State v. Hoang Vinh Pham

2021 MT 270

STATE OF MONTANA, Plaintiff and Appellee, v. HOANG VINH PHAM, Defendant and Appellant.

No. DA 19-0421

Supreme Court of Montana

October 19, 2021

Submitted on Briefs: October 5, 2021

APPEAL FROM: District Court of the Sixteenth Judicial District, In and For the County of Custer, Cause No. DC 17-109 Honorable Michael B. Hayworth, Presiding Judge

For Appellant: Chad Wright, Appellate Defender, Deborah S. Smith Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana

Wyatt A. Glade, Custer County Attorney, Shawn Quinlan, Deputy County Attorney, Miles City, Montana

OPINION

LAURIE MCKINNON, JUSTICE

¶1 Hoang Vinh Pham appeals an October 23, 2018 order from the Sixteenth Judicial District Court, Custer County, denying his motion to suppress. We reverse and restate the issue^[1] on appeal as follows:

Whether the District Court erred when it denied Pham's motion to suppress based on its determination that Pham had not been seized.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Pham, a Vietnamese immigrant who speaks English as a second language, drove to Butte from his home in Minnesota in August 2017 to check on a vehicle he had wrecked. Hungry and tired on the drive back to Minnesota, Pham stopped at a Conoco station in Miles City. Pham used the station's restroom paid $20 for gas, and bought a bowl of noodles. While Pham was heating his noodles in the gas station's microwave Agent Richard Smith of the Montana Division of Criminal Investigations (DCI) walked into the Conoco to use the restroom and purchase some water.

¶3 Agent Smith was transporting approximately 960 pounds of marijuana for evidence storage in Billings. Agent Smith was dressed in civilian clothes and did not have any audio or video recording devices with him. He carried a gun in a leg holster and wore a necklace carrying his DCI badge. Agent Smith was traveling with two uniformed Montana Highway Patrol (MHP) troopers, Trooper Brandon Kelm and Trooper Barry Kilpela. The MHP troopers were driving a marked MHP crime scene van containing the marijuana, while Agent Smith was driving an unmarked gray pickup truck. Trooper Kilpela later testified that the van would be an abnormal sight to the average individual because it "was stuffed all the way full to the ceiling with bulk marijuana."

¶4 Upon entering the Conoco, Agent Smith noticed Pham looking out the window at the van while he heated up his noodles. Based on the length of time that Agent Smith believed Pham was continuously staring at the van, he decided to approach Pham. Agent Smith later testified that he believed Pham was either lost or committing a crime. Agent Smith discussed his observations with Trooper Kelm and Trooper Kilpela, prompting Trooper Kilpela to assess Pham himself. Trooper Kilpela later testified that Pham's behavior was out of the ordinary compared to other travelers and that he interpreted it as "overt nervousness." Agent Smith denied that Pham's ethnicity factored into his decision to approach Pham but acknowledged that DCI was aware of several arrests of Vietnamese people for drug trafficking traveling between Washington and Minnesota along I-94.^[2] Upon Agent Smith's approach, the parties' accounts diverge.

Pham's testimony

¶5 At the hearing on his motion to suppress, Pham testified that, since moving to the United States in 1983, he primarily speaks Vietnamese with friends and family. Pham's struggles with English were apparent beginning with the following colloquies at his arraignment hearing:

[District Court]: Are you suffering from any physical or mental condition that interferes with your ability to understand today's proceeding and make important decisions?

(Wherein, an off-the-record discussion was held between [counsel] and [Pham].)

[Pham]: Yes.

[District Court]: Excuse me?

[Pham]: Yes.

(Wherein, an off-the-record discussion was held between [counsel] and [Pham].)

[District Court]: Are you suffering from any physical or mental condition today?

[Pham]: No, Your Honor.

. . .

[District Court]: Have you read that charging Information document?

[Pham]: A bit of it.

[District Court]: Are you able to read the English language?

[Pham]: Not all of it.

Pham went through several substitutions of counsel, though the record is unclear whether that arose from his difficulties with English. After several months, Pham's counsel expressed concern over Pham testifying for fear that he may misspeak, leading the District Court to suggest an interpreter. Despite the appointment of an interpreter, the record contains several instances of the interpreter asking counsel and witnesses to slow down and repeat themselves so that the interpreter could relay the testimony to Pham. During Pham's testimony at the motion to suppress hearing, the interpreter repeatedly indicated difficulties following Pham's testimony.

