United States v. Cheng Kong Yang

• Decision Date: 07 January 2020
• Docket Number: Case No. 3:18-cr-111
• Citation: 432 F.Supp.3d 957
• Parties: UNITED STATES of America, Plaintiff, v. CHENG KONG YANG and Vikkie See Vue Lor, Defendants.
• Court: U.S. District Court — District of North Dakota

432 F.Supp.3d 957

UNITED STATES of America, Plaintiff,

v.CHENG KONG YANG and Vikkie See Vue Lor, Defendants.

Case No. 3:18-cr-111

United States District Court, D. North Dakota.

Signed January 7, 2020

ORDER ADOPTING REPORT AND RECOMMENDATION

Peter D. Welte, Chief Judge United States District Court

Before the Court is a Report and Recommendation submitted by Magistrate Judge Alice R. Senechal on October 30, 2019. Doc. No. 80. Defendants Vikkie See Vue Lor and Cheng Kong Yang filed motions to suppress on March 22, 2019 and April 10, 2019, respectively. Doc. Nos. 35, 41. A hearing on the motions to suppress (Doc. Nos. 35, 41) was held on August 27, 2019 before Magistrate Judge Senechal.

Magistrate Judge Senechal recommends that this Court grant Defendants' motions to suppress. Doc. No. 80. The Government was given until December 20, 2019, to file an objection to the Report and Recommendation, and the Defendants were given until December 27, 2019 to file a response to the Government's objection. On December 20, 2019, the Government filed an objection, asking the Court to reject the Report and Recommendation and to deny Defendants' motions to suppress. Doc. No. 91. On December 27, 2019, Defendant Cheng Kong Yang filed a response to the Government's objection, asking the Court to adopt the Report and Recommendation. Doc. No. 92.

The Court has reviewed the Report and Recommendation, the objection filed by the Government, the response filed by Defendant Cheng Kong Yang, and the record as a whole and finds the Report and Recommendation to be persuasive. Accordingly, the Court ADOPTS the Report and Recommendation (Doc. No. 80) in its entirety. The Court GRANTS Defendants Vikkie See Vue Lor's and Cheng Kong Yang's motions to suppress (Doc. Nos. 35, 41). The United States has not addressed Lor's motion to dismiss the indictment (Doc. No. 35), and the Court is not familiar with other possible evidence against her. Thus, this Court will not dismiss the indictment at this time.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION ON MOTIONS TO SUPPRESS

Alice R. Senechal, United States Magistrate Judge

Cheng Kong Yang and Vikkie See Vue Lor—husband and wife—are charged with drug conspiracy crimes. Both move to suppress evidence obtained during a March 4, 2018 vehicle search. They contend (1) law enforcement officers unlawfully prolonged a traffic stop and expanded the scope of the stop without reasonable suspicion of criminal activity unrelated to a traffic violation, and (2) Lor's consent to search the vehicle and a canine sniff of the vehicle were the fruit of an illegal expansion of the traffic stop. (Doc. 35; Doc. 41). Additionally, if the motion to suppress is granted, Lor moves for dismissal of the indictment. (Doc. 35).

This court held an evidentiary hearing on August 27, 2019.¹ At the hearing, the United States presented testimony of one witness—North Dakota Highway Patrol Trooper Gabriel Irvis. Neither Yang nor Lor called witnesses. With his pre-hearing brief, Yang filed two exhibits: (1) a dash-camera recording of events surrounding the traffic stop and search, and (2) an audio recording of a hearing on a motion to suppress in a state court case in which Yang was charged prior to his indictment in this case. (Doc. 43).² At the state court hearing, three witnesses testified: Trooper Irvis, Trooper Kristjan Helgoe—a canine trooper who was involved in the vehicle search—and Lor.³ Other exhibits in evidence are the two troopers' reports, (Doc. 42-1, pp. 3-6), a copy of a traffic warning issued to Lor, id. at 7, a log of contacts between the two troopers via a Computer Aided Dispatch system (CAD), (Doc. 70-1), and a copy of a Google Maps image showing three possible routes between Sacramento, California, and Minneapolis, Minnesota, (Doc. 36-1).

At the August 27, 2019 hearing, the United States confirmed it does not challenge the standing of Yang—who was a passenger in the vehicle—to bring this motion. (Doc. 79, p. 7).

Each of the parties filed pre-hearing briefs, (Doc. 36, Doc. 42, Doc. 56), and Yang filed a reply to the government's responsive brief, (Doc. 57). At the conclusion of the hearing, all parties agreed post-hearing briefing was not necessary.

Summary of Recommendation

Determining whether the traffic stop was illegally prolonged requires a fact-intensive inquiry, and the facts of this case present a close question. Trooper Irvis contacted a canine unit less than a minute after he initially spoke to Lor, and in this court's opinion, he prolonged the traffic stop to wait for arrival of a canine unit in the absence of reasonable suspicion of criminal activity unrelated to a traffic violation. The United States has not met its burden to prove the traffic stop complied with the Fourth Amendment.

