State v. Houadou T. Yang

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 1, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2019AP1730-CR Cir. Ct. No. 2018CF909

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

HOUADOU T. YANG,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for La Crosse County:
RAMONA A. GONZALEZ, Judge. Reversed and cause remanded for further
proceedings.

Before Fitzpatrick, P.J., Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP1730-CR

¶1 PER CURIAM. The State of Wisconsin appeals a circuit court order
granting Houadou Yang’s motion to suppress evidence derived from a stop of
Yang’s vehicle. We agree with the State that police lawfully extended the stop to
conduct a drug sniff of Yang’s vehicle based on their reasonable suspicion that Yang
was involved in illegal drug activity. We reverse the suppression order and remand
for further proceedings consistent with this opinion.

BACKGROUND

¶2 The sole witness at the suppression hearing was a police officer
involved in the stop of Yang’s vehicle. We refer to his testimony in describing the
circumstances of the stop.

¶3 The officer had been employed by the City of La Crosse Police
Department for twelve years. He had both training and experience in drug
interdiction. On the day of Yang’s stop, the officer was in an unmarked squad
vehicle in the area of a Harbor Freight store around 4:55 p.m. He observed two
vehicles in the parking lot parked in close proximity to each other. One of the
vehicles was black with dark tinted windows, and the other vehicle was lighter in
color.

¶4 As he observed the two vehicles, the officer noticed that a door was
open on the lighter colored vehicle, and he saw a female from that vehicle standing
and then approaching the driver’s side of the black vehicle. It appeared that she was
approaching “very cautiously,” looking to see if anyone was watching her. As she
got closer to the black vehicle’s door, she began to look around more often. When
she spotted the officer’s unmarked squad vehicle, she turned around without making
contact with the black vehicle and went directly back to the lighter colored vehicle.

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No. 2019AP1730-CR

The driver in the black vehicle immediately began to back up and traveled out of
the parking lot.

¶5 The location of the Harbor Freight parking lot was significant to the
officer because police knew that area was frequently used for drug transactions.
Police had conducted surveillance in the area for about six to eight months, and they
had intelligence about the area from individuals involved in narcotics. Based upon
his observations, and his knowledge of the parking lot’s use for drug transactions,
the officer suspected that he had witnessed an attempted drug transaction.

¶6 The officer initiated a stop of the black vehicle with the dark tinted
windows. He testified that he initiated the stop because of the vehicle’s excessively
dark window tinting and because he believed that a drug transaction had been about
to occur.

¶7 The officer contacted the black vehicle’s driver, who was Yang. The
officer had prior contacts with Yang and knew that Yang had a drug history
involving narcotics. According to the officer, Yang appeared “incredibly” or
“extremely” nervous. He stated that Yang “was sweating profusely from his brow
line,” that “his hands appeared to be shaky or trembling,” and that his breathing was
very rapid. Yang told the officer that he had been at the Harbor Freight parking lot
to meet a friend.

¶8 After his initial contact with Yang, the officer contacted dispatch to
send a “K-9” unit to the scene for a dog to conduct a drug sniff of Yang’s vehicle.
The officer could not recall how long it took for the unit to arrive and conduct the
drug sniff. However, the parties’ briefing indicates that they agree, based on a video
recording from another officer’s body camera, that the drug sniff extended the stop
by no more than eleven minutes.

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No. 2019AP1730-CR

¶9 Yang moved to suppress evidence derived from what Yang contended
was an unlawful extension of a traffic stop for a window tint violation. The circuit
court granted the motion. The court appeared to conclude that, although Yang’s
initial stop was justified by a window tint violation, the police lacked reasonable
suspicion of illegal drug activity that would have allowed them to lawfully extend
the stop for the drug sniff.

DISCUSSION

¶10 When reviewing a suppression issue, we “uphold the circuit court’s
findings of fact unless clearly erroneous.” State v. Kolk, 2006 WI App 261, ¶10,
298 Wis. 2d 99, 726 N.W.2d 337. However, we “determine de novo whether the
facts as found demonstrate a constitutional violation.” Id.

¶11 The State argues that the police lawfully extended Yang’s stop to
conduct the drug sniff because, by the time the police on the scene contacted
dispatch to send the K-9 unit, they had reasonable suspicion that Yang was engaged
in illegal drug activity. Yang, in contrast, contends that the circuit court correctly
concluded that the police lacked reasonable suspicion of illegal drug activity. Yang
does not argue that extending the stop for up to eleven minutes to conduct the drug
sniff was unlawful even if the police had reasonable suspicion of such activity. We
agree with the State that the police reasonably suspected Yang of illegal drug
activity and, on that basis, we conclude that the circuit court should have denied
Yang’s suppression motion.

¶12 Police may not extend a traffic stop to conduct an investigation of
criminal activity “absent the reasonable suspicion ordinarily demanded to justify
detaining an individual.” Rodriguez v. United States, 575 U.S. 348, 355 (2015);
see also State v. Hogan, 2015 WI 76, ¶35, 364 Wis. 2d 167, 868 N.W.2d 124 (“An

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No. 2019AP1730-CR

expansion in the scope of the inquiry, when accompanied by an extension of time
longer than would have been needed for the original stop, must be supported by
reasonable suspicion.”).

