898 F.2d 1034 (5th Cir. 1990), 89-4164, United States v. Kye Soo Lee

Docket Nº:89-4164.
Citation:898 F.2d 1034
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. KYE SOO LEE, Min Ho Chay, and Min Sik Lee, Defendants-Appellees.
Case Date:April 24, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1034

898 F.2d 1034 (5th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellant,

v.

KYE SOO LEE, Min Ho Chay, and Min Sik Lee, Defendants-Appellees.

No. 89-4164.

United States Court of Appeals, Fifth Circuit

April 24, 1990

Page 1035

William J. Flanagan, Asst. U.S. Atty., Joseph S. Cage, Jr., U.S. Atty., Shreveport, La., for plaintiff-appellant.

Gary A. Udashen, Milner, Goranson, Udashen & Wells, Dallas, Tex., E. Daniel Burt, Jr., Burt & LaVigne, Shreveport, La., for Kye Soo Lee.

Alfred R. Beresko, Shreveport, La., for Min Ho Chay.

Gerald M. Cobb, Beverly Hills, Cal., Wayne J. Blanchard, Shreveport, La., for Min Sik Lee.

Appeal from the United States District Court for the Western District of Louisiana.

Before WISDOM, JOHNSON and HIGGINBOTHAM, Circuit Judges.

JOHNSON, Circuit Judge:

The Government appeals the district court's grant of the defendants' motion to suppress. We reverse and remand.

I. FACTS AND PROCEDURAL HISTORY

On May 27, 1988, Louisiana State Trooper Bruce Vanderhoven (Vanderhoven), while patrolling Interstate 20 near Bossier City, Louisiana, observed a Ryder rental truck bearing Florida license plates speeding and weaving from lane to lane. Vanderhoven executed a traffic stop. At the wheel of the truck was Min Ho Chay (Chay) and in the passenger's seat was Kye Soo Lee. 1 When asked for identification by Vanderhoven, Chay, who was wearing a paging device, was unable to produce a driver's license but claimed that he held a valid Texas driver's license--an assertion that Vanderhoven was able to confirm by radio. Before questioning Kye Soo Lee, Vanderhoven frisked Chay, found nothing,

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and asked Chay to have a seat in the patrol vehicle. Before doing so, Chay told Vanderhoven that Kye Soo Lee was the renter of the Ryder truck.

Approaching Kye Soo Lee, Vanderhoven asked for identification. After Kye Soo Lee indicated that he could not speak English, Vanderhoven brought Chay forward and asked Chay to serve as translator. 2 Thereafter, Kye Soo Lee produced a valid Texas driver's license and a social security card. Vanderhoven, while frisking Kye Soo Lee, felt a large bulge in Kye Soo Lee's pant's pocket which, according to Vanderhoven, felt like a roll of currency. Preferring to wait for a supervising officer or a backup to be present before confiscating any cash from Kye Soo Lee, Vanderhoven radioed for assistance. Vanderhoven then placed Kye Soo Lee in the patrol vehicle with Chay.

Before the backup unit arrived, Vanderhoven asked Chay for the rental agreement covering the Ryder truck. After Chay advised Vanderhoven of its location, Vanderhoven retrieved the agreement from the dashboard of the truck. Upon inspection of the agreement, Vanderhoven discovered that the renter of the truck was not Kye Soo Lee, but an unknown third party named Min Sik Lee.

Responding to Vanderhoven's radio request for a supervisory backup was Louisiana State Trooper Archie Griffin (Griffin), who arrived at the scene some ten minutes 3 after the truck had been initially pulled over. In Griffin's presence, Vanderhoven again frisked Kye Soo Lee, noting that the bulge in Kye Soo Lee's pants pocket was considerably smaller than when Vanderhoven first frisked him. As Vanderhoven had guessed, the bulge in Kye Soo Lee's pocket proved to be a roll of United States' currency. Suspecting that Kye Soo Lee, while in the squad car with Chay, had split the original roll of bills and given some to Chay, Vanderhoven again frisked Chay. This time, the search of Chay yielded a substantial quantity of cash, whereas before, Vanderhoven had felt nothing in Chay's pockets. The total amount of currency seized from the pair was $8,900.26.

Thereafter, Vanderhoven asked Chay for permission to search the cargo hold of the truck. Vanderhoven gave Chay a written "consent to search" form for Chay's signature. Chay read the form and discussed it with Kye Soo Lee. Although neither Chay nor Kye Soo Lee signed the form, Chay reportedly told Vanderhoven that it was "okay" with them to search the truck. In the same conversation, Chay disavowed any knowledge of what he and Kye Soo Lee were carrying in the truck's cargo hold. Chay also claimed that there was no key to open the padlock on the cargo hold door. Vanderhoven, however, had previously noticed a new "Master" brand key on the key ring which hung from the truck's ignition switch. Coincidentally, the padlock which secured the truck's cargo hold was a new "Master" brand padlock. After opening the padlock with the key, the officers saw several boxes in the cargo hold, some of which had spilled over during transit to reveal Gucci baseball caps and Louis Vuitton handbags.

Meanwhile, Louisiana State Trooper Don Campbell (Campbell), accompanied by DEA agent Terry Baldwin (Baldwin), were driving by the scene and stopped to lend their assistance. Seeing the above described merchandise in the truck, Baldwin commented that it looked counterfeit. Concluding that a more thorough search of the cargo hold would be hazardous while the truck was parked on the shoulder of an interstate highway, and suspecting that the truck might contain other contraband, the officers decided it would be best to take the truck to the nearby state police headquarters. When approached with the proposed plan, Chay and Kye Soo Lee reportedly agreed to accompany the officers to headquarters. Chay and Kye Soo Lee's

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alleged agreement to do so came notwithstanding Vanderhoven's reported assurances to the pair that they were not under arrest and were free to leave at any time.

The more extensive search of the truck at state police headquarters yielded additional "designer" goods which officers suspected were bogus. United States Customs Agents, who had been summoned by the Louisiana State Police, arrived to inspect the merchandise. Special Agent Jacques Duck examined the goods and...

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