United States of America, Plaintiff-appellant, v. Kye Soo Lee, Min Ho Chay, and Min Sik Lee, Defendants-appellees, 962 F.2d 430 (5th Cir. 1992)

Josette L. Cassiere, Asst. U.S. Atty., Joseph S. Cage, Jr., U.S. Atty., Shreveport, La., for U.S.

Gerald M. Cobb, Encino, Cal., Wayne J. Blanchard, Shreveport, La., for Min Sik Lee.

E. Daniel Burt, Jr., Burt & Hendrix, Shreveport, La., Gary A. Udashen, Milner, Goranson, Udashen & Wells, Dallas, Tex., for Lee Kye Soo.

Alfred R. Beresko (court-appointed), Daye, Bowie & Beresko, Shreveport, La., for Chay.

Appeal from the United States District Court for the Western District of Louisiana.

Before GARWOOD and DeMOSS, Circuit Judges, and SCHWARTZ, District Judge.¹ 

CHARLES SCHWARTZ, Jr., District Judge:

The Government appeals the judgment of the district court on remand, granting the defendants' motion to suppress predicated on its findings of lack of defendants' consent to accompany officers to state police headquarters and the absence of probable cause to arrest. We reverse and remand.

FACTS AND PRIOR PROCEEDINGS

The story of Kye Soo Lee, Min Ho Chay (Chay) and Min Sik Lee's indictment for trafficking counterfeit goods in violation of Title 18, United States Code, Section 2320 begins on May 27, 1988, at approximately 5:50 p.m., when Louisiana State Trooper Bruce Vanderhoven (Vanderhoven), was patrolling westbound Interstate 20 (I-20) near Bossier City, Louisiana. A Ryder rental truck driven by Chay captured his attention, since it was swerving in and out of traffic without signalling, thus creating a traffic hazard.

Utilizing the emergency lights on his patrol car, Vanderhoven pulled the defendants' truck over to the shoulder of I-20. Prior to exiting his patrol car, he radioed a description of the truck and its license number to state police headquarters which was less than a mile away. State Trooper Archie Griffin received the transmission at headquarters and proceeded to the scene to lend assistance.

When Vanderhoven approached the Ryder truck, Chay was in the driver's seat and was unable to produce any driver's license or other identification.²  He was wearing a paging device and a "Gucci" baseball cap. Chay informed Vanderhoven that his passenger, Kye Soo Lee rented the Ryder truck. After "frisking" Chay and finding nothing, Vanderhoven asked Chay to have a seat in the patrol car.

Vanderhoven then approached Chay's passenger, Kye Soo Lee, who was the purported renter of the Ryder truck. Vanderhoven then attempted to verify information gleaned from Chay with Kye Soo Lee. His attempt was unsuccessful as Kye Soo Lee could neither speak nor read English.³  So, Vanderhoven brought Chay back to the truck and asked Chay to assist him in communicating with his passenger, with which request Chay complied. With Chay translating, Vanderhoven was successful in obtaining identification from Kye Soo Lee--that is, his driver's license and Social Security card.

Upon further questioning by Vanderhoven, Kye Soo Lee stated that a third party Min Sik Lee had rented the Ryder truck, which was at odds with Chay's story. Upon the initial "frisk" of Kye Soo Lee, Vanderhoven felt what later turned out to be a large wad of currency in his pant's pocket. At that point Vanderhoven radioed for assistance, thinking it prudent to have a back up present before removing what he thought might be currency from Kye Soo Lee's pocket. While awaiting the arrival of back up, Vanderhoven had Kye Soo Lee seat himself in the patrol car alongside of Chay.

Upon further questioning prior to the arrival of the back up unit, Chay informed Vanderhoven of the rental agreement's location on the dashboard of the truck. The rental agreement indicated that a third party Min Sik Lee was the lessee of the Ryder truck, contra Chay's earlier statement.

