USA v. Chan

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
UNITED STATES OF AMERICA,
Plaintiff,
vs.
CHRISTOPHER CHAN,
Defendant.
Case No. 22-cr-109-DKW
ORDER DENYING DEFENDANT
CHRISTOPHER CHAN’S MOTION
TO SUPPRESS EVIDENCE
On August 16, 2022, after receiving citizen reports that Defendant
Christopher Chan had engaged in “suspicious” and “unusual” behavior and was in
possession of a large number of firearms, including “assault-style weapons,”
Honolulu Police Department (“HPD”) officers prepared to conduct a “welfare
check” at Chan’s place of residence, the Wailana at Waikiki condominium
complex (“Wailana”), on Ala Moana Boulevard. Before HPD could perform the
check, they encountered Chan driving his vehicle out of the Wailana parking
garage. An HPD officer approached on foot, directed Chan to stop and exit his
vehicle, and unsuccessfully attempted to open the driver’s side door when Chan
did not comply. In response, Chan accelerated, colliding with an HPD vehicle as
he sped away.
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 1 of 28
PageID.<pageID>

2
Over the next several minutes, in the course of fleeing to a nearby
condominium complex that was home to his mother, Chan struck numerous
vehicles and threatened the safety of many pedestrians in the Ala Moana corridor.
HPD officers finally cornered and apprehended him while in his vehicle in the
garage of his mother’s residence. Upon receiving information that Chan was in
possession of a black tactical rifle bag—in apparent violation of Hawai‘i’s “Place
to Keep” statute—officers searched his vehicle without a warrant and discovered
the rifle bag in the trunk. Inside the bag, officers found a short-barrel rifle
complete with 30 rounds loaded in a magazine. On November 17, 2022, Chan was
indicted by a federal grand jury for possession of an unregistered firearm. Dkt.
Nos. 34, 47.
Chan now moves to suppress the firearm evidence, contending both (i) that
the officers’ attempt to detain him at the Wailana violated the Fourth Amendment
and tainted the later search of his vehicle, and (ii) that the vehicle search itself
violated the Fourth Amendment because it was done without a warrant and was not
justified by exigent circumstances. Dkt. No. 41 (“Motion”).
As explained below, Chan’s Motion is DENIED. First, in directing Chan to
stop and exit his vehicle, the officers did not “seize” Chan within the meaning of
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 2 of 28
PageID.<pageID>

3
the Fourth Amendment.1 Further, the warrantless search of Chan’s vehicle at his
mother’s condominium was permissible under the “automobile exception” because
the officers had probable cause to believe the vehicle contained evidence of a
crime; exigency is not a prerequisite for that exception to apply.
LEGAL STANDARD
The Fourth Amendment to the U.S. Constitution guarantees “[t]he right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures . . . .”2 The touchstone of the Fourth
Amendment is reasonableness. Cady v. Dombrowski, 413 U.S. 433, 439 (1973). If
evidence of a crime is obtained via an unreasonable search or seizure in violation
of the Fourth Amendment, the exclusionary rule may forbid the use of such
improperly obtained evidence at trial. Herring v. United States, 555 U.S. 135, 139
(2009). “[T]he exclusionary rule encompasses both the primary evidence obtained
as a direct result of an illegal search or seizure and . . . evidence later discovered
and found to be derivative of an illegality, the so-called ‘fruit of the poisonous
tree.’” Utah v. Strieff, 579 U.S. 232, 237 (2016) (internal quotation marks and
citation omitted).
1See California v. Hodari D., 499 U.S. 621, 626 (1991) (“[T]he Fourth Amendment . . . does not
remotely apply [] to the prospect of a policeman yelling “Stop, in the name of the law!” at a
fleeing form that continues to flee.”); Cnty. of Sacramento v. Lewis, 523 U.S. 833, 844–45 n.7
(1998) (“Attempted seizures of a person are beyond the scope of the Fourth Amendment.”).
2 The Fourth Amendment is applicable to the States through the Due Process Clause of the
Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643 (1961).
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 3 of 28
PageID.<pageID>

4
RELEVANT FACTUAL ALLEGATIONS
I. 	HPD receives reports of Chan’s erratic behavior.
On August 12, 2022, HPD received an email from the General Manager
(“GM”) of the Wailana, requesting police assistance regarding Chan, a Wailana
resident. Dkt. No. 45 at 2; Dkt. No. 56, Transcript of Evidentiary Hearing (“Evid.
Tr.”) at 8:18–21; Dkt. No. 51, Exh. 1 (GM’s email). The GM stated in the email
that he had received reports of “suspicious behavior” by Chan, thought Chan may
be suffering from mental illness, and understood Chan to be in possession of “a
large number of firearms” in his unit. Ibid.
On August 16, 2022, HPD Officers Jonathan Rakieten and Raymond Do
responded. During an interview, the GM informed the officers that he had
received numerous resident complaints about Chan since approximately May 2022.
Evid. Tr. at 12:15. Residents had complained that (i) Chan had stated that people
were “tracking him” and that neighbors were “attacking him with radio or other
frequency waves”; (ii) Chan had looked into a female resident’s bedroom window
and filmed her; (iii) Chan had attempted to kick down neighbors’ doors; and (iv)
neighbors were afraid to report these incidents to HPD for fear of reprisal by Chan.
Id. at 83:25–84:12; Dkt. No. 51, Exh. 2 (GM’s written statement); Dkt. No. 45 at
2–3.
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 4 of 28
PageID.<pageID>

