Petition for Writ of Certiorari — Hieu Minh Le, Petitioner v. United States
Supreme Court briefJun 23, 2023
Ask Donna
What actually matters in this document.
Text
APPENDIX
i
APPENDIX
TABLE OF CONTENTS
Appendix A Opinion in the United States Court of
Appeals for the Eighth Circuit
(February 8, 2023) . . . . . . . . . . . . App. 1
Appendix B Judgment in a Criminal Case in the
United States District Court for the
Southern District of Iowa
(August 27, 2021) . . . . . . . . . . . . App. 13
Appendix C Opinion and Order Regarding
Defendants’ Motions for Judgment of
Acquittal or New Trial in the United
States District Court for the Southern
District of Iowa
(June 8, 2021) . . . . . . . . . . . . . . . App. 28
Appendix D Order in the United States District
Court for the Southern District of Iowa
(January 23, 2020) . . . . . . . . . . . App. 41
Appendix E Report and Recommendation on
Motion to Suppress in the United
States District Court for the Southern
District of Iowa
(November 16, 2020) . . . . . . . . . . App. 50
App. 1
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
[Filed February 8, 2023]
No. 21-2993
___________________________
United States of America
)
Plaintiff - Appellee
)
)
v.
)
)
Tu Anh Nguyen
)
Defendant - Appellant
)
__________________________ )
No. 21-2994
___________________________
United States of America
)
Plaintiff - Appellee
)
)
v.
)
)
Hieu Minh Le
)
Defendant - Appellant
)
__________________________ )
No. 21-2995
___________________________
United States of America
)
Plaintiff - Appellee
)
)
App. 2
v.
)
)
Sanh Binh Tran
)
Defendant - Appellant
)
__________________________ )
Appeals from United States District Court
for the Southern District of Iowa - Western
____________
Submitted: April 13, 2022
Filed: February 8, 2023
____________
Before COLLOTON, MELLOY, and GRUENDER,
Circuit Judges.
____________
MELLOY, Circuit Judge.
A jury convicted Defendants Tu Anh Nguyen, Hieu
Minh Le, and Sanh Binh Tran of conspiring to
distribute 100 kilograms or more of marijuana. 21
U.S.C. §§ 841(a)(1) & (b)(1), 846. The jury also
convicted Tran and Nguyen of possessing 100
kilograms or more of marijuana with intent to
distribute, 21 U.S.C. § 841(a)(1) & (b)(1), and
possessing a firearm in furtherance of a drug
trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i). All three
defendants appeal the denial of a motion to suppress
and challenge the sufficiency of the evidence. They
concede officers properly stopped their vehicle for
commercial inspection but argue the officers
subsequently exceeded the permissible scope of the
inspection. In addition, Le appeals his sentence.
Because officers developed probable cause before their
App. 3
actions exceeded the permissible scope of a commercial
inspection, and because the other arguments lack
merit, we affirm the judgments of the district court.1
I.
The present convictions were supported in part by
evidence discovered during three separate traffic stops:
a November 2018 stop in Mississippi, a December 2018
stop in Iowa, and a March 2019 stop in Nebraska. The
Iowa stop revealed the bulk of the evidence in these
cases, including evidence supporting Tran and
Nguyen’s drug possession and firearm convictions. The
Iowa stop also serves as the subject of the suppression
arguments. The other two stops provided additional
evidence of the conspiracy, including the defendants’
roles in, and the scope of, the conspiracy.
In Mississippi, Le was driving an SUV with Nguyen
as a passenger when an officer stopped them for
speeding. No defendant challenges this stop or a
resulting search. The search revealed $108,000 in
currency in two sealed boxes and third box containing
a large quantity of THC cartridges. Neither Le nor
Nguyen claimed ownership of the currency.
In Nebraska, Le was driving a pickup, again with
Nguyen as a passenger, when an officer stopped them
for following another vehicle too closely. The pickup
was towing a trailer with Washington plates. Again, no
defendant challenges this stop or a resulting search.
1
The Honorable John A. Jarvey, then Chief Judge for the United
States District Court for the Southern District of Iowa, now
retired.
App. 4
The search revealed a THC cartridge, $15,000 bundled
with rubber bands in Le’s suitcase, and 20–30 empty
boxes.
In Iowa, Tran was driving a pickup with Nguyen as
a passenger. The pickup had a tinted windshield and
windows and was pulling an enclosed trailer with
Washington plates, a California commercial vehicle
sticker, but no USDOT number. An experienced Iowa
Highway Patrol Trooper trained and assigned to
perform commercial vehicle inspections noticed these
features and stopped the vehicle for commercial
inspection.
Upon approaching Tran, the officer quickly
confirmed that the vehicle was a commercial vehicle
subject to inspection. Tran stated that he was working
for hire on behalf of a company named “Extra Elbow
Grease,” and the officer concluded Tran was operating
commercially. Further, the vehicle clearly exceeded an
applicable 10,001 pound gross-vehicle-weight
threshold. See 49 C.F.R. § 350.105(1). The officer
commenced a “Level II” inspection. See id.
(incorporating by reference the inspection standards of
the Commercial Vehicle Safety Alliance).2 Such an
2
“The inspection criteria are developed by [Federal Motor Carrier
Safety Administration of the United States Department of
Transportation] in conjunction with the Commercial Vehicle Safety
Alliance (CVSA), which is an association of States, Canadian
Provinces, and Mexico whose members agree to adopt these
standards for inspecting [commercial motor vehicles] in their
jurisdiction.” 49 C.F.R. § 350.105. The CVSA describes a Level II
inspection:
App. 5
inspection extends generally to all paperwork and
safety equipment, including load securement, that can
be observed without physically going beneath the
vehicle.
The officer quickly determined that very little about
the situation seemed normal. Tran (as the driver) and
the truck and trailer combination (as the vehicle) were
out of compliance with regulations that made them
An examination that includes each of the items specified
under the North American Standard Level II Walk-Around
Driver/Vehicle Inspection Procedure. As a minimum,
Level II Inspections must include examination of: driver’s
license; Medical Examiner’s Certificate and Skill
Performance Evaluation (SPE) Certificate (if applicable);
alcohol and drugs; driver’s record of duty status as
required; hours of service; seat belt; vehicle inspection
report(s) (if applicable); brake systems; cargo securement;
coupling devices; driveline/driveshaft; exhaust systems;
frames; fuel systems; lighting devices (headlamps, tail
lamps, stop lamps, turn signals and lamps/flags on
projecting loads); steering mechanisms; suspensions; tires;
van and open-top trailer bodies; wheels, rims and hubs;
windshield wipers; buses, motorcoaches, passenger vans or
other passenger-carrying vehicles – emergency exits,
electrical cables and systems in engine and battery
compartments, seating, and HM/DG requirements, as
applicable. HM/DG required inspection items will only be
inspected by certified HM/DG and cargo tank inspectors,
as applicable. It is contemplated that the walk-around
driver/vehicle inspection will include only those items that
can be inspected without physically getting under the
vehicle.
Commercial Vehicle Safety Alliance, All Inspection Levels, Level II
Walk–Around Driver/Vehicle Inspection (available at
https://www.cvsa.org/inspections/all-inspection- levels/).
App. 6
subject to being placed temporarily out of service. First,
Tran did not have a log book. This alone placed Tran
out of service as a driver. Tran was able to provide bills
of lading. The bills of lading, however, were irregular in
that they did not contain full information of a type
normally included with bills of lading such as details as
to what was to be picked up and delivered (rather than
vague listings) and precise locations and instructions
as to where items were to be picked up and delivered.
And the information that was provided on the bills of
lading did not match Tran’s description of his
destination. Further, Tran’s explanation of his
destination did not make sense to the officer as a
matter of commercial operations. Finally, the officer
was unable to confirm federal licensing for the firm
Tran identified or for the vehicle.
On the vehicle exterior, the officer noticed that the
trailer’s break-away braking connection was incorrectly
attached rendering it non-functional. This violation
made the vehicle subject to being placed out of service
pending correction. The officer also confirmed the
window tinting exceeded permissible limits for
commercial vehicle windows.
While outside the trailer, the officer noticed the
smell of bleach. Tran confirmed that he too smelled
bleach but denied hauling bleach or other hazardous
substances. The officer then asked to see safety
equipment. Tran opened the enclosed trailer to show
the officer a fire extinguisher and safety cones. The
officer also checked load securement and discovered a
disheveled load without reasonable securement. At this
time the officer’s suspicion grew again because items
App. 7
were not being treated in a manner consistent with the
insured value as would be expected of a commercial
shipper. For example the bill of lading listed vases with
substantial insurance values, but the officer observed
a vase in an unsecured and open box along with boxes
that were tipped over and strewn about.
Other observations during the commercial vehicle
inspection increased the officer’s suspicion that
criminal activity was afoot. The officer noticed three
two-way radios in the cab of the truck. He viewed this
as suspicious because such radios are usually sold in
pairs and are often used by a trailing or lead vehicle
when illegal contraband is being transported. In
addition, the officer viewed the entire scene as a
misplaced attempt to appear in compliance with
commercial trucking regulations whereas Tran seemed
largely unaware of requirements. In light of the smell
of bleach and the other irregularities, the officer called
for assistance from a drug detection dog.
A K9 officer quickly responded and conducted an
open air sweep of the vehicle exterior during the first
officer’s continued commercial inspection and within
the normal time required to conduct a Level II
commercial inspection. On a first pass, the dog did not
indicate the detection of drugs. On a second pass, the
dog alerted to the presence of drugs without focus on a
particular spot. The K9 officer conducted a third pass
and the dog indicated specifically towards the trailer
door. Given the earlier suspicion and the canine
indications, officers conducted a warrantless search of
the contents of the trailer and truck. They found almost
five hundred pounds of marijuana in sealed boxes in
App. 8
the trailer. Officers also discovered an unloaded
handgun and ammunition in the truck. Officers
eventually discovered that the truck and trailer
belonged to Le, Le was the registered licensee for Extra
Elbow Grease, and all three defendants were listed on
the insurance for the vehicle. Nguyen stated that Le
directed their activities and communicated with them
during their travel.
Eventually all three defendants moved to suppress
evidence discovered during the Iowa stop arguing the
officers exceeded the permissible scope of a Level II
commercial inspection. The defendants did not
challenge the initial stop or commencement of the
inspection. Rather, they challenged the subsequent
execution of the inspection, dog sniff, and warrantless
search of closed boxes in the trailer. The district court
denied the motion, finding the officers credible and
finding the officers developed probable cause through
the facts discovered within the proper commercial
inspection and the contemporaneous open-air dog sniff.
