United States v. Zhou, CRIMINAL NO. 4:17-CR-394

UNITED STATES OF AMERICA v. XIAO WU ZHOU and CHUANZE XU, Defendants

CRIMINAL NO. 4:17-CR-394

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

April 18, 2018

(Chief Judge Conner)

MEMORANDUM

Defendants Xiao Wu Zhou ("Zhou") and Chuanze Xu ("Xu") move the court to suppress evidence seized during a traffic stop on October 31, 2017. (Doc. 32). The court will deny defendants' motion.

I. Findings of Fact¹

Trooper Jeremy Hoy ("Trooper Hoy") is a Pennsylvania State Police trooper assigned to the Central Shield Unit of the Bureau of Criminal Investigation's Drug Law Enforcement Division. (Tr. 3:15-18; Ex. 5 at 1). On the afternoon of October 31, 2017, Trooper Hoy was stationed in his marked patrol car on the median of Interstate 80 near mile marker 153.8. (Tr. at 2:22-23, 3:19-4:4). Trooper Hoy noticed a U-Haul truck traveling eastbound "slower than the flow of traffic" and observed the driver with his hands rigidly "locked on the [steering] wheel at [] the [ten] and [two] positions staring straight ahead." (Id. at 8:25-9:15, 70:7-12). He followed theU-Haul truck and witnessed it travel over the white fog line separating the right lane from the shoulder three times near exit 158. (Id. at 10:21-11:16).

Trooper Hoy initiated a traffic stop at approximately 2:25 p.m. by activating his lights and siren, causing the patrol car's surveillance system to begin recording. (Id. at 15:3-16:7; Ex. 2 at 3). He approached the truck on the passenger side and requested the U-Haul rental agreement and identification from both driver and passenger. (Tr. 25:11-15, 15:22-26:2, 26:8-18; Ex. 1 at 14:26). Trooper Hoy also explained the reason for the stop—crossing the fog line (a traffic infraction under 75 PA. CONS. STAT. § 3309) and to check that defendants were "okay to drive." (Tr. 25:18-23, 26:19-24, 58:1-8; Ex. 1 at 14:26). Trooper Hoy testified that he was concerned the driver might be falling asleep or intoxicated. (Tr. 26:23-27:2). The driver, Zhou, spoke limited English and the passenger, Xu, frequently translated and explained things to Zhou in Mandarin Chinese. (Id. at 20:19-21:4, 27:3-9; Ex. 1 at 14:31). Before returning to his patrol car, Trooper Hoy observed various items in the U-Haul cabin indicative of "hard travel," to wit: four cell phones, cigarette cartons, energy drinks, fast food containers, two small book bags, and some blankets.² (Tr. 27:10-19, 28:14-30:8; Ex. 2 at 9-10).

Xu agreed to accompany Trooper Hoy to the patrol car to run the licenses and registration and receive any citation Trooper Hoy might issue. (Tr. 32:24-33:11). Xu consented to a pat down for weapons upon exiting the vehicle—none were found. (Id. at 50:11-51:4). Zhou and Xu each possessed a New York state driver's license. (Id. at 34:9-35:7; Ex. 3). The U-Haul rental agreement indicated that defendants rented the vehicle in Antioch, California; that the drop off destination was Flushing, New York; and that defendants paid $2,500 for the rental. (Tr. 27:18-19, 35:12-14, 37:10-18, 38:10-11). As Trooper Hoy ran the licenses and vehicle registration, he and Xu conversed about defendants' travel plans. (Id. at 35:8-14; see Ex. 1 at 14:28-31). Xu stated that he and Zhou were moving Zhou's mother from California to New York and that they had flown to California together several days prior. (Tr. 35:23-36:11; Ex. 1 at 14:28-30).

When Trooper Hoy inquired about Zhou's mother and her California home, Xu volunteered that Zhou's mother lived in a two-story, single family house and would join defendants in New York in a week. (Tr. 39:3-9; Ex. 1 at 14:29). Xu explained that defendants rented a U-Haul because Hertz did not have a vehicle available. (Tr. 38:5-9; Ex. 1 at 14:30). Trooper Hoy testified that the U-Haul appeared far too small to move a two-story, single family house. (Tr. 39:10-16). When asked what was in the cargo portion of the U-Haul truck, Xu responded that there were five "briefcases" containing bed sheets. (Id. at 40:3-20; Ex. 1 at 14:33-34) Throughout the conversation, Trooper Hoy observed the "carotid artery in [Xu's] neck pulsating" indicating "continued . . . or even increasing nervousness" beyond the typical driver's normal reaction to a traffic stop. (Tr. 41:9-21).

Trooper Hoy asked Xu to wait by the patrol car as he confirmed Zhou's address. (Id. at 42:8-13). As Trooper Hoy approached the U-Haul, Zhou motionedfor Trooper Hoy to open the cab door to speak with him. (Id. at 42:14-21). Using a Google translate app, Trooper Hoy confirmed Zhou's address on the license. (Id. at 42:22-43:3). Zhou answered additional questions, stating that he and Xu traveled from Antioch, California, and were moving. (Id. at 43:4-7; Ex. 1 at 14:36). Trooper Hoy testified that Zhou indicated that he drove to California initially, contradicting Xu's statement that the pair flew together. (Tr. 43:7-14; Ex. 1 at 14:37-38). Trooper Hoy observed that Zhou remained "very rigid" and "[a]lmost frozen in his seat" throughout the conversation. (Tr. 43:14-16).