5
The GM also informed officers that he had received a concerning report
from a Wailana maintenance worker (the “Worker”). Dkt. No. 51, Exh. 2; Dkt.
No. 51, Exh. 3 (Worker’s written statement). The Worker had told the GM that,
several months prior, while he was performing air-conditioning service in Chan’s
unit, he had observed a large number of “assault style” or “military style” firearms,
“wrapping around the wall” of the unit. Dkt. No. 51, Exh. 3. More recently, after
the Worker had heard rumors about a resident with mental illness who was scaring
other residents, he encountered Chan in the Wailana elevator “acting very
strangely” and “[t]alking about world take over, defend yourself by any means,
apocalypse type things.” Id. The Worker recognized Chan as the individual with
the firearms in his unit and notified the GM. Id. HPD officers contacted the
Worker, confirmed his observations, and obtained his written statement. Id.
Additionally, the Wailana GM informed officers that, in July 2022, he had
spoken to Chan’s father, who told him Chan was investigating a satanic cult being
run inside the building, which Chan believed was trying to use him as a human
sacrifice. Dkt. No. 51, Exh. 2. Chan’s father explained that Chan had not wanted
to submit a written complaint to law enforcement because he believed the HPD and
FBI were involved in the cult. 	Id.; Evid. Tr. 11:13–16.
HPD officers conducted a background check and found that Chan had no
firearms registered in his name. Evid. Tr. at 14:15. They also learned that Chan
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 5 of 28
PageID.<pageID>

6
was the subject of numerous recent HPD police reports, some of which indicated
that he had violent or threatening tendencies. See id. at 13:2–14:2.3 They also
discovered that Chan owned a grey 2012 Toyota Camry with Hawaiʻi license plate
ADFX-01 (“Vehicle”) registered in his name. Id. at 15:1–20. Upon inquiry, the
GM told the officers the Vehicle would likely be parked on the second floor of the
parking structure, which the officers subsequently confirmed. Id. The officers, in
fact, were able to see through the Vehicle’s closed windows. In plain view, they
saw a box addressed to another person sent from a company known to distribute
firearms parts. Id. at 15:16–25.
After this initial investigation, Officer Rakieten concluded that HPD
“needed to take action immediately.” Id. at 18:24–25; ibid. at 12:10–13 (Rakieten
testifying he believed Chan’s neighbors “were extremely stressed out about this
situation, and [] feared for their safety, so much so that they were not willing to
call law enforcement to assist them”); ibid. at 13:23–14:2 (Rakieten testifying that
the information showed Chan had “violent tendencies and behaviors” and that “he
was becoming a danger to others as well”). He informed his supervisor, who then
3 While the content of these reports was not provided in detail, Officer Rakieten described one
incident about a year ago in which Chan believed nobody was listening to him. Chan stated that
“he was going to be in the media, and if anybody got in his way they were not going to go home
to their families.” Evid. Tr. at 13:12–17. Officer Rakieten described a second report about a
month ago involving “an unprovoked assault that occurred in the Zippy’s parking lot by [Chan].”
Id. at 13:18–21. Rakieten concluded that the general nature of these reports indicated Chan was
“threatening and violent.” Id. at 13:2–9.
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 6 of 28
PageID.<pageID>

7
developed an operational plan to conduct a “welfare check” at Chan’s residence to
determine whether Chan should receive a mental health evaluation in accordance
with Hawai‘i’s emergency mental health statute, Hawaiʻi Revised Statutes
(“HRS”) § 334-59.4
II. 	As Officers approach, Chan speeds away, damaging property and
jeopardizing the safety of the community.
On August 16, 2022, shortly before 2:00 p.m., Officers Rakieten and Do,
along with six other HPD officers, began to stage for the welfare check at the
Wailana, mindful of Chan’s reported cache of assault-style weapons. One officer
4 HRS § 334-59 authorizes police officers to take a person into custody involuntarily for
psychiatric treatment if they the person is an imminent danger to himself or others. The statute
provides:
(a) Initiation of proceedings. An emergency admission may be initiated as
follows:
(1) If a law enforcement officer has reason to believe that a person is imminently
dangerous to self or others, the officer shall call for assistance from the mental
health emergency workers designated by the director. Upon determination by the
mental health emergency workers that the person is imminently dangerous to self
or others, the person shall be transported by ambulance or other suitable means, to
a licensed psychiatric facility for further evaluation and possible emergency
hospitalization. A law enforcement officer may also take into custody and
transport to any facility designated by the director any person threatening or
attempting suicide. The officer shall make application for the examination,
observation, and diagnosis of the person in custody. The application shall state or
shall be accompanied by a statement of the circumstances under which the person
was taken into custody and the reasons therefor which shall be transmitted with
the person to a physician, advanced practice registered nurse, or psychologist at
the facility.
HRS § 334-59(a)(1). Officer Rakieten is trained in the procedures implicated by this statute. See
Evid. Tr. at 7:2–6, 11–19.
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 7 of 28
PageID.<pageID>