A jury convicted Tran and Nguyen of the drug and
firearm possession counts and all three defendants of
a drug conspiracy count. The district court sentenced
Tran and Nguyen each to 60 months’ imprisonment on
the conspiracy and drug possession counts, to run
concurrently, and 60 months’ imprisonment on the
firearm count, to be served consecutively. The district
court sentenced Le to 120 months’ imprisonment on the
conspiracy count based in part on a guidelines
enhancement for his leadership role.
App. 9
II.
“We review the denial of a suppression motion
alleging an unreasonable search de novo [and] the
district court’s underlying findings of historical fact for
clear error.” United States v. Crutchfield, 979 F.3d 614,
616 (8th Cir. 2020). The Supreme Court has held that
a warrantless search in the context of a closely
regulated industry may be constitutional if, in part, the
rules governing the search offer an adequate substitute
for the protections of the Fourth Amendment’s warrant
requirement. See New York v. Burger, 482 U.S. 691,
702–03 (1987). Interstate commercial trucking qualifies
as a closely regulated industry for which a variety of
regulatory inspections may be performed without a
warrant. See, e.g., United States v. Knight, 306 F.3d
534, 535 (8th Cir. 2002). The rules for such inspections
limit officer discretion and satisfy the warrant
substitute protections identified in Burger. Id. (“We
agree with the district court’s conclusion that the North
American Standard Inspection Program, see 49 C.F.R.
§ 350.105, which was in force in Iowa, and pursuant to
which the inspection here was commenced, provides
notice to truck drivers of the possibility of a roadside
inspection and limits officer discretion.”).
To the extent the defendants argue the first officer
exceeded the permissible scope of a regulatory
inspection, the defendants present a factual challenge.
The district court did not clearly err in finding the
inspection proper. The trooper conducting the
inspection had extensive training and experience and
testified at the suppression hearing. Both he and a
training inspector described the purpose and
App. 10
parameters of such a search. The district court properly
concluded that asking a driver for log books, bills of
lading, and safety equipment; inquiring as to
ownership, registration, and insurance; inspecting a
vehicle’s exterior; and looking in a trailer for safety
equipment or to inspect cargo securement are all
proper aspects of a Level II inspection.
An open air dog sniff that does not prolong the
initial purpose of a stop is permissible. See Rodriguez
v. United States, 575 U.S. 348, 355 (2015). Here, the
dog sniff occurred while the inspection was taking place
and well-within the minimum time generally required
to conduct a Level II search. To the extent the
defendants challenge the execution of the dog search,
they again present a factual challenge. The evidence
showed certification and extensive training for the dog
and handler more than sufficient to establish
reliability. The district court did not commit clear error
in finding the facts as a whole, including reliance on
the dog, provided probable cause.
The defendants focus on the number of passes
required for the dog’s final indication. But this narrow
focus does little to detract from the reliability of the
indication or the finding of probable cause as a whole.
See Florida v. Harris, 568 U.S. 237, 246–47 (2013)
(“evidence of a dog’s satisfactory performance in a
certification or training program can itself provide
sufficient reason to trust his alert”). Although
defendants may challenge the dog’s reliability on any
basis, “[t]he question—similar to every inquiry into
probable cause—is whether all the facts surrounding a
dog’s alert, viewed through the lens of common sense,
App. 11
would make a reasonably prudent person think that a
search would reveal contraband or evidence of a crime.”
Id. at 248. Armed with the suspicion developed in the
course of the regulatory inspection and with the dog’s
indication of drugs, officers did not conduct an
unreasonable search when they entered the trailer and
look in sealed boxes.
Regarding the sufficiency of the evidence, most
arguments fall away given our affirmance on the
suppression issue. To the extent the defendants
characterize the evidence as insufficient to support a
conspiracy conviction, we find no error. Le’s role as
owner, the defendants’ statements as to Le’s
communications during travel, and the repeated stops
in multiple states with evidence of drugs or drug
proceeds more than suffice to show the defendants
were aware of the conspiracy and its purpose and
knowingly joined in the conspiracy. See United States
v. Shavers, 955 F.3d 685, 691 (8th Cir. 2020) (“Because
conspiracies are often secretive, their existence may be
proven through circumstantial evidence alone, and
evidence of an agreement to join the conspiracy may be
inferred from the facts.” (citations omitted)). As to the
firearm count, officers discovered the gun in the back
seat of the truck where Tran and Nguyen could access
it. A jury may rely on the possession of a firearm along
with distribution quantities of drugs to support an
inference that the firearm is there to protect drugs and
proceeds and is thus possessed “in furtherance” of a
drug trafficking offense. See, e.g., United States v.
Vang, 3 F.4th 1064, 1067 (8th Cir. 2021).
App. 12
Finally, to as to Le’s sentencing challenge, the
district court did not clearly err in finding him to be a
leader and applying an enhancement pursuant to
U.S.S.G. § 3B1.1. The resulting within-range sentence
is presumptively reasonable on appeal, and Le presents
no persuasive arguments to suggest this is the “rare
case” where such a presumption is rebutted. United
States v. Jones, 49 F.4th 1144, 1146 (8th Cir. 2022).
III.
We affirm the judgments of the district court.
App. 13
APPENDIX B
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF IOWA
Case Number: 1:19-CR-00004-003
[Filed August 27, 2021]
_________________________________
UNITED STATES OF AMERICA )
)
v.
)
)
Hieu Minh Le
)
________________________________ )
JUDGMENT IN A CRIMINAL CASE
USM Number: 49563-086
Robert L. Sirianni Jr.
Defendant’s Attorney
THE DEFENDANT:
9 pleaded guilty to count(s) ______________________
9 pleaded nolo contendere to count(s) _______ which
was accepted by the court.
: was found guilty on count(s) One of the Second
Superseding Indictment filed on December 30, 2019.
after a plea of not guilty.
App. 14
The defendant is adjudicated guilty of these offenses:
Title &
Section
Nature of
Offense
21 U.S.C.
Conspiracy to
§§ 841(a)(1), Distribute 100
841(b)(1)(B), Kilograms or
846
More of
Marijuana
Offense
Ended
Count
12/21/2018
One
9 See additional count(s) on page 2
The defendant is sentenced as provided in pages 2
through 7 of this judgment. The sentence is imposed
pursuant to the Sentencing Reform Act of 1984.
9 The defendant has been found not guilty on count(s)
__________
9 Count(s) ________________ 9 is 9 are dismissed on
the motion of the United States.
It is ordered that the defendant must notify the
United States Attorney for this district within 30 days
of any change of name, residence, or mailing address
until all fines, restitution, costs, and special
assessments imposed by this judgment are fully paid.
If ordered to pay restitution, the defendant must notify
the court and United States attorney of material
changes in economic circumstances.
August 27, 2021
Date of Imposition of Judgment
/s/ John A. Jarvey
Signature of Judge
App. 15
John A. Jarvey, Chief U.S. District Judge
Name of Judge
Title of Judge
8/27/21
Date
IMPRISONMENT
The defendant is hereby committed to the custody
of the United States Bureau of Prisons to be
imprisoned for a total term of:
120 months as to Count One of the Second Superseding
Indictment filed on December 30, 2019.
9 The court makes the following recommendations to
the Bureau of Prisons:
: The defendant is remanded to the custody of the
United States Marshal.
9 The defendant is remanded to the custody of the
United States Marshal for surrender to the ICE
detainer.
9 The defendant shall surrender to the United States
Marshal for this district:
9 at _______________ 9 a.m. 9 p.m. on _______
9 as notified by the United States Marshal.
9 The defendant shall surrender for service of
sentence at the institution designated by the
Bureau of Prisons:
9 before
on _________
App. 16
9 as notified by the United States Marshal.
9 as notified by the Probation or Pretrial Services
Office.
RETURN
I have executed this judgment as follows:
Defendant delivered on _______ to _______ a
_______ , with a certified copy of this judgment.
________________________________________
UNITED STATES MARSHAL
By _____________________________________
DEPUTY UNITED STATES MARSHAL
SUPERVISED RELEASE
Upon release from imprisonment, you will be on
supervised release for a term of:
Four years as to Count One of the Second Superseding
Indictment filed on December 30, 2019.
MANDATORY CONDITIONS
1.
2.
3.
You must not commit another federal, state or
local crime.
You must not unlawfully possess a controlled
substance.
You must refrain from any unlawful use of a
controlled substance. You must submit to one
drug test within 15 days of release from
imprisonment and at least two periodic drug
tests thereafter, as determined by the court.
App. 17
4.
9
5.
:
6.
9
7.
9
9 The above drug testing condition is
suspended, based on the court’s
determination that you pose a low risk of
future substance abuse. (check if
applicable)
You must make restitution in accordance
with 18 U.S.C. §§ 3663 and 3663A or any
other statute authorizing a sentence of
restitution. (check if applicable)
You must cooperate in the collection of DNA
as directed by the probation officer. (check if
applicable)
You must comply with the requirements of
the Sex Offender Registration and
Notification Act (34 U.S.C. § 20901, et seq.)
as directed by the probation officer, the
Bureau of Prisons, or any state sex offender
registration agency in which you reside,
work, are a student, or were convicted of a
qualifying offense. (check if applicable)
You must participate in an approved
program for domestic violence. (check if
applicable)
You must comply with the standard conditions that
have been adopted by this court as well as with any
other conditions on the attached page.
STANDARD CONDITIONS OF SUPERVISION
As part of your supervised release, you must comply
with the following standard conditions of supervision.
These conditions are imposed because they establish
the basic expectations for your behavior while on
supervision and identify the minimum tools needed by
App. 18
probation officers to keep informed, report to the court
about, and bring about improvements in your conduct
and condition.
1.
2.
3.
4.
5.
6.
You must report to the probation office in the
federal judicial district where you are authorized
to reside within 72 hours of your release from
imprisonment, unless the probation officer
instructs you to report to a different probation
office or within a different time frame.
After initially reporting to the probation office,
you will receive instructions from the court or
the probation officer about how and when you
must report to the probation officer, and you
must report to the probation officer as
instructed.
You must not knowingly leave the federal
judicial district where you are authorized to
reside without first getting permission from the
court or the probation officer.
You must answer truthfully the questions asked
by your probation officer.
