Orin Kerr at the Volokh Conspiracy has another twisted and complicated Fourth Amendment case for us to consider this week. It deals with United States v. Gorman and it’s yet another traffic stop challenge, but with several twists. This particular incident involved an officer stopping Straughn Gorman while he was driving his brother’s motor home cross country to California. The officer believed that Gorman was carrying drugs and/or drug money in the RV but didn’t have a drug sniffing dog with him and had no further grounds to search the vehicle so he let him go. The officer then called ahead to law enforcement in the next county and alerted them to Gorman’s approach and of his suspicions. A second officer (with a dog) intercepted Gorman and pulled him over on another very minor traffic violation. The dog detected drug residue and a warrant was issued, leading to a search which turned up $167,070 in cash, stuffed in white envelopes and sealed in plastic bags.
There were no criminal charges brought against Gorman, but the authorities did seize the money. The courts eventually found that the search was unsupportable and Gorman got his money back. This brings Kerr to ask the following 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?
The bottom line to this lengthy discussion is that there are two conflicting elements to the decision, at least for my interest in the subject. One of them is the forfeiture of all that money and the efforts by the cops to keep it. From the sound of the police reports there’s pretty much zero doubt that this guy was hauling drug money, but that’s not the point here. The cops have to be able to prove their case before they should even be allowed to consider confiscating someone’s property. Since Gorman – guilty or not in reality – was never even charged it’s preposterous that they should keep his cash. That aspect of the challenge is easy enough for me.
But the stickier subject is the fact that the courts are once again summoning up the misbegotten “fruit of the poisonous tree” doctrine here. If you read the entire account of both officers in the full decision, even I’ll admit that these traffic stops were dodgy at best. I have no clue what tipped off the first officer that there was money (as opposed to drugs) in the vehicle. But the fact is that something tipped him off. And it was later discovered that there absolutely was a large quantity of cash with drug residue on it. So why should the second officer be forbidden to act on that tip and have a dog sniff the vehicle? What if they had received an anonymous tip from somebody telling them the driver was trafficking drugs? Wouldn’t that be suitable justification?
This fruit of the poisonous tree nonsense is completely out of hand. There’s a line to be drawn somewhere between ensuring the rights of citizens against unreasonable search or seizure and simply tying the hands of law enforcement to the point where they can’t do their jobs when there’s obviously a crime taking place. And cases such as this one cross that line by a fair margin.