8
was tasked with locating Chan’s Vehicle to determine whether it was still parked
on the second floor of the parking garage and whether Chan was likely at home.
Upon initiating that check, the officer observed the Vehicle heading for the exit of
the garage, operated by a male. Id. at 21:16–22. He notified Officer Rakieten. Id.
Shortly thereafter, Rakieten and an unnamed officer on the ground floor
sighted the Vehicle as it approached the garage exit at a slow rate of speed,
identifying Chan as the driver and sole occupant. Id. at 22:10–12. Rakieten
approached the driver’s side window while the other officer approached on the
passenger side. Dkt. No. 51, Exh. 4 (Officer Rakieten’s body-worn camera footage
of the encounter). As Rakieten approached, he held his hand up, palm-out, and
ordered Chan to stop and “come out of the Vehicle.” Id. Chan paused
momentarily. Id.; see also Evid. Tr. at 32:11–33:2 (Rakieten testifying that the
vehicle stopped briefly). As Rakieten neared the driver’s side window, he again
instructed Chan to “come out of the Vehicle” and attempted to open the driver’s
side door by pulling on the handle when Chan did not comply. Dkt. No. 51, Exh.
4.5 As Rakieten did so, Chan accelerated at a high rate of speed, driving away
5See also Evid. Tr. at 23:23–24; 25:2–19 (Rakieten testifying that he “attempted to open the door
to the Vehicle when [Chan] refused to come out on his own,” in an effort “[t]o detain” Chan
“[f]or safety reasons”); ibid. at 25:5–19 (Rakieten testifying that a “vehicle can be a deadly
weapon and based on the facts and circumstances that we had at this moment already,” including
that “there [wa]s a high probability he [wa]s in possession of firearms,” he believed “[Chan]
could be a danger to himself and others” and there was “an immediate or imminent threat”).
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 8 of 28
PageID.<pageID>

9
from the parking garage and colliding with a marked police SUV on his way out.
Id.6
In the minutes following Chan’s departure from the Wailana, HPD received
numerous 911 calls that Chan’s Vehicle had struck multiple other vehicles and fled
the scenes of those accidents along Ala Moana. The reports also described Chan as
driving hazardously on a sidewalk, nearly striking multiple pedestrians. Evid. Tr.
at 29:1–30:8. HPD issued an “all-points bulletin,” instructing all HPD officers to
be on the lookout for Chan and indicating that he may be armed and dangerous.
Id. at 28:1–13.
III. 	Officers locate and arrest Chan.
At about 2:40 p.m., officers located and apprehended Chan at another
condominium complex where his parents reside, Uraku Tower at 1341 Kapiolani
Boulevard. Id. at 30:14–25. At the time he was apprehended, Chan was operating
the damaged Vehicle, attempting to exit the Uraku Tower parking structure. Id.
HPD Sergeant Kendrick Tahara and Officer David Kua‘ana positively identified
6See also Evid. Tr. at 24:20–25; 25:6–10 (Rakieten testifying, “Chan did not behave as a
reasonable person would when being ordered to be stopped by a police officer. He was jittery,
uncooperative, and did not listen to my instructions . . . [t]o stop and come out of the vehicle.”);
ibid. at 42:6–13 (Officer David Kua‘ana testifying, “I remember seeing a vehicle or hearing the
engine and the vehicle—the tires screeched, it propelled forward in an aggressive manner and it
left the garage, it made a right-hand turn onto Ena Road, and it struck a parked patrol vehicle.”).
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 9 of 28
PageID.<pageID>

10
Chan as the lone occupant of the Vehicle, handcuffed him without incident, and
placed him under investigative detention. Id. 46:3–24; 48:1–6.7
Chan’s Vehicle remained in the driveway of the Uraku Tower parking
structure, obstructing traffic flow. Id. at 48:8–17; 49:22–50:2 (Officer Kua‘ana
explaining that, while the Vehicle was awaiting impoundment, it “was left right in
the middle of the exit lane, so no other vehicles could leave the property at that
time”); see also Dkt. No. 51, Exh. 5 (photo of Chan’s collision-damaged Vehicle
blocking the parking garage exit).
IV. 	Officers search Chan’s Vehicle upon reports of his possession of a long
gun and discover a short-barrel rifle loaded with 30 rounds of
ammunition.
At approximately 2:50 p.m. on August 16, 2022, HPD Officer Jason Yee
Hoy interviewed Chan’s mother. She described Chan as prone to getting
extremely upset and violent. Evid. Tr. at 59:4–18; 64:8–9.
Officer Yee Hoy also interviewed the Uraku Tower Security Officer. The
Security Officer stated that at approximately 2:15 p.m., he was seated at the front
desk when Chan entered the lobby “in a state of panic” and “in a state of shock and
kept saying ‘They’re going to kill me!’ multiple times.” Dkt. No. 51, Exh. 6
(Security Officer’s written statement). The Security Officer also relayed that
7 At this point, Officer Rakieten contacted HPD’s on-call psychologist and obtained a
concurrence from the doctor to have Chan approved for an emergency mental health screening
and transport to a hospital. Evid. Tr. at 31:14–18. Rakieten then transported Chan to Queen’s
Medical Center for psychiatric evaluation. Id.
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 10 of 28
PageID.<pageID>

11
Chan’s father had come to the lobby to try to calm Chan down. Id. Chan’s father
and Chan talked outside and then went to the basement parking structure, with the
Security Officer finally asking Chan to leave the premises because of his disruptive
behavior. Id.
Officer Yee Hoy then interviewed the Uraku Tower Building Manager who
reported that, at approximately 2:00 p.m., he had observed Chan enter the building
lobby holding a black tactical rifle bag, which looked like it contained a rifle due to
the rigidness of the bag. Evid. Tr. at 66:16–67:14; Dkt. No. 51, Exh. 7 (Building
Manager’s written statement). The Building Manager also asked the officers to
remove Chan’s Vehicle from the premises. See Dkt. No. 45 at 8.
At approximately 3:38 p.m., while the Vehicle was still blocking traffic out
of the Uraku Tower parking garage, Officer Yee Hoy performed a warrantless
search of the Vehicle and discovered the black rifle bag described by the Building
Manager inside the Vehicle trunk. Evid. Tr. at 54:23–55:10; 85:24. Officer Yee
Hoy opened the bag and found a “black tactical AR-style rifle” with a short barrel
and no serial number or other manufacturer markings, loaded with 30 rounds of
ammunition. Id. at 71:16–72:20; Dkt. No. 51, Exh. 8 (photo of the rifle bag, rifle,
and ammunition). Upon recovery of the firearm, HPD transferred the case to the
Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). Dkt. No. 45 at 9.
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 11 of 28
PageID.<pageID>

