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United States of America v. Xiao Meng Ma and Lan Luo

November 1, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
XIAO MENG MA AND LAN LUO, DEFENDANTS.



ORDER

Defendants Xiao Meng Ma and Lan Luo have filed a motion to suppress the marijuana discovered and seized during a traffic stop of their vehicle. (Docs. 32, 39.) The marijuana will not be suppressed because, although Defendant Luo's consent to search was not voluntary, the search of Defendants' vehicle was nonetheless permitted under the automobile exception to the Fourth Amendment.

I. Facts

Defendants were driving from Washington to New York on June 16, 2012, when Montana Highway Patrol Trooper Amundson ("Amundson") stopped them on the interstate highway near Bozeman, Montana. Defendant Luo rented a minivan in Washington that morning with Defendant Ma listed as an authorized driver. Defendant Ma took the van somewhere briefly by herself before both Defendants set out for New York. Ma was driving when they were stopped at 11:28 p.m. that night for speeding 51 mph in a 35 mph construction zone on I-90 near mile marker 308 in Bozeman. Both Defendants provided Amundson with California driver's licenses, and both are legal aliens from China. Ma speaks some English and has lived in the United States since 2005, but Luo speaks very little English and has lived in the United States less than two years.

As he approached the passenger side of the van, Amundsonnoticed the rear seats were removed and six large duffel bagswere on the floor of the van. The bags appeared full and evenly loaded, and were of varying shapes. He also saw a small pink suitcase, a small blue bag, and a small white bag behind the front seats of the van. Amundson asked Ma for her license, registration, and proof of insurance and explained why he stopped her. Amundson smelled a faint but distinct odor of marijuana upon his initial encounter with Defendants at their vehicle.

Amundson determined the van was rented, and asked for the rental agreement. Ma and Luo began conversing in Chinese while looking for the agreement, and Amundson saw a large bundle of cash in the glove compartment when Ma opened it. Ma told him it was around $2,000. Amundson asked Ma to come to his patrol car so he could talk to her about the speeding violation. Almost immediately upon entering the patrol car, Ma told Amundson several times that she believed she had the wrong rental agreement, but he did not respond to her.

As Amundson was writing Ma a speeding ticket in the patrol car, he asked her several questions about where she and Luo were from, where they were going, why they were going to New York, whether they had family there, whether either Defendant was employed, and how long the Defendants had known each other. Ma told him she was from California and she had rented another vehicle to drive up to the state of Washington, where she was going to help Luo move across country to New York. She explained that the rental agreement she gave him was the agreement for that previous trip, not the current one. Ma told Amundson she planned to fly home from New York but had not purchased a ticket yet, and neither she nor Luo had family in New York.

It is unclear from the recording in Amundson's car how long Ma said she had known Luo. Amundson testified at the hearing that although he wrote in his report that she said three years, upon further review of his recording of the traffic stop she said "not three years." (Doc. 29.) Similarly, it is not clear whether Ma was employed at the time, because although Amundson reported both Defendants to be unemployed, Ma said she worked "part-time, all the time" on the recording. (Doc. 29.) It appears the language barrier between Amundson and Ma prevented clear communication on these issues.

Amundson requested an additional officer on scene, and Montana Highway Patrol Trooper Fetterhoff ("Fetterhoff") arrived and began questioning Luo at the passenger side of the minivan. Fetterhoff did not smell marijuana coming from the van, although the windows may have been rolled down for several minutes by that time. Fetterhoff realized Luo spoke little English, and he chose to communicate with her by using an application on his iPhone that translated English phrases into Chinese characters both on his screen and aloud.

About ten minutes after entering the patrol car, Amundson realized he had the wrong rental agreement so he and Ma went back to the van to get the right one. Ma began conversing with Luo in Chinese, and Amundson told her not to speak to Luo and escorted her back to his car. Two minutes later, Amundson and Ma went back to the van to look for the agreement again. When they reached the back of the van, Ma noticed Fetterhoff was holding her purse. Amundson returned to his car and permitted Ma to search for the correct rental agreement while Fetterhoff watched. Ma found it and returned to the patrol car. Fetterhoff then approached Amundson at his driver's side window and handed him a speeding ticket Ma received on June 9, 2012 in Wyoming. Amundson began asking Ma about what she was doing in Wyoming, and Ma said the ticket was "the one in my wallet I think." (Doc. 29 at 24:17.)

Fetterhoff did not mention his discovery of the speeding ticket in his report. At the hearing, he first testified that he did not know what the paper was that he brought to Amundson. Upon review of the video, he recalled that it was the speeding ticket and said Luo must have handed it to him. He said he did not mention it in his report because he thought it was irrelevant. Luo testified that she did not hand anything to Fetterhoff during the stop. Ma testified that the last place she saw the Wyoming speeding ticket was in her wallet inside her purse. Amundson discusses the speeding ticket in his report but does not state how he obtained it. (Doc. 40-1 at 3.)

The rental agreement for the minivan showed it was rented on June 16, 2012 in Everett, Washington and was to be returned on June 22, 2012 in Manhattan, New York. The other rental agreement that Ma initially gave Amundson indicated Ma had been an authorized driver of a minivan rental from Everett, Washington to Manhattan and back one week prior. Amundson returned Ma's license, insurance, and rental agreement, exited the car and explained to Ma how to pay her ticket.

As he was explaining payment and the possibility of traffic school, he told Ma she was free to leave. Ma continued to ask him questions about the ticket, and he began questioning her about whether there were illegal drugs in the van. She denied the existence of any drugs, and said she did not know what marijuana was.

Amundson asked Ma if he could search the van and the bags inside it. Ma told him he could search her bags, the blue suitcase and Gucci purse, but he would have to ask Luo to search the other bags because they were hers. Amundson gave Ma a consent to search form to sign, and she told him she did not read English very well. He asked her to read it if she could, and she looked at it for a few seconds while Amundson continued talking to her, and then signed it.

Fetterhoff then asked Luo to search her bags through the iPhone translator by typing in "can he look in your bags" and "the bags in back." (Doc. 55.) Luo appeared to consent, and Amundson told Ma to explain the consent form to Luo, including that she could deny the search, stop it, or limit its scope. The parties dispute Ma's explanation of the consent form to Luo. Defendants' translator says Ma told Luo "[h]e said you can say that you want to search the van on your own. He wants to search the van. They will let you search, he will not search." (Doc. 34-2 at 20-21.) DEA Group Supervisor Luis Burgos reviewed Defendants' translation for the government and said it was too literal. Burgos believes a better translation is "he said you need to say on your own whether you want to search the vehicle." Amundson then pointed to where Luo needed to sign on the form, and she signed it. Amundson opened a duffel bag in the van and found it contained marijuana. Shortly thereafter, a Bozeman City Police drug dog arrived on scene. The dog alerted to the van with the door closed. Fetterhoff asked Luo through the translator if she wanted Amundson to stop looking in the car, and she said no. The total amount of marijuana in the van was 253 pounds. Ma and Luo were arrested, handcuffed, and transported to the Gallatin County Sheriff's office.

DEA Agent Burgos interviewed Ma and Luo in Chinese via telephone after the arrest. Ma invoked her right to an attorney immediately after Burgos read her Miranda rights in Chinese. Luo told Burgos that she understood the iPhone translation regarding consent to search and the consent form Ma explained to her. She also said that she did not know what was happening in general, and asked Burgos several times whether she should have a lawyer. No recording was made of the interviews. Defendants have remained in custody since their ...


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