United States v. Louangamath

United States of America, Plaintiff, v. Derick Louangamath, Defendant.

No. 2:20-cr-00034-KJM

United States District Court, E.D. California

September 13, 2021

ORDER

Defendant Derick Louangamath moves to suppress all the evidence found in his car, on his cellphone, and all statements made in the course of a November 2019 traffic stop. Mot., ECF No. 36. The United States agreed to exclude defendant's answers to some of the officer's questions but opposed the rest of the motion. See Opp'n at 1, ECF No. 43. As defendant requested, the court held a two-day evidentiary hearing. Mia Crager and Hannah Labaree represented the defendant and Aaron Pennekamp represented the United States. The government presented two witnesses, Officer Cunningham and Officer Phelan of the City of Sacramento Police Department, who conducted the traffic stop. The defense presented testimony by Paul Schindler, a private investigator who had a thirty-year career as a police officer, and the defendant also testified. At hearing, the court allowed the parties to provide written closing arguments, Gov't Closing Br., ECF No. 88; Def. Closing Br., ECF No. 89, and after receiving them submitted the matter. After carefully considering the evidence and the parties' arguments, the court denies the motion to suppress for the reasons explained below.

I. BACKGROUND

Six nights before the traffic stop in this case, police responded to a multiple-victim shooting by Mongolian Boys Society gang members in Fresno, California. Aff. in Support of Compl. ¶ 61, Def. Ex. U. (lodged). Three days after the shooting, the Sacramento Police Department issued a “gang intelligence bulletin, ” which “strongly encouraged” any “officers coming in contact with any suspected gang-members” of the Asian Crips or Mongolian Boys Society “to take appropriate enforcement actions.” Gang Intelligence Bulletin, Ex. EE Def. Ex. List (lodged). This bulletin was one of up to twenty covering a range of topics including information about specific crimes or defendants emailed to officers during the week. Tr. at 37:11-38:4, 163:19, ECF Nos 77 & 83. Both officers who conducted the traffic stop and search received the bulletin, though neither remembered reading it. Id. at 38:8-11, 181:5-19.

On November 23, 2019, Officers Cunningham and Phelan saw Mr Louangamath driving in the parking lot of a commercial strip center at 1500 West El Camino. Tr. at 17:11-18; Cunningham Decl. ¶ 1, ECF No. 43-2. The officers were driving southbound, Officer Phelan in the driver's seat and Officer Cunningham in the passenger's seat; Mr. Louangamath was headed northbound. Tr. 17:17-23. The cars passed one another slowly. Mr. Louangamath recalled that the officers stared at him for about ten seconds. Tr. 286:5-13. The officers thus had time to look at the car as it approached, peer into it, and, potentially, see something written on the driver's side back window: “Fucc You.” Tr. at 18:7-10; Orientation of Vehicles, Def. Ex. P-Marked (lodged), ECF No. 85; Cunningham Decl. ¶ 3; Still Image, Def. Ex. F (lodged). Both officers knew Crip gang members substitute other letters for “CK” because “CK” can mean “Crip Killer.” Tr. at 69:16-18, 185:21-186:24 (“The ‘C' and then the ‘K' would be Crip Killer, so it's all very, like, basic, or one might say petty that you would spell a word differently to not put a ‘C' and ‘K' next to each other if you are a Crip.”). Neither officer recalled seeing the writing in the parking lot as they drove past Mr. Louangamath, id. at 86:23-25, 195:2-4, though Officer Phelan did recall seeing it during the traffic stop as evidenced by his testimony and body camera footage, id. at 77:12-78:8; Gov. Ex. 1A (hard copy provided at evidentiary hearing, admitted and retained).

In any event, potential gang affiliations did not form the basis of what the officers did next. Officer Cunningham testified he could tell Mr. Louangamath's high-beam headlights had been on, and he mentioned it to Officer Phelan, who agreed “his headlights appeared to be bright -brighter than normal.” Tr. at 18:7-10. Officer Cunningham is confident Mr. Louangamath's high beams were on in the parking lot, as it is a “pet peeve” of his when people leave them on. Id. at 124:22-25. He testified this is so in particular because, at the time, he was living in the country and was often irritated when other drivers used their high beams on the dark country roads. See Id. at 211:2-7. The officers did not signal to Mr. Louangamath in the parking lot that his high beams were on; instead they decided to follow him out of the parking lot. Id. at 211:24-212:3.