12
RELEVANT PROCEDURAL BACKGROUND
On August 18, 2022, Chan was charged by criminal complaint with one
count of possession of an unregistered firearm—namely, a rifle containing no
serial number or appropriate manufacturer markings and a barrel measuring
approximately 10.5 inches in length—in violation of 26 U.S.C. §§ 5841, 5861(d),
and 5871. Dkt. No. 1.8 On November 17, 2022, a grand jury indicted Defendant
on the same charge, Dkt. No. 34, with a superseding indictment following roughly
a month later. Dkt. No. 47. Trial is scheduled to begin on March 20, 2023. See
Dkt. No. 44.
On December 5, 2022, Defendant filed the instant Motion to suppress the
firearm evidence at trial. Dkt. No. 41. On December 20, 2022, the Government
opposed, Dkt. No. 45, and on December 27, 2022, Chan replied. Dkt. No. 54.
The Court presided over a December 29, 2022 evidentiary hearing on this
matter. See Dkt. No. 56. During the hearing, the Government presented the sworn
testimony of three witnesses—Officers Rakieten, Kua‘ana, and Yee Hoy—with
defense counsel cross-examining each of them. See id. The Court also admitted
eight exhibits without objection. Dkt. No. 51, Exhs. 1–8. Following witness
8 As indicated in the criminal complaint, Dkt. No. 1, ATF agents physically examined the rifle
and measured the barrel length to be approximately 10.5 inches. Under 26 U.S.C. § 5845(a)(3),
a “firearm” includes a “rifle having a barrel . . . . of less than 16 inches in length[.]”
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 12 of 28
PageID.<pageID>

13
testimony, both parties offered oral argument, after which the Court directed the
parties to submit supplemental briefing.
On January 4, 2023, Chan submitted a supplemental memorandum, Dkt. No.
57, and on January 11, 2023, the Government submitted its response. Dkt. No. 58.
The Court has carefully considered the parties’ arguments and evidence, and this
Order now follows.
DISCUSSION
Chan asserts that the firearm evidence should be suppressed at trial for two
reasons. First, he claims that “the warrantless attempt to seize [him] while [he]
was in the parking lot of his residence at the Wailana” was unconstitutional and,
thus, the later Vehicle search at the Uraku Tower should be suppressed as fruit of
the poisonous tree. Dkt. No. 54 at 2. Second, he challenges, in its own right, the
Vehicle search because it was conducted without a warrant and absent exigent
circumstances. See Dkt. No. 57 at 4-5. As discussed below, neither defense
contention merits suppression.
I. 	HPD did not seize Chan at the Wailana parking garage and, even if they
had, HPD’s later search was attenuated by Chan’s independent actions.
A. 	The encounter at the Wailana was not a seizure and was, thus, not
subject to the Fourth Amendment.
The U.S. Supreme Court has advised that there are two types of Fourth
Amendment seizure: “seizure by force” and “seizure by acquisition of control.”
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 13 of 28
PageID.<pageID>

14
Torres v. Madrid, 141 S. Ct. 989, 998 (2021). The former occurs when police
make a show of authority, combined with some “use of force with intent to
restrain.” Id. This type encompasses “a laying on of hands or application of
physical force to restrain movement, even when it is unsuccessful,” or “merely
touching, however slightly, the body of the accused, by the party making the arrest
and for that purpose, [even if] he does not succeed in stopping or holding him even
for an instant.” California v. Hodari D., 499 U.S. 621, 625–27 (1991). It does not
encompass “[a]ccidental force . . . [or] force intentionally applied for some other
purpose.” Torres, 141 S. Ct. at 998. The latter type occurs when police make a
show of authority and the arrestee “submi[ts] to the assertion of authority.” Hodari
D., 499 U.S. at 626; see also Torres, 141 S. Ct. at 1001 (“[A] seizure by
acquisition of control involves either voluntary submission to a show of authority
or the termination of freedom of movement.”); United States v. McClendon, 713
F.3d 1211, 1215 (9th Cir. 2013) (“Precedent instructs that where an individual
flees from police, no submission occurs until the defendant is physically
subdued.”). Neither type of seizure includes encounters where an officer directs a
person to “Stop!” and the person flees or otherwise refuses to comply. Hodari D.,
499 U.S. at 626.9 Nor does it include “[a]ttempted seizures.” Cnty. of Sacramento
9See United States v. Betancur-Bustamonte, 1986 WL 20840 at *4 (9th Cir. Sep. 16, 1986)
(unpublished disposition) (“[L]aw enforcement officials do not violate the Fourth Amendment
merely by approaching an individual in a public place [and] asking him if he is willing to answer
some questions . . . .”); Hodari D., 499 U.S. at 626 (holding it was no seizure for police officers
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 14 of 28
PageID.<pageID>

