United States v. Chang

999 F.3d 1059

UNITED STATES of America, Plaintiff-Appellee,

v.Lola CHANG and Ey Lao, Defendants-Appellants.

Nos. 19-3500

20-1111

United States Court of Appeals, Seventh Circuit.

Argued October 30, 2020

Decided June 4, 2021

Daniel R. Humble, Attorney, Office of the United States Attorney, Green Bay, WI, for Plaintiff - Appellee

Christopher D. Donovan, Attorney, Pruhs & Donovan, S.C., Milwaukee, WI, for Defendant - Appellant

Before Manion, Rovner, and Scudder, Circuit Judges.

Rovner, Circuit Judge.

After sliding off the road on a snowy night, Lola Chang and Ey Lao were arrested after a police officer, originally approaching the car to check on their safety, grew suspicious and a search eventually turned up evidence of drugs and weapons. Chang and Lao both contend that the search violated their Fourth Amendment rights. Lao also challenged the district court's ruling prohibiting the introduction of Chang's later hearsay statement claiming possession of and responsibility for all of the illegal items in the car. Although the defendants are correct that the officer's hunch alone was not sufficient justification for the seizure, other factors provided the reasonable suspicion necessary. Moreover, we have found no abuse of the district court's discretion in barring the hearsay evidence.

I.

As is often the case in Wisconsin, March came in like a lion on March 1, 2019, and the snow made road conditions so treacherous that the Brown County Sheriff's Department had to call its supervisors out to respond to reports of accidents and cars stuck in ditches. At around 11:30 p.m., Lieutenant Jason McAuly responded to such a report and found a black BMW sedan far off the roadway in the gore—the area between the exit ramp and the road. The car was turned perpendicular to the road. McAuly pulled up in front of the car, activated his emergency lights, and walked to the driver's side window. As he approached, Lao lowered the car window and told the officer that he had summoned a tow truck and that it was on its way. He reiterated this information several times. According to McAuly, 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. He was also speaking loudly and sharply to his passenger, co-defendant Chang. McAuly testified that these behaviors immediately aroused his suspicions and were counter to his experience over his twenty-four-year career that people who find themselves in trouble are ordinarily relieved when a police officer arrives. Shortly after McAuly arrived, Chang got out of the car and opened the trunk to retrieve a special eye bolt used for towing the car. McAuly testified that he intended to stay with the pair and the car until help arrived to make sure they were safe and also to investigate whether the accident might have been the result of a traffic law violation.

McAuly asked both Chang and Lao for identification and asked that they remain in the vehicle. As he returned to his car to run their names through the database, Lao got out of the car. McAuly exited his squad car and told Lao to return to the vehicle. Lao seemed reluctant to do so, but McAuly remained standing outside his squad car until he complied.

McAuly's check of Lao and Chang's driver's licenses revealed that both had extensive recent felony criminal histories and that both were under extended state supervised release for methamphetamine drug convictions. Upon McAuly's request, Sergeant Timothy Johnson arrived ten minutes later to provide back up.

Lao consented to a pat-down search which revealed a light pen used to detect counterfeit bills and a set of keys on a lanyard. Chang, who had been hunched with her head down and eyes lowered, also consented to a search. She claimed to have a bottle, but when McAuly conducted the search, he discovered that under her shirt she was carrying a small, locked, portable gun safe, with a corner of a plastic bag sticking out.¹ He also found, concealed in her bra strap, a large pocket knife with a spring-loaded blade. Chang denied both ownership of the safe and knowledge of what was inside. When McAuly asked her if the safe had been abandoned, she responded, "yes."

McAuly testified that after discovering the knife and gun safe, he thought there might be drugs and more weapons present. He asked Sergeant Johnson to detain Lao while he looked through the windows of the car with his flashlight. In the front passenger door pocket, he saw a razor blade and a piece of cardboard which he associated with dividing or cutting drugs. In the driver's side door handle area, he saw a small plastic container that appeared to hold a white substance that he thought, it turns out incorrectly, might be drugs.

