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United States v. Lao

United States District Court, E.D. Wisconsin

June 21, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
EY LAO and LOLA CHANG, Defendants.

          DECISION AND ORDER DENYING MOTION TO SUPPRESS

          WILLIAM C. GRIESBACH, CHIEF JUDGE

         Defendants Ey Lao and Lola Chang have been charged by a grand jury with possession with intent to distribute more than fifty grams of actual methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2. Lao is also charged with possession of a firearm by a felon in violation of 18 U.S.C. § 924(g)(1), and possession of a firearm in relation to a crime of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A). Presently before the court are the defendants' motions to suppress all evidence obtained as a result of law enforcement's interaction with them after their car slid off the road during a snow storm in Brown County, Wisconsin on March 1, 2019. For the reasons set forth below, the motions are denied. What follows are my findings of fact based on the evidentiary hearing held on June 17, 2019.

         FINDINGS OF FACT

         March 1, 2019, was a snowy day in Brown County Wisconsin. The traffic conditions were such that even supervisors were called upon to respond to the high volume of reports of accidents and cars stuck in ditches. At approximately 11:30 p.m., Lieutenant Jason McAuly of the Brown County Sheriff's Department came upon a black BMW sedan that had slid off the exit ramp on U.S. Interstate Highway 41 northbound at the exit to County Highway MM in the Town of Ledgeview. Defendant Ey Lao was in the driver's seat and Defendant Lola Chang was riding as a passenger. The car had apparently spun out of control and traveled well off the road into the heavy snow so that it was perpendicular to the roadway facing back toward the road on which it had been traveling. Lt. McAuly pulled up on the shoulder of the road directly in front of the vehicle, activated his emergency lights, and made contact with the occupants. Almost immediately, his suspicions were aroused.

         Lao lit up a cigarette as he lowered his driver's side window and appeared nervous. He was moving around in his seat, he spoke rapidly, his hands were shaky, his voice quivering, and he repeatedly stated that they had called for help and a tow truck and was in route. He said they had been waiting approximately forty-five minutes. Lt. McAuly found Lao's behavior particularly suspicious because it was his experience over his twenty-four years as a law enforcement officer primarily working patrol that people who slide off the road in a snow storm or find themselves stranded because their car breaks down are usually relieved when a police officer arrives. The arrival of a law enforcement officer normally made people feel more safe. Lao seemed anxious for McAuly to leave. He was also speaking sharply and loudly to Chang in a language Lt. McAuly assumed was Hmong. At that point, Chang got out of the car, opened the trunk and retrieved a large “eye” bolt designed to screw into the vehicle so it can be towed without causing damage.

         Lt. McAuly had no intention of leaving Lao and Chang by the side of the road in a snowstorm, absent an emergency requiring him to respond elsewhere. His primary concern upon stopping was the safety of the occupants. Once he determined they were safe, he intended to make sure they remained safe until help arrived. Lt. McAuly wanted to keep them safe from other vehicles traveling along the highway by positioning his squad in front of them and making sure they stayed out of the roadway. Lt. McAuly was also concerned, at least initially, that Lao may have violated one or more traffic laws, including driving too fast for conditions, or possibly operating under the influence or operating without a valid license. He couldn't determine from his initial observation whether there was any damage to reflector posts or other property along the highway and intended to look into that as well.

         At that point, Lt. McAuly asked Lao and Chang for identification in accordance with the common practice of his department and asked that they remain in the vehicle. The reason for requesting identification is to find out who the officer is dealing with for safety concerns, to check for warrants, and to make sure the driver has a valid driver's license so he can drive away from the scene. Lao and Chang provided Lt. McAuly identification, and he returned to his squad to run their names through the relevant data base. As he was doing so, Lao got out of the vehicle. Lt. McAuly exited his squad and told him to return to the vehicle. Lao seemed reluctant to do so, and Lt. McAuly remained standing outside his squad until Lao complied. Upon running their identifications on his computer, Lt. McAuly found that each had significant records, including felony records for drug offenses, and that they were on extended supervision to the State of Wisconsin.

         After learning that each had prior felony drug convictions and was on extended supervision (the Wisconsin equivalent of supervised release under federal law), and based on what he concluded was reasonable suspicion that they were involved in criminal conduct, Lt. McAuly radioed Sergeant Timothy Johnson for back-up. Lt. McAuly explained to Sgt. Johnson that they were acting strangely and Lao seemed very nervous. Sgt. Johnson arrived on the scene shortly thereafter. Lt. McAuly then asked for and was given consent by Lao to perform a pat down search of his person to make sure he wasn't armed. In the course of the search, Lt. McAuly found a penlight for detecting counterfeit currency and a lanyard with a set of keys attached. He likewise asked for and was granted consent by Chang to conduct such a search of her person.

         Chang had been hunched forward with her head down and eyes lowered for much of the interaction with Lt. McAuly. Because of her behavior, and the manner in which Lao had initially spoken to her, Lt. McAuly thought she and Lao might have been fighting. When he conducted the pat down, Lt. McAuly discovered that she was holding under her shirt a rectangular box-like object that appeared to be a small gun safe. It was locked but the corner of a plastic bag was sticking out of it. Chang denied ownership of the object or knowledge of what was in it. Lt. McAuly then asked her if it was abandoned, and she responded “yes, ” even though she had been holding it under her shirt. In the course of his pat down search, Lt. McAuly also discovered that Chang had a knife with a spring-loaded blade under her bra strap.

         The discovery of the knife and the gun safe with the corner of a plastic bag sticking out, along with Chang's responses, led Lt. McAuly to believe that there might be drugs or guns present. He asked Sgt. Johnson to detain Lao, and then looked through the car windows of the vehicle with the aid of a flashlight. In the front passenger side door pocket, Lt. McAuly saw a razor blade stuck into a piece of cardboard, which he associated with drug use or sale, and in the driver's side door handle area what appeared to be drugs in a plastic container.

         Wisconsin Act 79 authorizes a law enforcement officer to search the residence or any property under the control of a person who has been placed on community supervision without consent or a warrant if the officer reasonably suspects that the person is committing, is about to commit, or has committed a crime or a violation of a condition of release. Wis.Stat. § 302.113(7r). Based on his understanding of Act 79, Lt. McAuly concluded that he had lawful authority to search the gun safe he had taken from Chang. A key for the gun safe was discovered on the lanyard holding Lao's car keys. Lt. McAuly unlocked and opened the gun safe where he discovered a large quantity of what appeared to be controlled substances, a digital scale and a scraping tool. Lao and Chang were then placed under arrest, and the vehicle was impounded. A later search and the follow-up investigation disclosed additional evidence, but the parties agree that the admissibility of all of the evidence rises or falls on the lawfulness of the actions described by Lt. McAuly.

         Before turning to the legal analysis, I note that Lt. McAuly and the other law enforcement officers who testified, Sergeant Timothy Johnson and Deputy Tyler Callow, appeared credible in their undisputed testimony. I also find that they were acting in good faith at all times in their effort to conduct the investigation they thought necessary under the circumstances within the bounds of the law.

         LEGAL ANALYSIS

         The defendants claim that they were “stopped, detained, seized and searched in violation of the Fourth Amendment to the United States Constitution, ” and that “[t]he illegal stop, detention, seizure and search of Lao's person and Chang's person on March 1, 2019, . . . resulted in the seizure of car keys on a lanyard, 75.6 grams of suspected methamphetamine separately packaged, and scale as well as a counterfeit money detector pen, ” along with various other items of property. Dkt. No. ...


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