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United States v. Dang

March 7, 2007

UNITED STATES, PLAINTIFF,
v.
CUONG DANG, DEFENDANT.



The opinion of the court was delivered by: Judge Blanche M. Manning

MEMORANDUM AND ORDER

On April 26, 2006, a federal grand jury returned a nineteen-count superseding indictment which charged Dang in three counts with conspiring with intent to distribute controlled substances, namely MDMA ("ecstasy") and marijuana in violation of 21 U.S.C. § 946, possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A). Cuong Dang moves to quash his arrest and suppress evidence seized from his person and home as well psot-arrest statements made by him. Pursuant to the motion, the court held an evidentiary hearing. For the reasons stated below, Dang's motion to suppress [#51] is denied.

I. Facts

A. Donald Wood Testimony

The first witness to testify at the hearing was Donald Wood, a special agent with the Drug Enforcement Agency. Wood has been with the DEA for nine years and has participated in over 100 narcotics investigations during that period. The court found him to be a credible witness.

According to Wood, the DEA began an investigation into a group which was importing MDMA (ecstasy) and hydroponic marijuana from Canada and elsewhere into the United States. The investigation began as a result of a cooperating informant (working with the DEA in its Hanoi, Vietnam, and San Jose, California, offices and whom the DEA determined to be reliable), who informed the DEA that certain individuals were delivering wholesale quantities of ecstasy and marijuana into Chicago and other U.S. cities. Based on authorized wiretaps and pen registers on phone numbers provided by the CI, as well as its own surveillance and investigation, the DEA determined that an individual named Thang Van Vu may have been involved in the importation of the ecstasy and marijuana. Indeed, by the end of September 2004, Wood testified that his surveillance and investigation of Vu led him to the conclusion "that Thang Van Vu was an active participant in the drug trafficking organization that we were target[ing]. . . ." Hearing Tr. at 18.

Specifically, the CI cultivated a personal relationship with a high-ranking member of a Vietnamese organization that was importing drugs into the United States, including Chicago. Through his relationship with this high-ranking member, the CI obtained a Chicago-based cell phone number that was involved in the drug ring. According to the CI, he was present during a drug-related conversation between the high-ranking member of the drug organization and the individual to whom the cell phone belonged. Wood was able to corroborate that the information being provided by the CI was truthful and useful.

In July 2004, the Los Angeles DEA office also obtained a Title III wiretap on a telephone number utilized by the high-ranking member's ecstasy distributor, Khoa Dang Pham. The DEA was able to intercept "dirty" phone calls between Pham and the Chicago-based cell phone number referred to previously. The DEA identified the individual with the Chicago-based cell phone number as Vu through surveillance and records checks and a dropped call.

Wood testified that on October 18, 2004, he had activated the tracking device (which the DEA obtained through court order) on Vu's vehicle, a Toyota Sienna. The device indicated that Vu was driving eastbound on I-94 in Chicago. A team of four or five agents, including Wood, began to follow Vu as he drove down I-94 toward Indiana. Under the team's continuous surveillance, Vu drove to a truck stop just off of an exit for Porter, Indiana. In the parking lot of the truck stop, Vu appeared to make a cell phone call and five or ten minutes later he drove to the back of the truck stop and pulled behind a semi-truck. At this point, Vu was out of the sight of the DEA team, which according to Wood, could not follow him without being detected by Vu. Less then a minute later, Vu pulled out of the truck stop and drove back to Chicago. Wood testified that based on his training and experience, truck stops are locations where drug transactions occur. Tr. at 24 ("The fact that he did not go into a restaurant, stayed in his car, was using his phone and went to an area where semi trucks were parked, it was my opinion, based on what I know, that a drug transaction occurred.").

The team followed Vu back to Chicago where he drove to the 5500 block of North Spaulding. Wood saw Vu drive into the alley and park behind the building located at 5505 North Spaulding. Wood drove around to the front of the address and set up a surveillance of the address while other agents had other positions of surveillance including the alley. An agent surveilling the alley called Wood over the radio and told him that Vu had opened the back of the van and retrieved a large black duffle bag that appeared to be heavy, walked into the backyard of the residence located at 5505 N. Spaulding and placed it in the doorway of the back door of the building. Wood then left his car and walked down the gangway of the building, noted that the back door was closed and no bag was there and then walked back out to the front of the building. In the front of the building, Wood met up with an agent Zamora who told Wood that another individual had picked up the bag and walked into the building. Wood testified that he and agent were about to knock on the door of the residence when they saw Dang talking on a cell phone and walking in the gangway between the two buildings toward the back of the house.

Wood and Zamora then began walking toward Dang to catch up with him. Dang turned around and when he saw the agents walking towards him, he started walking "briskly" toward the back door of the house. The agents identified themselves as police and told Dang to stop but Dang ran inside the building and locked the door. Wood testified that Dang's failure to stop indicated to him, based on his training and experience, that Dang did not want to be caught and arrested for whatever activity he was engaged in. According to Wood, he could see through a window in the back door that Dang had grabbed the black bag and run down a set of stairs. The agents then forced their way into the common area of the building. The agents came upon another door that was locked that Wood testified appeared to be a door to the basement apartment. Wood was then notified over the radio by the other agents that Dang had run out the front door of the building without the bag. Wood secured the residence by having agents stationed at the front and back doors of the building. Wood testified that he did not enter what he thought was Dang's apartment because he feared that if he forced entry any evidence he obtained would be suppressed.