But, if the district judge concludes the traffic stop was not illegally prolonged, the evidence should not be suppressed because Lor freely gave oral and written consent to the vehicle search and a consensual search is not subject to Fourth Amendment scrutiny.

Hearing Evidence

The following summary incorporates testimony at the August 27, 2019 hearing, testimony at the state court hearing, and all exhibits in evidence.

On March 4, 2018, Trooper Irvis was in a stationary position facing westbound in the median of Interstate 94, just west of the city limits of Fargo, North Dakota. Trooper Irvis was in a marked Highway Patrol vehicle on a concrete pad which had been installed for road construction purposes. Lor and Yang were driving eastbound in a rented Toyota Yaris bearing California license plates, with Lor as the driver and Yang as a passenger.

Trooper Irvis testified he observed the Lor/Yang vehicle following too closely behind the vehicle in front of it and pulled onto eastbound I-94 to catch up with the Lor/Yang vehicle. At the point Trooper Irvis first observed the vehicle, the speed limit transitioned from 75 mph to 65 mph and the speed limit further decreased to 55 mph shortly thereafter. Trooper Irvis testified he did not know the vehicle's speed when he first observed it. (Doc. 79, pp. 85-86). Trooper Irvis testified that by the time he caught up to it, the Lor/Yang vehicle had slowed "drastically" to 40 to 45 mph in the 55 mph zone, which he considered a signal the driver was aware he had left his stationary location. Trooper Irvis testified he drove parallel to the Lor/Yang vehicle for a time and when he did so, neither the driver nor the passenger looked at him and Lor was very "rigid" in the driver's seat. Id. at 10.

Trooper Irvis testified he reduced his speed to let the Lor/Yang vehicle pull ahead, then accelerated again to parallel the vehicle a second time. Id. at 33-34, 58. He testified his second paralleling of the vehicle lasted approximately twenty-five seconds, Lor again did not look at him, and he observed Lor did not look at Yang but talked to him out of the corner of her mouth. Id. at 35. He considered Lor's actions an indication she was aware of his presence. Id. at 36. Trooper Irvis described paralleling a vehicle as a procedure he uses "all the time" to look for vehicle occupants' furtive movements, anything in plain sight, or anything that stands out. Id. at 12.⁴ Trooper Irvis acknowledged he knew from the moment he pulled off the concrete pad that he was going to stop the Lor/Yang vehicle. Id. at 32.

After paralleling the Lor/Yang vehicle the second time, Trooper Irvis activated the lightbar on his patrol vehicle to initiate a traffic stop. Trooper Irvis testified that when he activated the lightbar, the dash camera began recording audio and video but the system also automatically recorded the preceding thirty seconds of video without audio. Id. at 31. The dash-camera recording began during the second time Trooper Irvis paralleled the vehicle, but the Lor/Yang vehicle is not visible on the recording while Trooper Irvis was driving beside it.

Trooper Irvis testified the Lor/Yang vehicle stopped approximately thirty seconds after he activated the lightbar, which he considered "a little lengthy" since he believed Lor was aware of his presence prior to activation of the lightbar. Id. at 13. On cross exam, he acknowledged Lor had pulled over shortly after clearing the Veterans Boulevard entrance ramp to I-94, id. at 38, but he also described a "giant shoulder before that entrance ramp" that "easily could have been utilized" to pull over sooner, id. at 62. The dash-camera recording shows the Lor/Yang vehicle's brake lights came on briefly near the entrance ramp and its right turn signal was activated shortly after clearing the entrance ramp.

Lor's state court testimony about events prior to the stop varied from that of Trooper Irvis in some respects. She testified she was not following too closely to the vehicle in front of her, she saw the patrol vehicle make a U-turn in the highway median, but the patrol vehicle was never "right beside" her vehicle. She denied slowing considerably in response to seeing the patrol vehicle and testified she was driving 55 mph the entire time. She said she had been singing and not talking to Yang out of the corner of her mouth.

She testified she had not stopped sooner after the patrol vehicle's lightbar was activated because she did not want to stop on the entrance ramp.

Trooper Irvis walked to the driver side of the Lor/Yang vehicle after it stopped and activated his body microphone as he did so. He told Lor he would issue a warning for following another vehicle too closely and asked her to come to the patrol vehicle. Almost immediately—within thirty-three seconds—after Lor was in the patrol vehicle, Trooper Irvis used the CAD system to contact Trooper Helgoe, a narcotics detection canine handler, to ask for his assistance. Id. at 90. When Trooper Helgoe asked the reason for the request, Trooper Irvis responded, "free air," which he testified refers to the "deployment of a narcotic [canine] around the vehicle within the scope of a traffic stop." Id. at 26-27, 74. Trooper Irvis testified he...