You must live at a place approved by the
probation officer. If you plan to change where
you live or anything about your living
arrangements (such as the people you live with),
you must notify the probation officer at least 10
days before the change. If notifying the
probation officer in advance is not possible due
to unanticipated circumstances, you must notify
the probation officer within 72 hours of
becoming aware of a change or expected change.
You must allow the probation officer to visit you
at any time at your home or elsewhere, and you
App. 19
7.
8.
9.
10.
must permit the probation officer to take any
items prohibited by the conditions of your
supervision that he or she observes in plain
view.
You must work full time (at least 30 hours per
week) at a lawful type of employment, unless the
probation officer excuses you from doing so. If
you do not have full-time employment you must
try to find full-time employment, unless the
probation officer excuses you from doing so. If
you plan to change where you work or anything
about your work (such as your position or your
job responsibilities), you must notify the
probation officer at least 10 days before the
change. If notifying the probation officer at least
10 days in advance is not possible due to
unanticipated circumstances, you must notify
the probation officer within 72 hours of
becoming aware of a change or expected change.
You must not communicate or interact with
someone you know is engaged in criminal
activity. If you know someone has been convicted
of a felony, you must not knowingly
communicate or interact with that person
without first getting the permission of the
probation officer.
If you are arrested or questioned by a law
enforcement officer, you must notify the
probation officer within 72 hours.
You must not own, possess, or have access to a
firearm, ammunition, destructive device, or
dangerous weapon (i.e., anything that was
designed, or was modified for, the specific
App. 20
11.
12.
13.
purpose of causing bodily injury or death to
another person such as nunchakus or tasers).
You must not act or make any agreement with a
law enforcement agency to act as a confidential
human source or informant without first getting
the permission of the court.
If the probation officer determines that you pose
a risk to another person (including an
organization), the probation officer may require
you to notify the person about the risk and you
must comply with that instruction. The
probation officer may contact the person and
confirm that you have notified the person about
the risk.
You must follow the instructions of the
probation officer related to the conditions of
supervision.
U.S. Probation Office Use Only
A U.S. probation officer has instructed me on the
conditions specified by the court and has provided me
with a written copy of this judgment containing these
conditions. For further information regarding these
conditions, see Overview of Probation and Supervised
Release Conditions, available at: www.uscourts.gov.
Defendant’s Signature ________________ Date ______
SPECIAL CONDITIONS OF SUPERVISION
You must participate in a program of testing and/or
treatment for substance abuse, as directed by the
Probation Officer, until such time as the defendant is
released from the program by the Probation Office. At
App. 21
the direction of the probation office, you must receive
a substance abuse evaluation and participate in
inpatient and/or outpatient treatment, as
recommended. Participation may also include
compliance with a medication regimen. You will
contribute to the costs of services rendered (copayment) based on ability to pay or availability of
third-party payment. You must not use alcohol and/or
other intoxicants during the course of supervision.
You must pay a fine in the amount of $10,000. You will
cooperate with the U.S. Probation Officer in developing
a monthly payment plan consistent with a schedule of
allowable expenses provided by the U.S. Probation
Office. You may be required to participate in an IRS
Offset Program and/or Treasury Offset Program, which
may include the garnishment of wages or seizure of all
or part of any income tax refund and/or any
government payment to be applied toward the fine
balance.
You must cooperate fully with the Internal Revenue
Service in determining and paying any tax liabilities.
You must provide to the Internal Revenue Service all
requested documents and information for purposes of
any civil audits, examinations, collections, or other
proceedings. It is further ordered that you must file
accurate income tax returns and pay all taxes, interest,
and penalties due and owing by you to the Internal
Revenue Service.
You must provide complete access to financial
information, including disclosure of all business and
personal finances, to the U.S. Probation Officer.
App. 22
You must not apply for, solicit, or incur any further
debt, included but not limited to loans, lines of credit,
or credit card charges, either as a principal or cosigner,
as an individual, or through any corporate entity,
without first obtaining written permission from the
U.S. Probation Officer.
You must maintain full-time, legitimate employment
and not be unemployed for a term of more than 30 days
unless excused for schooling, training, or other
acceptable reasons. Further, you must provide
documentation including, but not limited to pay stubs,
contractual agreements, W-2 Wage and Earnings
Statements, and other documentation requested by the
U.S. Probation Officer. You must not terminate any
employment without prior approval from the U.S.
Probation Office. If separated from employment for any
reason, you must notify the U.S. Probation Officer
within 48 hours.
You must obtain prior written approval from the U.S.
Probation Office before entering into any form of selfemployment.
You will submit to a search of your person, property,
residence, adjacent structures, office, vehicle, papers,
computers (as defined in 18 U.S.C. § 1030(e)(1)), and
other electronic communications or data storage
devices or media, conducted by a U.S. Probation
Officer. Failure to submit to a search may be grounds
for revocation. You must warn any other residents or
occupants that the premises and/or vehicle may be
subject to searches pursuant to this condition. An
officer may conduct a search pursuant to this condition
only when reasonable suspicion exists that you have
App. 23
violated a condition of your release and/or that the
area(s) or item(s) to be searched contain evidence of
this violation or contain contraband. Any search must
be conducted at a reasonable time and in a reasonable
manner. This condition may be invoked with or without
the assistance of law enforcement, including the U.S.
Marshals Service.
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary
penalties under the schedule of payments on Sheet 6.
9 Pursuant to 18 U.S.C. § 3573, upon the motion of
the government, the Court hereby remits the
defendant’s Special Penalty Assessment; the fee is
waived and no payment is required.
Assess Restit Fine
ment ution
TOTALS $ 100.00 $0.00
AVAA JVTA
Assess Assess
ment* ment**
$ 10,000.00 $ 0.00
$ 0.00
9 The determination of restitution is deferred until
________. An Amended Judgment in a Criminal
Case (AO 245C) will be entered after such
determination.
*
Amy, Vicky, and Andy Child Pornography Victim Assistance Act
of 2018, Pub. L. No. 115-299.
**
Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22.
App. 24
9 The defendant must make restitution (including
community restitution) to the following payees in
the amount listed below.
If the defendant makes a partial payment, each
payee shall receive an approximately proportioned
payment, unless specified otherwise in the priority
order or percentage payment column below.
However, pursuant to 18 U.S.C. § 3664(i), all
nonfederal victims must be paid before the United
States is paid.
Name of Total Loss*** Restitution Priority or
Payee
Ordered
Percentage
TOTALS $0.00
$0.00
9 Restitution amount ordered pursuant to plea
agreement $ ____
9 The defendant must pay interest on restitution and
a fine of more than $2,500, unless the restitution or
fine is paid in full before the fifteenth day after the
***
Findings for the total amount of losses are required under
Chapters 109A, 110, 110A, and 113A of Title 18 for offenses
committed on or after September 13, 1994, but before April 23,
1996.
App. 25
date of the judgment, pursuant to 18 U.S.C.
§ 3612(f). All of the payment options on Sheet 6 may
be subject to penalties for delinquency and default,
pursuant to 18 U.S.C. § 3612(g).
9 The court determined that the defendant does not
have the ability to pay interest and it is ordered
that:
9 the interest requirement is waived for the 9 fine
9 restitution.
9 the interest requirement for the 9 fine
9 restitution is modified as follows:
SCHEDULE OF PAYMENTS
Having assessed the defendant’s ability to pay,
payment of the total criminal monetary penalties is due
as follows:
A : Lump sum payment of $ 10,100.00 due
immediately, balance due
9 not later than _____ , or
: in accordance G C, G D, G E, or : F below; or
B G Payment to begin immediately (may
combined with G C, G D, or G F below); or
be
C G Payment in equal ______ (e.g., weekly, monthly,
quarterly) installments of $ ______ over a period
of ______ (e.g., months or years), to commence
_____ (e.g., 30 or 60 days) after the date of this
judgment; or
App. 26
D G Payment in equal ______ (e.g., weekly, monthly,
quarterly) installments of $ ______ over a period
of ______ (e.g., months or years), to commence
(e.g., 30 or 60 days) after release from
imprisonment to a term of supervision; or
E G Payment during the term of supervised release
will commence within _____ (e.g., 30 or 60 days)
after release from imprisonment. The court will
set the payment plan based on an assessment of
the defendant’s ability to pay at that time; or
F : Special instructions regarding the payment of
criminal monetary penalties:
All criminal monetary payments are to be made
to the Clerk’s Office, U.S. District Court, P.O.
Box 9344, Des Moines, IA. 50306-9344.
While on supervised release, you shall cooperate
with the Probation Officer in developing a
monthly payment plan consistent with a
schedule of allowable expenses provided by the
Probation Office.
Unless the court has expressly ordered otherwise, if
this judgment imposes imprisonment, payment of
criminal monetary penalties is due during the period of
imprisonment. All criminal monetary penalties, except
those payments made through the Federal Bureau of
Prisons’ Inmate Financial Responsibility Program, are
made to the clerk of the court.
The defendant shall receive credit for all payments
previously made toward any criminal monetary
penalties imposed.
App. 27
9 Joint and Several
Case Number Total
Joint
Corresponding
Defendant and Amount and
Payee, if
Co-Defendant
Several appropriate
Names
Amount
(including
defendant
number)
9 The defendant shall pay the cost of prosecution.
9 The defendant shall pay the following court cost(s):
: The defendant shall forfeit the defendant’s interest
in the following property to the United States:
a 2016 Chevy Silverado truck
(VIN
1GC4Kl187GF151697); a 2019 FRDM Cargo Trailer
(VIN 5WKGE2627K1057999); and a Sig Sauer .380
handgun (SN: 27B387250), as outlined in the
Preliminary Order of Forfeiture entered on
August 16, 2021.
Payments shall be applied in the following order:
(1) assessment, (2) restitution principal, (3) restitution
interest, (4) AVAA assessment, (5) fine principal,
(6) fine interest, (7) community restitution, (8) JVTA
assessment, (9) penalties, and (10) costs, including cost
of prosecution and court costs.
App. 28
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
WESTERN DIVISION
No. 1:19-cr-00004-JAJ-HCA
[Filed June 8, 2021]
_______________________________________
UNITED STATES OF AMERICA,
)
Plaintiff,
)
)
vs.
)
)
SANH BIN TRAN, TU ANH NGUYEN, )
and HIEU MINH LE,
)
Defendants.
)
______________________________________ )
OPINION AND ORDER REGARDING
DEFENDANTS’ MOTIONS FOR JUDGMENT
OF ACQUITTAL OR NEW TRIAL
This case is before the court on defendant Sanh
Binh Tran’s and defendant Tu Anh Nguyen’s April 27,
2021, Motion For Judgment Of Acquittal [Dkt.
