United States of America v. $167,070.00 in United States Currency

Filing 28

ORDER denying 11 Motion for Summary Judgment and deferring ruling on 18 Motion to Suppress pending evidentiary hearing. Evidentiary Hearing set for 10/7/2014 at 10:00 AM in Reno Courtroom 3 before Judge Larry R. Hicks. Signed by Judge Larry R. Hicks on 7/23/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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Plaintiff,
v.

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$167,070.00 IN UNITED STATES
CURRENCY,

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Defendant.

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STRAUGHN SAMUEL GORMAN,
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Claimant.
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3:13-CV-00324-LRH-VPC
ORDER

This is a civil forfeiture action. Before the Court is the United States’ Motion for Summary

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Judgment. Doc. #11.1 Claimant Straughn Samuel Gorman (“Gorman”) filed a Response (Doc.

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#19), to which the United States replied (Doc. #22). Also before the Court is Gorman’s Motion to

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Suppress Evidence Pursuant to Supplemental Rule G(8). Doc. #18. The United States filed an

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Opposition (Doc. #24), to which Gorman replied (Doc. #27).

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I.

Facts and Procedural History

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On January 23, 2013, at approximately 9:27 a.m., Nevada Highway Patrol (“NHP”) notified

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Elko County Sheriffs Office (“ECSO”) that NHP had stopped Gorman. Doc. #23, Ex. J, p. 4; Doc.

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#27-1, Request for Admission No. 18. NHP further notified ESCO that the NHP trooper was

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Refers to the Court’s docket number.

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releasing Gorman’s vehicle, a motorhome, after he was denied consent to search. Id. Thereafter, at

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approximately 10:20 a.m., ECSO Officer Doug Fisher (“Fisher”) observed Gorman’s motorhome

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traveling westbound with the driver’s side window obstructed by a window curtain which had been

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pulled forward. Doc. #12 (Fisher Decl.) ¶3. Fisher followed the motorhome and observed the

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motorhome drift to the right onto the fog line three times and remain on the fog line each time for

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at least 400 yards. Id. Fisher also observed that the rear window of the motorhome was obstructed

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by blinds or curtains which were closed. Id. Based on these observations, Fisher activated the

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overhead lights on his patrol car in an effort to initiate a stop of the motorhome. Id. at ¶4. He

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remained behind the motorhome with his overhead lights activated for approximately one mile with

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no apparent effect on the driver of the motorhome. Id. Thereafter, Fisher moved to the lane left of

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the motorhome for an additional mile, keeping the overhead lights activated, with no apparent

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effect on the driver of the motorhome. Id. He then activated his siren in two short bursts, again

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with no apparent effect on the driver of the motorhome. Id. After moving his patrol car forward to

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the driver’s side window and again activating his siren for two short bursts, the driver stopped the

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motorhome on the side of the road. Id.

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Fisher approached the right side of the motorhome and the driver, Gorman, exited the

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motorhome. Id. at ¶5. Fisher advised Gorman of the reason for the traffic stop and further advised

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Gorman of the safety issue caused by the obstructed side window. Id. at ¶6. Gorman responded

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that he had been pulled over regarding the same issue less than one hour earlier. Id. Gorman also

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stated that he was traveling to Sacramento to visit his girlfriend and then stated his intention to

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move to California. Id. He also stated that he had a paddleboard company and other beach

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activities in Maui. Id. Fisher returned to his patrol car, at which point the evidentiary record

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becomes contested. Specifically, the parties dispute whether a records check had been initiated

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and/or completed by the time the canine assessment began. Approximately 12 minutes into the

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traffic stop, Fisher initiated a canine sniff of the exterior of the motorhome using drug-detection

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canine “Euros.” See Doc. #18, 8:20-21 (Gorman conceding that at approximately 11:45 minutes
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into the traffic stop, Deputy Fisher initiated a canine sniff of the exterior of the motor home).