The officers made a three-point turn in the parking lot, briefly lost sight of Mr. Louangamath, and then spotted him pulled over to the side of the road approximately one block from the parking lot, on Sea Mist Road. Tr. at 24:15-27:23, 128:18-129:19. Upon seeing the stopped vehicle, the officers first ran the defendant's license plates, id. at 209:18-25, and then Officer Cunningham called in to report the car as a “suspicious vehicle, ” id. 27:9-13. Computer Aided Dispatch Report at 1, ECF No. 36-1. According to Officer Cunningham, this term did not have any special meaning: Sacramento Police Officers may report cars as suspicious vehicles when they do not have more information or when people pull themselves over. Tr. at 205:12-206:19. According to the defense expert, investigator Schindler, vehicles are called in as “suspicious vehicles” when officers are concerned something suspicious is occurring in the car and they want to alert other officers “for safety reasons.” Id. at 255:21-25. Under cross examination, Mr. Schindler clarified he had not been a part of any internal Sacramento Police Department trainings since 2012 and his experience regularly conducting traffic stops was 25 years old. Id. at 268:20-23, 270:6-8. As it is undisputed the officers did not turn on their body cameras while they were driving in the parking lot, there is no video evidence capturing the officers' field of vision from their car at the time; nor is their audio of the police officers discussing why they thought Mr. Louangamath's vehicle appeared suspicious.

Once the officers pulled up behind Mr. Louangamath's car, they did activate their body cameras. Officer Phelan turned on his body camera from the hard-off position while Officer Cunningham's body camera turned on when the police car's overhead lights were activated. Id. at 29:4-7, 101:22-25, 133:21-24. When the officers approached Mr. Louangamath's car, Officer Phelan asked about the high beams. Officer Cunningham Body Camera Footage 3:58, Def. Ex. B (lodged) (“Are your, uh, high beams on?” “No?” “Did you have ‘em on when you passed me back there?” “‘Cause they seemed like they were on.”). After hearing a number of questions from Officer Phelan, Mr. Louangamath apologized: “Oh, my bad.” Id. But in sworn declarations submitted in connection with the evidentiary hearing, both Mr. Louangamath and his girlfriend, who was a passenger in the car, averred the high beams were never on. See Kalah Decl. ¶ 8; Louangamath Decl. ¶ 3. At the evidentiary hearing, Mr. Louangamath explained he was confident his high beams were not on previously because no one in the busy parking lot had let him know they were on, and the dashboard indicator for high beams was off at the time. Tr. at 288:5-6, 301:15. Officer Phelan testified that the high beams were on even at the time of the traffic stop, as the “headlights reflecting off the car in front of him where he had parked . . . appeared to be very bright.” Id. at 28:8-14. There is body camera footage showing Mr. Louangamath's headlights reflected in the bumper of a car parked in front of where he stopped; the footage standing alone is inconclusive. See Body Camera Footage 3:58 (headlights of car reflected in bumper of car ahead and appear not overwhelmingly bright). Officer Cunningham testified that Mr. Louangamath turned off his high beams after Officer Phelan “made him aware that they were on.” Id. at 166:1-7.

After asking about the high beams, Officer Phelan asked Mr. Louangamath and his girlfriend for identification. Id. at 3:58-59. Mr. Louangamath did not have a driver's license on him, and he admitted his driver's license was not valid in response to Officer Phelan's question. Body Camera Footage 3:58-3:59. After learning that Mr. Louangamath was on parole, the officers asked for and received his consent to search his car. Id. at 3:59. During the search, they found open beer cans as well as the firearm and ammunition underlying the pending charge in this case. Tr. at 34:13-20. Officer Cunningham made two phone calls soon after the stop to South Sacramento police officers to arrange a parole search and referenced a “car stop . . . with an Asian gangster.” Id. at 234:4-19; Def. Exs. Bw & Bx (lodged).

Mr. Louangamath argues the officers' testimony about the high beams is not credible and they never actually believed his high beams were on; rather they invented this explanation after the fact to justify their decision to follow and search the car he was driving. Def. Closing Brief at 3. He moves to exclude all physical evidence from the traffic stop under the Fourth Amendment, including the firearm, ammunition, and cellphone. See Mot. at 13; Reply at 10-12, ECF No. 46. The government argues the high beams were on in the parking lot and traffic stop, the officers reasonably suspected a traffic violation, and the stop and search were reasonable. Gov. Closing Brief at 20.

II. LEGAL STANDARD

When a defendant moves to suppress evidence under the Fourth Amendment's exclusionary rule, the first step is deciding whether a Fourth Amendment violation occurred. Davis v United States, 564 U.S. 229, 236-37 (2011). Traffic stops may implicate the ...