United States v. Chang & Lao, 2021 WL 2283849 (7th Cir. 2021)
A massive late-season snowstorm made for treacherous road conditions. An officer saw a car off the road, facing the wrong way, and stopped to check on the welfare of the occupants. Ey Lao, the driver, rolled down his window and said that a tow truck was on its way. The officer reported “Lao displayed mannerisms that the officer associated with nervousness—rapid speaking, shaky hands, quivering voice, and acting as though he was dismissing the officer and wanting him to leave.” Lao was also speaking loudly and sharply to Lola Chang, seated on the passenger side.
The officer intended to investigate whether a driving violation caused the accident and to remain there until the tow truck arrived. After obtaining identification, the officer discovered both Lao and Chang had extensive criminal histories and were on parole for prior methamphetamine convictions. The officer called for backup.
When the second officer arrived, the first officer asked for and received consent to conduct a pat search of both Lao and Chang. The officer retrieved a light pen used to detect counterfeit bills and a set of keys on a lanyard from Lao. Under Chang’s shirt, the officer found a small, locked, portable gun safe with the corner of a plastic bag sticking out. He also found, concealed in her bra strap, a large spring-loaded knife. The backup officer saw a razor blade stuck in a piece of cardboard and a small plastic container which he (incorrectly) believed contained drugs.
Chang denied both ownership of the safe and knowledge of what was inside. The officer found the key to the safe on Lao’s lanyard key ring. The officer opened the safe and found a large quantity of methamphetamine, a digital scale and a scraping tool. The officer obtained a search warrant for the car and found a gun, ammunition and some methamphetamine materials in the glove box. At the station, Chang claimed ownership of everything found in the car and the safe, claiming Lao knew nothing about the drugs or other items.
The court held the officer’s reasonable suspicion of a traffic violation supplied the justification for the initial detention.
Lao and Chang were charged with possession with intent to distribute methamphetamine. Lao was also charged with gun crimes. Chang and Lao asked the court to suppress the evidence, claiming they were illegally detained. The trial court ruled they were not seized because they were already stuck in the snow and the officer’s actions added little additional restraint. The trial court also ruled that, even if they had been detained, the seizure was justified.
The court of appeals held that Lao and Chang were, in fact, detained and that the officer had reasonable suspicion to detain them. Though the officer testified he had a hunch Lao and Chang were up to no good, the appellate court quickly discounted the hunch, citing precedent that an officer’s subjective suspicion is irrelevant in assessing the legality of a detention.
Once the officer saw the car spun out and facing the wrong way, he had reasonable suspicion to investigate a possible traffic violation. Because he was investigating a traffic violation, the officer could also check the validity of driver’s licenses, inquire about outstanding warrants against the driver, and inspect the vehicle registration and proof of insurance. The court held the officer’s reasonable suspicion of a traffic violation supplied the justification for the initial detention and that Lao and Chang’s consent supplied the permission for the pat-down search.
All the facts observed by the officer, including Chang’s denial of ownership of the gun safe, provided probable cause for a search of the safe. Notwithstanding, state law authorized warrantless searches of persons under supervised release to search the person and property upon reasonable suspicion the person is committing, has committed or is about to commit a crime or violation of a condition of release. The officer had abundant suspicion that Chang and Lao had committed a crime and/or violated a condition of release. Thus, the evidence was not subject to suppression.
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