United States v. Kenneth Gordon
694 F. App'x 556
9th Cir.2017Background
- Gordon was arrested and convicted for conspiring to distribute and possessing with intent to distribute methamphetamine; key evidence came from a duffel bag and a wallet seized at arrest and testimony of co-conspirator Richelle Higa.
- Officers handcuffed Gordon and searched the duffel bag within seconds; wallet was taken from his person and later transported to DEA headquarters (stipulated at trial).
- $18,020 was found concealed inside a macadamia candy box in the duffel bag; government treated it as drug proceeds.
- A 35-second video recorded the day of arrest was offered at trial despite an erroneous time/date stamp.
- District court denied Gordon’s motion to suppress, refused a minor-role Sentencing Guideline adjustment, treated the cash as drug money (without affecting offense level), and sentenced him to 164 months; Gordon appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Lawfulness of search of duffel bag and wallet | Search was unlawful because Gordon was already handcuffed and arrest incident search exception did not permit searching items within his reach | Search was roughly contemporaneous with arrest, Gordon was within reaching distance, and duffel remained under law enforcement control; wallet search was lawful based on stipulations | Affirmed: initial search was lawful as contemporaneous with arrest; control over bag not clearly disturbed; wallet search lawful per stipulations |
| Admissibility of 35‑second video | Timestamp error made the video unreliable | Agent testified video was made day of arrest; jury could infer timestamp was a technical error | Affirmed: district court did not abuse discretion admitting the video |
| Minor‑role Sentencing Guideline adjustment | Gordon was less culpable than leaders and other participants and thus entitled to a downward adjustment | Gordon’s conduct was not shown to be substantially less culpable than the average participant/courier | Affirmed: district court did not clearly err denying minor‑role reduction |
| Classification of $18,020 as drug proceeds and substantive reasonableness of sentence | Court clearly erred treating cash as drug money; sentence was substantively unreasonable | Cash was concealed in a manner consistent with proceeds; Higa’s testimony supported that inference; court reasonably applied §3553(a) factors and imposed a substantial sentence below guideline range | Affirmed: treating cash as drug money not clearly erroneous; sentence substantively reasonable |
Key Cases Cited
- Arizona v. Gant, 556 U.S. 332 (search‑incident‑to‑arrest limits when arrestee not within reaching distance)
- United States v. Camou, 773 F.3d 932 (9th Cir. 2014) (search contemporaneous with arrest may be lawful)
- United States v. Cook, 808 F.3d 1195 (9th Cir. 2015) (upholding backpack search after handcuffing where security concerns exist)
- United States v. Nohara, 3 F.3d 1239 (9th Cir. 1993) (upholding search minutes after handcuffing when bag remained under control)
- United States v. Passaro, 624 F.2d 938 (9th Cir. 1980) (reliance on stipulations regarding seizure and transport of items)
- United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (standard for reviewing substantive reasonableness of sentence)