Opinion
Case No. 04-40084-01-JAR.
March 10, 2005
MEMORANDUM ORDER AND OPINION DENYING MOTION TO SUPPRESS
This matter comes before the Court on defendant Cui Qin Zhang's Motion to Suppress Evidence (Doc. 18). Defendant seeks an order suppressing all evidence seized from her vehicle on June 27, 2004. The Court held a hearing on January 10, 2005. At the conclusion of the hearing, defendant requested additional time to review the government's evidence. Defendant then requested a supplemental hearing to put on additional evidence. A supplemental hearing was held on February 28, 2005. The Court has now reviewed the parties' submissions and is prepared to rule. For the reasons stated below, the motion is denied.
Facts
On June 27, 2004, at approximately 9:05 a.m., while traveling westbound on Interstate 70 (I-70), Sergeant Kelly Schneider of the Russell County Sheriff's Department observed a black 2001 Lexus traveling eastbound on I-70 at approximately milepost 196 in Russell County, Kansas. He testified that he clocked the vehicle at 76 miles per hour in the 70 mile per hour zone. He turned to catch up with the vehicle and twice observed it weave to the edge line of the highway and back across the center line. A light rain was falling at that time. Schneider then conducted a traffic stop of the vehicle at approximately milepost 198 in Russell County.
Schneider approached the vehicle on the passenger side. Defendant Zhang was driving the vehicle and Shao Mou Chen was in the back passenger seat. Schneider spoke to Zhang through the passenger side window, explaining that she had been speeding and weaving across the center line. He asked Zhang for her license and registration. She provided him with a California driver's license, which identified her as Cui Qin Zhang. When Zhang handed Schneider the license, he noticed she looked nervous. He said her hands were visibly shaking, and she would not sit still in her seat. Zhang was unable to locate any vehicle registration but provided Schneider with proof that the vehicle was insured in her name.
Schneider further testified that he engaged in a conversation with Zhang that was entirely in English. Schneider admitted that Zhang answered in some broken English, but he felt that based on her responses to his questions, she understood him. There is no video or audio recording of this stop. Schneider asked Zhang who the man in the car was, and she responded that he was her husband. He asked if the car was hers, and she answered that it was. He asked her where she was coming from and where she was going, and she stated that they were traveling from California to Columbus, Ohio, to visit her family for a month; however, Schneider noticed there was not any luggage visible in the front of the vehicle.
Back at his patrol car, Schneider conducted a records check and determined that Zhang's license was valid and the car belonged to her. He wrote Zhang a written warning for speeding and failure to maintain a single lane of traffic. Schneider returned to the vehicle, handed Zhang a copy of the written warning, explained the warning to her, returned her license and proof of insurance, and told her to have a safe trip.
Schneider started to walk back toward his patrol car and then turned back and asked Zhang if he could ask her a couple of questions. He testified that Zhang answered, "yes." Schneider then asked Zhang if she had any marijuana or cocaine in her vehicle, to which he stated Zhang responded, "No, never, never." Schneider then asked her if he could look in her trunk. He testified that Zhang answered, "yes," and Zhang pushed the trunk release button and immediately exited the car and walked towards the back. Schneider met Zhang at the trunk of the car and Schneider opened the trunk. He immediately noticed that inside the trunk there was only one small bag of clothing and a large cardboard electrical box or a fuse panel box taped shut. Schneider picked up the box, which he thought was heavier than it should have been. He then asked Zhang if he could look in the box, and he testified that she said, "yes." Schneider also asked Zhang if she would step in front of the vehicle for his safety. As Zhang started walking toward the front of the car, Schneider reached into the trunk to open the box. Schneider then heard the car door slam shut, and as he lowered the trunk, Schneider saw Zhang put the car in gear. Zhang immediately drove off.
Schneider quickly returned to his patrol car and attempted to catch Zhang's vehicle. In the ensuing high speed chase, Schneider's vehicle reached speeds of 130 m.p.h. and Zhang lost control of her vehicle as she took an exit ramp number 206 off I-70. Zhang's vehicle rolled several times, ejecting Zhang, Chen and the contents of the trunk. Zhang and Chen were injured and transported to a hospital by emergency personnel. At the accident site, Schneider found several packages of pills and brick-shaped packages laying in the grass near the vehicle. Schneider collected this evidence, which was ultimately determined to be fifteen kilograms of cocaine and 70,000 pills of Ecstasy.