15
v. Lewis, 523 U.S. 833, 844–45 n.7 (1998). In sum, “[t]here can be no arrest
without either touching or submission.” Hodari D., 499 U.S. at 626–27.
Here, neither a “seizure by force” nor a “seizure by acquisition of control”
took place at the Wailana parking garage. With regard to the former, although
Officer Rakieten commanded Chan to stop and exit his vehicle, no officer touched
Chan, drew a weapon, or applied any force upon him. Dkt. No. 51, Exh. 4.
Rakieten’s failed attempt to open the Vehicle door did not constitute “a laying on
of hands” or “touching . . . the body of the accused.” See Hodari D., 499 U.S. at
625–27. Nor did it constitute “use of force with intent to restrain.” See Torres,
141 S. Ct. at 998. As Rakieten testified, his only aim was to open the car door.
Evid. Tr. at 23:23–24; 25:2–19. As evidenced by the body camera footage,
Rakieten had not yet reached the point where he might have attempted to touch
Chan. See id.; Torres, 141 S. Ct. at 998 (excluding “force intentionally applied for
some other purpose”); Lewis, 523 U.S. at 844–45 n. 7 (excluding “[a]ttempted
seizures”).
With regard to the latter type, there was no “voluntary submission . . . or
termination of freedom of movement,” and Chan was not “physically subdued.”
to command a person to stop and chase him, without probable cause, for no other reason than
that he ran away at their approach); Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989) (holding a
20-mile high-speed car chase was not a seizure); United States v. McClendon, 713 F.3d 1211,
1216 (9th Cir. 2013) (holding that a defendant was not seized when officers drew their guns, told
him he was under arrest, and ordered him to stop and put up his hands, whereupon he turned and
walked away, not holding up his hands).
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 15 of 28
PageID.<pageID>

16
See Torres, 141 S. Ct. at 1001; McClendon, 713 F.3d at 1215. Although Chan
paused momentarily—as he was easing out of the parking garage and while
Rakieten passed in front of his Vehicle—Chan quickly proceeded to ignore
Rakieten’s instructions and flee, in clear non-submission to Rakieten’s show of
authority. Dkt. No. 51, Exh. 4. Chan characterizes this encounter as a “traffic
stop.” See Dkt. No. 57 at 3.10 But a traffic stop is defined as the “[t]emporary
detention of individuals during the stop of an automobile by the police . . . .”
Whren v. United States, 517 U.S. 806, 809–10 (1996). Chan, however, was not
detained; he sped away. Upon seeing approaching police, a driver’s momentary
removal of his foot from the gas pedal while he contemplates what to do, just
before accelerating away, is not submission.
B. 	Even if the encounter at Wailana had been a seizure, it was supported
by the requisite reasonable suspicion that criminal activity was afoot.
In Terry v. Ohio, 392 U.S. 1, 22 (1968), the Supreme Court explained that,
in order to temporarily detain a person for an investigative stop, officers need only
“reasonable suspicion”—“articulable suspicion that a person has committed or is
about to commit a crime.” See id.; United States v. Woods, 720 F.2d 1022, 1026
10See Dkt. No. 57 at 3 (“[A] reasonable articulable suspicion did not exist to justify expanding
the scope of the welfare check to a traffic stop where Chan was ordered out of his vehicle.”);
ibid. (“In the case at bar, the seizure of Chan at the Wailana was unlawful because it was
initiated in the absence of a traffic violation on private property without specific objective facts
to support a reasonable suspicion that criminal activity was afoot. The pretext of a ‘welfare
check’ did not authorize the use of force against Chan or his detention.”).
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 16 of 28
PageID.<pageID>

17
(9th Cir. 1983) (citing Florida v. Royer, 460 U.S. 491, 498 (1983)). Reasonable
suspicion requires “something ‘more substantial than inarticulate hunches’ . . . [or]
simple ‘good faith on the part of the arresting officer,” but it does not require
probable cause. Terry, 392 U.S. at 22. As relevant here, Terry explained the basis
of this standard:
Street encounters between citizens and police officers are incredibly
rich in diversity. They range from wholly friendly exchanges of
pleasantries or mutually useful information to hostile confrontations
of armed men involving arrests, or injuries, or loss of life. Moreover,
hostile confrontations are not all of a piece. Some of them begin in a
friendly enough manner, only to take a different turn upon the
injection of some unexpected element into the conversation.
Encounters are initiated by the police for a wide variety of purposes,
some of which are wholly unrelated to a desire to prosecute for crime.
Id. at 13. Thus, although, typically, seizures require a warrant or probable cause,
there are times when, under the “entire rubric of police conduct,” to include
“necessarily swift action predicated upon [] on-the-spot observations of the
officer,” police conduct “historically has not been, and as a practical matter could
not be, subjected to the warrant procedure.” Id. at 21. In a later case, the Supreme
Court further elaborated:
The predicate permitting seizures on suspicion short of probable cause
is that law enforcement interests warrant a limited intrusion on the
personal security of the suspect. The scope of the intrusion permitted
will vary to some extent with the particular facts and circumstances of
each case. . . . [A]n investigative detention must be temporary and
last no longer than is necessary to effectuate the purpose of the stop.
Royer, 460 U.S. at 500.
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 17 of 28
PageID.<pageID>

