All too often, police use traffic stops for minor offenses as a means to search for and seize cash from motorists. But last week, a federal appellate court ordered police to return $167,000 that was seized more than four years ago following two coordinated traffic stops along I-80 in Nevada. The opinion from the Ninth Circuit Court of Appeals casts a light on tactics that police use to seize money along the nation’s highways. And, at least in some circumstances, the opinion finds those tactics unconstitutional.
In January 2013, Gorman was pulled over by a Nevada Highway Patrol trooper on I-80 near Wells, Nevada for allegedly driving too slow in the left lane. The trooper then detained Gorman for 30 minutes while conducting a thorough background check and questioning him in-depth because the trooper suspected Gorman was carrying a large amount of cash (money the trooper suspected was derived from drug activity). But Gorman had no prior offenses or outstanding warrants, and the trooper ultimately decided he had to let him go on his way.
However, while Gorman was free to keep driving, the trooper was already taking steps to have him pulled over again. The trooper contacted Nevada Highway Patrol communications center, which then arranged for a deputy sheriff from the Elko County Sheriff’s Office to watch for Gorman’s vehicle and pull him over again.
The deputy sheriff hurried to the highway, bringing along a drug-sniffing dog, and waited for Gorman’s vehicle. When Gorman passed, the sheriff followed behind and pulled him over after spotting his wheel passing the fog line on the highway. During this second stop, which was filmed by a body cam, the dog alerted to the vehicle. No drugs were found, but a subsequent search lead to the discovery of $167,000 in cash. The trooper then seized the cash along with other property in the vehicle under suspicion that it was tied to drugs. Gorman, however, was not given a citation or charged with a crime.
These kinds of tactics—pulling people over for minor offenses, in order to search for cash—are not unusual. In fact, the Supreme Court has said they are constitutional. In Whren v. United States, the Supreme Court held that police can pull over motorists based on minor traffic offenses even if the true purpose of the stop is to search for cash or contraband. On the other hand, the constitution does impose some limits. In 2015, in Rodriguez v. United States, the Supreme Court said that those kinds of unrelated investigations are impermissible if they “lengthen the roadside detention.”
The Ninth Circuit applied the Supreme Court’s decision in Rodriguez and held that the 30 minutes that Gorman was detained for at the first traffic stop was illegal. Furthermore, the Ninth Circuit said that because this first stop was a direct cause of the second stop, the second stop was “the fruit of the poisonous tree,” tainted and made illegal by the actions in the first stop. Because the currency was seized during that illegal stop, it had to be returned.
Summing up its decision, the Ninth Circuit said that police had engaged in “impermissible gamesmanship” in the two traffic stops. The lower court, the U.S. District Court for Nevada, was even harsher in its assessment. That court criticized the U.S. Attorney’s office in Reno for a “lack of candor” by not disclosing details about the first traffic stop in its forfeiture papers.
Notably, however, neither decision calls into question the broader practice of pulling over motorists for minor traffic offenses in order to search for cash. As Judge Stephen Reinhardt said in the Ninth Circuit’s decision, “[W]e do not consider the argument that the second stop, taken independently, was itself unconstitutional.”
The good news is that in 2015 Nevada passed forfeiture reform which required a criminal conviction as a prerequisite to forfeit property, and created reporting and transparency requirements for state and local law enforcement agencies. However, the state earned a D- in the Institute for Justice report “Policing for Profit” because of weak protection for innocent third-party property owners and law enforcement agencies being allowed to keep up to 100 percent of proceeds from civil forfeiture.
Although Nevada made significant reforms since Gorman’s cash was seized, it must continue to reform its civil forfeiture laws to protect other property owners in the years to come. New Mexico remains the best example of civil forfeiture reform. In 2015, New Mexico enacted reforms which abolished civil forfeiture and replaced it with criminal forfeiture, offered strong protections to innocent third-party property owners, and deposits all forfeiture proceeds into the state fund thereby eliminating perverse financial incentives for law enforcement.