Wood then went back outside and his thought was either to get a search warrant "and/or" consent to get into the apartment and coordinate surveillance of Vu and Dang. Wood told the agents who were following Vu to stop and arrest him and bring him back to 5505 North Spaulding. Pursuant to Wood's instruction, the agents arrested Vu and brought him back to 5505 N. Spaulding where Wood read him Vu his Miranda rights. Wood asked Vu if he understood what was happening to him, Vu said he did and Wood asked Vu if he would be willing to cooperate with law enforcement by participating in an interview. Vu agreed and while he initially stated that he had not delivered a black duffle bag to 5505 N. Spaulding, he changed his story and told Wood that someone had given him the bag and told him to deliver it to someone else at 5505 N. Spaulding. Wood testified that it was his estimation pursuant to his training and experience that Vu was trying to separate himself from the duffle bag, which Wood believed contained narcotics.

After Wood finished questioning Vu, he went back to coordinating the surveillance of Dang. Specifically, he learned that Dang had driven off from 5505 N. Spaulding at a high rate of speed and the agents were having difficulty following him because Dang was not necessarily following the traffic signs and lights. The agents, however, maintained their surveillance and followed him to a Harris Bank parking lot. The agents told Wood that Dang took a black duffle bag which appeared to be empty out of his car and that he walked into the bank with the bag. The agents reported to Wood that Dang went into the safe deposit box area of the bank and came out with the bag, which now appeared full. Wood instructed the team to approach Dang as he was leaving the bank and attempt to get a consent to search the bag.

The agents told Wood that they conducted a brief interview with Dang who told the officers he had come from the grocery store and that he had gone to the safe deposit box at the bank where he took $80,000 in proceeds from a Marathon gas station that he managed and was going to deposit it in a business account at Harris. The agents also told Wood that they received a consent to search the bag. The search revealed a large sum of money, some cell phones and some jewelry. Wood testified that Dang's story that he was going to deposit the money in a business bank account at the same time that he was leaving the bank seemed inconsistent and untruthful. Wood instructed the team to arrest Dang and bring him back to 5505 N. Spaulding.

When Dang arrived at the address, Wood testified that he read Dang his Miranda rights and asked Dang if he would cooperate. Dang stated he understood and that he was willing to cooperate. Wood testified that Dang confirmed that he lived alone at 5505 N. Spaulding and that no one else had a key to his apartment. According to Wood, Dang also told Wood that he had a gun in his apartment and when asked if he would grant law enforcement consent to search his apartment, Dang gave both verbal and written consent.

During the hearing, Wood identified the consent form and testified that he watched as Dang signed his name on the consent form. Dang gave the agents the key to his apartment and went into the apartment with the agents. The agents retrieved 130 pounds of gross weight of hydroponic marijuana contained in a black duffle bag in the area next to Dang's bedroom. The agents also found additional marijuana that was found in the closet and a gun that was found in Dang's bedroom. In addition, the agents found packaging material, a money counter, and miscellaneous documents, which Wood testified were consistent with drug trafficking.

After the search, Wood conducted an interview with Dang at his apartment and at the Chicago Police Department. Dang implicated himself in drug trafficking stating that he had participated in trafficking on two prior occasions for which he had been paid. He also stated that he had purchased the gun because he was afraid of Vu, and later admitted that the money at the bank was drug proceeds.

David Zamora

Agent Zamora also testified at the hearing. He is a criminal investigator with the DEA and has been for 4 years. Prior to that, he was with the City of East Chicago, Indiana Police Department and spent 9 years of that time on a DEA task force in Merrillville, Indiana. He estimates he has been involved in 250 to 300 narcotics investigations. The court found him to be a credible witness. Zamora testified that he participated in the surveillance of Vu's Toyota Sienna as it drove along I-94 and at the truck stop in Indiana. According to Zamora, his training and experience led him to believe that the circumstances surrounding Vu's trip to the truck stop were indicative of drug trafficking.

Zamora testified that he followed Vu back to Chicago after he left the Indiana truck stop, saw Vu pull into the alley behind the building at 5505 N. Spaulding, take a black duffle bag out of the Sienna and place it outside the back door of the building located at that address. Just after that, as Vu was walking away, Zamora testified that he saw a person he identified as Dang come out from the doorway, pick up the bag and look toward the alley at the driver of the Sienna. The individual then took the bag inside the building. Zamora then parked his car and began walking toward 5505 N. Spaulding where he met up with Wood. They proceeded to walk toward the rear of the building where the duffle bag had been dropped when they saw Dang walking toward them. Zamora testified that he yelled "police, stop" and Dang ran back inside and locked the door. Wood and Zamora went to the back door and broke it in, but did not enter the locked apartment door to the basement apartment. According to Zamora, Wood told him to wait by the door so that he could speak with the other surveillance agents. Zamora heard from the other agents over the radio that they saw Dang leave the building, get in a car and drive away. Zamora and another agent waited by the apartment door until they learned that consent had been provided to search the apartment.

Zamora participated in the search during which they seized a firearm and two black duffle ...


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