¶6 At the motion to suppress hearing, Pham testified that, after returning to his car to pump gas, an officer approached him, followed by two other officers. Pham testified that an officer in uniform "came close to [Pham] and asked [him], 'Well, you managed to run away[, ]'" which confused Pham. Pham further provided the following testimony:

[Defense counsel]: Hoang, did you believe that you were free to leave?

[Pham]: They did not let me go anywhere. They kept me in there and they pulled me away even though I tried to pump the gas. So I did not do anything against them. I know I didn't do anything wrong. As a result I wasn't able to come get in and he went inside, got the money and give it back to me.

Pham testified that Vietnamese culture taught him "[n]ot to go against the police." He indicated that he was driving a friend's car that day but did not explain that to Agent Smith because "[h]e did not ask." Pham denied opening his car door or trunk to allow Agent Smith to search the vehicle and testified that Agent Smith "did not ask me and I did not consent and he kept me there and he did it by himself." Pham indicated that Agent Smith opened the trunk, but he was unaware whether Agent Smith used the key or button in the car to do so.

The State's testimony

¶7 Agent Smith testified that he approached Pham and identified himself while the MHP troopers waited about fifteen feet away. He asked Pham whether he could speak with him for a few minutes and ask some questions. Agent Smith testified that Pham voluntarily engaged in conversation and responded appropriately to the questions Agent Smith asked. On cross-examination, Agent Smith testified that he realized English was not Pham's first language, but he did not clarify whether Pham understood what he was saying. Agent Smith was aware that Vietnamese culture teaches deference to police, but he believed his conversation with Pham was different than "a lot of ethnic conversations" because Pham looked Agent Smith in the eye and Agent Smith did not believe he needed to tell Pham he was free to leave. On cross-examination, Agent Smith testified that he did not believe the language barrier impacted Pham's understanding.

¶8 Agent Smith characterized the conversation as "very cordial" and testified that he asked Pham whether he was lost or all right and then engaged in small talk about Pham's family and the reason for his travel. He did not believe Pham felt compelled to stay, nor did he believe Pham was in custody. Pham indicated that he was traveling to Minnesota, which Agent Smith admitted ruled out the possibility that Pham was lost. Agent Smith asked Pham for his driver's license, which was issued in Washington. Pham's car had Minnesota license plates, prompting Agent Smith to inquire about the difference. Pham told Agent Smith that he was having a vehicle worked on in "Beauty." Agent Smith clarified with Pham whether he meant Butte, leading Pham to respond "Like my hat. Like my hat. Big Sky." Agent Smith testified "that didn't make sense to [him], that they have mechanics in Minnesota, [and Pham] didn't have an answer for that question." On cross-examination, Agent Smith further testified, for the first time, that he recalled "after looking at [Pham's] name on his driver's license . . . an accident in Butte where a [B]lack male and an Asian male had run from the scene . . . [and Pham's] name belonging on that registration in the Butte area[.]" Agent Smith testified that he asked Pham, "I think I know you, don't I?"; but he otherwise did not mention this recollection to Pham, include this information in his report, or follow up on his suspicion. He did not testify what Pham's response was, nor did Pham testify that this exchange occurred.

¶9 Around that time, Trooper Kilpela joined Agent Smith and Pham by the vehicle. Trooper Kilpela later testified that the "only thing that there seemed confusion [about] at all was [Pham] stated that he was coming from 'Beauty' and then 'Butt.'" Trooper Kilpela did not believe this was due to a language barrier, but rather that Pham was unfamiliar with how to pronounce Butte. He believed that Pham's answers "were not logical responses . . . because he was lying and he made them up." Agent Smith testified that he felt no need to contact the Miles City Police Department because he "didn't believe that more assistance was needed because [he] didn't know what the offense that [he was] looking at was." Ultimately, Agent Smith asked Pham whether he had any "guns, knives, any forms of drugs, [or] child pornography" in his vehicle. Agent Smith testified that Pham voluntarily opened his rear door and trunk and allowed Agent Smith to search the vehicle. Agent Smith found several boxes in the trunk and asked Pham's permission to open them. Pham indicated that the boxes...