U.S. v. Duong, No. C1-04-050.
| Citation | 336 F.Supp.2d 967 |
| Decision Date | 24 September 2004 |
| Docket Number | No. C1-04-050. |
| Parties | UNITED STATES of America, Plaintiff, v. Diana Courteny DUONG and Thanh-Mai Thi Truong, Defendants. |
| Court | U.S. District Court — District of North Dakota |
Kent M. Morrow, Severin & Ringsak, Bismarck, ND, Benjamin C. Pulkrabek, Pulkrabek Law Firm, Mandan, ND, for Defendants.
ORDER DENYING DEFENDANTS' MOTION TO SUPPRESS
Before the Court is Defendant Diana Courteny Duong's Motion to Suppress Evidence filed on August 10, 2004. The motion to suppress relates to evidence seized by law enforcement officers on February 11, 2004. Co-Defendant Thanh-Mai Thi Truong has joined in Duong's motion. On August 20, 2004, the Government filed a response resisting the motion to suppress. An evidentiary hearing was held on September 3, 2004, in Bismarck, North Dakota. For the reasons outlined below, the motion to suppress is denied.
On February 11, 2004, North Dakota Highway Patrolman Will Vance was driving east bound on I-94 between Belfield and Medora, North Dakota. Winter weather conditions had caused the interstate highway in that area to be closed the previous evening. The interstate was still closed when Trooper Vance came on duty that morning. At approximately 8:50 a.m. Trooper Vance came across a 2004 Mitsubishi Endeavor, with Washington license plates, lying in the south ditch of the east bound lane of I-94. The SUV was lying on its side at a location approximately 40 feet from the highway. The vehicle appeared to have slid off the road at a slight curve in the highway and made a three-quarter roll. See Exhibit No. 3. Trooper Vance described the interstate as "extremely icy." There was no one at the accident site when the trooper arrived on location. Trooper Vance said a license check revealed that the owner of the vehicle was "PT Holding Company." He said the SUV appeared to be a rental vehicle.
Trooper Vance immediately contacted local law enforcement agencies to determine whether any accidents had been reported. No agency had received any such report. Trooper Vance then requested that State Radio contact "East End Towing" in Dickinson, North Dakota, to have the vehicle impounded. The dispatchers at State Radio informed Trooper Vance that East End Towing had already received a call from a person who had requested the vehicle be towed. The person identified herself as Mai Truong. When the tow truck arrived at the scene, the East End Towing employee explained that he was supposed to meet this person (the alleged owner/driver) at Exit 32 to obtain the keys to the vehicle. However, no one showed up to make the exchange. The tow truck was unable to reach the SUV vehicle in the ditch with the equipment it had so another East End Towing employee was called to bring additional towing equipment to the accident scene.
Trooper Vance's notes reveal that he decided to leave the vehicle at that time and conduct an inventory search later that same day. However, shortly after he left the scene, Trooper Vance met the other East End Towing employee on I-94 and, thereafter, decided to return to the scene of the rollover.
The SUV vehicle was turned upright by the towing company shortly after 10:30 a.m. At that time, Trooper Vance checked the glove box of the vehicle for any documentation to identify the owner. The trooper was only able to locate a card from Budget Rent-A-Car which revealed no information other than a telephone number for the rental agency. Trooper Vance then looked in the back seat of the SUV and noticed the back seats were folded down. There were several large, black duffel bags and a suitcase located in the back seat area. Neither the duffel bags nor the suitcase had any identification tags. Trooper Vance decided to conduct a brief inventory search at that time. The trooper testified that he thought the duffel bags contained video equipment. More important, Trooper Vance consistently testified at the suppression hearing that he did not have any suspicion the duffel bags contained contraband. The trooper removed one of the large duffel bags, opened it, and found that it contained numerous sealed bags of marijuana. See Exhibit No. 5. Trooper Vance then removed the remaining duffel bags all of which contained several hundred pounds of marijuana.
Trooper Vance immediately contacted State Radio to request assistance. Deputy Sheriff Pat Rummel arrived at the scene at approximately 10:52 a.m. Deputy Rummel helped carry the duffel bags to his patrol car because they were too large to fit in Trooper Vance's vehicle. The SUV was then towed away at approximately 11:30 a.m. and taken to East End Towing in Dickinson, North Dakota.
Trooper Vance obtained a search warrant on February 12, 2004. Law enforcement officers conducted a complete search of the vehicle later that day. Although several calls went back and forth between East End Towing personnel and the owner/driver of the vehicle, no one ever showed up to claim an ownership interest in the vehicle on February 11, 2004, or at anytime thereafter.
