United States v. $332, 057.00 in United States Currency
| Decision Date | 21 March 2022 |
| Docket Number | 4:20-cv-00307-KGB |
| Court | U.S. District Court — Eastern District of Arkansas |
| Parties | UNITED STATES OF AMERICA PLAINTIFF v. $332, 057.00 IN UNITED STATES CURRENCY DEFENDANT |
Before the Court is claimant Sung Kim's motion to suppress evidence (Dkt. No. 28). The United States filed a response in opposition to the motion (Dkt. No. 30), and Mr. Kim filed a reply (Dkt. No. 31). For the reasons discussed herein, the Court denies Mr. Kim's motion (Dkt. No. 28).
This Court, when considering the pending motion, reviewed the dashcam video provided (Dkt. No. 29). Based on this Court's review of the video and the parties' briefing, the Court recites this factual background. On September 10, 2019, at approximately 7:00 a.m., Arkansas State Police Trooper Andrew May conducted a traffic stop on a silver 2018 Nissan Rogue (Dkt. No. 28, at 2). Mr. Kim was the driver of the vehicle, and the only passenger in the vehicle was Mr. Kim's spouse, Hyun Jung Kim (Id.). The United States maintains that Trooper May conducted the traffic stop after seeing Mr. Kim drive over the inside fog line multiple times (Dkt. No. 30, at 2). Trooper May approached the vehicle at the passenger side window (Dkt. No 28, at 2). When told about the reason for the stop, Mr. Kim told Trooper May that he was sneezing, which caused him to drive over the fog line (Dkt. No. 30, at 2).
Trooper May requested and received a copy of Mr. Kim's driver's license (Id.). The license showed that Mr. Kim was from Duluth, Georgia (Id.). Trooper May also learned that the Rogue was a rental car that was rented in Mr. Kim's name (Id.). The rental agreement showed that the vehicle had been rented on September 9, 2020, to be driven to Las Vegas (Dkt. No. 28. at 30). The dash cam video shows the exterior of the rental vehicle and records all audio. According to Trooper May, as Mr. Kim handed the various documents to Trooper May, he was visibly shaking (Dkt. No. 30, at 1). At that time, Trooper May asked Mr. Kim to join him in his car to talk further (Id.). According to the United States, Trooper May's typical practice is to separate multiple passengers (Id.). Trooper May prefers to separate the driver from the vehicle, and he likes to have the ability to run checks on the person with whom he is speaking (Id.).
Trooper May had Mr. Kim join him in the front seat of Trooper May's car (Id.). Trooper May asked Mr. Kim where he was traveling that day (Id.). Mr. Kim said that he and his wife were going to Las Vegas (Id.). Mr. Kim said that they would probably stay two days, even though Mr. Kim wanted to stay for a week (Id.). Mr. Kim stated that the trip was a honeymoon surprise, but he also acknowledged that he and Ms. Kim had been married over 20 years and had never been on a vacation (Dkt. No. 23, at 3-4). Mr. Kim also volunteered that he did not have much money; he estimated that they had a couple hundred dollars (Dkt. No. 30, at 2-3).
Trooper May noted that the car was a one-way rental (Id., at 3). Mr. Kim said that he rented the car the day before and that they left the Atlanta area around midnight (Id.). Mr. Kim said that their plan was to fly home, but he did not have the plane tickets yet (Id.). Mr. Kim stated that they drove to Las Vegas to sightsee along the way (Dkt. No. 28, at 4). Mr. Kim stated that he was not sure where they intended to stay during their trip, but he stated that he thought they were staying at the Aria hotel (Id.). The United States asserts that Trooper May observed a change in Mr. Kim's facial expression when he was asked questions about his marriage, looking down and appearing deflated (Dkt. No. 30, at 3).
During the exchange about the length of the Kims' marriage and the follow up questions about their travel plans, Mr. Kim made a statement, “Guess I'm getting a ticket” (Id.). Trooper May responded that he did not plan to issue a ticket (Id.). According to the United States, Trooper May said that he just wanted to make sure that Mr. Kim and his wife were safe (Id.). Trooper May states that he made the statement as an attempt to address Mr. Kim's apparent anxiousness (Id.). Trooper May anticipated asking more questions and wanted to have Mr. Kim calm and clear headed when he responded (Id.).
Trooper May asked Mr. Kim if there were any guns or other weapons in the car (Id.). Mr. Kim responded that there were no guns in the car and that they were a Christian family and did not carry guns (Id., at 3-4). Shortly after, Trooper May mentioned that he needed to go speak with Mr. Kim's passenger (Id., at 4). At that point in the stop, Trooper May had not yet identified her by name or confirmed with her the information Mr. Kim provided regarding their travel (Id.).