No. 250], as corrected [Dkt. No. 253], and defendant
Hieu Minh Le’s April 27, 2021, Motion For Judgment
Of Acquittal [Dkt. No. 251], as corrected [Dkt. No. 252].
These Motions are essentially identical and, in the
alternative to acquittal, seek a new trial. The case is
also before the court on defendant Tu Anh Nguyen’s
App. 29
separate May 24, 2021, Motion For Judgment Of
Acquittal Or New Trial [Dkt. No. 276], filed by new
counsel. The government filed its joint Response To
Defendants’ Motion[s] For Judgment Of Acquittal on
May 28, 2021. Nguyen filed his Reply [Dkt. No. 285] in
support of his separate Motion on June 7, 2021. For the
reasons stated below, all the defendants’ Motions are
DENIED.
I. INTRODUCTION
The charges against the defendants arouse from
three stops of vehicles pulling enclosed trailers in
Mississippi on November 2, 2018; in Iowa on
December 21, 2018; and in Nebraska on March 1, 2019,
respectively. Le was driving the vehicle during the first
and third stops and Tran was driving the vehicle
during the second stop. Nguyen was a passenger in the
vehicle during all three stops. During each stop, THC
oil, marijuana, or both were found, and a firearm was
found in the cab of the vehicle during the second stop.
Eventually, a Second Superseding Indictment was
filed on December 30, 2019. Count 1 charged all three
defendants with conspiracy to possess with intent to
distribute and to distribute a controlled substance, that
is, 100 kilograms or more of marijuana, beginning at
least as early as November 2, 2018, and continuing up
to and including March 4, 2019, all in violation of 21
U.S.C. §§ 846 and 841(b)(1)(B). Thus, the conspiracy
allegedly encompassed the dates of all three vehicle
stops. Count 2 charged defendants Tran and Nguyen
with possession with intent to distribute a controlled
substance, that is, 100 kilograms or more of marijuana,
on or about December 21, 2018, in violation of 21
App. 30
U.S.C. § 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2.
Count 3 charged defendants Tran and Nguyen with
carrying a firearm during and in relation to a drugtrafficking crime as charged in Count 2 on or about
December 21, 2018, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i) and 2. Count 3 was improperly
identified in the Second Superseding Indictment as
“Possession in Furtherance of Drug Trafficking,” but
the conduct charged was carrying a firearm during and
in relation to a drug-trafficking offense. The jury was
instructed on the “carrying” version of the offense.
A jury trial began on March 29, 2021. After
defendant Le showed up late for jury selection, the
undersigned warned the defendants that if they did not
appear on time for trial, the trial would proceed
without them. The defendants did not appear on the
third day of trial, so the trial proceeded in their
absence, but they reappeared on the fourth and last
day of trial on April 1, 2021. On the afternoon of
April 1, 2021, the jury found each defendant guilty of
the charge or charges against him.
The defendants Motions for judgment of acquittal
or, in the alternative, for new trial followed in due
course.
II. LEGAL ANALYSIS
A. Applicable Standards
As the Eighth Circuit Court of Appeals has
explained,
A district court may enter a judgment of
acquittal after a jury verdict only if the
App. 31
“evidence is insufficient to sustain a conviction.”
Fed. R. Crim. P. 29(a). “We review sufficiency of
the evidence in a criminal case de novo, viewing
the evidence in the light most favorable to the
government, resolving conflicts in the
government’s favor, and accepting all reasonable
inferences that support the verdict.” United
States v. Parsons, 946 F.3d 1011, 1013–14 (8th
Cir. 2020) (emphasis omitted) (quotation
omitted). This standard “is very strict, and the
jury’s verdict is not to be lightly overturned.”
United States v. Hayes, 391 F.3d 958, 961 (8th
Cir. 2004). “Reversal is warranted only when no
reasonable jury could find all the elements
beyond a reasonable doubt.” Parsons, 946 F.3d
at 1014 (cleaned up).
United States v. Wright, 993 F.3d 1054, 1065 (8th Cir.
2021).
Rule 33 of the Federal Rules of Criminal Procedure
authorizes the court to “grant a new trial if the interest
of justice so requires.” As the Eighth Circuit Court of
Appeals has explained,
A defendant is entitled to a new trial due to
insufficient evidence only if “the evidence
preponderates heavily against the verdict,” such
that “a miscarriage of justice will occur” unless
the defendant receives a new trial. United States
v. Stacks, 821 F.3d 1038, 1045 (8th Cir. 2016).
[T]he district court may undertake its own
evaluation of the credibility of witnesses when
deciding a motion for a new trial. . . .
App. 32
United States v. Ruzicka, 988 F.3d 997, 1007 (8th Cir.
2021).
B. Discussion
1. The drug offenses
In their Motions, the defendants argue that there is
insufficient evidence to show that they had knowledge
of the marijuana in the vehicles or trailers involved in
any of the stops or to demonstrate their intent to
engage in a conspiracy. The government asserts that it
presented sufficient evidence to prove the “knowledge”
and “intent” elements of these offenses.
As the Eighth Circuit Court of Appeals has
explained,
To convict an individual for conspiracy to
distribute [a controlled substance], the
government must prove: “(1) that there was a
conspiracy, i.e., an agreement to distribute the
drugs; (2) that the defendant knew of the
conspiracy; and (3) that the defendant
intentionally joined the conspiracy.” United
States v. Myers, 965 F.3d 933, 937 (8th Cir.
2020) (citation omitted). “An agreement to join a
conspiracy need not be explicit and can be
inferred from the facts of the case.” United
States v. Lewis, 895 F.3d 1004, 1009 (8th Cir.
2018) (citation omitted).
United States v. Flax, 988 F.3d 1068, 1072 (8th Cir.
2021). Similarly, “[t]o convict a defendant of possession
with intent to distribute a controlled substance, the
government must prove beyond a reasonable doubt that
App. 33
the defendant ‘both knowingly possessed and intended
to distribute the drugs.’” United States v. Campbell,
986 F.3d 782, 807 (8th Cir. 2021) (quoting United
States v. Morales, 813 F.3d 1058, 1065 (8th Cir. 2016)).
The court concludes that there is sufficient evidence
for a reasonable juror to find that each of the
defendants knew of the presence of controlled
substances in the vehicles or trailers and knew of the
purpose of the conspiracy. Wright, 993 F.3d at 1065
(judgment of acquittal standard). Evidence of
knowledge of the presence of controlled substances in
a vehicle includes a prior stop of a defendant in which
a large amount of cash or drugs was found, suggesting
routine drug runs, as is the case with Le and Nguyen,
or an unlikely or implausible story, which is the case
with all three defendants. United States v. Johnson,
954 F.3d 1106, 1114 (8th Cir. 2020), cert. denied,
No. 20-6260, 2021 WL 1520856 (Apr. 19, 2021). The
implausibility of all three defendants’ stories was
apparent from the testimony of law enforcement
officers, the inadequate bills of lading, the evidence
that the businesses alleged to be the destinations for
the shipments had never heard of the defendants’
company nor did they do business in the manner the
defendants were supposedly doing it, and the
defendants’ strange travel history with unproductive
time with no paying loads. Where there is no evidence
that a defendant ever opened or examined a container
(such as luggage, the cargo area of a vehicle, or a
trailer) containing the drugs, there is no reasonable
inference that the defendant knew he was transporting
drugs, but evidence is sufficient to show knowledge if
it creates a reasonable inference that the defendant
App. 34
examined the container at some point. See United
States v. White, 915 F.3d 1195, 1199 (8th Cir.) (citing
United States v. Pace, 922 F.2d 451, 453 (8th Cir.
1990)), cert. denied, 140 S. Ct. 469 (2019). Here, a jury
could reasonably infer from Tran’s assertion that there
was no bleach in the trailer, despite admitting to the
odor of bleach, and from his admission that he and
Nguyen had met Le and moved commodities from his
trailer onto their trailer, that he and Nguyen had
examined or been in the trailer.
A defendant’s control of a vehicle can support an
inference that he knew about drugs contained in the
vehicle, particularly if he is the owner of the vehicle, as
was Le, but additional evidence is required if the
defendant is not the owner of the vehicle. United States
v. Leon, 924 F.3d 1021, 1024 (8th Cir.), cert. denied, 140
S. Ct. 672 (2019). Even so, it is unlikely that the owner
would place a large quantity of drugs with substantial
street value in the hands of people who did not even
know it was there. United States v. Aponte, 619 F.3d
799, 808 (8th Cir. 2010). An argument that a defendant
was a “blind mule” is less plausible where he was
transporting a “bulky” and very valuable load of drugs,
particularly if they were not well hidden. Leon, 924
F.3d at 1025. The evidence discussed in the preceding
paragraph provides the additional inference of
knowledge of the presence of drugs required from
Tran’s and Nguyen’s control of the vehicle for several
days at a time, and the very large, bulky, and valuable
quantity of marijuana found in the trailer they were
hauling, even if they were not the owners of the
vehicle.
App. 35
There is also sufficient evidence of each defendant’s
intent to distribute, either as the object of a substantive
offense or a conspiracy, including the presence of a
large quantity of drugs, United States v. Harry, 930
F.3d 1000, 1007 (8th Cir. 2019), and a large sum of
cash with a quantity of a controlled substance. United
States v. Bradshaw, 955 F.3d 699, 706 (8th Cir. 2020).
Similarly, there is sufficient evidence of each
defendant’s intent to join in the conspiracy, because of
their repeated participation in what were confirmed or
likely drug runs, as well as the other evidence,
discussed above. See, e.g., United States v. Shavers, 955
F.3d 685, 691 (8th Cir. 2020) (explaining that “evidence
of an agreement to join the conspiracy may be inferred
from the facts”).
Even if the court reweighs the evidence, it is not
convinced that the interest of justice requires that the
defendants be granted a new trial on the drug charges
or that a miscarriage of justice will occur if they are not
granted a new trial. FED. R. CRIM. P. 33; Ruzicka, 988
F.3d at 1007. The defendants’ Motions are denied as to
the drug offenses.
2. The firearm offense
Nguyen is the only defendant to challenge his
conviction of the firearm offense in Count 3. In his
separate Motion, Nguyen asserts that the evidence
does not support that he carried a firearm or that he
did so during and in relation to a drug-trafficking
offense. The government argues that the evidence is
sufficient to convict Nguyen of this offense. Nguyen
argues that, at most, the government has shown his
App. 36
knowledge of the presence of the firearm, but that is
not enough to convict him of this offense.
