US v. Wai-Keung

• Decision Date: 08 March 1994
• Docket Number: No. 91-0061-CR-KMM (JM).,91-0061-CR-KMM (JM).
• Citation: 845 F. Supp. 1548
• Parties: UNITED STATES of America, v. Tam WAI-KEUNG, Sun Cheung, Raymond Ching, Lai Hui-Chui, Wong Siu-Fun, Li Chi-Cheong, and Alex Lixin Qiu.
• Court: U.S. District Court — Southern District of Florida

845 F. Supp. 1548

UNITED STATES of America, v. Tam WAI-KEUNG, Sun Cheung, Raymond Ching, Lai Hui-Chui, Wong Siu-Fun, Li Chi-Cheong, and Alex Lixin Qiu.

No. 91-0061-CR-KMM (JM).

United States District Court, S.D. Florida.

March 8, 1994.

COPYRIGHT MATERIAL OMITTED

Kendall B. Coffey, U.S. Atty. by Peter Prieto, Asst. U.S. Atty., Miami, FL, for U.S.

Paul D. Lazarus, Miami, FL, for defendant Tam Wai-Keung.

John F. O'Donnell, Ft. Lauderdale, FL, for defendant Sun Cheung.

Michael Smith, Ft. Lauderdale, FL, for defendant Raymond Ching.

Office Of The Federal Public Defender by Howard Srebnick, Asst. Federal Public Defender, Miami, FL, for defendant Li Chi-Cheong.

Joel DeFabio, Coral Gables, FL, for defendant Alex Lixin Qiu.

MISHLER, District Judge, Sitting by Designation.

Defendants Tam and Li, joined by defendants Sun and Ching¹, move to suppress evidence obtained at four distinct stages in the proceedings incident to their arrest. First, they challenge the legality of their arrest based on lack of probable cause. Second, they challenge an inventory search of Li at the police station as a warrantless search not incident to a lawful arrest. They next challenge a search of the police car in which they were transported after their arrest on similar grounds. They also challenge the admissibility of statements made by them while in custody. Next, they challenge a warrantless search of a vehicle that had been rented by Li and parked in a hotel valet parking lot. Finally, they challenge the warrantless search of the hotel room in which they were purportedly staying. In addition, Li moves to suppress statements he made to the police both before and after his arrest. Sun challenges several subsequent but related searches in California and Macao.²

Ruling from the bench, I denied the motion in its entirety on Wednesday, January 12, 1994. At that time, I told the parties that I would file a memorandum setting forth in full detail the reasons for my ruling. Subsequently, all five defendants³ pled guilty to Counts 1 and 2 of the indictment (RICO and RICO conspiracy). Defendant Li will be permitted to appeal the denial of his motion to suppress on two grounds: first, that there was no probable cause to arrest him, and the fruits of the illegal arrest should have been suppressed; and second, that his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) were violated when agents took statements from him on January 29, 1993. If the decision on the motion is reversed, he will be allowed to withdraw his plea. See FED.R.CRIM.P. 11(a)(2).

Because of the disposition of the case, this memorandum, which will constitute the findings of fact and conclusions of law on which my ruling is based, will concentrate on Li's motion. It will, however, discuss all defendants' motions.

BACKGROUND

The arrest

On January 28, 1993, Secret Service Agent William Cachinero responded to a call from the Saks Fifth Avenue store in the Bal Harbor Mall. The call came from Bruce Isaacs, a security representative in the store. He suspected four Asian men of using counterfeit credit cards, and asked Agent Cachinero to investigate.

Agent Cachinero had prior experience investigating credit card fraud. He had been fully trained by the Secret Service in identification of fraudulent credit cards; he had had a year of extensive training. Currently, he is assigned to the access device fraud squad in the Miami field office of the Secret Service.

In early January of 1993, Agent Cachinero had learned of an investigation in West Palm Beach in which Asian males had been posing as rich businessmen and had been purchasing high-end items, such as Louis Vuitton and Chanel bags and Rolex and Cartier jewelry, with fraudulent credit cards. Four individuals had been arrested in that scheme.

On January 12, 1993, Agent Cachinero had responded to a call from Tourneau Jewelers in the Bal Harbor Mall. The store clerk had noticed that an Asian male wanted to purchase two Rolex watches with a credit card. Tourneau's West Palm Beach store had contacted the Bal Harbor store about the scheme in West Palm, and the clerk at Bal Harbor became suspicious. When the clerk attempted to verify the card the suspect fled, leaving behind a California driver's license he had used as identification. Agent Cachinero subsequently confirmed that the credit card and the license, both in the name Kee Lee, were fraudulent.