Before Trooper May went to speak to the passenger, Trooper May ran Mr. Kim's criminal history and learned that Mr. Kim was arrested in 2014 for possession of marijuana; the report did not list a disposition of the charge (Id.). Although he cannot pinpoint the exact moment that he ran the search, Trooper May knows that he ran the search prior to speaking to the passenger (Id.). According to the United States, Trooper May needed to run the check for his own safety (Id.). Mr. Kim was in the front seat of Trooper May's car unrestrained, so Trooper May wanted to know whether he had a past violent history (Id.). The search can take some time to accomplish because the names must be run multiple ways and because there may be false hits to resolve (Id.).
After Trooper May asked Mr. Kim about guns in the car, Trooper May went to speak with the passenger (Id.). During the interaction, he asked her for identification (Id.). The passenger provided a driver's license that showed her name was Hyun Kim and that she was also from Georgia (Id.). Trooper May asked Ms. Kim about their travel plans (Id.). Ms. Kim said that they were traveling to Las Vegas and that they would stay for a week (Id.). Ms. Kim said that they may drive the car or fly back (Id.). According to the United States, Trooper May noticed that where Mr. Kim volunteered unnecessary responses to questions, Ms. Kim was cutting Trooper May off before he could finish asking his questions (Id.). Ms. Kim was not certain where in Las Vegas they were going to stay (Id.).
After speaking with Ms. Kim, Trooper May went back to his patrol car to run her criminal history (Id.). While running Ms. Kim's criminal history, Trooper May explained that he wanted to make sure “nobody [was] a murderer.” (Id., at 4-5). Trooper May asked Mr. Kim if he was a murderer, and Mr. Kim responded that he was not (Id., at 5).
Trooper May asked Mr. Kim for permission to search his car (Id.). Mr. Kim responded, “I do not want you to search my car.” (Id.). According to the United States, Trooper May thought the phrasing of Mr. Kim's response was a bit unusual (Id.). Trooper May also noticed a change in Mr. Kim's body language (Id.). Allegedly, Mr. Kim became more rigid and generally exhibited body language that demonstrated to Trooper May that the request for consent caused an emotional response (Id.). After this exchange, Mr. Kim asserted that he did not know why he was stopped (Id.). Trooper May reminded Mr. Kim of what he explained at the beginning of the traffic encounter-that Mr. Kim was stopped because he drove over the fog line (Id.). Trooper May repeated to Mr. Kim the excuse Mr. Kim had provided at the start of the stop, which was that he crossed over the fog line because he had sneezed (Id.).
After that exchange, Trooper May told Mr. Kim that Trooper May was calling for a drug-detection dog (Id.). While waiting on the drug dog, Trooper May and Mr. Kim discussed further Mr. Kim's criminal history (Id.). Mr. Kim explained that he never smoked marijuana before (Id.).
Trooper May then confronted him with his prior arrest (Id.). Mr. Kim said that the drugs were not his (Id.). Trooper May and Mr. Kim also discussed further Mr. Kim's travel plans (Id.). During that conversation, Mr. Kim said that he did not have any plane tickets because he was not sure yet if he was going to be out there for two or three days (Id.). Mr. Kim also said that he thought that his wife had already bought the tickets or maybe their friends had purchased them (Id.). Mr. Kim also mentioned that he and his wife have two children, ages 16 and 17, who are in school (Id.).
While they were waiting, Trooper May was also still running records checks on Ms. Kim to confirm her story that she did not have any criminal history (Id.). According to the United States, Trooper May was thinking out loud about a false positive because, as he was typing, he can be heard to say “wrong person.” (Id., at 5-6). Trooper May also had not issued the warning ticket at that point (Id., at 6). Around this time, approximately 18 minutes into the stop, Trooper May was also in contact with the Trooper Mark Blackerby, who had the drug detection dog (Id.). According to the United States, Trooper Blackerby would have arrived by that point, but there was a miscommunication that took him about 15 miles out of the way (Id.). Trooper Blackerby and his canine partner Raptor arrived approximately 31 minutes into the stop (Id.). At the time of the traffic stop, Raptor was properly certified and trained to detect an odor of marijuana, methamphetamine, cocaine, and heroin (Id.).
Before Raptor examined the car, Trooper May had Ms. Kim get out of the car and stand at the front (Id.). Trooper Blackerby and Raptor then conducted their examination of the Kims' car (Id.). During that examination, Raptor alerted to an odor of narcotics on the car (Id.). After the dog alerted to the car, the officers conducted a probable cause search and found a backpack that...
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