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Euros alerted to the right rear fender and rear cargo area of the motorhome, indicating the presence

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of the odor of illegal drugs. Doc. #12, ¶7.
Based on the aforementioned circumstances, Fisher applied telephonically for a search

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warrant from the Justice Court of Elko Township, Elko County, Nevada. Id. at ¶10. A warrant to

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search the motorhome was issued by Elko County Justice of the Peace Brian Boatman at

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approximately 11:15 am on January 23, 2013. Id. A search of the motorhome was conducted with

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the assistance of Euros. Id. at ¶11. During the search, Euros positively alerted to Gorman’s

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backpack, clothes, and blankets, and the overhead storage cabinets above the master bed. Id. The

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search of the interior of the motorhome yielded the discovery of the Defendant currency. Id. at ¶12.

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The search also yielded the discovery of fifteen “pay/owe” sheets, a Google map printout showing

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driving directions from Milton, Delaware to Garberville, California, a prescription inhaler

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containing Proventil with a prescription label designating “Ryan Cavalear” as the patient, two large

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empty canvas duffle-type bags, and a large hard-sided storage “Pelican” case. Id. at ¶¶13-16.

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On June 17, 2013, the United States filed a Complaint in Forfeiture In Rem. Doc. #1. On

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February 18, 2014, the United States filed the present Motion for Summary Judgment. Doc. #11.

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Thereafter, Gorman filed the present Motion to Suppress. Doc. #18.

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II.

Legal Standard

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A.

Motion to Suppress

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Rule G(8)(a) of the Supplemental Rules for Admiralty or Maritime Claims and Asset

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Forfeiture Actions provides that “[i]f the defendant property was seized, a party with standing to

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contest the lawfulness of the seizure may move to suppress use of the property as evidence.” A

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motion to suppress brought by a claimant in a civil forfeiture proceeding is akin to one brought by a

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defendant in a criminal case. See One 1958 Plymouth Sedan v. Pa., 380 U.S. 693, 696-702 (1965)

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(holding that the Fourth Amendment is applicable to forfeiture proceedings); see also Civil Asset

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Forfeiture Reform Act of 2000, 18 U.S.C. § 981(b)(2)(B) (requiring that seizures be made pursuant
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to a warrant or based upon probable cause and pursuant to a lawful arrest or search). As such, the

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exclusionary rule applies in civil forfeiture cases. One 1958 Plymouth Sedan, 380 U.S. at 702;

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United States. v. $493,850.00 in U.S. Currency, 518 F.3d 1159, 1164 (9th Cir. 2008). The rule

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“bars the admission of evidence obtained in violation of the U.S. Constitution, as well as ‘fruits of

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the poisonous tree.’” $493,850.00 in U.S. Currency, 518 F.3d at 1164 (quoting United States v.

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Ramirez-Sandoval, 872 F.2d 1392, 1395 (9th Cir. 1989)). “[U]nder the ‘fruits of the poisonous

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tree’ doctrine, evidence obtained subsequent to a violation of the Fourth Amendment is tainted by

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the illegality and is inadmissible . . . .” Id. at 1164-65 (quoting United States v. Washington, 490

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F.3d 765, 774 (9th Cir. 2007)).

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B.

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Summary judgment is appropriate only when the pleadings, depositions, answers to

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interrogatories, affidavits or declarations, stipulations, admissions, and other materials in the record

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show that “there is no genuine issue as to any material fact and the movant is entitled to judgment

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as a matter of law.” Fed. R. Civ. P. 56(a). In assessing a motion for summary judgment, the

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evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the

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light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio

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Corp., 475 U.S. 574, 587 (1986); Cnty. of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154

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(9th Cir. 2001).

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Motion for Summary Judgment

The moving party bears the initial burden of informing the court of the basis for its motion,

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along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v.

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Catrett, 477 U.S. 317, 323 (1986). On those issues for which it bears the burden of proof, the

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moving party must make a showing that is “sufficient for the court to hold that no reasonable trier

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of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259

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(6th Cir. 1986); see also Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1141 (C.D. Cal. 2001).

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On an issue as to which the non-moving party has the burden of proof, however, the moving party

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can prevail merely by demonstrating that there is an absence of evidence to support an essential

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element of the non-moving party’s case. Celotex, 477 U.S. at 323.
To successfully rebut a motion for summary judgment, the non-moving party must point to

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facts supported by the record which demonstrate a genuine issue of material fact. Reese v.

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Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000). A “material fact” is a fact “that might

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affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248 (1986). Where reasonable minds could differ on the material facts at issue, summary

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judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute

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regarding a material fact is considered genuine “if the evidence is such that a reasonable jury could

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return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248. The mere existence of a

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scintilla of evidence in support of the party’s position is insufficient to establish a genuine dispute;

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there must be evidence on which a jury could reasonably find for the party. See id. at 252.

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III.

Standing

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A.

Standing to Challenge the Lawfulness of the Seizure

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As a preliminary matter, the Court finds that Gorman has standing under the Fourth

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Amendment to challenge the lawfulness of the seizure. Advisory Committee Notes to

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Subdivision (8) of Rule G provides:

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Standing to suppress use of seized property as evidence is governed by principles
distinct from the principles that govern claim standing. A claimant with standing to
contest forfeiture may not have standing to seek suppression. Rule G does not of
itself create a basis of suppression standing that does not otherwise exist.

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Indeed, the “rights assured by the Fourth Amendment are personal rights, and . . . may be enforced

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by exclusion of evidence only at the instance of one whose own protection was infringed by the

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search and seizure.” Simmons v. United States, 390 U.S. 377, 389 (1968). While the United States

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conflates the issues of standing to challenge the lawfulness of the seizure and Article III “claim”

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standing to challenge the forfeiture action, it does not appear to actually contest Gorman’s standing

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as to the former. The United States does not contest that Gorman had exclusive, owner-authorized
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possession of the motor home at the time it was stopped, detained, and ultimately searched.

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Accordingly, the Court finds that Gorman has standing to bring the present Motion to Suppress.

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See U.S. v. Portillo, 633 F.2d 1313, 1316-17 (9th Cir. 1980) (claimant had standing to challenge

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the propriety of the search where he “had both permission to use his friend’s automobile and the

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keys to the ignition and trunk, with which he could exclude all others, save his friend, the owner).

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B.

Standing to Challenge the Forfeiture Action

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The Court also finds that Gorman has Article III “claim” standing to challenge the instant

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forfeiture action. Claimants in a civil forfeiture action can satisfy the case-or-controversy

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requirement of Article III by showing that they have “‘a colorable interest in the property,’ which

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includes an ownership interest or possessory interest.” United States v. $133,420.00 in U.S.

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Currency, 672 F.3d 629, 637-38 (9th Cir. 2012) (quoting United States v. 5208 Los Franciscos

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Way, 385 F.3d 1187, 1191 (9th Cir. 2004) and citing United States v. $191,910.00, 16 F.3d 1051,

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1057 (9th Cir. 1994), superseded by statute on another ground as stated in United States v.

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$80,180.00, 303 F.3d 1182, 1184 (9th Cir. 2002)). “At the motion to dismiss stage, a claimant’s

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unequivocal assertion of an ownership interest in the property is sufficient by itself to establish

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standing.” Id. at 638 (citing United States v. 475 Martin Lane, 545 F.3d 1134, 1140 (9th Cir.

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2008); $191,910.00, 16 F.3d at 1058). However, “a claimant’s bare assertion of an ownership or

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possessory interest, in the absence of some other evidence, is not enough to survive a motion for

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summary judgment.” Id. A claimant asserting ownership in the defendant property must also

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present “‘some evidence of ownership’ beyond the mere assertion in order to survive a motion for

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summary judgment.” Id. (citing United States v. $81,000.00, 189 F.3d 28, 35 (1st Cir. 1999);

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United States v. $38,570, 950 F.2d 1108, 1112-13 (5th Cir. 1992)). Where, as here, it is undisputed

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that the defendant currency was seized from the claimant’s possession and the claimant

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unequivocally asserts an ownership interest therein,2 the Ninth Circuit has opined that this is

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sufficient evidence to establish standing at the summary judgment phase. See id. at 639-40 (finding

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that an unequivocal assertion of ownership, combined with the claimant’s possession of the

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currency at the time it was seized, would be enough to establish standing for purposes of a motion

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for summary judgment); see also United States v. $148,840.00, 521 F.3d 1268, 1277 (10th Cir.

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2008) (“because [claimant’s] assertion of ownership is assumed to be true on this record, and

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because the currency was indisputably seized from a vehicle that [claimant] was driving, we hold

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that [claimant] has established constitutional standing at this stage of the litigation”). Accordingly,

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the Court determines that Gorman has “claim” standing to contest the instant forfeiture action.

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IV.

Discussion
The authority and limits of the Fourth Amendment’s protection against unreasonable

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searches and seizures apply to investigative stops of vehicles such as the one at issue here. United

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States v. Sharpe, 470 U.S. 675, 682 (1985). In Terry v. Ohio, the Supreme Court adopted a dual

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inquiry for evaluating the reasonableness of an investigative stop. Id. (citing Terry v. Ohio, 392

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U.S. 1, 20 (1968)). Specifically, courts are to evaluate “whether the officer’s action was justified at

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its inception, and whether it was reasonably related in scope to the circumstances which justified

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the interference in the first place.” Terry, 392 U.S. at 20.

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Here, Gorman challenges the legality of the initial traffic stop based on Fisher’s observed

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traffic violations, as well as the legality of his “prolonged detention,” which he claims exceeded the

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scope and duration of the purported justification for the initial investigatory traffic stop. First, it is

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apparent to the Court that there was some communication between NHP and ECSO regarding the

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earlier stop as Fisher admits that, within an hour prior to stopping the motorhome, he had been

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advised pursuant to law enforcement communications that the motorhome had been stopped by

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another law enforcement officer and that the driver had denied a request to search the motorhome

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Gorman’s Verified Claim states that “Claimant is the sole and rightful owner of the entirety
of said Defendant property[.]” Doc. #7, ¶2.
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and was thereafter released. Doc. #27-1, Ex. 1, Request for Admission No. 18. Indeed, the

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circumstances and extent of this stop and communication may bear upon the Court’s assessment of

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the legality of Gorman’s detention. Moreover, the Court is unpersuaded, given the parties’

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conflicting accounts as to whether a records check had been initiated and/or completed prior to the

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canine sniff, that Gorman’s detention did not exceed that amount of time which was reasonably

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necessary to investigate and issue a traffic citation. Nor is the Court able, without review of the

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video and audio recordings from both stops and testimony from both officers, to determine whether

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Fisher diligently pursued a means of investigation in conformity with Constitutional requirements.

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In light of these issues, the Court finds that an evidentiary hearing is necessary to determine

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whether the detention at issue was reasonable under the Fourth Amendment. Additionally, the

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Court shall deny without prejudice the United States’ Motion for Summary Judgment pending

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resolution of Gorman’s Motion to Suppress.

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IT IS THEREFORE ORDERED that a ruling on Gorman’s Motion to Suppress Evidence

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Pursuant to Supplemental Rule G(8) (Doc. #18) is DEFERRED pending an evidentiary hearing.

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IT IS FURTHER ORDERED that an evidentiary hearing shall be scheduled on Tuesday,

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October 7, 2014, at 10:00 a.m., in Reno Courtroom 3, before Judge Larry R. Hicks.
IT IS FURTHER ORDERED that the United States’ Motion for Summary Judgment (Doc.

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#11) is DENIED without prejudice.

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IT IS SO ORDERED.

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DATED this 23rd day of July, 2014.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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