United States v. Wen Bin Chen

• Decision Date: 20 September 2011
• Docket Number: No. 1:11CR85–5.,1:11CR85–5.
• Citation: 811 F.Supp.2d 1193
• Court: U.S. District Court — Middle District of North Carolina
• Parties: UNITED STATES of America v. WEN BIN CHEN.

811 F.Supp.2d 1193

UNITED STATES of America

v.WEN BIN CHEN.

No. 1:11CR85–5.

United States District Court, M.D. North Carolina.

Sept. 20, 2011.

Frank Joseph Chut, Jr., Stephen Thomas Inman, U.S. Attorney's Office, Greensboro, NC, for United States of America.

Matthew Gridley Pruden, Tin Fulton Walker & Owen, PLLC, Charlotte, NC, for Wen Bin Chen.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

Before the court is the motion of Defendant Wen Bin Chen (“Chen”) to suppress evidence seized from his person by the Mebane (North Carolina) Police Department (“MPD”) on January 21, 2011. (Doc. 54.) Chen contends that the evidence was seized pursuant to an unlawful frisk and search in violation of the Fourth Amendment to the United States Constitution. An evidentiary hearing was held on September 7, 2011. For the reasons set forth herein, the motion is DENIED.

I. BACKGROUND

At the September 7, 2011, hearing, Claude Wayne Carroll (“Carroll”), an asset protection associate employed by the Wal–Mart store located in Mebane, North Carolina, and Sergeant Paul Jackson Davis (“Davis”) of the Mebane (North Carolina) Police Department (“MPD”) testified. The court finds their testimony credible and finds the following facts.

On January 20, 2011, Carroll was working at the Mebane Wal–Mart store when he received a telephone call from a Denver, Colorado, woman who reported that her credit card had been fraudulently used to make purchases at Carroll's store. Carroll immediately began an investigation by reviewing the store's “smart system,” which maintains a permanent computerized record of every cash register transaction conducted in the store. He quickly determined that the woman's credit card had been used in his store to purchase American Express gift cards. Matching those purchases to the store's database of recorded images maintained from the store's 13 digital video recorders and 200 still motion cameras, Carroll was able to observe an Asian male and Asian female going from register to register conducting repeated purchases of American Express gift cards, which the store's records revealed were made in the names of Fan Lin and Qin Li. Carroll was able to follow the digital video footage backwards to retrace the steps of these two individuals. As he reversed the video, he observed the suspects exit from a “bluish gray minivan” parked in the store's lot. Carroll printed still photos from the images and reported the matter to the MPD, who came out and made a report.

The next day, as Carroll was walking the store floor, he observed the same two Asian suspects he had identified the day earlier. They were selecting “large amounts of the same kind of gift card” and purchasing them at the registers. As before, the suspects were paying with a credit card and immediately getting back in line at another register to buy more gift cards. Carroll notified the MPD.

When the MPD arrived in the store's parking lot, the male and female suspects were at cash register number 9 purchasing more gift cards. Sergeant Davis entered the store, and Carroll advised him of the ongoing activity. Sergeant Davis proceeded to register 9, and after he observed the suspects complete the transaction, detained them. Carroll escorted a third suspect, whom he had observed similarly purchasing gift cards at the jewelry counter, to Sgt. Davis, and all suspects were taken to the store's loss prevention office.

There, Carroll advised Sgt. Davis that these were the same individuals from the prior day, noted that he had made a report to the MPD of the activity, and briefed him on what had occurred on both days. Sergeant Davis noted that the individuals were using credit cards in the names of Fan Lin and Qin Li to obtain the gift cards—which was confirmed by the store's “smart system” information—even though these were not their true names. Numerous credit cards, American Express gift cards, and at least one false identification were found on the suspects.

Carroll and Sgt. Davis also reviewed the store's digital video footage and live camera feed of the parking lot. The historical video showed a blue/gray minivan arrive at the Wal–Mart's grocery entrance that day, drop off the three suspects, and park in a space in the parking lot. Carroll told Sgt. Davis this was the same van shown in the video the day before. In examining the store's live camera feed, Carroll and Sgt. Davis could see that the van was still parked in the same space. (Government Ex. 1 (photograph of the minivan parked in the lot).)