18
Here, at the moment Chan was exiting the Wailana parking garage on
August 16, 2022, officers knew:
- 	A maintenance worker had seen a large number of “military style”
firearms in Chan’s unit the prior year, “wrapping around the wall.”
Dkt. No. 51, Exh. 3.
- 	Individuals who retain firearms typically do so for long periods of
time. Evid. Tr. at 80:13–20.
- 	No firearms were officially registered in Chan’s name. Evid. Tr. at
14:15.
- 	Chan’s Vehicle contained a package from a known firearms dealer.
Id. at 15:16–25.
- 	Chan had been reported to be engaged in dangerous, erratic, and
otherwise concerning behavior, including attempting to kick down
neighbors’ doors, filming through a female resident’s bedroom
window, telling neighbors he was being tracked by radio frequency
waves, ranting to the Worker about “world take over, defend
yourself by any means, apocalypse type things,” telling his father
that he was investigating a satanic cult in the building that he
believed wanted to use him as a human sacrifice, unprovokedly
assaulting a female citizen in a Zippy’s parking lot, and reporting
to the HPD that “he was going to be in the media, and if anybody
got in his way they were not going to go home to their families.”
See supra, Relevant Factual Allegations.
- 	Fellow residents were afraid of Chan. Dkt. No. 51, Exh. 2.
Based on these facts, the officers were justified in reasonably suspecting that Chan
was in possession of an unregistered firearm, among myriad other crimes. Thus, in
the circumstances under which the officers encountered Chan in his Vehicle
leaving the Wailana, law enforcement interests warranted a limited intrusion on
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 18 of 28
PageID.<pageID>

19
Chan’s personal security for the purposes of an investigative stop. See Royer, 460
U.S. at 500.
C. 	Moreover, even if Rakieten’s conduct had constituted an
unconstitutional seizure, the taint from such a seizure was attenuated
by Chan’s subsequent actions.
Under the “attenuation doctrine,” even if an initial seizure is
unconstitutional, a person’s subsequent voluntary activities may independently
justify a future search, such that the fruits from the initial seizure are not
considered “poisonous.” Strieff, 579 U.S. at 238. As an example, in United States
v. Garcia, 516 F.2d 318, 319 (9th Cir. 1975), police attempted to stop the
defendant at a border checkpoint. Rather than submitting, the defendant sped
away, giving police probable cause for their search of his vehicle.11 Id. at 319.
Police pursued the defendant on the basis of his flight and found marijuana inside
his vehicle. Id. The Ninth Circuit assumed, without deciding, that the border stop
had been unconstitutional, but nonetheless held that the search was permissible
because the defendant’s voluntarily flight was the independent source of probable
cause for the search. Id.; see also McClendon, 713 F.3d at 1218 (applying the
attenuation doctrine where the illegality was not the but-for cause of the evidential
discovery); United States v. Valencia-Barragan, 819 F. App’x 508, 510 (9th Cir.
11See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“Headlong flight—wherever it occurs—is
the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly
suggestive of such.”).
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 19 of 28
PageID.<pageID>

20
2020) (unpublished disposition) (holding that the defendant’s “subsequent flight
from law enforcement constituted an intervening act that purged the taint from any
prior illegality”).
This doctrine applies in full force here. Upon being directed to stop at the
Wailana, Chan instead fled, drove recklessly, collided with a police vehicle and
numerous other vehicles, fleeing the scenes of those accidents, drove on a sidewalk
and nearly struck multiple pedestrians, and carried a rifle concealed in a black
tactical rifle bag through the lobby of a condominium complex where he did not
reside in apparent violation of Hawai‘i’s “Place to Keep” statute.12 See supra,
Relevant Factual Allegations. As discussed more fully below, these actions
independently justified the later Vehicle search at the Uraku Tower, and they thus
purged the taint from any illegality during the initial Wailana encounter.
12 Hawai‘i’s “Place to Keep” statute, HRS § 134-24, provides, in relevant part:
(a) [A]ll firearms shall be confined to the possessor’s place of business, residence,
or sojourn; provided that it shall be lawful to carry unloaded firearms in an
enclosed container from the place of purchase to the purchaser’s place of
business, residence, or sojourn, or between these places upon change of place of
business, residence, or sojourn, or between these places and the following:
(1) A place of repair;
(2) A target range;
(3) A licensed dealer’s place of business;
(4) An organized, scheduled firearms show or exhibit;
(5) A place of formal hunter or firearm use training or instruction; or
(6) A police station.
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 20 of 28
PageID.<pageID>

21
II. 	The “automobile exception” to the Fourth Amendment’s warrant
requirement authorized the search of Chan’s Vehicle.
Generally, the Fourth Amendment prohibits warrantless searches of private
property without consent. Cady, 413 U.S. at 439 (“[E]xcept in certain carefully
defined classes of cases, a search of private property without proper consent is
‘unreasonable’ unless it has been authorized by a valid search warrant.” (quoting
Camara v. Municipal Ct., 387 U.S. 523, 528–29 (1967)). However, automobile
searches constitute an exception to this general rule: “The police may search an
automobile and the containers within it where they have probable cause to believe
contraband or evidence is contained.” California v. Acevedo, 500 U.S. 565, 580
(1991) (citing United States v. Ross, 456 U.S. 798, 824 (1982)).
Notably, though the “ambulatory character” of automobiles—and, thus, the
immediacy of the need for police action in many circumstances—was a factor in
the Supreme Court’s jurisprudence developing this exception, see Cady, 413 U.S.
at 440–42, 447,13 the availability of the automobile exception does not depend on
exigency. See Maryland v. Dyson, 527 U.S. 465, 466 (1999) (“[U]nder our
established precedent, the ‘automobile exception’ has no separate exigency
requirement.”) (citing Ross, 456 U.S. at 809). Accordingly, factors such as
13 This exception stems both from “the ambulatory character” of automobiles and from the
regularity with which, and diversity of reasons why, police come into contact with citizens and
their vehicles. Cady, 413 U.S. at 440–42 (police-citizen-vehicle contacts occur when police
investigate criminal activity and execute their “community caretaking functions, totally divorced
from the detection, investigation, or acquisition of evidence relating to” a crime).
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 21 of 28
PageID.<pageID>

