Newspaper column: Another reason to ban civil asset forfeitures

Straughn Gorman had cash seizure from his motor home.

The pernicious and corrupting influence of civil asset forfeiture procedures is on display this summer in still another Nevada case.

The temptations for law enforcement agencies are so great that some will connive, conspire and twist the Fourth Amendment’s prohibition against unreasonable searches and seizures to get their hands on citizens’ property and money.

In June, U.S. District Court Judge Larry Hicks scolded federal prosecutors for covering up the circumstances surrounding the confiscation of $167,000 from a man driving a motor home westbound along Interstate 80 in Elko County in January 2013.

The man, Straughn Gorman of Hawaii, was first stopped by a Nevada Highway Patrol trooper just outside of Wells for driving too slowly in the left lane, though he said he was passing trucks and intended to pull to the right as soon as he passed.

Nevada State Trooper Greg Monroe asked a lot of questions, made records checks on his radio and tried to get a canine unit to come to the scene of the stop, but none was available.

The officer probed Gorman about where he was going and why and where he worked, to which Gorman replied he was going to Sacramento to visit his girlfriend and that he sold paddle boards in Maui. The officer asked Gorman how he could afford to drive a motor home across the country when gasoline cost $3 a gallon and how much he earned selling paddle boards.

Gorman replied, “I don’t want to talk about how much I make,” court records show, but he did tell the trooper he was carrying $2,000 in currency.

Trooper Monroe then asked Gorman, “Do you mind if we search the vehicle?”

Gorman answered, “I do mind, yes.”

The trooper said he was free to go, but NHP contacted Elko deputies who sent a canine unit to intercept the motor home 50 miles down the road.

When Elko Deputy Doug Fisher stopped the motor home, his dog “alerted” to something in a rear compartment and the deputy called in for a search warrant. A search turned up cash in a microwave, freezer and bedroom compartment, but no drugs. No criminal charges were ever filed against Gorman.

But in court documents filed by the U.S. attorney when Gorman tried to get his money back, no mention was ever made of the original stop. And the warrant was obtained for the second stop without ever mentioning the first stop.

In his ruling Judge Hicks found that the two stops were inextricably connected and that Gorman’s total detention was unreasonably prolonged, thus a violation of the Fourth Amendment. Hicks cited case law that states, “[U]nder the ‘fruits of the poisonous tree’ doctrine, evidence obtained subsequent to a violation of the Fourth Amendment is tainted by the illegality and is inadmissible.”

Hicks also wrote, “Ultimately, while an officer ‘may conduct certain unrelated checks during an otherwise lawful traffic stop. … he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.”

In ordering Gorman’s money returned, Hicks blasted the U.S. attorney, saying, “In particular, the government has a duty of candor and fair disclosure to the Court. The Court expects and relies upon the United States Attorney’s Office to be candid and forthcoming with material information uniquely held only in possession of the government and clearly relevant to central issues before the Court. That did not occur here.”

The judge granted Gorman the right to seek court and attorney fees from the state, which reportedly could exceed $150,000.

What is doubly disappointing is that the limp-wristed Nevada Legislature had an opportunity this past session to put a stop to injustices like this. Senate Bill 138, as introduced, would have required proof of a criminal conviction or an agreement among all parties before seizure of cash or property.

By the time it was sent to the governor, who signed it, the conviction requirement was dropped. It does say the seized property or money should be returned if charges are dropped or dismissed after a trial. But too often charges are never filed against anyone. The law takes effect Oct. 1.

 A version of this column appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.
Update: This week the U.S. attorney’s office in Reno said it plans to challenge Hick’s order in the 9th U.S. Circuit Court of Appeals.
“I’m disappointed that prosecutors are not going to accept the well-reasoned decision of Judge Hicks,” Gorman’s Las Vegas lawyer, Vincent Savarese, was quoted as saying Wednesday by the Las Vegas newspaper. “I do not believe they have any meritorious grounds for appeal.”