State Trooper Griffin arrived at the scene approximately ten minutes after the initiation of the stop. After Griffin's arrival, Vanderhoven again "frisked" Kye Soo Lee, noting that the bulk of what he earlier surmised was a roll of currency had diminished considerably over the short period of time that Kye Soo Lee occupied his patrol car with Chay while awaiting assistance. The then smaller bulge removed from Kye Soo Lee's pants pocket proved to be a roll of United States currency. The missing bulk of currency was recovered from Chay. The previous "frisk" of Chay's person revealed nothing. In other words, all of the money that Vanderhoven felt in Kye Soo Lee's pants pocket upon his initial "frisk" had been split up between the two of them while they occupied the patrol car together. Between the two, Vanderhoven confiscated an unusually large amount of cash, $8,900.26 to be exact.

Chay then gave Vanderhoven the "okay" to search the truck, but indicated that neither he nor Kye Soo Lee, knew what was in the truck nor did they have a key to the cargo section of the truck. Contrary to that statement, in Vanderhoven's clear view was the key that appeared to fit the door's lock. It was on the same key ring as the ignition key.

Vanderhoven then opened the truck and found boxes, some of which had spilled open which contained "Gucci" baseball caps and "Louis Vuitton" handbags. The "Gucci" cap which Chay was wearing when the truck was stopped was just like those contained in the boxes which spilled open and about which Chay previously claimed no knowledge.

At this juncture, Trooper Don Campbell and Special Agent Terry Baldwin (Baldwin) of the Drug Enforcement Administration had arrived at the scene. Baldwin stated that he believed that the caps and handbags were "probably counterfeit" and "in the country illegally."⁴  Vanderhoven was more concerned that Chay and Kye Soo Lee were transporting narcotics or weapons.

Considering that it was getting dark and that traffic was heavy on I-20 at the time,⁵  the troopers decided it was much too hazardous to remain on the shoulder of I-20 to complete a thorough search of the myriad of boxes, 289 in all, which comprised the truck's cargo. Vanderhoven decided it would be safer for all concerned to continue the search of the truck at headquarters which was in their estimation only a short distance away. The duration of the roadside stop was no more than forty-five minutes.

Vanderhoven told Chay and Kye Soo Lee that he intended to take the truck to the police station to conclude the search and that they could accompany the truck to the station if they so chose. Vanderhoven remained in possession of Kye Soo Lee's identification and the currency confiscated from both Kye Soo Lee and Chay. They accompanied Vanderhoven to the station parking lot.

Once at headquarters, the officers unloaded the truck and the Bossier City drug sniffing dog sniff-searched the contents of the boxes and the truck's interior. Then Special Agent Jacques Duck of the Customs Agency arrived and examined the counterfeit merchandise found in the truck, i.e., the "Louis Vuitton" handbags and "Gucci" baseball caps.⁶  Agent Duck concluded the merchandise was counterfeit as did SA Baldwin earlier at the roadside. Their conclusions were subsequently confirmed with the Customs Service Fraud Team in New Orleans.⁷ 

On June 23, 1988, a Federal Grand Jury indicted both Kye Soo Lee and Chay, along with the defendant Min Sik Lee, with conspiracy in violation of Title 18, United States Code, Section 371 and with trafficking counterfeit goods, 18 U.S.C. § 2320. Prior to trial all of the defendants plead not guilty and filed motions to suppress the evidence seized during the search of the truck.

Concluding that all three defendants had standing to challenge the search, the district court granted their motions to suppress adopting the magistrate's October 28th, 1988 report and recommendation as its opinion in addition to holding that all three defendants had standing to challenge the search.⁸ 

The Government appealed the district court's February 2nd, 1989 ruling on defendants' motion to suppress, which is the subject of an opinion of a prior panel of this Circuit. United States v. Kye Soo Lee, 898 F.2d 1034 (5th Cir.), reh'g denied, 905 F.2d 1536 (5th Cir. 1990). Therein, the prior panel held inter alia that the initial stop and detention of the defendants Lee and Chay was justified under Terry v. Ohio, and their consent to search the truck at the roadside was valid.⁹  Thus, the panel reversed the original order of the district court suppressing the evidence and remanded the case for findings as to whether Chay and Kye Soo Lee consented to accompany the officers to the Louisiana State Police Headquarters and/or whether there was probable cause to arrest the pair at the roadside.¹⁰ 