22
whether an automobile is in the exclusive control of the police, or whether officers
have the time and opportunity to safely obtain a warrant, are irrelevant to whether
the exception applies. See id.; United States v. Scott, 705 F.3d 410, 417 (9th Cir.
2012) (“Because this exception is justified by the exigency created by the inherent
mobility of vehicles as well as the relatively minimal expectation of privacy that
exists with respect to automobiles, the applicability of the automobile exception
does not turn on whether the car’s owner or driver has already been taken into
custody or the risk of mobility has otherwise been eliminated . . . .”).14 Rather, the
only relevant question is whether probable cause exists—whether the facts “would
justify the issuance of a warrant, even though a warrant has not actually been
obtained.” Ross, 456 U.S. at 809; Acevedo, 500 U.S. at 580.
“Probable cause exists if there is a fair probability that contraband or
evidence of a crime will be found in a particular place . . . .” United States v.
Faagai, 869 F.3d 1145, 1150 (9th Cir. 2017) (internal quotation marks and citation
omitted). In turn, “[w]hether there is a fair probability depends upon the totality of
the circumstances, including reasonable inferences, and is a commonsense,
practical question. Neither certainty nor a preponderance of the evidence is
required.” United States v. Kelley, 482 F.3d 1047, 1050 (9th Cir. 2007) (internal
14See also Paredes, 388 F. Supp. 2d 1185, 1196–97 (D. Haw. 2005) (“The Supreme Court has
repeatedly stated that a warrantless search of a car (1) need not occur contemporaneously with
the car’s lawful seizure and (2) need not be justified by the existence of exigent circumstances
that might have made it impractical to secure a warrant prior to the search.”).
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 22 of 28
PageID.<pageID>

23
quotation marks and citations omitted); United States v. Crozier, 777 F.2d 1376,
1380 (9th Cir. 1985) (allowing for a “common-sense and realistic” assessment of
the relevant facts and circumstances). The existence of probable cause is
determined by “looking to the collective knowledge of all the officers involved in
the criminal investigation,” not only the information available to the person who
actually took the challenged action. United States v. Ramirez, 473 F.3d 1026, 1032
(9th Cir. 2007) (internal quotation marks and citation omitted).
The automobile exception applies to the Uraku Tower search here because,
at the time Officer Yee Hoy searched Chan’s Vehicle, HPD officers had probable
cause to believe that the Vehicle contained evidence of a criminal violation of
Hawai‘i’s “Place to Keep” statute. See HRS § 134-24 (statutory text provided
supra, at 20 n.12). At the time that Officer Yee Hoy searched the Vehicle, officers
knew:
- 	The Wailana maintenance worker had observed a large number of
“military style” firearms in Chan’s unit the prior year, “wrapping
around the wall.” Dkt. No. 51, Exh. 3.
- 	Individuals who retain firearms typically do so for long periods of
time. Evid. Tr. at 80:13–20.
- 	Earlier that day, on August 16, 2022, Chan’s Vehicle had
contained a package from a known firearms dealer. Id. at 15:16–
25.
- 	Chan exhibited a pattern of dangerous and erratic behavior, as
described in Discussion, Section I.B., supra.
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 23 of 28
PageID.<pageID>

24
- 	Chan had fled from law enforcement, striking multiple vehicles
and fleeing from the scenes of those accidents, and had driven on a
sidewalk, nearly striking pedestrians. Evid. Tr. at 29:–30:8.
- 	Chan’s mother said Chan is known to get extremely upset and
violent. Id. at 59:4–18; 64:8–9.
- 	Chan’s father said Chan was investigating a satanic cult that he
thought was trying to use him as a human sacrifice. Dkt. No. 51,
Exh. 2.
- 	Chan entered the Uraku Tower lobby in a state of “shock” and
“panic,” repeatedly saying “They’re going to kill me.” Dkt. No.
51, Exh. 6.
- 	Chan had told the maintenance worker about “world take over,”
and “defend yourself by any means.” Dkt. No. 51, Exh. 3.
- 	Shortly before being arrested, Chan had been carrying a rigid-
looking black tactical rifle bag through the Uraku Tower lobby.
Dkt. No. 51, Exh. 7.
- 	People often carry firearms for “protection.” Evid. Tr. at 60:3–5.
- 	Uraku Tower was not Chan’s place of residence, nor was it a place
of purchase, a place of repair, a target range, a licensed dealer’s
place of business, a place of formal training or instruction, a
firearms show, or a police station. See HRS § 134-24.
The reasonable inference from these facts is that Chan was carrying a rifle through
the Uraku Tower condominium complex for protection against what he viewed as
a real threat to his safety. Moreover, as there was no evidence that Chan had
discarded the rifle bag or given it to someone else before getting in his Vehicle, see
Evid. Tr. at 69:3–18, the reasonable, common-sense inference was that the rifle
was in the Vehicle. As police were aware that Chan lived at the Wailana, not the
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 24 of 28
PageID.<pageID>

