Rae Young Chung v. State ex rel. Police Dep't

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RAE YOUNG CHUNG APPELLANT v. STATE OF MISSISSIPPI, EX REL. POLICE DEPARTMENT APPELLEE

No. 2023-CA-00362-COA

Court of Appeals of Mississippi

October 8, 2024

DATE OF JUDGMENT: 02/23/2023

COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT HON. DEWEY KEY ARTHUR TRIAL JUDGE

ATTORNEY FOR APPELLANT: STEVEN CRAIG PANTER

ATTORNEYS FOR APPELLEE: CHRISTOPHER TODD McALPINE MICHAEL SHELTON SMITH II

BEFORE WESTBROOKS, P.J., McDONALD AND McCARTY, JJ.

WESTBROOKS, P.J.

FOR THE COURT:

¶1. Rae Young Chung was driving his commercial tractor and trailer on Interstate 20 when he was pulled over by an officer with the Brandon Police Department. During the stop the officer found no drugs (or vestiges of drugs), but he found $225,000 in a bag in his truck. The money was seized and the State initiated a forfeiture action in the Rankin County Circuit Court. After a bench trial, the circuit court determined that the money was forfeitable pursuant to Mississippi Code Annotated section 41-29-153 (Supp. 2017). Aggrieved, Chung appeals, arguing that the State did not sufficiently prove that the money seized from him was subject to forfeiture under the applicable statutes. Finding error, we reverse and render the circuit court's judgment.

FACTS AND PROCEDURAL HISTORY

¶2. On September 23, 2020, Rae Young Chung was traveling westbound on Interstate 20 in his commercial truck and trailer. He was pulled over by Officer Joseph French,^[1] a narcotics officer with the Brandon Police Department, for following other vehicles too closely and for traveling 74 miles per hour (mph) in a 70 mph zone.

¶3. Chung was seventy years old at the time of the stop. He is a native of South Korea, has an elementary school education and can speak only limited English. A review of the dash-camera video of the stop reveals that Chung's English was underdeveloped, and there was a clear language barrier between Officer French and Chung. Nevertheless, Officer French did not contact an interpreter or use a translation device. He first informed Chung of the reason for the stop. He inquired about the reason for his travels, ownership of the truck, and his criminal and driving history. Officer French also requested to see Chung's driver's license, bills of lading, and logbooks. Before heading back to his patrol vehicle, Officer French assured Chung that he would only be receiving a warning citation. He testified that during this time, he ran Chung's information through the National Crime Information Center (NCIC) and the El Paso Intelligence Center (EPIC) databases.^[2] The results from both databases came back clear.

¶4. Officer French saw on Chung's bills of lading that he was hauling car parts. When he ran Chung's driver's license, he saw that he had previously stopped Chung on September 16, 2019. At that time, Chung was using an Electronic Logging Device (ELD), but the GPS feature was not working. However, during the stop in question, Chung was using paper logs. When asked why he was operating with paper logs, Chung informed Officer French that his ELD had stopped working. While looking through Chung's paper logs, Officer French claimed there was a discrepancy concerning travel time.^[3] The purported discrepancy was that Chung logged a trip from Meridian, Mississippi, to Demopolis, Alabama, as a thirty-minute trip. According to Officer French, it normally takes forty-five minutes to make that trip. Officer French later testified that the paper logs and the relatively minor discrepancy were not unusual and "not anything criminal." He explained that "in the commercial motor vehicle world, you see a lot of drivers hiding time because they have a time line; they can only drive 11 hours a day."

¶5. Officer French also saw that Chung took a three-day break in California. Officer French found that unusual because the main objective for owner-operators is "[t]o make as much money as they possibly can, because everything inside the commercial motor vehicle world is against the driver: repairs, fuel, broker fees, insurance.... [T]hey want to be on the road as much as they can." However, Chung later testified that the law requires that "if he spends 70 hours on the road, he has to . . . be off 30 hours," and Chung said he typically chooses to spend those hours in California, where he resides.