On June 16, 2004, defendants Duong and Truong were charged in federal court with the following: (1) Conspiracy to Distribute and Possess with Intent to Distribute a Controlled Substance and (2) Possession with Intent to Distribute a Controlled Substance.
"The Fourth Amendment protects `against unreasonable searches and seizures,' but its protections are personal and cannot be asserted by persons lacking a `legitimate expectation of privacy' in the place searched." United States v. Kuenstler, 325 F.3d 1015, 1020 (8th Cir.2003) (quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)). An individual asserting Fourth Amendment rights "must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable." Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). "If a defendant fails to prove a sufficiently close connection to the relevant places or objects searched, he has no standing to claim that they were searched or seized illegally." United States v. Gomez, 16 F.3d 254, 256 (8th Cir.1994).
It is well-established that the Fourth Amendment rights are personal and may not be asserted vicariously. Rakas v. Illinois, 439 U.S. 128, 138, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Morales, 737 F.2d 761, 763 (8th Cir.1984). If a defendant fails to prove a close connection to the relevant places or objects searched, she has no standing to claim the search was illegal. Further, the defendant moving to suppress certain evidence has the burden of proving a reasonable expectation of privacy in the area searched. Rakas, 439 U.S. 128, 130-131, 99 S.Ct. 421, 58 L.Ed.2d 387. There are a number of factors that are relevant to the determination of standing. Those factors include ownership; possession or control of the area searched or items seized; historical use of the property or item; ability to regulate access; the existence or non-existence of a subjective anticipation of privacy; and the objective reasonableness of the expectation of privacy considering the specific facts of the case; and the totality of the circumstances surrounding the search. United States v. Gomez, 16 F.3d 254, 256 (8th Cir.1994) (citing United States v. Sanchez, 943 F.2d 110, 113 (1st Cir.1991)).
In this case, defendant Diana Duong has failed to demonstrate any legitimate expectation of privacy in the SUV motor vehicle or the items seized. Counsel for Duong pointed only to the fact that some of the items found in the SUV were personal items that a female would carry while traveling. Duong has not claimed any ownership interest in the vehicle, nor acknowledged that she was the driver or even a passenger in the vehicle. None of the above-identified relevant factors to be considered in determining standing weigh in her favor. The Court concludes that Duong has failed to sustain her burden of proof and has no standing to challenge the search of the 2004 Mitsubishi Endeavor in question.
With respect to defendant Thanh-Mai Thi Truong, her name was provided to the car rental agency and to East End Towing as the name of the person allegedly having an ownership interest in the SUV vehicle and/or as the driver of the vehicle. Truong has never acknowledged having an ownership interest in the SUV or the duffel bags. The Court believes that Truong's standing to challenge the search and seizure is extremely weak at best under the facts presented. Nevertheless, the evidence arguably establishes an ownership interest sufficient to satisfy the standing requirement and to challenge the search of the vehicle.
The Fourth Amendment secures the persons, houses, papers, and effects of the people against unreasonable searches and seizures by the government. The general rule is that the government must secure a warrant before conducting a search. United States v. Alberts, 721 F.2d 636, 638 (8th Cir.1983). However, "[l]aw enforcement may search a lawfully impounded vehicle to compile an inventory list of the vehicle's contents without violating the Fourth Amendment." United States v. Rowland, 341 F.3d 774, 779 (8th Cir.2003) (citing South Dakota v. Opperman, 428 U.S. 364, 376, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976)). These searches can be conducted without a search warrant or probable cause. Rowland, 341 F.3d 774, 779. The inventory search exception to the warrant requirement was created because police are performing an "administrative or caretaking function rather than a criminal investigatory function when they impound an automobile." United States v. Marshall, 986 F.2d 1171, 1174 (8th Cir.1993). Inventory searches "serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to...
To continue reading
Request your trial
-
U.S. v. Hall, CR 05-0066-LRR.
...open closed containers only when the closed containers were unable to be opened, that is, secure or locked. Cf. United States v. Duong, 336 F.Supp.2d 967, 974 (D.N.D.2004) (relying upon officer's testimony that officer's required "detailed inspection" regularly "include[d] the opening of al......
-
U.S. v. Le, C1-05-02.
...the subject of the present motion to suppress; a motion the Court denied and which was not challenged on appeal. See United States v. Duong, 336 F.Supp.2d 967 (D.N.D.2004). 2. The quoted portion of the North Dakota Highway Patrol Police Manual was in effect from April 1, 2003, to March 22, ......
-
U.S. v. Thompson, C4-04-086.
...(upholding a search of luggage where the defendant denied ownership, even if the officers knew he was lying); United States v. Duong, 336 F.Supp.2d 967 (D.N.D.2004) (adhering to the well-established Eighth Circuit precedent regarding both standing and abandonment for purposes of the Fourth ......