On a trip to Montana in 2017, Hoang Vinh Pham was heating a bowl of noodles at a Conoco station on Interstate 94 when he looked out the window and saw something unusual: a van of police stuffed with half a ton of marijuana. At around the same time, Richard Smith, an agent with the Montana Criminal Investigation Division (DCI) who was helping two state soldiers transport the marijuana to the evidence storage in Billings, entered the station- service to use the toilet and buy water. Smith thought that Pham had been watching the van for a strangely long period of time, which led Smith to question whether Pham could be involved in any criminal activity.
This intuition ultimately led to a search that uncovered 19 pounds of marijuana in the trunk of Pham’s car, an arrest for possession with intent to distribute, and a 15-year prison sentence. But according to the Montana Supreme Court, which unanimously overturned Pham’s conviction in 2019 last week, Smith’s intuition was not sufficient to justify Pham’s detention and roasting, which required ” particular suspicions “based on” objective data and articulable facts from which [an officer] may make some reasonable deductions.
According to Smith, he did not need to pass this test, as his initial interaction with Pham after following him outside to the gas pumps was not only voluntary but “very cordial.” The state argued that this did not constitute a “seizure” under the Fourth Amendment because a reasonable person would have felt free to cut the conversation short and leave.
Pham, who speaks mainly Vietnamese and has some difficulty with English, saw it differently. Smith and the two soldiers “didn’t let me go anywhere,” he said at a pre-trial suppression hearing. “They kept me in there, and they pushed me away even though I tried to pump the gas.”
While Smith “was aware that Vietnamese culture teaches deference to the police,” he said he didn’t think he needed to tell Pham he was free to go. He also said that “he did not believe that the language barrier had an impact on Pham’s understanding.”
The Montana Supreme Court believed Pham’s description of the situation rings true, while the government’s strained gullibility:
A reasonable person in Pham’s position would not have felt free to leave when faced with several law enforcement officers asking to search his vehicle. Two of the officers were armed and in uniform; Constable Smith was clearly an undercover law enforcement officer as he was armed and had visible law enforcement identification. It is inconceivable to say that the continued barrage of questions from Agent Smith and Private Kilpela was only a “cordial” and idle conversation, and that Pham was free to go. Who would gladly discuss their plans, their families, their travels, and if they had “guns, knives, … drugs, [or] child pornography ” [with] three strangers unless they were policemen and thought they weren’t free to go? The only credible interpretation of this “cordial” conversation was that Pham knew he had to answer questions, knew he was being investigated, and knew he was not free to just walk away. .
Given this reality, Smith needed something more than Pham’s apparent interest in the weed-filled police van to justify his investigation. Smith admitted that “DCI was aware of several arrests of Vietnamese for drug trafficking traveling between Washington and Minnesota along I-94,” although he denied that Pham’s ethnicity had anything to do with it. see with his suspicions. “Based on this scarce information,” the court said, “we see no objective data or suspicion to justify Constable Smith’s seizure of Pham.” As “there is no objective data to support Constable Smith’s assessment that Pham was suspect”, he concluded, “his seizure of Pham was therefore unconstitutional.”
Because Pham’s detention was illegal, so was the search that uncovered the evidence used to convict him. The court therefore did not need to consider the plausibility of the state’s assertion that Pham consented to the search of his car. But just as it’s hard to believe that Pham would have submitted to Smith’s questioning if he had thought he was free to go, it’s hard to believe that Pham would have authorized a search he knew would be successful. to contraband if he had understood that he was free to say no.
This case, like many others, casts doubt on the legal fictions that courts frequently invoke when upholding police checks that result in criminal convictions. As long as the police have a legal reason to arrest someone, the Supreme Court said, then they are free to investigate other cases. They can ask any questions they want, assuming that people can always refuse to answer.
Police can continue to ask questions even when a driver is theoretically free to leave, in which case they have no obligation to tell them that any further cooperation is optional. Fourth Amendment cases also frequently feature motorists allegedly agreeing to let the police search their vehicles, even though they knew they would go to jail as a result. For reasons illustrated by Pham’s meeting with Smith, the idea that any of these decisions is truly voluntary when people are confronted with armed state agents is difficult to take seriously.