This offense requires the government to prove
(1) the carrying of a firearm; (2) during and in relation
to a drug-trafficking crime. Flax, 988 F.3d at 1074.
“[W]hen a motor vehicle is used, ‘carrying a weapon’
takes on a less restrictive meaning than carrying on
the person. The means of carrying is the vehicle.”
United States v. Wright, 993 F.3d 1054, 1064–65 (8th
Cir. 2021) (internal quotation marks and citations
omitted). Although Nguyen denies that he exercised
sufficient dominion and control over the firearm to
have “carried” it, both Tran and Nguyen admitted that
they knew the firearm, along with ammunition, was in
a bag in the backseat of the truck that they had been
driving for several days, so it was readily accessible to
and subject to the dominion and control of both. Thus,
there is sufficient evidence for a reasonable juror to
find that they both “carried” the firearm. Wright, 993
F.3d at 1065 (judgment of acquittal standard).
As the Eighth Circuit Court of Appeals has
explained,
“The phrase ‘in relation to’ is expansive,” but, “at
a minimum, [it] clarifies that the firearm must
have some purpose or effect with respect to the
drug trafficking crime.” Smith v. United States,
508 U.S. 223, 237-38, 113 S.Ct. 2050, 124
L.Ed.2d 138 (1993), modified by, Bailey v.
United States, 516 U.S. 137, 116 S.Ct. 501, 133
L.Ed.2d 472 (1995). “[The firearm’s] presence or
involvement cannot be the result of accident or
coincidence.... Instead the gun at least must
App. 37
‘facilitat[e], or ha[ve] the potential of
facilitating,’ the drug trafficking offense.” Id. at
238, 113 S.Ct. 2050 (second and third alterations
in original) (citation omitted).
Flax, 988 F.3d at 1074. In Flax, the court recognized
that a firearm is a “tool of the trade” for drug dealers,
for use, for example, to protect drugs and drug profits,
and that if the firearm is present for that purpose, a
conviction of this firearm offense may be warranted. Id.
Here, both Tran and Ngueyn knew the firearm was in
the passenger compartment of the vehicle, in easy
reach of either of them, to be picked up to protect the
drugs in the trailer, if the need arose. Thus, a
reasonable juror could find that both defendants
“carried” the firearm “during and in relation to” the
drug-trafficking offense. Wright, 993 F.3d at 1065
(judgment of acquittal standard).
Again, even if the court reweighs the evidence, it is
not convinced that the interest of justice requires that
Nguyen be granted a new trial on the firearm charge or
that a miscarriage of justice will occur if he is not
granted a new trial. FED. R. CRIM. P. 33; Ruzicka, 988
F.3d at 1007. Nguyen’s Motion is denied as to the
firearm offense.
3. Flight
Finally, the defendants argue that they did not
attempt to avoid trial or engage in any sort of “flight”
during the trial, so that the court improperly relied, in
part, on their “flight” as a basis for denying their
motions for judgment of acquittal made at the end of
the evidence. The government argues that the “flight”
App. 38
instruction to the jury was appropriate, as was the
court’s reliance on the defendants’ “flight” to deny their
motions for judgment of acquittal during trial. Indeed,
the government argues that the defendants’ description
of their behavior as “involuntary absence” from trial is
disingenuous.
As the Eighth Circuit Court of Appeals has
explained,
When a court decides whether to proceed with
trial in absentia, it “must determine and make
appropriate findings (1) whether the defendant’s
absence is knowing and voluntary, and (2) if so,
whether the public interest in the need to
proceed clearly outweighs that of the voluntarily
absent defendant in attending the trial.” [United
States v.] Washburn, 728 F.3d [775,] 786 [(8th
Cir. 2013)] (internal quotation marks omitted).
In addition, a “district court should, at the time
make a record inquiry to attempt to ascertain
the explanation for the absence of the accused.”
United States v. Crites, 176 F.3d 1096, 1097-98
(8th Cir. 1999) (internal quotation marks
omitted).
United States v. Hellems, 866 F.3d 856, 864 (8th Cir.
2017). Here, the court made the proper inquiry, when
the defendants did not appear, by asking all three
defense attorneys if they had heard from their clients,
and they all advised the court that they had not heard
from their clients since the previous afternoon. None of
the defense attorneys reported to the court that the
defendants had texted them that they were “running
late,” as the defendants now contend, and the
App. 39
defendants point to nothing in the record to support
that claim. Indeed, there is no evidence that the
defendants made any attempt to appear during the
third day of trial, which belies their argument that
they were merely “late” for trial. Under the
circumstances, the court properly proceeded with the
trial in the defendants’ absence.
Also, a court may properly instruct jurors that they
may, but are not required to, consider whether
evidence of flight shows a consciousness of guilt and
the weight or significance to be attached to evidence of
flight. See United States v. Howard, 977 F.3d 671,
676–77 (8th Cir. 2020). That is what the court did in
this case. See Final Jury Instruction No. 6 (including in
the “definitions” an explanation of “voluntary absence”
and the inferences that could be drawn from it). A
reasonable juror could find that the defendants were
voluntarily absent from trial and that their absence
demonstrated a consciousness of guilt. Wright, 993 F.3d
at 1065 (judgment of acquittal standard). The court
was also entitled to draw the same inference of
consciousness of guilty from the defendants’ flight as a
basis to deny their motions for judgment of acquittal
during trial. FED. R. CIV. P. 29 (on a motion for
judgment of acquittal before submission to the jury,
“[t]he court may on its own consider whether the
evidence is sufficient to sustain a conviction”). Finally,
nothing convinces the court that the interest of justice
requires that the defendants be granted a new trial on
the basis of their absence on the third day of trial or
that a miscarriage of justice will occur if they are not
granted a new trial on this ground. FED. R. CRIM. P. 33;
Ruzicka, 988 F.3d at 1007.
App. 40
Thus, the defendants’ post-trial motions are denied
as to the issue of their “flight.”
III. CONCLUSION
Upon the foregoing,
IT IS ORDERED that
1. defendant Sanh Binh Tran’s and defendant Tu
Anh Nguyen’s April 27, 2021, Motion For Judgment Of
Acquittal [Dkt. No. 250], as corrected [Dkt. No. 253], is
DENIED;
2. defendant Hieu Minh Le’s April 27, 2021, Motion
For Judgment Of Acquittal [Dkt. No. 251], as corrected
[Dkt. No. 252], is DENIED; and
3. defendant Tu Anh Nguyen’s separate May 24,
2021, Motion For Judgment Of Acquittal Or New Trial
[Dkt. No. 276] is DENIED.
DATED this 8th of June, 2021.
/s/ John A. Jarvey
JOHN A. JARVEY, Chief Judge
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF IOWA
App. 41
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
WESTERN DIVISION
No. 1:19-cr-4
[Filed January 23, 2020]
_________________________________
UNITED STATES OF AMERICA, )
Plaintiff,
)
)
vs.
)
)
SANH BINH TRAN, HIEU MINH )
LE, and TU ANH NGUYEN,
)
Defendants.
)
________________________________ )
ORDER
This matter comes before the Court pursuant to
Defendant Le’s December 2, 2019, Motion to Suppress
Evidence. [Dkt. No. 72]. The Motion was joined by
Defendant Nguyen, [Dkt. No. 73], and by Defendant
Tran, [Dkt. No. 78]. The Court held an evidentiary
hearing on this motion on January 3, 2020, at which
the defendants were present and represented by
counsel of record. The government was represented by
Shelly Sudmann. The Motion to Suppress is DENIED.
In their Motion to Suppress, the defendants contend
that the warrantless stop of the commercial vehicle
App. 42
owned by Defendant Le, driven by Defendant Tran,
and in which Defendant Nguyen was a passenger on
December 21, 2018, violated their rights under the
Fourth Amendment to the United States Constitution.
The government contends that the vehicle was stopped
because it did not exhibit the appropriate Department
of Transportation (DOT) sticker and had illegally dark
tinted windows. The government further contends that
the subsequent Level II inspection revealed numerous
violations of federal regulations and evidence of
suspicious behavior that warranted further inquiry. It
further contends that while the Level II commercial
vehicle inspection was transpiring, a drug-sniffing dog
alerted to the presence of controlled substances in the
trailer being towed. The Court makes the following
finds of fact and conclusions of law.
I. FINDINGS OF FACT
On December 21, 2018, Iowa State Trooper Ken
Haas was patrolling Interstate Highway 80 east of
downtown Council Bluffs, Iowa. At approximately
10:45, he stopped a large pickup towing a large trailer
by means of a fifth wheel connection. Trooper Haas is
certified to conduct Level II and Level III commercial
vehicle inspections as a part of his duties as an Iowa
State Patrol officer. Trooper Haas is familiar with the
size of vehicles that must comply with commercial
vehicle regulations when hauling commercial loads for
hire.
Although the defendants’ vehicle exhibited a
California Department of Motor Vehicles’ sticker, it did
not exhibit a federal DOT sticker. Trooper Haas noted
App. 43
that the windows on the truck were very darkly tinted.
He performed a traffic stop.
Haas promptly determined that the vehicle was
subject to a commercial vehicle inspection. Defendant
Tran told the trooper that they were hauling a
commercial load. From that point on, Trooper Haas
noted one problem after another. First, although Tran
was able to provide some documents to Trooper Haas,
he had no log book. Without a written or electronic log
book, the driver is to immediately be taken out of
service. Tran provided bills of lading, but they made no
sense. First, they were each on the same preprinted
form. It would be extremely unusual that several
different shippers would use the same “dime store”
form for a bill of lading. Second, the bills of lading did
not contain the clear expression of things normally
found on a bill of lading, such as unambiguous
statements of origin and destination for the load.
As Haas inspected the exterior of the truck and
trailer, he quickly noticed that the emergency braking
system for the trailer had not been properly connected.
He showed this problem to Defendant Tran. As he was
checking this mechanical issue, he smelled a strong
smell of bleach. The defendant indicated that they were
not hauling bleach.
Trooper Haas asked to inspect the interior of the
trailer. Once inside, he again noted unusual issues. The
cargo was not appropriately secured. This is a violation
of federal regulations relating to safety hazards caused
when cargo shifts in transit. Further, the defendants
were purporting to haul valuable vases. The vases were
not secured but found loose in cardboard boxes with
App. 44
Styrofoam packing peanuts. Answers to Haas’s
questions about the logistics of their travel did not
make sense to him.
