United States v. Yang

• Decision Date: 12 July 2022
• Docket Number: 21-2745
• Citation: 39 F.4th 893
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John YANG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

39 F.4th 893

UNITED STATES of America, Plaintiff-Appellee,

v.John YANG, Defendant-Appellant.

No. 21-2745

United States Court of Appeals, Seventh Circuit.

Argued May 16, 2022

Decided July 12, 2022

Jonathan H. Koenig, Rebecca Taibleson, Attorneys, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Paul H. Tzur, Attorney, Blank Rome LLP, Chicago, IL, for Defendant-Appellant.

Before Easterbrook, Brennan, and St. Eve, Circuit Judges.

Brennan, Circuit Judge.

John Yang challenges the district court's denial of his motion to suppress evidence obtained in a warrantless search of a vehicle in which he was a passenger. He argues that officers lacked reasonable suspicion for the stop and unlawfully extended the seizure. Because officers had reasonable suspicion to believe that a traffic violation occurred and that the vehicle's occupants were involved in illicit drug activity, and because the officers did not unlawfully prolong the stop, we affirm.

I

On November 23, 2020, Officer Garth Russell was on patrol in the "Bravo" district of Green Bay, Wisconsin. Five days prior, Russell had received an email from another officer discussing suspected drug activity at 826 Kellogg Street, a house in that district. The email included at least one report of repeated "in and out traffic at suspicious times." Russell was also aware of drug activity at several other homes in the area. In addition to making narcotic-related arrests, he had discovered drug paraphernalia at the nearby Express Convenience Center gas station on Dousman Street ("Dousman Express").

Sometime after 1:00 a.m., Russell observed John Yang standing near a Dodge Ram truck at the Dousman Express. Yang was with two other men, one of whom was holding a chainsaw. As Russell drove past, he made eye contact with Yang, who "kept staring at [Russell's] vehicle, ... looking to make sure [his] vehicle disappeared." After driving out of view, Russell turned around and headed back to the Dousman Express, but when he arrived, the three men and the truck were gone.

Meanwhile, Officer Benjamin Harvath was also on patrol in a nearby neighborhood. Harvath had been a member of the Green Bay police force for four years, during which he had received training on drug interdiction. Like Russell, Harvath had received the email about suspicious narcotics activity at 826 Kellogg Street. Harvath also knew about drug trafficking in that area of Green Bay because he had previously discovered narcotics during traffic stops on Kellogg Street. According to Harvath, "this area of Bravo district is one that is known to me and other officers to be of heightened drug activity."

At approximately 1:30 a.m., while driving east on Kellogg Street, Harvath noticed a Dodge Ram truck parked near 826 Kellogg Street, facing west. The truck's engine was running, but its lights were turned off, and Harvath thought he saw two people inside the vehicle. Harvath drove by the truck, made a U-turn, and then drove by again. This time, he saw a third person (later revealed to be Yang) a few houses away walking towards the truck from the direction of 826 Kellogg Street.

Harvath became suspicious because he knew that neighborhood did not experience much foot traffic, and no other vehicles or pedestrians were around this early in the morning. Harvath also knew from his training and experience that drug purchasers often park down the block from a dealer's home to avoid suspicion or association with a particular house. Temperatures that morning were at or below freezing. So, Harvath could "think of no other reason why the driver of the pick-up would park and make his passenger walk to his location, as opposed to driving up to the house from which he had emerged," per the district court.

Harvath radioed his suspicions to other officers in the area. As he did so, the driver of the truck turned on its headlights, drove away from the curb, and turned south onto North Oakland Avenue. After the truck was out of view, Harvath made a second U-turn on Kellogg Street and pursued it. The remainder of the encounter is recorded on Harvath's patrol car dashcam.

After a few seconds in pursuit, Harvath witnessed the truck roll through a stop sign at the corner of North Oakland Avenue and Dousman Street. His dashcam video depicts the truck's brake lights activating near the stop sign, but the video is grainy and out of focus, so the footage is unclear as to whether the truck came to a full and complete stop. Moments after the truck turned west onto Dousman Street, Russell responded to Harvath's prior radio message. Russell informed Harvath that he witnessed a similar Dodge Ram earlier in the evening involved in suspicious activity, and that its passengers were "being shady." At this point, as the truck turned south onto Ashland Avenue, Harvath announced his intention to stop the vehicle.

