United States v. $167,070.00 in U.S. Currency

112 F.Supp.3d 1108

UNITED STATES of America, Plaintiff,

v.$167,070.00 IN UNITED STATES CURRENCY, Defendant.

No. 3:13–CV–00324–LRH–VPC.

United States District Court, D. Nevada.

Signed June 12, 2015.

Gregory W. Addington, U.S. Attorney's Office, Reno, NV, for Plaintiff.

ORDER

LARRY R. HICKS, District Judge.

This is a civil forfeiture action arising from two successive traffic stops that occurred on a stretch of Interstate 80 ("I–80") between Wells, Nevada, and Elko, Nevada. On February 18, 2014, Plaintiff the United States of America ("United States") filed a Motion for Summary Judgment (Doc. # 11), which the Court denied on July 23, 2014 (Doc. # 28). Before the Court is Claimant Straughn Gorman's ("Gorman") Motion to Suppress. Doc. # 18.¹ The United States filed a Response (Doc. # 24), to which Gorman replied (Doc. # 27). The Court held an evidentiary hearing on December 15 and 16, 2014, during which the Court viewed the video of both traffic stops and heard deposition testimony from the officer who effectuated the first stop, and live testimony from the officer who effectuated the second stop. After the hearing, Gorman submitted supplemental briefing. Doc. # 61. The United States filed a Supplemental Opposition (Doc. # 62), to which Gorman replied (Doc. # 63).

On February 24, 2015, the Court stayed consideration of Gorman's Motion to Suppress pending the Supreme Court's decision in Rodriguez v. United States, recognizing that Rodriguez could impact the law underlying this case. Doc. # 64. The Supreme Court decided Rodriguez on April 21, 2015. The parties filed responsive memoranda on May 5 and 6, 2015 (Doc. 66, 68), and replies on May 21, 2015 (Doc. 70, 71). After considering all briefing, the arguments and evidence presented at the December 15 and 16, 2014, evidentiary hearing, and all relevant statutes and case law, the Court grants Gorman's Motion to Suppress.

I. Facts and Procedural History

On January 23, 2013, at approximately 9:03 a.m., Nevada State Trooper Greg Monroe ("Monroe") observed Gorman driving in the left westbound lane along I–80 just outside of Wells, Nevada. Monroe Depo. at 46:18–21, 47:21–24. Monroe told Gorman that he stopped Gorman for a "left-lane violation" because he was driving slowly in the left lane and traffic had backed up behind his motor home. Id. at 46:3–9. Gorman responded that he was driving in the left lane to avoid being stuck behind slow moving trucks in the right lane, and that he planned to move back to the right lane as soon as possible. Id. at 59:7–13. Upon request, Gorman produced his license and registration and told Monroe that he was traveling to Sacramento, California to visit "his chick." Id. at 60:9–61:5. Gorman told Monroe that his girlfriend lived in downtown Sacramento, but was not able to produce her exact address, noting that it was entered into his GPS system. Id. at 84:2–22. Gorman's use of the word "chick" aroused Monroe's suspicion that Gorman's answers were rehearsed because Monroe thought that "chick" was an unusual word for a person Gorman's age—thirty-one at the time of the stop—to use. Id. at 62:4–8; 63:12–17. Monroe's suspicions grew "extremely high" when Gorman stated that he was moving to California because this was inconsistent with Gorman's earlier statement that he was visiting his girlfriend in Sacramento. Id. at 62:12–21. Additionally, Gorman told Monroe that he worked for a Maui beach activities and paddle board company, which Monroe also thought sounded rehearsed. Id. at 89:1–11.

After questioning Gorman, Monroe returned to his vehicle and requested a canine unit at approximately 9:07 a.m. Id. at 90:18–20. Monroe then called in for a driver's license warrant check and a criminal history check. Id. at 91:13–20. At 9:08:30 a.m., dispatch informed Monroe that there were no available canine units in Wells, to which Monroe replied "oh great" in an exasperated tone. Id. at 95:19–21. At approximately 9:09 a.m., Monroe told dispatch "without a dog I'm not even going to get in to this one." At approximately 9:10 a.m., dispatch informed Monroe that Gorman's driver's license was valid. Id. at 100:17–20. At approximately 9:10:30 a.m., Monroe asked someone who is inaudible on the recording "how far out are you guys?" and then stated that he was going to try to get consent to search the vehicle but that he was "pretty sure" Gorman would refuse. Monroe then said that he was between the 346 and 347 mile markers, and "if you guys don't mind start heading this way, ... I'm going to call [El Paso Intelligence Center ("EPIC") ] on this one and if the guy shuts me down, well then he shuts me down." At approximately 9:12 a.m., Monroe called in a check with EPIC. Id. at 104:25–105:5. This call included a check of any law enforcement activities involving drugs at Gorman's residence. Id. at 107:15–22. At 9:22:30 a.m., Monroe told the EPIC operator that he did not have a canine unit available, but that he was going to try to get consent to search Gorman's vehicle. Id. at 117:11–15. At 9:22:45 a.m., EPIC responded that they had a "DEA hit" on Gorman involving a transfer of $10,000 out of the country, but all other checks were negative. Id. at 118:3–9.