After securing the three suspects with another MPD officer, Carroll and Sgt. Davis exited the store and approached the minivan from its front side. Sgt. Davis observed an Asian male—Chen—in the driver's seat apparently talking on a cell phone. When Sgt. Davis approached, Chen got off the phone “real quick,” dropped his head, and appeared as if he “was peering across the top of a pair of glasses” watching Sgt. Davis. Sergeant Davis motioned for him to put his hands up so he could see them, as Sgt. Davis explained, for his safety because he was unable to determine what was in Chen's hands. Sergeant Davis opened the driver's door and spoke to Chen. But Chen did not respond in English, and it appeared to Sgt. Davis that Chen did not understand English.

“For my safety and due to the language barrier,” Sgt. Davis stated, “I wanted him out of the vehicle, [and] motioned for him to get out of the vehicle so I could check him to make sure he didn't have any weapons.” Sergeant Davis candidly admits that up to this point he did not have any specific reason to believe that Chen was armed and dangerous or posed a threat to his safety. As Chen exited, Sgt. Davis observed a bulge in his right front pocket. Sergeant Davis asked Chen whether he had any weapons on him, but Chen did not appear to understand. For officer safety, Sgt. Davis testified, he proceeded to pat down the driver's pockets. Upon feeling the bulge, Sgt. Davis immediately determined that it “felt to be the size and shape of credit cards,” which he believed to be evidence of the ongoing crime. He reached in the pocket “to see what they were” and observed 16 American Express gift cards.

Chen was placed under arrest, and his van was searched. In a soft bag by the driver's seat officers located a wallet with more credit cards and a Chinese passport and identification.

Chen has been charged in a superseding indictment with the following crimes: conspiracy to use and possess counterfeit access devices in violation of 18 U.S.C. §§ 1029(a)(1) & (a)(3) and to possess device making equipment in violation of 18 U.S.C. §§ 1029(a)(4); identity theft in violation of 18 U.S.C. § 1028A(a)(1); possession of fifteen or more access devices in violation of 18 U.S.C. §§ 1029(a)(3), 1029(c)(1) and 2; and possession of the identification of another during and in relation to a felony in violation of 18 U.S.C. § 1028A(a)(1).

Chen now moves to suppress the evidence seized from his person pursuant to the Fourth Amendment to the United States Constitution. He raises two arguments in support of his motion. First, he contends that Sgt. Davis's warrantless search of his pocket violated the “stop and frisk” doctrine first articulated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). According to Chen, Sgt. Davis lacked the requisite reasonable and articulable suspicion that he was armed and dangerous prior to conducting a Terry stop and frisk and, once it became apparent that the bulge in his pocket was not a weapon, Sgt. Davis exceeded the scope of any authorized search. Second, he argues that Sgt. Davis lacked the probable cause necessary to justify his arrest prior to conducting the search. The Government contends that Sgt. Davis's search of Chen was reasonable under Terry and, even if not, was reasonable as a search incident to a lawful arrest based on probable cause that Chen was involved in the ongoing fraud.

II. ANALYSIS

The Fourth Amendment to the United States Constitution protects individuals from “unreasonable searches and seizures.” U.S. Const. amend. IV. Searches conducted in the absence of a search warrant are unreasonable under the Fourth Amendment unless they meet one of the specifically recognized exceptions. Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (citing Thompson v. Louisiana, 469 U.S. 17, 19–20, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984) (per curiam)). Here, the facts raise two such exceptions: the Terry stop and frisk; and search incident to arrest. Because Sgt. Davis conducted his search in the absence of a warrant, the Government bears the burden of proving its validity. United States v. Vickers, 540 F.3d 356, 360 (5th Cir.2008).

A. Terry “Stop and Frisk”

The Fourth Amendment authorizes the warrantless search of an individual where a police officer has reasonable, articulable suspicion that “[1] criminal activity may be afoot and [2] that the persons with whom he is dealing may be armed and presently dangerous.” Terry, 392 U.S. at 30, 88 S.Ct. 1868; see also United States v. Griffin, 589 F.3d 148, 152 (4th Cir.2009). Although “an officer's reliance on a mere hunch' is insufficient to justify a stop,” the evidence “need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868). Only after an officer makes reasonable determinations concerning ongoing criminality and a suspect's potential to be armed may he conduct a limited search of that individual. United States v. Burton, 228 F.3d 524, 528 (4th Cir.2000). Because the sole justification for a Terry search is officer safety, Terry, 392 U.S. at 25–26, 88 S.Ct. 1868, the scope of any search is limited to a pat-down for weapons. Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d...