The truck pulled into a restaurant parking lot on Ashland Avenue. With his patrol car lights activated, Harvath parked behind the truck. Within a few seconds, Russell also arrived and positioned his patrol car next to Harvath's vehicle. Russell's dashcam recorded the Dodge Ram from an angle virtually identical to Harvath's.

When Harvath approached the driver's door, he saw three men seated on a bench seat in the front of the truck—the driver Adam Zimdars, the middle-seat passenger Justin Taylor, and the window-seat passenger Yang. Harvath questioned Zimdars about his plans and the origin of his trip. Harvath then explained that the truck was stopped for the traffic violation at the stop sign and a burnt-out license plate light.¹ He asked Zimdars for his identification. Before Zimdars could reach for his wallet, though, Harvath asked if there were any weapons in the vehicle. Zimdars responded equivocally. He said he was not "aware" of any weapons in the car and that he did not personally "have a gun." This further raised Harvath's suspicions. After obtaining Zimdars' identification, Harvath called for a canine unit, returned to his patrol car, and worked with dispatch to process the men's driving records and check for warrants.

Meanwhile, Russell had approached the passenger side of the truck and spoke with Yang and Taylor. Russell told the passengers that earlier in the evening he had seen them with a chainsaw and the Dodge Ram at the Dousman Express. Because neither passenger was wearing a seatbelt, Russell also asked for their identification information, which he later provided to Harvath. Throughout his questioning, Russell repeatedly told Yang to keep his hands visible, as Yang frequently put them down and out of Russell's view.

While Harvath was waiting in his patrol car for dispatch to process the identification information, a canine unit arrived. Russell then opened the Dodge Ram's passenger door and instructed the occupants to exit. At this point, according to Russell, Yang became visibly pale and his shoulders slumped down. As Yang exited the truck, Russell again ordered him to keep his hands where Russell could see them. Yang did not comply and reached for his waist, which prompted Russell to grab Yang's hands and press him up against the side of the truck. Yang fought back, and Harvath ran from his patrol car to help Russell. During the struggle, a handgun fell from Yang's waistband, along with a package containing methamphetamine and marijuana. Russell saw the gun and shouted to alert the other officers. As Yang broke free from the officers' grasp and attempted to flee the scene, Harvath subdued Yang with a taser.

After Yang was placed under arrest, the officers found additional methamphetamine in the Dodge Ram. The drug-detection dog remained in the canine squad car throughout the stop. The entire episode—from Harvath's first communication with the truck's occupants to the start of the altercation—lasted less than six minutes, according to Harvath's dashcam video.

A federal grand jury indicted Yang for possession with intent to distribute methamphetamine, possession of a firearm in furtherance of a drug-trafficking crime, and two other gun offenses. Yang moved to suppress all physical evidence found on his person and in the Dodge Ram, arguing that officers lacked specific and articulable facts under the Fourth Amendment to justify the traffic stop. At Yang's request, the district court held an evidentiary hearing on the motion, at which Harvath and Russell testified.

After post-hearing briefing, the district court denied Yang's motion to suppress. The court ruled that Harvath had two independent grounds to justify the stop. First, there was reasonable suspicion to believe that a traffic violation had occurred. While acknowledging that "one cannot discern from the video taken by the dashboard camera of Officer Harvath's squad car whether the truck came to a complete stop," the court found "the testimony of both police officers credible," and credited Harvath's testimony recounting his personal observation of the truck rolling through the stop sign. "It is not foreign to human experience," the court stated, "for personal observation in matters involving motion, distance, and perspective to be more clear when viewed live than from a video recording."

Second, the court held that the stop was justified under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because Harvath testified to specific and articulable facts providing reasonable suspicion of unlawful drug activity. These facts included the time of night; the truck engine running with its headlights turned off; the location being "less than two blocks away" from a house with suspected drug activity (826 Kellogg Street); and Yang's walking towards the parked truck from a measurable distance despite the freezing temperatures—a common tactic for drug deals which Harvath knew from his training and experience. While Yang argued that each individual fact had an innocent explanation, the court reasoned that those facts must be examined under the totality of the...