The objects of a Level II commercial vehicle
inspection are found in Government’s Exhibit 6.
Needless to say, it is a detailed and meticulous
inspection. The national standard for a Level II
inspection suggests that it takes approximately
45 minutes to complete. Approximately 25 minutes into
this inspection, a certified K-9 policer officer came with
his certified drug-sniffing dog. After a couple of passes
around the exterior of the trailer, the dog alerted to the
presence of controlled substances inside the trailer.
Armed with this as probable cause, a further search of
the containers was performed and the police found a
substantial quantity of marijuana and other THC
products.
II. CONCLUSIONS OF LAW
Trooper Haas stops the truck.
“A violation of traffic law, even a minor violation, is
sufficient probable cause to support a stop.” United
States v. Miller, 915 F.3d 1207, 1209 (8th Cir. 2019)
(citing United States v. Fuse, 391 F.3d 924, 927 (8th
Cir. 2004)). When an officer has reasonable suspicion or
probable cause to stop for a traffic violation, the
officer’s subjective intent is irrelevant. United States v.
McLemore, 887 F.3d 861, 864 (8th Cir. 2018) (quoting
United States v. Fuehrer, 844 F.3d 767, 772 (8th Cir.
2016), cert. denied, 137 S. Ct. 2710 (2017)) (“[A]ny
ulterior motivation on the officer’s part is irrelevant.”).
Here, Trooper Haas stopped the truck after observing
App. 45
that the truck appeared to be engaged in commerce and
had very dark window tints and no federal Department
of Transportation sticker. This was in violation of both
Iowa and federal law. Iowa Code § 321.438, 49 C.F.R.
§ 393.60d (window tint); 49 C.F.R. § 390.21a (USDOT
sticker). These violations, however minor the
defendants argue they are, were sufficient probable
cause for the trooper’s initial stop.
Trooper Haas conducts a Level II inspection of
the truck.
All searches conducted without a warrant are
unreasonable under the Fourth Amendment to the
United States Constitution, subject only to specifically
established and well-delineated exceptions. One such
exception is made for administrative searches of closely
or pervasively regulated industries. See New York v.
Burger, 482 U.S. 691, 707–08 (1987). For such an
industry, the rules governing the search offer an
adequate substitute for the warrant requirement if
they (1) provide notice that the property may be
searched for a specific purpose; and (2) limit the
discretion of those performing the search. Burger, 482
U.S. at 702–03.
Commercial trucking is a closely regulated industry
within the meaning of Burger. United States v. Parker,
587 F.3d 871, 878–79 (8th Cir. 2009) (citing United
States v. Knight, 306 F.3d 534, 535 (8th Cir. 2002)).
Therefore, a warrantless search of a commercial truck
is reasonable if the relevant statute provides notice to
truckers of the possibility of a roadside search and
adequately limits officer discretion.
App. 46
The inspection here was a Level II inspection under
the North American Standard Inspection Program,
which provides guidelines for three different levels of
inspections of commercial vehicles. Commercial Vehicle
Safety Alliance, All Inspection Levels, Level II—WalkAround Driver/Vehicle Inspection, https://
www.cvsa.org/inspections/inspections/all-inspectionlevels/ (2019); 49 C.F.R. § 350.105. A Level II
inspection includes inspection of all paperwork
associated with the vehicle, as well as of all safety
equipment that can be inspected without physically
getting under the vehicle. Id.
The Eighth Circuit Court of Appeals has held that
the “North American Standard Inspection Program for
commercial vehicles also adequately limits officer
discretion and provides notice to truckers of the
possibility of a roadside inspection.” United States v.
Mendoza-Gonzalez, 363 F.3d 788, 794 (8th Cir. 2004)
(citing Knight, 306 F.3d at 535). Therefore, an officer
who is certified to conduct a Level II inspection, as
Trooper Haas is, may initiate a Level II inspection
without a warrant.
As Haas conducted the inspection, he encountered
problem after problem with the defendants’ truck.
First, the driver had no log book, and the truck’s bills
of lading were unusual both in their “dime store” form
and their ambiguous wording. These documentation
issues would trigger concern even under a more
introductory Level III inspection. As Trooper Haas
continued his Level II inspection of the truck’s safety
equipment, he observed that the trailer’s emergency
braking system was improperly connected. The
App. 47
defendants now argue that Trooper Haas’s request to
inspect the interior of the trailer violated the Fourth
Amendment, but inspection of the interior of a truck for
safety violations is fully within the realm of a Level II
inspection. See Mendoza-Gonzalez, 363 F.3d at 794
(finding that a trooper’s decision to open a safety
compartment to look for fallen restraints was
permissible as part of a Level II inspection);
Commercial Vehicle Safety Alliance, All Inspection
Levels, supra (providing for inspection, “at a
minimum,” of items such as “seating” and “cargo
securement” that would logically involve the inspector’s
entry into the vehicle). Once he looked inside the
trailer, he discovered purportedly-valuable vases
loosely stored in boxes full of packing peanuts. Trooper
Haas’s choice to conduct a warrantless Level II
inspection was reasonable under the Fourth
Amendment, and while he encountered oddity after
oddity, the trooper continued operating within the
parameters of a standard Level II inspection as he
discovered these peculiarities.
The K-9 unit arrives, and the dog’s alert provides
probable cause to search the truck.
Over the course of the inspection, more problems
appeared with the defendants’ story of what they were
hauling: the smell of bleach and the aforementioned
haphazardly-stored cargo. While conducting his
Level II inspection, Trooper Haas developed a suspicion
that illegal activity was afoot. Accordingly, he
contacted a certified and trained K-9 unit. A defendant
“cannot overcome the presumption of probable cause
that attaches when a well-trained dog gives an alert.”
App. 48
United States v. Gonzalez, 781 F.3d 422, 430 (8th Cir.
2015). Here, the K-9 dog was certified to alert to the
presence of drugs, and despite not reacting on his first
pass around the trailer, the dog alerted to the presence
of drugs. See, e.g., United States v. Holleman, 743 F.3d
1152, 1156–58 (8th Cir. 2014) (finding that a dog’s
alert, even without a “full indication,” was sufficient to
establish probable cause). With an emphasis on
common sense, the Court concludes that the dog had
detected controlled substances. See Florida v. Harris,
568 U.S. 237, 248 (2013) (“The question . . . is whether
all the facts surrounding a dog’s alert, viewed through
the lens of common sense, would make a reasonably
prudent person think that a search would reveal
contraband or evidence of a crime. A sniff is up to snuff
when it meets that test.”).
An officer may not unduly prolong a traffic stop in
order to wait for a K-9 unit to arrive. Rodriguez v.
United States, 575 U.S. 348, 355 (2015). The critical
question is whether the traffic stop is “prolonged
beyond the time reasonably required to complete [the
officer’s] mission” in a way that “measurably extend[s]
the duration of the stop.” Id. Put simply, an officer may
request a K-9 unit’s presence at a traffic stop, but he
may not prolong or delay the traffic stop to buy time for
the K-9 unit to arrive.
Here, Trooper Haas’s mission for the traffic stop
was to conduct a Level II inspection—an understanding
that takes approximately 45 minutes to complete.
Roughly 25 minutes into the inspection, the K-9 unit
arrived. The original inspection was far from finished
when the K-9 dog alerted to the presence of drugs, and
App. 49
therefore, the K-9 sniff did not violate the defendants’
Fourth Amendment rights.
Once the K-9 dog’s alert provided the officers with
probable cause to search the trailer, their search of the
trailer and all containers within it was reasonable
under the Fourth Amendment. See Carroll v. United
States, 267 U.S. 132, 160–162 (1925) (establishing an
“automobile exception” to the warrant requirement);
United States v. Murillo-Salgado, 854 F.3d 407, 417–18
(8th Cir. 2017) (finding that probable cause to search
entire vehicle for contraband justifies searching any
place that could conceal contraband). Suppression of
the contraband the troopers found is inappropriate.
Upon the foregoing,
IT IS ORDERED that the defendants’ December 2,
2019, Motion to Suppress Statement and Evidence,
[Dkt. Nos. 72, 73, 78], is DENIED.
DATED this 23rd day of January, 2020.
/s/ John A. Jarvey
JOHN A. JARVEY, Chief Judge
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF IOWA
App. 50
APPENDIX E
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
1:19-cr-00004-JAJ-HCA
[Filed November 16, 2020]
_________________________________
UNITED STATES OF AMERICA, )
Plaintiff,
)
)
vs.
)
)
TU ANH NGUYEN AND
)
HIEU MINH LE,
)
Defendants.
)
________________________________ )
REPORT AND RECOMMENDATION
ON MOTION TO SUPPRESS
This matter is before the Court on Defendant Le’s
March 6, 2020, Motion to Suppress Evidence. [Dkt.
No. 104]. Defendant Nguyen joined in the Motion. [Dkt.
No. 105]. The Government resisted the Motion to
Suppress. [Dkt. No. 109]. The Court held an
evidentiary hearing on the motion on September 3,
2020. Defendant Le waived personal appearance at the
hearing [Dkt. No. 136] and was represented by Stuart
Dornan. Defendant Nguyen also waived personal
appearance at the hearing [Dkt. No. 133] and was
represented by Assistant Federal Public Defender
App. 51
Michael Maloney. The Government was represented by
Assistant United States Attorney Shelly Sudmann. At
the end of the hearing, the Government requested that
the record be kept open to allow for supplemental
information to be filed with the Court. The Court
agreed to hold the record open and on September 10,
2020, the Government filed additional written evidence
[Dkt. No. 140] supplementing the record.
In their Motion to Suppress, Defendants Le and
Nguyen challenge two warrantless traffic stops in
different states. The first contested stop occurred on
Interstate 20 on November 2, 2018, in Mississippi
(“Mississippi stop”), when Flowood Police Officer and
Scott County Sheriff’s Special Deputy Jason Johns
stopped a white Honda SUV driven by Le, with Nguyen
as a passenger. The second challenged stop occurred on
March 1, 2019, on Interstate 80 near Lincoln, Nebraska
(“Lincoln stop”), when Lincoln Police Officer John
Hudec stopped a Toyota Tundra pulling an enclosed
trailer driven by Le, with Nguyen as a passenger.
Defendants Le and Nguyen contend that the searches
subsequent to each stop violated their rights under the
Fourth and Fourteenth Amendments of the United
States Constitution. The Government contends that
each stop and the subsequent searches were legal.