At approximately 9:23 a.m., Monroe exited his vehicle and told Gorman that he was not going to write a ticket. At 9:23:35 a.m., Monroe then handed Gorman his identification and told him that he was free to leave. Id. at 126:16–24. Immediately afterward, Monroe asked Gorman if he could ask some additional questions. Id. at 128:12–17. Monroe first asked how Gorman could afford to drive a motor home cross-country when gas prices were over $3.00 per gallon. Monroe then asked if Gorman still sold paddle boards for a living, and asked about his compensation, to which Gorman responded "I don't want to talk about how much I make." At approximately 9:25 a.m., Monroe asked if there was anything illegal in Gorman's motor home, or if he was carrying large amounts of U.S. currency. Id. at 129:17–130:3. Gorman then told Monroe that he was only carrying about $2000 in U.S. currency in the motor home. At 9:25:45 a.m., Monroe asked Gorman "do you mind if we search the vehicle?," to which Gorman said "I do mind, yes." Id. at 131:19–23. At this point, Monroe told Gorman that he was free to leave, returned to his vehicle, and said "he's carrying money" aloud to himself.

Monroe then contacted Nevada Highway Patrol ("NHP") dispatch and informed the operator that there was a vehicle headed westbound on I–80 from Wells, Nevada that he strongly suspected was carrying large amounts of currency. Id. at 135:7–13. Monroe informed the operator that the only way to get probable cause to search Gorman's motor home would be to use a canine unit. Id. at 136:3–9. NHP dispatch then informed Elko County Sheriff's Office ("ECSO") Deputy Doug Fisher ("Fisher") that Monroe had stopped a vehicle near the 360 mile marker on I–80 near Wells, Nevada, and that Fisher might be interested in stopping the vehicle. Fisher Depo. at 32:411. Fisher was told that Gorman did not consent to the search during the first stop, and that a canine unit "might want to follow up on the information." Id. at 43:18–20; 35:12–16. Fisher understood this to mean that he may want to walk his canine around Gorman's vehicle. Id. at 36:10–19.

Monroe also called Fisher directly to relay his suspicions about Gorman and that Gorman was driving westbound on I–80 from Wells, Nevada. Monroe added that Gorman was traveling from Delaware to Sacramento to visit his girlfriend, that he had $5000 in the motor home, and that Gorman acted abrasive during the initial stop. Id. at 40:1–5. Monroe also told Fisher Gorman's name and license plate number, but did not tell Fisher which records checks he had conducted. Id. at 41:7–42:20. Monroe told Fisher that he was denied consent for a search and that he let Gorman leave because he had no probable cause for a search and no canine units were available. Id. at 43:4–11. After this call, Fisher left the ECSO and "started patrolling the highway." Id. at 45:6–9. Fisher was on a roving patrol initially, but became stationary between the 302 and 303 mile markers on I–80, facing eastbound near Elko approximately five miles from ECSO.² Id. at 45:10–23.

NHP dispatched Fisher to follow up on Monroe's information at approximately 9:27 a.m. Doc. # 23, Ex. J at 4; Doc. # 27–1, Request for Admission No. 18. NHP further notified Fisher that Monroe released Gorman's vehicle, a white motor home, after he was denied consent to search. Id. At approximately 10:15 a.m., Fisher observed Gorman's motor home traveling westbound with the driver's side window obstructed by a window curtain that had been pulled forward. Doc. # 12 ("Fisher Decl.") ¶ 3. Fisher followed the motor home and observed it drift to the right onto the fog line three times and remain on the fog line each time for approximately 400 yards.³ Id. Fisher also observed that the rear window of the motor home was obstructed by blinds or curtains that were partially closed. Id. Based on these observations, Fisher activated the overhead lights on his patrol car in an effort to initiate a stop of the motor home.Id. at ¶ 4. Fisher remained behind the motor home with his overhead lights activated for approximately one mile with no apparent effect on Gorman. Id. Thereafter, Fisher moved to the lane left of the motor home for an additional mile, keeping the overhead lights activated, with no apparent effect on Gorman. Id. He then activated his siren in two short bursts, again with no apparent effect on Gorman. Id. After moving his patrol car forward to the driver's side window and again activating his siren for two short bursts, Gorman stopped the motor home on the side of the road. Id.

Fisher approached the right side of the motor home and Gorman exited the vehicle with his insurance, registration, and identification ready, wearing a hat, gloves, and jacket. Id. at ¶ 5. Fisher told Gorman the reason for the stop and further advised...