¶6. Officer French asked Chung if he was hauling anything illegal such as weapons, drugs, or money. Chung replied no. Officer French eventually moved Chung to the back of his patrol car to get him out of the rain. Officer French began using the Google Translate app to communicate with Chung. Using the app, Officer French asked Chung again if he was in possession of any weapons, drugs, or large amounts of money. Chung indicated that he did have money in the truck. Officer French asked if it was over $100,000, and Chung responded yes. When asked why he was carrying such a large amount of money, Chung informed him that he needed money for repairs to his truck. Officer French later testified that "based off all the other factors with the logbooks, the inconsistencies in it, him admitting that he had money inside of the vehicle, now everything started looking more like he was a drug money courier at that point in time."

¶7. Officer French asked if he could search the truck, and Chung consented. Chung retrieved a bag containing the money, and he handed it over to Officer French. The bag contained forty-five envelopes with five thousand dollars in each envelope, totaling $225,000. Chung testified that each time he saved five thousand dollars, he would put it in an envelope and store it in the bag. This method allowed him to store the money more easily in the bag, which was relatively small. Nineteen envelopes contained the BBCN Bank logo.^[4] Also, some of the envelopes looked older and more tattered and discolored compared to others. After examining the envelopes, Officer French decided to contact more law enforcement and move the traffic stop to the Brandon Amphitheater. While there, Chung revealed to a Homeland Security Investigations (HSI) agent that the money was his life savings that he had accumulated from 2010 to the present. He kept the money in his truck because he lived in his truck, and he did not have a home where he could store the money.

¶8. While at the amphitheater, Officer French searched Chung's truck again. No drugs, drug paraphernalia, or weapons were found in the truck, so the officers decided to conduct a drug detection test on the money. Officer French contacted Deputy Picou^[5] and requested the assistance of a narcotics detection canine. Deputy Tony Shack with the Rankin County Sheriff's Department and Voodoo, a trained narcotics canine, arrived at the scene. The officers placed three empty boxes out for Voodoo to sniff in order to "proof" the boxes, i.e. confirm they were empty. Deputy Shack claimed that Voodoo showed no interest in any of the empty boxes. Officer French then claimed that he placed Chung's money into one of the boxes, put lids on all three boxes, and placed them out again for Voodoo to sniff. Officer French filmed Voodoo sniffing the three boxes, but there is no footage of the money actually being placed into one of the boxes. Deputy Shack claimed that Voodoo reacted to the box with the money and displayed "Just Noticeable Difference" (JND).^[6] Deputy Shack testified that when canines are alerted to drugs, they will "sit, or they can stand there and stare at it or . . . they used to be able to scratch." At trial, Deputy Shack acknowledged that Voodoo did not do any of these actions.

¶9. Officer French also asked Chung if he could conduct a forensic examination on his phone using Cellebrite, and Chung consented. While conducting the forensic examination, Officer French noticed that there were only calls and messages from that day. He suspected that Chung had deleted calls and messages. Officer French also said that he observed Chung making a phone call in his truck prior to the forensic examination, but he claimed he could not find that call during the examination.

¶10. While Officer French continued to investigate the matter, Chief William Thompson took the money to the bank to have it counted. Officer French gave Chung a receipt and case number and asked him for good contact information. Chung provided him with two phone numbers: the first phone number belonged to him, and the second phone number belonged to another individual. When Officer French ran the phone numbers, he found that the second number was deconflicted^[7] with a DEA case out of New York. He also noticed that there was a New York highway use tax (HUT) decal on the front bumper of Chung's truck.

¶11. Officer French contacted Agent Aria Vennin, a DEA special agent in New York. She informed him that the second number that Chung provided had been in contact with one of her targets that she was investigating at that time. Her target was a commercial motor vehicle driver she suspected was transporting large amounts of narcotics into New York. Agent Vennin later provided Officer French with "phone tolls" (logs) from her investigation. The phone tolls showed that between May 5 and May 21, 2020, her target's phone number and the second phone number that Chung provided had contacted each other fifty-two times. Seventy-five percent of the calls were one minute in length, and all the calls were made outside of normal business hours. However, there were no calls from Chung's personal phone number to the target's phone number.

¶12. On October 7, 2020, Officer French received a deconfliction notice from HSI Agent Mason Wilke. Agent Wilke ran Chung's DOT on SAFER^[8] and saw that the address and phone number listed for Chung's trucking company was the same address and number listed for...