Sergeant Jason Johns, Officer John Hudec, and
Officer Jason Mayo all testified at the hearing. The
court received exhibits 1 through 4 from the
Government. Defense counsel cross-examined the
Government’s witnesses. On September 10, 2020, the
Government supplemented the record. [Dkt. No. 140].
This case was referred to the undersigned for Report
App. 52
and Recommendation pursuant to 28 U.S.C. § 636(b) on
August 14, 2020.
I. FINDINGS OF FACT
a. Mississippi Stop
On November 2, 2018, at approximately 1:00 a.m.
Scott County Sheriff’s Deputy Jason Johns was sitting
stationary on I-20 near the 92-mile marker in
Mississippi observing westbound traffic. It was raining
that morning. Officer Johns observed a white SUV
traveling westbound driving at a high rate of speed.
After pacing the SUV driving at 80 mph in a 70-mph
zone, Officer Johns initiated a traffic stop of the white
SUV, driven by Defendant Le. Nguyen was a passenger
in the vehicle. Both Le and Nguyen are Vietnamese.
When Officer Johns spoke with Le about speeding at 80
mph, Le admitted that he had been speeding (Le did
not think he was going 80, only 75 [Dkt. 147 (Tr.) 15]).
Officer Johns obtained Le and Nguyen’s identification
and ran criminal checks on both. After the checks were
completed, Officer Johns requested that Le step out of
the vehicle while the traffic stop was completed, which
Le did. Officer Johns advised Le that he was issuing a
warning for his speeding violation. Officer Johns asked
Le several questions about his trip and the passenger
in the vehicle. Le indicated that he had flown from
Washington to Texas, where he met Nguyen. The two
then drove from Texas to Alabama in the white SUV
owned by Nguyen to visit a sick uncle who had a tumor.
After a brief one-day visit with the uncle, Le and
Nguyen were now traveling back to Texas. Le first
indicated that Nguyen was his cousin but then later
said Nguyen was Le’s brother.
App. 53
Deputy Johns also spoke to Nguyen. Although
Nguyen spoke limited English, he understood and
answered Officer Johns’ questions in English. Nguyen
stated that he was the owner of the SUV and that it
was a 2018 model. Nguyen stated they were returning
to Texas from Alabama where they had briefly visited
a sick uncle. Nguyen was unable to indicate what was
wrong with his uncle. Nguyen said he and Le were
brothers but was unable to explain why they had
different last names. Officer Johns was suspicious of Le
and Nguyen’s stories. Based on the totality of the
circumstances, Officer Johns believed that criminal
activity was afoot.
Officer Johns asked Nguyen if he could search the
vehicle to which Nguyen responded “yes.” Officer Johns
then asked Le if he could search the vehicle. Officer
Johns interpreted Le’s response as a refusal of consent.
Officer Johns then asked Le if there was a large sum of
money or anything illegal in the vehicle. Officer Johns
observed that Le’s demeanor changed (voice pitch
changed and he appeared nervous) when asked this
stimulus question.
Officer Johns returned to his vehicle and retrieved
his certified drug-detection dog (Archie). Archie
performed a free air sniff around the vehicle. Based on
the dog’s behavior changes, Officer Johns noted that
Archie alerted to the presence of controlled substances
near the rear of the vehicle. Armed with the dog’s
response as probable cause, Officer Johns searched the
vehicle. In the rear hatch, he located two cardboard
boxes. Le indicated that he did not know what was
inside the boxes. Deputy Johns opened the boxes and
App. 54
found around $110,000 in United States currency and
several boxes of tetrahydrocannabinol (“THC”) vape
pens. Both Le and Nguyen disclaimed the cash.
Once Archie alerted, Officer Johns admitted that Le
and Nguyen were not free to leave. Officer Johns did
not provide a Miranda warning to either Le or Nguyen.
Officer Johns did not question Le and Nguyen after he
commenced the search of the vehicle. Le and Nguyen
were transported to the Sheriff’s department and were
given Miranda warnings by the Sheriff’s department
investigator.
b. Lincoln Stop
1. Officer Hudec’s traffic stop of the
pickup
On March 1, 2019, Officer Hudec was patrolling
Interstate 80 near Lincoln, Nebraska, when he stopped
a pickup truck with Washington plates pulling a goose
neck trailer traveling east bound and driven by
Defendant Le, in which Defendant Nguyen was a
passenger. Officer Hudec stopped Le’s vehicle because
he believed that the vehicle was following an enclosed
box truck trailer too closely in violation of Neb. Rev.
Statute § 60-6, 140. To assist in making this
determination, Officer Hudec clocked the distance
between Le’s vehicle and the truck he was following in
seconds using a stopwatch. Using the stopwatch
method, Officer Hudec concluded that Le was
maintaining a distance of less than two seconds
between his vehicle and the truck. Officer Hudec
initiated the traffic stop because he felt that distance
App. 55
between the two vehicles was not a reasonable and
prudent driving distance for safe driving.
Once Le pulled his vehicle to the side of the road,
Officer Hudec approached the passenger side of the
vehicle. Officer Hudec noticed religious paraphernalia
hanging from the rearview mirror (which he identified
as a possible indicator of criminal activity), multiple
cell phones in the center console, and Nguyen also was
holding a cell phone that he was using to record the
interaction. In the back seat of the vehicle, Officer
Hudec noticed a small amount of luggage, not
consistent with an extended trip. He also noticed that
the trailer was locked with three large locks.
Officer Hudec advised Le of the traffic violation and
requested that Le return to the patrol car, which Le
did. In response to questions, Le indicated that the
trailer was empty and was being driven to New
Hampshire to pick up antiques. Le indicated he had
locks on the trailer to keep people honest. With respect
to the multiple cell phones, Le indicated that he used
the cell phones to play games. Defendant Le also
indicated that he had not been cited or arrested for any
misdemeanors or felonies, which was not true.
Defendant Le identified Nguyen as a friend.
Officer Hudec described Le as standoffish,
confrontational with the questioning and recording into
a cell phone during the interaction, which Hudec
described as unusual compared to others he has
stopped for traffic violations. Even after Officer Hudec
told Le that he would be issued a warning, Hudec felt
Le remained confrontational.
App. 56
Officer Hudec had a more limited conversation with
Nguyen. In response to questions, Nguyen stated they
were traveling to New Hampshire to pick up many
chairs. Officer Hudec indicated that Nguyen either did
not have good English skills or he wanted to present as
if he did not have good English skills, but Nguyen did
respond appropriately to Officer Hudec’s questions.
After Officer Hudec issued a warning to Le for the
violation, and because Officer Hudec had completed the
investigation for the basis for the initial stop, he
advised Le that he was free to go. Officer Hudec then
received information from his criminal history check
advising that Le had a criminal history and had been
arrested in Iowa on narcotics charges. Upon receiving
the criminal history information, Hudec asked Le if he
would consent to a search of the vehicle and trailer. Le
declined to give consent. Hudec then asked Le if he
would allow a narcotics K-9 to do an exterior search of
the vehicle. Le again declined to give consent. At that
point, Hudec advised Le that he was detained and not
free to leave. Hudec believed that based on the totality
of the circumstances, he had reasonable suspicion that
criminal activity was occurring. Sergeant Jason Mayo,
whom Hudec previously had called to the scene, then
immediately deployed his K-9 partner to do an exterior
sniff search of the vehicle. The dog alerted to the trailer
near the trailer hitch area. The officers then performed
a probable cause search of the trailer and vehicle. Only
empty shipping boxes were located in the trailer. A
THC vape pen was found in luggage in the vehicle and
banded United States currency was found in a bank
bag in the vehicle. Officer Hudec did not read Le his
Miranda rights at the traffic stop prior to the search of
App. 57
the vehicle and trailer. Officer Hudec wrote Le a
citation for possession of the THC cartridge.
II. CONCLUSIONS OF LAW
a. Mississippi Stop
1. Officer Johns’ traffic stop of the SUV
“A violation of a traffic law, even a minor violation,
is sufficient probable cause to support a stop.” United
States v. Miller, 915 F.3d 1207, 1209 (8th Cir. 2019)
(citing United States v. Fuse, 391 F.3d 924, 927 (8th
Cir. 2004)). When an officer has a reasonable suspicion
or probable cause to stop for a traffic violation, the
officer’s subjective intent is irrelevant. United States v.
McLemore, 887 F.3d 861, 864 (8th Cir. 2018) (quoting
United States v. Fuehrer, 844 F.3d 767, 772 (8th Cir.
2016) (“[A]ny ulterior motivation on the officer’s part is
irrelevant.”), cert. denied, 137 S. Ct. 2710 (2017)). In
this case, Officer Johns stopped the vehicle because he
observed that the car was speeding. Defendant Le
admitted to speeding (he believed he was going 75 mph
in a 70-mph zone). This was a violation of law. The
speeding violation was sufficient probable cause for
Officer Johns’ initial stop.
2. The canine sniff of the vehicle
Based on his conversations with Le and Nguyen,
Officer Johns suspected that they were being deceptive
about their trip and their relationship. Officer Johns’
suspicions were based in part on Le’s changing story as
to his relationship with Nguyen (first described as
cousins and then brothers), Le’s demeanor and
changing voice pitch when asked in response to
App. 58
questions from Officer Johns, and Nguyen’s lack of
knowledge about his uncle’s condition and his inability
to explain why he and Le had different last names if
they were brothers. Officer Johns also found the quick
turn-around of the trip and Le’s unusual travel
itinerary to add to the suspicious nature of the
situation. Based on the totality of the circumstances,
Officer Johns developed a reasonable suspicion that
illegal activity was occurring.
Officer Johns then asked Nguyen if he could search
the vehicle. Nguyen responded affirmatively. Officer
Johns also asked Le if he would consent to a search of
the vehicle. After Le responded by asking if Johns
needed a paper to conduct such a search, Officer Johns
interpreted Le’s response to be a refusal of consent.
Officer Johns immediately retrieved his certified K-9
Archie from the patrol car and conducted a free air
sniff of the vehicle. Based on his training and eleven
years as Archie’s handler, Officer Johns observed that
Archie’s behavior constituted an alert to the presence
of drugs. Defendants contend that Archie was excited
and barking when he was in the patrol car and that
Officer Johns gave him a command to calm down when
he started the search. The Court does not find this
canine behavior to nullify the dog’s alert. The K-9 sniff
did not violate defendants’ Fourth Amendment rights.
3. The probable cause search of the
vehicle
Once Archie alerted, Officer Johns had probable
cause to search the vehicle. A defendant “cannot
overcome the presumption of probable cause that
attaches when a well-trained dog gives an alert.”
