesmanship. . . . One
officer could stop a vehicle for a traffic
infraction on a common drug corridor,
become suspicious of the driver’s
nervousness or explanation for his trip, and
then detain the vehicle while a drug-sniffing
dog is called to the scene. If the dog took too
long to arrive (or, upon arriving, failed to
detect any drugs), the officer could telephone
a second officer down the road and apprise
him of the situation. The second officer could
then follow the vehicle until spotting a
second traffic infraction, stop the vehicle,
and, based on the suspicions relayed by the
first officer, detain the vehicle a second time
to again wait for a dog.
Id.
UNITED STATES V. GORMAN 23
Here, the officers’ impermissible gamesmanship is
precisely what the Constitution proscribes. Under these
circumstances, the purpose and flagrancy of the misconduct
is irrelevant, although we note that here it was at the least
purposeful.
In sum, because the currency seized from Gorman’s
vehicle was the fruit of the prior violation of Gorman’s
Fourth Amendment rights, the currency is inadmissible. The
district court properly granted the motion to suppress.
III.
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.
24 UNITED STATES V. GORMAN
CONCLUSION
For the reasons set forth above, the district court’s order
granting Gorman’s motion to suppress is AFFIRMED. The
parties agree that if the district court’s order granting the
motion to suppress is affirmed, its award of attorneys’ fees
should also be affirmed. As a result, the award of attorneys’
fees is also AFFIRMED.