McAuly knew that Wisconsin Act 79 ( Wis. Stat. § 302.113(7r) ) authorizes a law enforcement officer, without consent, a warrant, or probable cause, to search any property under the control of a person who is under court supervision if the officer has a reasonable suspicion of criminal activity or a violation of a condition of release. Wis. Stat. § 302.113(7r).² Based on his understanding of this state law, McAuly concluded that he had authority to search the gun safe. McAuly found the key to the gun safe on the same ring as the key to the car, both of which were on Lao's lanyard. When McAuly opened the gun safe with the key, he found a large quantity of what appeared to be an illegal substance in multiple containers, a digital scale, and a scraping tool. The drugs were later tested and found to be 75.6 grams of methamphetamine.

He placed Lao and Chang under arrest.

McAuly did a cursory search of the car on site and discovered that the small plastic container contained a toy and not drugs. A later search executed pursuant to a search warrant revealed a firearm, ammunition, and some methamphetamine materials in the glove box. The police subsequently obtained footage from Lao's cell phone in which he is holding up a baggie with a uniquely-shaped rock of methamphetamine which appeared to be identical to the one found in the safe. In the video he described how he had just purchased the methamphetamine from someone named "Lola."

Once at the Sheriff's station, the defendants received Miranda warnings and then participated in interviews. During this interview, Chang allegedly declared that everything in the safe belonged to her, although she was unable to describe its contents. According to the briefs, she stated, "I don't know whatever you just found in the car is mine. Everything you found in the car is mine. He had nothing to do with it." Lao Brief at 15 (citing R. 55 at 5–6, R. 72 at 3); Government Brief at 11 (citing Lao Brief).³

An indictment charged Lao and Chang with possession with intent to distribute fifty grams or more of actual methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. Lao was also charged with possession of a firearm during and in relation to a crime involving drug-trafficking in violation of 18 U.S.C. § 924(c)(1)(A), and with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924 (a)(2).

Chang filed a motion to suppress evidence seized from the stop, claiming that Lieutenant McAuly lacked a reasonable suspicion to detain her at the point in time when he asked Lao and Chang for their identification and instructed them to remain in the car. Lao filed a similar motion and joined Chang's arguments. After an evidentiary hearing, the court denied the motion to suppress, finding that the officers did not violate the defendants’ Fourth Amendment rights.

Chang entered into a plea agreement but reserved the right to appeal the denial of her motion to suppress. Lao, in contrast, chose to go to trial. Before trial, the government moved in limine to exclude Chang's hearsay statements that Chang claimed exculpated him. The court held, however, that the statements did not fall within any hearsay exception and could not be admitted if Chang chose to invoke her Fifth Amendment right not to testify.

Before Lao's trial began, the government agreed to dismiss the charge of possession of a firearm during and in relation to a drug-trafficking crime (the § 924(c) charge). The jury convicted Lao on the remaining two counts. The district court sentenced Lao to the mandatory minimum of 180 months on the first count (drug possession), and 120 concurrent months on count three (felon in possession of a weapon) and a total of ten years’ supervised release. After her plea, the court sentenced Chang to 111 months’ imprisonment, concurrent with several state sentences, to be followed by five years’ supervised release.

The defendants appeal the district court's denial of their motion to suppress and its ruling that Chang's out-of-court statements were inadmissible hearsay.

II.

A. The Motion to Suppress

Lao and Chang both argue that the district court erred by denying their motion to suppress the evidence found in the roadside and subsequent searches. They claim that Lieutenant McAuly detained and seized them in violation of the Fourth Amendment, and therefore all of the evidence that resulted from that illegal detention must be suppressed. We review the district court's legal conclusions de novo and the facts found on the way to that conclusion for clear error. United States v. Cherry , 920 F.3d 1126, 1132 (7th Cir. 2019). The defendants do not dispute any of the district court's findings of fact, including its finding that the officers were credible, therefore we focus only on the court's decision that the seizure and search were not unlawful.

The district court opined that Lao and Chang were not seized because they were already detained by the snow and accident and Lieutenant McAuly's directives added little additional restraint. The district court hedged its bet, however, by stating that even if they had been detained, the seizure was justified. We...