25
Uraku Tower, and the Uraku Tower was not one of the other locations in which a
person is authorized to carry a weapon under Place to Keep, Chan’s possession of a
firearm at that location would have violated that statute. See HRS § 134-24. In
other words, the totality of the circumstances supported a “fair probability” that
contraband or evidence of a crime would be found in the Vehicle, and probable
cause existed. See Kelley, 482 F.3d at 1050.15
Chan argues that some of the information cited above was “stale” or “dated,”
rendering that information invalid for the purpose of justifying probable cause. See
Dkt. Nos. 41 at 3; 57 at 2. Chan is mistaken. “Information underlying a warrant is
not stale if there is sufficient basis to believe, based on a continuing pattern or
other good reasons, that the items to be seized are still on the premises.” United
States v. Schesso, 730 F.3d 1040, 1047 (9th Cir. 2013)); see also United States v.
Dozier, 844 F.2d 701, 707 (9th Cir. 1988) (“[T]he mere lapse of substantial
amounts of time is not controlling in a question of staleness.”). Here, the
information on which officers relied was part of a consistent pattern, much of
which was substantiated and very recent. In fact, the allegedly stale report from
the maintenance worker of Chan’s cache of weapons in his unit, by itself, likely
15 As discussed above, precedent precludes Chan’s argument that the exception should not apply
because the Vehicle was in the exclusive control of police, giving them time to obtain a search
warrant. See Dkt. No. 57 at 4; Dyson, 527 U.S. at 466 (“[U]nder our established precedent, the
‘automobile exception’ has no separate exigency requirement.”); Scott, 705 F.3d at 417 (similar);
Paredes, 388 F. Supp. 2d at 1196–97 (similar).
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 25 of 28
PageID.<pageID>

26
would not have been acted on by police without more. It was only in the context
of the additional and more recent information and facts bulleted above, most of it
nearly contemporaneous with Chan’s arrest, and none of which could even
arguably be considered “stale,” that the law enforcement and probable cause
picture became clear.
Chan also contends that the police were only allowed to search the space in
his Vehicle within his “immediate control.” Dkt. No. 57 at 5. In support, he cites
to Arizona v. Gant, 556 U.S. 332, 351 (2009), which held that, when police search
a vehicle after arresting the driver, they may only search the areas of the vehicle
that are within reaching-distance of the arrestee. Id. Gant is inapposite. That case
applied to officers’ search of a vehicle when there was no probable cause—when,
therefore, the automobile exception did not apply—and the officers’ only authority
to search without a warrant came from a different warrant exception: the one for
safety-related searches incident to an arrest. In those cases, police may search only
areas within the arrestee’s immediate control because those are the areas justifying
a safety-related concern. See id. Here, where probable cause did exist, the
automobile exception allowed police to search “any area of the vehicle in which
the evidence might be found.” See id. at 347 (reaffirming this principle for the
automobile exception).
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 26 of 28
PageID.<pageID>

27
Chan finally contends that, even if officers were allowed to search the
Vehicle itself, they were not allowed to open the rifle bag and examine its contents.
In support, Chan cites to United States v. Chadwick, 433 U.S. 1, 11 (1977), which
held that, during an otherwise permissible automobile search, police should not
have searched a “double-locked footlocker” found inside the defendant’s car
because the defendant had manifested an expectation of privacy by locking his
belongings in the footlocker. Dkt. No. 57 at 4-5 (also citing Arkansas v. Sanders,
442 U.S. 753, 763–66 (1979), which extended Chadwick’s reasoning to a suitcase
located in the trunk of a car). Again, Chan is mistaken. The Supreme Court
specifically abrogated the Chadwick-Sanders rule in 1991:
We conclude that it is better to adopt one clear-cut rule to govern
automobile searches and eliminate the warrant requirement for closed
containers. . . . The police may search an automobile and the
containers within it where they have probable cause to believe
contraband or evidence is contained.
Acevedo, 500 U.S. at 577, 579–80; see also Ross, 456 U.S. at 825 (explaining that
when the automobile exception applies, “it justifies the search of every part of the
vehicle and its contents that may conceal the object of the search”); United States
v. Williams, 846 F.3d 303, 312 (9th Cir. 2016) (“Officers may conduct a
warrantless search of an automobile, including containers within it, when they have
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 27 of 28
PageID.<pageID>

28
probable cause to believe that the vehicle contains contraband or evidence of
criminal activity.”).16
CONCLUSION
For the foregoing reasons, Chan’s Motion to Suppress, Dkt. No. 41, is
DENIED.
IT IS SO ORDERED.
DATED: January 27, 2023 at Honolulu, Hawai‘i.
United States of America v. Christopher Chan; Crim No. 22-00109 DKW;
ORDER DENYING DEFENDANT CHRISTOPHER CHAN’S MOTION TO
SUPPRESS EVIDENCE
16 The Court notes that police were likely also authorized to search Chan’s vehicle pursuant to
their “valid community caretaking purpose.” See United States v. Anderson, 56 F.4th 748, 758
(9th Cir. 2022) (per curiam) (holding that an inventory search does not violate the Fourth
Amendment where (i) a vehicle is impounded for a valid community caretaking purpose, (ii)
inventory search before impoundment is standard practice, and (iii) the inventory search is
conducted in good faith—e.g., for community caretaking purposes and not solely to search for
evidence of a crime). Here, Chan’s vehicle was impounded because it was blocking traffic out of
the Uraku Tower, and the Building Manager requested its removal. In this context, a subsequent
towing and inventory search by HPD would likewise have discovered the firearm in the trunk,
even if HPD had no prior knowledge of it. Therefore, the search was likely also permissible
under this rule. See Strieff, 579 U.S. at 238 (“[T]he inevitable discovery doctrine allows for the
admission of evidence that would have been discovered even without [any] unconstitutional
source.”).
___________________________
Derrick K. Watson
Chief United States District Judge
Case 1:22-cr-00109-DKW Document 64 Filed 01/27/23 Page 28 of 28
PageID.<pageID>