On remand, the district court referred the matter to the magistrate for findings and a report and recommendation based thereon. All of the parties agreed that the issues were adequately addressed in the October 17th, 1988 suppression hearing and thus, there was no necessity for an additional hearing. On May 15th, 1991 the magistrate issued his findings with respect to the issues on remand.¹¹  The district court adopted the magistrate's May 15th, 1991 report and recommendation as its opinion and granted the defendants' motion to suppress finding neither probable cause to arrest nor valid consent to accompany the officers to state police headquarters.¹² 

As to the existence of probable cause to arrest, the magistrate's May 15th, 1991 report merely refers to the reasons outlined in his prior report and recommendation, stating he "continues to believe no probable cause to arrest was present at the time the defendants were taken to the police station."¹³  The magistrate concluded with the statement that he "would have never issued a search warrant to enter the truck based upon the evidence in possession of the police at that time."¹⁴  This concluding remark reflects utter disregard of the exigencies/realities of a roadside stop as they unfold in a situation such as this, i.e., "that police officers, unlike ... judges, must make probable cause determinations under the pressure of time and in the immediate context of fast-developing events."¹⁵ 

Moreover, the magistrate's May 15th report¹⁶  wholly ignores certain facts which unquestionably materialized during the lawful roadside search as significant to the determination of probable cause to arrest in the case at bar, to wit: (1) Chay was wearing a "Gucci" baseball cap identical to those found in the truck during the roadside search; (2) both Chay and Kye Soo Lee lied about their knowledge of the commercial cargo and their ability to gain access to it; (3) neither Chay nor Kye Soo Lee could produce any evidence of written consignment or bill of lading with respect to the apparently expensive "designer" merchandise which comprised their load and which they were not inclined to abandon; (4) the method of packaging such merchandise for transportation was sloppy and haphazard--that is, inconsistent with the type of cargo; (5) neither Chay nor Kye Soo Lee offered any explanation, much less any reasonable one, for their "secrecy" with respect to such cargo; and (6) neither Chay nor Kye Soo Lee could produce any documentation tending to establish any lawful connection with either the truck or its cargo either as consignee, lessee, or owner. All of the aforementioned facts are significant to any determination regarding the existence of probable cause to arrest at the roadside.¹⁷ 

In its Objection to the Magistrate's May 15th, 1991 Report and Recommendation (Record Excerpt No. 6) the Government conceded without further explanation that the defendants' consent to accompany the officers to the Louisiana State Police Headquarters was not voluntary. However, the Government asserted therein its original position that there was probable cause to arrest Chay and Kye Soo Lee when the truck's cargo doors were opened at the roadside revealing "probably counterfeit" merchandise--that is, at that point in time strong reasonable suspicion ripened into probable cause. As previously mentioned, the district court simply adopted the magistrate's May 15th report without addressing the Government's objections which were based on the undisputed facts reiterated above and which were not addressed by either of the magistrate's reports and recommendations in connection with a determination of lack of probable cause to arrest.

[A] showing of probable cause requires much less evidence than a finding of guilt, United States v. Beck, 5 Cir., 1970, 431 F.2d 536, 538. Probable cause must be judged not with the logic of cold steel, but with a common sense view to the realities of everyday life. Brinegar v. United States, 1949, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879, 1890.

United States v. Agostino, 608 F.2d 1035, 1037 (5th Cir. 1979).

Because we have determined for the reasons set out herein below that probable cause to arrest developed at the roadside and thus, the district court erred in granting the motion to suppress, we need not and do not decide whether the defendants voluntarily consented to accompany the police officers to their headquarters and/or whether the Government waived its right to appeal that issue by conceding it to the district court.

PROBABLE CAUSE TO ARREST

The Government argues that probable cause to arrest Chay and Kye Soo Lee existed when they opened the cargo section of the truck and it revealed "probably counterfeit" merchandise, i.e., the "Louis Vuitton" handbags and "Gucci" baseball caps. The Government concedes that Vanderhoven himself did not know all the facts constituting probable cause; rather, the Government argues that the arrest was legal because the collective knowledge of the agents working the case at the roadside amounted to probable cause to arrest the pair. We agree because it is clear to us that the collective knowledge of the officers working the case at the roadside did establish probable cause to arrest the pair then and there.