App. 59
United States v. Gonzalez, 781 F.3d 422, 430 (8th Cir.),
577 U.S. 859 (2015). Despite Defendants’ suggestion
that Archie did not perform a full indication of an alert
and that he may have in the past alerted when no
drugs were found, the Court finds and concludes that
Archie was certified to alert to the presence of drugs
and did alert when conducting the free air sniff of the
vehicle. See, e.g., United States v. Holleman, 743 F.3d
1152, 1156-58 (8th Cir.) (finding that a dog’s alert, even
without a “full indication,” was sufficient to establish
probable cause), cert. denied, 573 U.S. 953 (2014); see
also Florida v. Harris, 568 U.S. 237, 248 (2013) (“The
question . . . . is whether all the facts surrounding a
dog’s alert, viewed through the lens of common sense,
would make a reasonably prudent person think that a
search would reveal contraband or evidence of a crime.
A sniff is up to snuff when it meets that test.”). Officer
Johns’ search of the vehicle and the boxes within it was
reasonable under the Fourth Amendment. See Carroll
v. United States, 267 U.S. 132, 160-62 (1925)
(establishing an “automobile” exception to the warrant
requirement); United States v. Murillo-Salgado, 854
F.3d 407, 417-18 (8th Cir.) (finding that probable cause
to search entire vehicle for contraband justifies
searching any place that could conceal contraband),
cert. denied, 138 S. Ct. 245 (2017). Suppression of the
cash and THC vape pens found in the vehicle is not
appropriate.
4. Miranda issue
Defendants contend that Officer Johns’ questions to
each defendant about the contents of the boxes found in
the vehicle should be suppressed in violation of their
App. 60
Miranda rights. Miranda v. Arizona, 384 U.S. 436, 444
(1966). Miranda warnings are required before custodial
interrogations. In general, a suspect is not in custody
during a routine traffic stop. Berkemer v. McCarty, 468
U.S. 420, 440 (1984) (“[Similar to a Terry stop, t]he . . . .
noncoercive aspect of ordinary traffic stops prompt us
to hold that persons temporarily detained pursuant to
such stops are not ‘in custody’ for the purposes of
Miranda.”). The Court finds and concludes that
Defendants were not in custody until Archie alerted
giving Officer Johns probable cause to search the
vehicle. Accordingly, any questions asked by Officer
Johns prior to the alert did not constitute custodial
interrogation and no Miranda warnings were required.
To the extent that Officer Johns asked either
Defendant any questions after the dog alert, the
Defendants were then in custody and Miranda
warnings needed to be provided before any such
questioning. Based on the current record, the only such
questions asked by Officer Johns after he began the
vehicle search dealt with inquiring as to the contents of
the two boxes [Tr. 27 ll 3-13] and possibly asking the
defendants if they had knowledge about the money
located in one of the boxes [Tr. 28 ll 15- 25]. The Court
does find and conclude that those limited questions by
Officer Johns and responses by Defendants should be
suppressed.
b. Lincoln Stop
1. Officer Hudec’s traffic stop of the
pickup
Based on the legal authority set forth above, the
evidence showed that Officer Hudec stopped the pickup
App. 61
driven by Defendant Le because he had probable cause
to believe that a traffic violation had occurred. Officer
Hudec initiated the traffic stop because he believed
that the distance between the two vehicles was not a
reasonable and prudent driving distance for safe
driving. This was a violation of Neb. Rev. Stat. § 60-6,
140(1) (“The driver of a motor vehicle shall not follow
another vehicle more closely than is reasonable and
prudent, and such driver shall have due regard for the
speed of such vehicles and the traffic upon and the
condition of the roadway.”) Although the Nebraska
statute does not include a specific required distance
between vehicles and there is a subjective nature to the
violation, that does not impact the legality of the traffic
stop. See State v. Draganescu, 755 N.W.2d 57, 73-74
(Neb. 2008) (holding that because the evidence showed
the officer had probable cause to believe that a
violation of Neb. Rev. Stat. § 60-6, 140(1) had occurred,
the traffic stop was objectively reasonable). In addition
to observing the vehicle’s following distance. Officer
Hudec used an objective measure of the distance
between the two vehicles. Officer Hudec used a
stopwatch to determine that Le’s vehicle was
maintaining less than three seconds between the truck
in front of him. The Court concludes that the traffic
violation provided sufficient probable cause for the stop
by Officer Hudec.
2. Officer Hudec’s extension of the
traffic stop
Defendants Nguyen and Le argue that Officer
Hudec unreasonably extended the Lincoln stop and
unlawfully detained the defendants in order to conduct
App. 62
a canine sniff of the exterior of the vehicle. The Court
first addresses whether Officer Hudec had reasonable
suspicion of criminal activity to justify the extension of
the traffic stop to conduct a K-9 search of the exterior
of the vehicle. Officer Hudec relied on the following
circumstances as the basis for his reasonable suspicion:
(1) religious paraphernalia (cross) hanging from the
rearview mirror; (2) 4-5 cell phones in the center
console area and Nguyen holding a cell phone and
recording the interaction; (3)Le’s explanation that the
multiple cell phones were used for gaming did not seem
legitimate; (4) limited amount of luggage inconsistent
with a lengthy trip; (5) the drive from the west coast to
the east coast (Washington to New Hampshire) was not
cost-effective in Hudec’s view; (6) the empty trailer
secured with expensive locks; and (7) the information
that Hudec received that Le had been dishonest about
his arrest history given that Le recently had been
arrested in Iowa for narcotics charges. Without factor
(7), the question as to whether Hudec had reasonable
suspicion of criminal activity would be close. The
information about Le’s dishonesty about his criminal
history and recent arrest on drug charges significantly
bolsters the reasonable suspicion basis. Officer Hudec
was releasing Le to proceed on his travels at the
conclusion of the traffic violation enforcement until he
received the criminal history information. Upon receipt
of this additional information, Officer Hudec then
detained Le so the K-9 search could occur.
An officer may not unduly prolong a traffic stop in
order to wait for a K-9 unit to arrive. Rodriquez v.
United States, 575 U.S. 348, 355 (2015). The key
question is whether the traffic stop is “prolonged
App. 63
beyond the time reasonably required to complete [the
officer’s] mission” in a way that “measurably extend[s]
the duration of the stop.” Id. There is no evidence that
Officer Hudec did so in this case. As Hudec was
completing the enforcement action (warning given),
Sergeant Mayo had arrived with his K-9 (“Bolt”).
Although Hudec had advised Le that he was free to
leave upon issuance of the warning, he then changed
course and detained Le and Nguyen upon learning of
Le’s recent arrest history. The situations encountered
by law enforcement during a traffic stop are dynamic
and new information can be learned throughout the
stop that can lead to reasonable suspicion of criminal
activity. An officer is not required to ignore relevant
information just because it arrives as the traffic stop
nears completion. The K-9 sniff by Bolt occurred on the
heels of Officer Hudec learning of Le’s criminal history
and Hudec’s resulting decision to detain both
Defendants while a K-9 search was performed.
3. The canine sniff of the vehicle
Sergeant Mayo established that both he and K-9
Bolt were certified at the time of the Lincoln traffic
stop. He further described the free air sniff of the
vehicle conducted by Bolt and the alert Bolt gave to the
presence of drugs. Although a portion of the K-9 search
was captured on Officer Hudec’s vehicle’s video, the
alert by Bolt cannot be seen due to the positioning of
the vehicles. Sergeant Mayo is certified as Bolt’s
handler and is familiar with how Bolt expresses an
alert based on his two plus years of experience with
Bolt. The testimony of Sergeant Mayo established that
Bolt alerted to the trailer on the passenger side near
App. 64
the trailer hitch by going into a sitting position.
Defendants contend that Bolt was distracted, even
stopping to urinate, during the search. The Court does
not find this canine behavior to nullify the subsequent
alert by Bolt. That alert then gave the officers probable
cause to search the trailer and the vehicle and any
packages or internal locations where contraband could
have been secreted. A THC vape pen was found in
luggage in the vehicle and banded United States
currency was found in a bank bag in the vehicle. The K9 sniff did not violate defendants’ Fourth Amendment
rights. The court declines to suppress those items
based on the developed record.
4. Miranda issue
Defendants contend that Officer Hudec’s questions
to Defendant Le after the K-9 search was completed
should be suppressed as Le had not been given his
Miranda rights. The Government argues that those
questions should not be suppressed as they were part
of the enforcement action resulting in Hudec issuing Le
a criminal citation for possession of the THC cartridge.
The Court finds that Hudec placed Le into custody
when he told him that he was not free to leave the
scene right before the K-9 search occurred. A suspect is
in custody when “there is a ‘formal arrest or restraint
on freedom of movement’ of the degree associated with
a formal arrest.” California v. Beheler, 463 U.S. 1121,
1125 (1983) (quoting Oregon v. Mathiason, 429 U.S.
492, 495 (1977)). Although Officer Hudec had not
formally arrested Le, he had substantially restricted
his movement by detaining him just as if he had been
arrested. As a result, Officer Hudec should have
App. 65
advised Le of his Miranda rights before questioning Le
about the THC cartridge and Le’s statements about the
THC cartridge should be suppressed.
III.
REPORT AND RECOMMENDATION
IT IS RESPECTFULLY RECOMMENDED that
Defendant Le and Defendant Nguyen’s Motion to
Suppress Evidence [104] and [105] should be DENIED
IN PART AND GRANTED IN PART as more fully set
forth above.
IT IS ORDERED that the parties have until
November 23, 2020 to file written objections to the
Report and Recommendation, pursuant to Thompson v.
Nix, 897 F.2d 356, 357 (8th Cir. 1990); Wade for
Robinson v. Callahan, 976 F. Supp. 1269, 1276 (E.D.
Mo. 1997). Any objections filed must identify the
specific portions of the Report and Recommendation
and relevant portions of the record to which the
objections are made and must set forth the basis for
such objections. See Fed. R. Civ. P. 72; Thompson, 897
F.2d at 357. Failure to timely file objections may
constitute a waiver of the party’s right to appeal
questions of fact. Thomas v. Arn, 474 U.S. 140, 155
(1985); Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir.
1994); Halpin v. Shalala, 999 F.2d 342, 345 & n.1, 346
(8th Cir. 1993); Thompson, 897 F.2d at 357.
IT IS SO ORDERED.
Dated November 16, 2020.
/s/ Helen C. Adams
Helen C. Adams
Chief U.S. Magistrate Judge
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.