Trooper Hoy asked Zhou for consent to search the U-Haul. (Id. at 43:16-18). In response to this request, Zhou immediately became "very excited in his voice," "very animated," and began "bounc[ing] willing[ly] in his seat." (Id. at 45:2-4). Trooper Hoy escorted Zhou from the U-Haul cabin to the patrol car. (Id. at 45:14-22). Zhou also consented to a pat down for weapons upon exiting the vehicle, and none were found. (Id. at 50:11-51:4). Trooper Hoy asked Xu to translate the request for consent to ensure Zhou understood and to obtain a clear answer from him. (Id. at 45:17-46:3). After Xu translated the request, Zhou denied Trooper Hoy consent to search the cargo portion of the U-Haul. (Id. at 46:1-17; Ex. 1 at 14:40).

Trooper Hoy testified that he sought consent to search because he developed reasonable suspicion throughout the traffic stop that criminal activity was occurring. (Tr. 43:19-23). Trooper Hoy pointed to the following evidence in support of his assertion: defendants' undue nervousness displayed throughout the stop; discrepancies in defendants' explanations of their past and present travel plans; the mismatch between the scope of the purported move and the U-Haul truck's size andrental cost; Xu's description of the items located in truck's cargo area; evidence of hard travel in the U-Haul cabin; defendants' minimal personal belongings and lack of luggage for a cross country trip; the presence of four cellular phones; and the point of origin and destination of defendants' travel.³ (Id. at 43:19-44:22, 54:1-11, 98:3-6; Ex. 1 at 15:00-03; Ex. 2 at 9). Trooper Hoy requested a canine unit to conduct a dog sniff at approximately 2:41 p.m. (Tr. 18:11-16, 46:18-24, 47:8-12; Ex. 1 at 14:41). The unit arrived at approximately 3:11 p.m., and, following a perimeter walk of the U-Haul, the canine indicated the presence of drugs in the truck's right rear cargo area. (Tr. 47:16-48:7; Ex. 1 at 15:11, 15:15).

Trooper Hoy opened the cargo area door and discovered five suitcases locked at the zippers, nine large plastic covered bags, and thirty-three cardboard boxes taped at the seams. (Tr. 48:14-22, 61:15-18; Ex. 1 at 15:15; Ex. 2 at 12). Trooper Hoy cut the seams off one box and found "vacuum sealed packages of marijuana" inside. (Tr. 48:22-23, 49:8-18; Ex. 1 at 15:15-16). Following discovery of the marijuana, Trooper Hoy placed defendants under arrest. (Tr. 49:19-21; Ex. 1 at 15:16).

II. Procedural History

A federal grand jury returned a two count indictment against defendants on December 14, 2017. (Doc. 5). The indictment charges Zhou and Xu with one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846 (Count 1); and one count of distribution and possession with intent to distribute marijuana inviolation of 18 U.S.C. §§ 841(a)(1) and 2 (Count 2). (Doc. 5). Zhou and Xu each pled not guilty to both counts. (Doc. 15).

On January 30, 2018, Zhou and Xu moved to suppress all evidence seized during the October 31, 2017 traffic stop. (Doc. 32). We convened a suppression hearing on March 2, 2018. The motion is fully briefed and ripe for disposition.

III. Discussion

Defendants raise two arguments in their motion to suppress. First, defendants contend that Trooper Hoy lacked probable cause that defendants committed a traffic violation to justify the initial stop. Second, they assert that the duration of the traffic stop and resulting interrogation were not reasonably related to the stop's purpose and that Trooper Hoy lacked reasonable suspicion that defendants had committed a crime when he called for a dog sniff. We will address these arguments seriatim.

A. Initial Traffic Stop

When an officer has reasonable suspicion to believe that a traffic violation has occurred, the officer may stop the vehicle. Heien v. North Carolina, 135 S. Ct. 530, 536 (2014); United States v. Delfin-Colina, 464 F.3d 392, 396-97 (3d Cir. 2006) (citing Whren v. United States, 517 U.S. 806, 810 (1996)). Pretextual motivations are irrelevant so long as the officer witnessed "any technical violation of a traffic code." United States v. Mosley, 454 F.3d 249, 252 (3d Cir. 2006) (emphasis added) (citations omitted). Evidence constitutionally obtained under federal law is admissible in federal court even if state law may not otherwise authorize the search or seizure. See United States v. Stiver, 9 F.3d 298, 300 (3d Cir. 1993) (quoting United States v.Rickus, 737 F.2d 360, 363-64 (3d Cir. 1984)). For Fourth Amendment purposes, a traffic stop is a seizure of both the driver and any occupants of a vehicle. Brendlin v. California, 551 U.S. 249, 257 (2007); Delaware v. Prouse, 440 U.S. 648, 653 (1979). Searches and seizures based on mistakes of fact or law can be objectively reasonable. Heien, 135 S. Ct. at 536, 539.

Trooper Hoy had reasonable suspicion that defendants committed a traffic violation. Under Pennsylvania law, a vehicle must be driven "as nearly as practicable entirely within a single lane." 75 PA. CONS. STAT. § 3309(1)....