Probable cause to arrest exists "where 'the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." United States v. Preston, 608 F.2d 626, 632 (5th Cir. 1979), cert. denied, 446 U.S. 940, 100 S. Ct. 2162, 64 L. Ed. 2d 794 (1980) (quoting Draper v. United States, 358 U.S. 307, 313, 79 S. Ct. 329, 333, 3 L. Ed. 2d 327 (1959)).

It is not necessary that the arresting officer himself have personal knowledge of all of the facts. The Government correctly points out that "probable cause can rest upon the collective knowledge of the police, rather than solely on that of the officer who actually makes the arrest, when there is 'some degree of communication between the two.' " United States v. Ashley, 569 F.2d 975, 983 (5th Cir.), cert. denied, 439 U.S. 853, 99 S. Ct. 163, 58 L. Ed. 2d 159 (1978).

One scenario in which we have applied this "collective knowledge" doctrine, is where the arresting officer has personal knowledge of facts which standing alone do not establish probable cause for an arrest but, when added to information known by other officers involved in the investigation, tips the balance in favor of the arrest.¹⁸  In such cases, the "laminated total" of the information known by officers who are in communication with one another must amount to probable cause to arrest.¹⁹ 

Unquestionably, no one item of the government's evidence, considered in isolation, would have been sufficient to justify a reasonable man in the belief that the truck in Chay and Kye Soo Lee's possession contained contraband. Nonetheless, the totality of the circumstances, including the stated belief of DEA Special Agent Baldwin that the truck's cargo was "probably counterfeit" and "in the country illegally" did establish probable cause to believe that Chay and Kye Soo Lee were transporting seizable contraband.²⁰ 

The initial stop of the truck was a valid traffic stop which did not violate the defendants' constitutional rights, as the prior panel held.²¹  Because Chay was driving without a driver's license and had no other identification to support his contention that he was the same Min Ho Chay who was licensed to drive in Texas, undeniably Louisiana law enforcement authorities had a right to arrest him.²²  See, L.S.A.-R.S. 32:52 and 402.

Louisiana law authorizes warrantless misdemeanor arrests if an officer has probable cause to believe that the suspect has committed a crime in his presence. There is no question but that Officer Vanderhoven had probable cause to believe that Chay violated a criminal statute, in this case L.S.A.-R.S. 32:52 which requires the driver of a motor vehicle to be licensed.²³ 

The Court disagrees with appellee's contention that L.S.A.-R.S. 32:391 requires the issuance of a summons in lieu of arrest. Summons is only required after arrest if the conditions of R.S. 32:391(A) can be met and only in the case that the individual complies with R.S. 32:411²⁴  is he given the option of release pending bail.²⁵  Given the circumstances that Chay did not have a driver's license in his possession to give to the arresting officer in lieu of bail, the mandate of R.S. 32:391 (i.e., the issuance of a summons in lieu of arrest) is not applicable.

Upon stopping Chay and Kye Soo Lee on I-20, Vanderhoven was confronted with information that these two individuals were transporting some cargo through the state, in a truck rented to a third person, and neither could explain why they had the truck, what the cargo was, and why they had no access to the cargo, all of which was wholly inconsistent with the operation of a legitimate business.²⁶  Moreover as previously mentioned, they had lied to Vanderhoven about certain significant facts: (1) Chay lied when he originally told Vanderhoven that his passenger Kye Soo Lee rented the truck (i.e., the rental agreement indicated a third person Min Sik Lee was the lessee of the vehicle); (2) Chay lied about his knowledge of the contents of the truck, which became apparent to the officers when they accessed the cargo and found "Gucci" baseball caps just like the one he was wearing; and (3) both Chay and Kye Soo Lee lied when they claimed that they could not open the cargo section of the truck, when the key to the cargo section was on the key ring along with the truck's ignition key.