¶13 “Reasonable suspicion exists if, under the totality of the
circumstances, ‘the facts of the case would warrant a reasonable police officer, in
light of his or her training and experience, to suspect that the individual has
committed, was committing, or is about to commit a crime.’” State v. Rose, 2018
WI App 5, ¶14, 379 Wis. 2d 664, 907 N.W.2d 463 (Ct. App. 2017) (quoted source
omitted). “Reasonable suspicion must be based on more than an officer’s inchoate
and unparticularized suspicion or hunch.” Id. (internal quotation marks and quoted
source omitted). “An officer must be able to point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant
the intrusion of the stop.” Id. (internal quotation marks and quoted source omitted).
“The burden of establishing that an investigative stop is reasonable falls on the
State.” State v. Walli, 2011 WI App 86, ¶7, 334 Wis. 2d 402, 799 N.W.2d 898.

¶14 Based on the totality of circumstances set forth above, we conclude
that the State established that the police had reasonable suspicion that Yang was
involved in illegal drug activity. The most pertinent facts, and reasonable inferences
from those facts, can be summarized as follows: An officer with twelve years of
experience, including training and experience in drug interdiction, saw a woman
who appeared to have just exited a vehicle approach a nearby vehicle in a parking
lot often used for drug dealing. She approached the other vehicle “very cautiously,”
seeming to look around for anyone that might be watching, and she looked around
even more as she got closer to the vehicle. When she observed an unmarked police
vehicle, she turned around and returned to her vehicle. The vehicle she was
attempting to contact then immediately pulled out of the parking lot and drove away.

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No. 2019AP1730-CR

When police stopped the vehicle, the driver was Yang, someone with a known
history of illegal drug activity. Yang appeared extremely nervous to one of the
officers. Finally, Yang claimed to have been meeting a friend, an explanation that
did not appear consistent with police observations.

¶15 Our conclusion that these circumstances satisfy the standard for
reasonable suspicion is supported by State v. Amos, 220 Wis. 2d 793, 584 N.W.2d
170 (Ct. App. 1998). In Amos, police saw a suspect sitting in his vehicle in a parking
lot with a posted no trespassing sign. Id. at 795. Police knew that parking lots in
the area were frequently used as open air drug markets, and nearby property
managers had asked police to enforce trespassing ordinances to reduce the high
volume of illegal drug activity. Id. at 795-96. An officer observed a woman
approach the suspect’s vehicle, look up, appear to notice the police, then turn around
and walk away without contacting the vehicle. Id. at 796. Almost immediately
thereafter, the suspect drove out of the parking lot. Id. We concluded in Amos that
the police were justified in detaining the suspect to investigate both possible
trespassing and possible drug activity. Id. at 802.

¶16 Here, although there are no facts to indicate trespassing or a specific
request for police enforcement, the circumstances are otherwise similar to those in
Amos with the addition of several other suspicious factors that were not present in
Amos. Those additional factors include Yang’s known involvement in prior drug
activity, testimony by an officer that Yang appeared extremely nervous, and Yang’s
questionable explanation for his presence in the parking lot.

¶17 Yang argues that his case is more similar to State v. Young, 212 Wis.
2d 417, 569 N.W.2d 84 (Ct. App. 1997), a case in which this court concluded that
reasonable suspicion was lacking. We disagree. As summarized in Young, the

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No. 2019AP1730-CR

totality of potentially suspicious circumstances there consisted only of:
“(1) presence in a high drug-trafficking area; (2) a brief meeting with another
individual on a sidewalk in the early afternoon; and (3) the officer’s experience that
drug transactions in this neighborhood take place on the street and involve brief
meetings.” See id. at 433.

¶18 Yang argues that the circuit court made several factual findings that
support the court’s legal conclusion that reasonable suspicion was lacking. We
again disagree with Yang. Yang misconstrues the circuit court’s legal reasoning as
fact finding, and he attributes factual findings to the circuit court that the court did
not make. In reviewing the circuit court’s reasoning, we see no factual findings or
credibility determinations that undermine our de novo legal conclusion that the
police reasonably suspected Yang of illegal drug activity.

¶19 Most notably, we disagree with Yang’s assertion that the circuit court
“found” that he was “not suspiciously nervous.” Yang bases this assertion on the
circuit court’s review of the police body camera video and a statement by the circuit
court that “[e]verybody’s nervous” when stopped by police. However, the circuit
court made no finding as to the nature or degree of Yang’s nervousness, and we
disagree with Yang if he means to argue that the court’s decision necessarily implies
a finding that he was not unusually nervous.

¶20 Finally, Yang relies on United States v. Rodriquez-Escalera, 884
F.3d 661 (7th Cir. 2018), to support his argument that the police lacked reasonable
suspicion of illegal drug activity. Yang’s reliance on Rodriquez-Escalera is not
persuasive. First, the opinion in Rodriguez-Escalera reflects that the district court
in Rodriguez-Escalera made the type of finding regarding nervousness that Yang
appears to incorrectly attribute to the circuit court here. Specifically, the district

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No. 2019AP1730-CR

court in Rodriquez-Escalera found that the targeted suspects were not acting
unusually nervous and, based on video and audio recordings, the court expressly
rejected police officer testimony to the contrary. See id. at 666, 669. Second, unlike
here, the facts in Rodriguez-Escalera do not indicate that the police had witnessed
what appeared to be an attempted drug transaction, or that they were aware of a
suspect’s prior illegal drug activity. See id. at 668-69.

¶21 In sum, for the reasons stated above, we reverse the circuit court’s
suppression order and remand for further proceedings consistent with this opinion.

By the Court.—Order reversed and cause remanded for further
proceedings.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2017-18).

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