Analysis
"`A traffic stop is a `seizure' within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention quite brief.'" The principles of Terry v. Ohio apply to traffic stops. Thus, the reasonableness of a stop depends on "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place."1. The Initial Stop
Tenth Circuit cases establish that "a detaining officer must have an objectively reasonable articulable suspicion that a traffic violation has occurred or is occurring before stopping [an] automobile." Defendant was stopped for speeding in violation of K.S.A. § 8-1558 or § 8-1560b and failing to maintain a single lane of traffic in violation of K.S.A. § 8-1522. She does not contest the validity of the initial traffic stop, which was valid because Schneider had reasonable suspicion of a traffic violation.
United States v. Cervine, 347 F.3d 865, 869 (10th Cir. 2003) (quoting United States v. Soto, 988 F.2d 1548, 1554 (10th Cir. 1993)).
2. The Roadside Detention
Even if the initial stop of Zhang's vehicle was legitimate, the detention must be "reasonably related in scope to the circumstances which justified the interference in the first place," as required under Terry. "Generally, an investigative detention must last no longer than is necessary to effectuate the purpose of the stop." The detention must be temporary and its scope must be carefully and narrowly tailored to its underlying justification. "Under ordinary circumstances, this limits the officer to a request for the driver's license and registration, a computer check on the car and driver, an inquiry about the driver's travel plans, and the issuance of a citation."
United States v. Williams, 271 F.3d 1262, 1266 (10th Cir. 2001); United States v. Bustillos-Munoz, 235 F.3d 505, 512 (10th Cir. 2000).
Cervine, 347 F.3d at 870-71 (quoting United States v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999)).
United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir. 1997), cert. denied, 523 U.S. 1035 (1998); United States v. Lindsey, 288 F. Supp. 2d 1196, 1202 (D. Kan. 2003).
Cervine, 347 F.3d at 871.
Schneider's investigative detention of Zhang did not exceed these permissible limits. He asked about her travel plans, obtained proof that the vehicle was duly registered and insured and that she was duly licensed, and performed a records check. During the course of this limited investigative detention, Schneider noticed that Zhang exhibited nervousness, and the absence of any luggage or bags in the passenger compartment did not seem to comport with her description of her travel itinerary. But Schneider did not endeavor to involuntarily detain Zhang any longer for these reasons.
Upon issuing the citation or warning and determining the validity of the driver's license and right to operate the vehicle, the officer usually must allow the driver to proceed without further delay or additional questioning. Schneider issued a warning to Zhang, returned her paperwork to her, wished her a safe trip and started walking to his patrol car. In these ways, Schneider indicated that the roadside detention was over and Zhang was free to go.
United States v. Zubia-Melendez, 263 F.3d 1155, 1161 (10th Cir. 2001); Patten, 183 F.3d at 1193.
Consensual Encounter and Voluntary Search
A longer detention for additional questioning is permissible under two circumstances: (1) the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring; or (2) the initial detention changes to a consensual encounter. If the officer continues to question the driver in the absence of either these two circumstances, then "any evidence derived from that questioning (or a resulting search) is impermissibly tainted in Fourth Amendment terms." But, if an encounter between a police officer and a motorist is consensual, the Fourth Amendment ban on unreasonable searches and seizures does not come into play. A longer detention is permissible if an officer has reasonable suspicion, or if the initial detention changes to a consensual encounter.
Cervine, 347 F.3d at 871.
United States v. Elliott, 107 F.3d 810, 813 (10th Cir. 1997) (internal quotations and citations omitted).
See United States v. Walker, 933 F.2d 812, 816-17 (10th Cir. 1991), cert. denied, 502 U.S. 1093 (1992).
Cervine, 347 F.3d at 871.
The government contends that this became a consensual encounter once Schneider issued the warning citation, returned the paperwork to Zhang, wished her a safe trip, began walking back to his patrol car, and then requested permission to ask her additional questions. In the context of a consensual encounter, merely asking questions does not constitute a seizure or implicate the Fourth Amendment.
Florida v. Royer, 460 U.S. 491, 497 (1983); United States v. Rivera, 286 F. Supp. 2d 1299, 1305 (D. Kan. 2003).
"In determining whether a driver and police officer are engaged in a consensual encounter in the context of a traffic stop, there are few, if any bright-line rules." Rather, the court must consider "the totality of the circumstances in a particular case." While the return of documents, such as a driver's license or other personal papers, is a prerequisite to an encounter becoming consensual, it "is not always sufficient to demonstrate that an encounter becomes consensual." Accordingly, even after the officer returns a driver's papers, the encounter may not be consensual where "there was evidence of a `coercive show of authority, such as the presence of more than one officer, the display of a weapon, physical touching by the officer, or his use of a commanding tone of voice indicating that compliance might be compelled.'" However, the ultimate test is whether "a reasonable person under the circumstances would believe he was free to leave or disregard the officer's request for information."
Elliott, 107 F.3d at 813.
Id. at 814 (citing Ohio v. Robinette, 519 U.S. 33, 39 (1996)).
Id.; United States v. Gregory, 79 F.3d 973, 979 (10th Cir. 1996).
Elliott, 107 F.3d at 814.
United States v. McKneely, 6 F.3d 1447, 1451 (10th Cir. 1993); see also United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir. 1997) (noting that an officer need not tell the driver he is free to leave for the encounter to be consensual).
Zhang contends that her inability to understand English rendered this encounter nonconsensual. She claims that her consent was tainted by a language barrier that prevented her from understanding what Schneider was saying during their encounter. Language barriers are relevant in evaluating a defendant's ability to act knowingly, intelligently, and voluntarily. Two of Zhang's cell mates testified that they had to help Zhang with her English, as her English was quite limited.
United States v. Hernandez, 893 F. Supp. 952, 961 (D. Kan. 1995), aff'd, 103 F.3d 145 (10th Cir. 1996) (citing United States v. Heredia-Fernandez, 756 F.2d 1412, 1415 (9th Cir.), cert. denied, 474 U.S. 836; United States v. Sanchez-Valderuten, 11 F.3d 985, 990-91 (10th Cir. 1993)).
Zhang also called an expert witness, Dr. VanNaerssen, who testified that there are developmental benchmarks or mistakes made by second language speakers that are revealing of their actual level of proficiency, and that Zhang's English was quite limited. Dr. VanNaerssen opined that Zhang could not understand simple questions such as those posed by Schneider. Dr. VanNaerssen spent 90 minutes administering three tests to Zhang and opined that Zhang's English skills were consistently demonstrated to be in the low range of "Novice." Dr. VanNaerssen's report explained that "[a] Novice speaker is very difficult to understand even by listeners who are very sympathetic nonnative speakers; responds with isolated words and a few memorized phrases; produces limited vocabulary in very limited contests; produces vocabulary at the word or phrase level; has no evidence of correct grammatical usage."
The three tests were: an ACTFL oral proficiency interview, which Dr. VanNaerssen modified from the normal 15-20 minutes to a 55 minute interview; an alternating language story retell task; and a test eliciting knowledge of vocabulary by using picture puzzles.
But the Court simply is not persuaded by Dr. VanNaerssen's opinion. For Zhang's actual conduct, her appropriate nonverbal and verbal responses to Schneider's requests and inquiries, is more compelling. While she also opined that Zhang was not manipulating or pretending to be less proficient, Dr. VanNaerssen acknowledged that she typically administers her tests to people who are motivated to show their best ability in speaking or understanding a second language. Dr. VanNaerssen further acknowledged that in most cases where she is trying to determine someone's ability to speak a language, she has a sample of the person speaking her non-native language. In this case, Dr. VanNaerssen had no such sample of Zhang speaking English. Dr. VanNaerssen's opinion that Zhang was not manipulating the test results is based on the alternating language story retell test, modified in a manner that Dr. VanNaerssen thought would detect manipulation. But Dr. VanNaerssen admitted that she has not used this modified test to detect manipulation in the past; and she admitted that this test did not quantitatively or qualitatively evaluate Zhang's retell of the story in her own native language. The Court gives little weight to Dr. VanNaerssen's opinion, as there is insufficient evidence of the efficacy of the tests.
Moreover, this evidence of Dr. VanNaerssen's clinical findings is outweighed by other evidence of Zhang's ability to communicate, albeit with a limited proficiency. Schneider testified that he asked Zhang to open the trunk and that she responded by pushing the trunk release hatch to open the trunk. Her response, in fact, indicated that Zhang understood what Schneider was saying. Schneider testified that Zhang not only said "yes" and pushed the trunk release button, she exited the vehicle and met him back at the trunk. Then before Schneider began to open the box in Zhang's trunk, he asked her to move to the front of the vehicle, which she did. Other evidence indicates that Zhang understood Schneider. Earlier in the traffic stop, Zhang responded appropriately to his requests for paperwork and to his inquiry about her travel itinerary.
Although Zhang does not speak English well, she apparently understands more English than she speaks. Detective Edward Sun, who is bilingual in Mandarin Chinese and English testified that he had reviewed audiotapes of Zhang's telephone conversations from the jail where she is detained pending trial in this case. In these conversations, Zhang described a conversation she had with one of her cell mates. None of Zhang's cell mates spoke Mandarin Chinese; they all spoke English to her. During one of Zhang's recorded phone calls, she is heard asking, in English, for someone to hand her a pen and paper. Another recorded phone call is interrupted by an announcement, in English, that there was only one minute remaining. Zhang understood that announcement, for she immediately stated in Mandarin Chinese that there was only one minute left on the phone call. Abby Li, an interpreter, transcribed these phone conversations; and those transcripts are consistent with Sun's translations of the recorded phone calls.
Zhang not only contends that she did not understand Schneider's questions and requests. Zhang contends that she did not understand that Schneider was merely requesting permission to search the trunk; Zhang understood this to be a command from Schneider. But Zhang's recorded phone conversations reveal otherwise. In one of these phone conversations, speaking Mandarin Chinese, Zhang described the traffic stop. Detective Sun testified that Zhang said that it was her mistake to open the trunk when the officer asked her if he could look in it. Abby Li, who testified on behalf of Zhang, transcribed Zhang's statement from that phone conversation as "I gave him the permission to look." Li testified that there were also alternate meanings for the words Zhang used, but that literally translated, Zhang stated "I gave (or let) him look (or see)." Li testified that the inference she drew from Zhang's words was that Zhang was allowing the search to happen, not giving formal authorization for the officer to search. However this statement at issue is immediately preceded by Zhang stating that "On that day, the police . . . the police stopped and wanted to look into the back [of the car]."
A search authorized by consent is a wholly valid and well-recognized exception to the prohibition against warrantless searches. "Valid consent is consent which is freely and voluntarily given." Voluntariness of consent is a question of fact to be determined from all the circumstances; a court should neither presume that the consent was voluntary or involuntary. The government bears the burden of proving that consent was voluntary. To satisfy this burden, the government must show that the consent was unequivocal and specific and freely and voluntarily given. Mere submission to lawful authority does not equate to valid consent. The Court concludes that Zhang understood that Schneider was requesting, not commanding a search of the trunk. This is evident from the literal translation by Abby Li, the translation by Detective Sun, and context of Zhang's translated statements. Thus any language barrier did not affect Zhang's to ability to act knowingly, intelligently, and voluntarily when consenting to the search of her vehicle.
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
Patten, 183 F.3d at 1194.
United States v. Hernandez, 93 F.3d 1493, 1500 (10th Cir. 1996).
Patten, 183 F. 3d at 1194.
United States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1998).
United States v. Manuel, 992 F.2d 272, 275 (10th Cir. 1993).
Zhang further contends that her cultural background, as a native of the Republic of China, rendered her unaware that she could refuse to consent to Schneider's request. Dr. VanNaerssen, a linguist, opined that Zhang did not understand the distinction between a request and a command, because in China the police are overbearing and must be obeyed. Voluntariness of consent is determined by looking at the totality of the circumstances. Courts may consider a defendant's attitude toward authority when determining the voluntariness of consent, but it need not be given great weight in the totality of the circumstances analysis.
Hernandez, 93 F.3d at 1500.
United States v. Sanchez-Valderuten, 11 F.3d 985, 992 (10th Cir. 1993).
But there was no evidence supporting Zhang's contention or Dr. VanNaerssen's opinion. Zhang has lived in the United States for ten years. While Dr. VanNaerssen testified that people who move to the United States from other countries can live in communities consisting completely of people from their former countries, there was no evidence that Zhang stayed in such a community.
Nor was there any other evidence suggesting that Zhang's consent was the product of coercion. Schneider made his request to search Zhang's vehicle on the shoulder of a busy interstate highway, in public view. He was the only officer on the scene. There is no tape of the encounter, but there was no evidence that Schneider used a threatening voice, drew a weapon, or used any other physical threats against Zhang when asking for her consent. The Court finds credible Schneider's testimony that he did not speak to Zhang in a threatening manner. Nor did he otherwise indicate that she had no choice but to consent. In short, there was no evidence of any coercion, and the Court concludes that under the totality of the circumstances, Zhang's consent to search was voluntary.
The encounter between Schneider and Zhang was consensual until Zhang terminated the encounter by driving off. At that point, based on Zhang's flight, her exhibited nervousness, her described travel itinerary, the lack of luggage in the passenger compartment, and the contents of the trunk, Schneider had reasonable suspicion to give chase and stop her again. After the chase and resulting accident, Schneider observed in plain view items that, based on his experience, looked like kilos of controlled substances. This contributed to probable cause to seize the items, which in fact turned out to be drugs. IT IS THEREFORE ORDERED BY THE COURT that defendant Zhang's Motion to Suppress (Doc. 18) is denied.
See Coolidge v. New Hampshire, 403 U.S. 443 (1971).
IT IS SO ORDERED.