The "laminated total" of these factors when considered together with the haphazard manner in which the "designer" merchandise was packaged, the lack of any written evidence of consignment or a bill of lading and no explanation whatsoever for the secrecy maintained by the two with regard to the contents of the truck amounted to probable cause to arrest Chay and Kye Soo Lee. This is so, particularly in light of the fact that upon viewing the cargo at the roadside, SA Baldwin had the distinct impression that the cargo was probably counterfeit, i.e. contraband, and said so at the time. That Vanderhoven continued to suspect drugs is irrelevant.²⁷ 

Whereas here, Chay and Kye Soo Lee produced no documentation whatsoever, nothing indicated either of them owned/leased the truck or that they were employed by the truck's lessee Min Sik Lee, there was probable cause to arrest as it appeared to the officers that they were unlawfully in possession of a truck and/or merchandise which from all appearances was counterfeit.

In Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), the Supreme Court refined the exigency requirement and held that the existence of exigent circumstances was to be determined at the time the automobile is seized. In Chambers, the car search at issue took place at the police station, where the vehicle was immobilized sometime after the driver had been arrested. Given probable cause and exigent circumstances at the time the vehicle was first stopped, the Chambers court held that the later warrantless search at the station passed constitutional muster.²⁸ 

In Michigan v. Thomas, 458 U.S. 259, 260, 102 S. Ct. 3079, 3080, 73 L. Ed. 2d 750 (1982) (per curiam), the Supreme Court reaffirmed its earlier holding in Chambers, inter alia, stating:

We firmly reiterate this holding in Texas v. White, 423 U.S. 67, 96 S. Ct. 304, 46 L. Ed. 2d 209 (1975). See also, United States v. Ross, 456 U.S. 798, 807, n. 9, 102 S. Ct. 2157, 2163, n. 9, 72 L. Ed. 2d 572 (1982). It is thus clear that the justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court's assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant.

Id. 102 S. Ct. at 3080-81. The Supreme Court in Michigan made mention of the facts in Chambers and Texas, supra, that the searches at issue in those cases were conducted at the station house. Id. 102 S. Ct. at 3081 at n. 2.

In the case at bar, that the officers neither "arrested" nor insisted that Chay and Kye Soo Lee be detained along with the truck does not negate the existence of probable cause to arrest the defendants at the time of the initial roadside search of the truck.²⁹  At that point the focus was contraband believed to be either the cargo itself or secreted within the cargo of the truck and not interrogation or physical investigation of the defendants. Moreover, the officers were given no reason to exert any of the types of restraints commonly associated with "custodial arrest" because Chay and Kye Soo Lee opted to accompany the truck to headquarters without exhibiting any qualms about doing so.

The first case cited by appellees, Hayes v. Florida, 470 U.S. 811, 105 S. Ct. 1643, 84 L. Ed. 2d 705 (1985) serves as no bar to this Court's ruling in the instant case. The holding of Hayes proscribes forcibly removing a person from a place where he is entitled to be and transporting him to the police station where he is detained, without probable cause to arrest or a warrant. Id. 105 S. Ct. at 1647-48. Our holding that probable cause to arrest Chay and Kye Soo Lee existed at the time of the roadside search obviates the applicability of the Hayes case.

Another case cited by appellees, United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983), did not involve an automobile at all. In Place, the court considered the temporary detention of luggage in an airport. Not only was no automobile involved, but the defendant, Place, was waiting at the airport to board his plane, not preparing to leave the airport in a car. The search in Place involved personal luggage, whereas here the search focussed on a Ryder rental truck with commercial cargo which appeared to be counterfeit and thus, in the country illegally.³⁰  Finally, in Place the narcotics agents detained the luggage for the very purpose of obtaining probable cause. In the case at bar, the officers had ample indicia of criminal enterprise establishing probable cause to arrest Chay and Kye Soo Lee and to search their truck for contraband.

CONCLUSION

The prior panel determined that initial detention of Chay and Kye Soo Lee was justified under Terry v. Ohio and their consent to search at the roadside was valid. We hold that probable cause to arrest the pair existed at the time the roadside search revealed "probably counterfeit" merchandise. Accordingly, there being both probable cause to arrest and probable cause to believe that the vehicle contained contraband extant at the time of the roadside search, the later search of the truck at the state troopers' headquarters passes constitutional muster. The order of the district court suppressing the evidence is reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED.