United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING MOTION TO
WILLIAM C. GRIESBACH, CHIEF JUDGE
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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. ...