After investigating at Tourneau, Agent Cachinero had spoken to representatives at Louis Vuitton, Gianni Versace and Saks Fifth Avenue in the Bal Harbor Mall about the modus operandus of an organized gang of Asian men using fraudulent credit cards to purchase expensive merchandise from high-end stores. Bruce Isaacs of Saks had told Agent Cachinero that Saks was aware of the ring of Asian men victimizing luxury stores, as two individual Asian men had each used a fraudulent credit card at Saks on December 22 and 23, 1992, each using the name Kee Lee, and had gotten away with merchandise purchased from the Louis Vuitton and Chanel counters. The men operated, according to the sales clerks at those counters, in pairs, with one of the pair presenting the credit card and the other standing inconspicuously in the background.

Agent Cachinero obtained receipts from the fraudulent transactions and checked with the Secret Service West Palm Beach field office. The name on the receipts, Kee Lee, matched the name of one of the suspects in custody in West Palm Beach. However, when Agent Cachinero got pictures of the four, none of them matched the picture on the license in the name Kee Lee recovered from Tourneau Jewelers.

Agent Cachinero also spoke with a fraud investigator for MasterCard, confirming that there was an organized ring of Asian males victimizing local stores with fraudulent credit cards.

Armed with this background, Agent Cachinero got the call from Bruce Isaacs at about 7:00 on the evening of January 28, 1993. Mr. Isaacs stated that there were four Asian men in Saks Bal Harbor, two at the Chanel counter and two at the Louis Vuitton counter, making large purchases using credit cards. He further told Agent Cachinero that some of their credit cards were being rejected, and that the men fit the modus operandus about which Agent Cachinero had told Mr. Isaacs in their earlier conversation.

By the time Agent Cachinero arrived, between 7:45 and 8:00, the four suspects had left Saks. Mr. Isaacs had a videotape of them, which Agent Cachinero watched. The tape showed two Asian men at the Chanel counter and two others at the Louis Vuitton counter. One of the men at the Chanel counter was paying for the merchandise with a credit card in the name of Yeun Man Sing, which Agent Cachinero determined from the credit card receipts kept by Saks. The man using the Sing credit card also presented an Indonesian driving permit as identification. Isaacs gave Agent Cachinero copies of the credit card receipts and the driving permit.

The other man at the Chanel counter was a stocky, heavyset man. At some point during the ½-hour-long tape, Agent Cachinero noticed the man with the Yeun Man Sing card furtively hand something that could have been a credit card to the stocky man. At that point, the stocky man walked away and did not return.

At the same time, the two men at the Louis Vuitton counter, who were later identified as defendants Ching and Qiu, were making purchases with another credit card, this one in the name of Johnson P.K. Ho (which Agent Cachinero again discerned from the credit card receipts). At no time did anyone from the group at the Vuitton counter have any contact whatsoever with anyone from the group at the Chanel counter. The men at the Vuitton counter purchased about $5,000 worth of merchandise; the men at the Chanel counter purchased $5,782.95 worth.

The behavior of the four individuals looked suspicious to Agent Cachinero. In part, this was because of the hand-off of a credit-card sized object between the two men at the Chanel counter; in part, it was because the men appeared to Agent Cachinero to be nervous. It was also because the men fit the profile of the Asian group that Agent Cachinero suspected was behind the prior Saks incident and the incidents at the Tourneau stores in Bal Harbor and West Palm Beach.

Agent Cachinero left Saks and went to Tourneau Jewelers, where he told the clerk about what had just happened in Saks. The clerk reported that Tourneau had almost been victimized again a few days earlier by an Asian man with a fraudulent credit card. Agent Cachinero showed the clerk a photocopy of the Indonesian driving permit he had gotten from Isaacs. The clerk identified the man in the picture, who used the Yeun Man Sing credit card in Saks, as the same man who had attempted to use the fraudulent credit card.

While Agent Cachinero was at Tourneau, an off-duty uniformed policeman overheard his conversation with the clerk and advised him that four Asian men were making large purchases in the Gianni Versace store in the mall. Agent Cachinero entered Versace and saw three men he had not seen before in the company of the stocky, heavyset man from the Chanel counter. The three men were defendants Sun, Li, and Tam. Sun was at the counter; Tam and Li were browsing among the merchandise, where Agent Cachinero saw Tam hold up a white shirt and talk to Li about it; and the stocky, heavyset man was sitting in a chair facing the mall, acting, according to Agent Cachinero, as the lookout.

Agent Cachinero walked up to the counter and positioned himself next to Sun. As he did so, the clerk handed Sun a MasterCard and told him that it had been rejected. Sun placed a Visa card on the counter in order to give it to the clerk. Agent Cachinero then noticed that the name on the credit card was Johnson P.K. Ho, the same name used at the Vuitton counter in Saks by defendant Ching only an hour earlier. Agent Cachinero noticed that one security feature of...