FILED United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS December 20, 2017 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-8115 (D.C. No. 1:16-CR-00051-NDF-1) KWOK LUN CHOW, also known as (D. Wyo.) Kwok–Lun Chow, also known as Nelson Chow,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. Introduction
Defendant-Appellant, Kwok Lun Chow, was charged in a one-count
indictment with possession with intent to distribute more than fifty kilograms of
marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). Chow filed a motion
to suppress evidence seized during a roadside search of his vehicle. The district
court denied the motion and Chow entered a conditional guilty plea to the charged
crime. See Fed. R. Crim. P. 11(a)(2). He was sentenced to thirty-six months’
probation with the first eight months on home confinement. Chow then brought
this appeal challenging the denial of his suppression motion. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the denial of Chow’s
motion.
II. Background
The factual background is fully set forth in the district court’s order
denying Chow’s motion to suppress and Chow does not challenge any of the
court’s factual findings. Wyoming Highway Patrol Trooper Aaron Kirlin stopped
Chow for speeding on February 13, 2016. Chow was driving a rented U-Haul
truck. Trooper Kirlin asked Chow to sit in his patrol car while he completed the
paperwork for a warning. During that time, Trooper Kirlin questioned Chow
about his travel plans. Chow first said he was moving to New York, but then said
he was moving to New Jersey. When Trooper Kirlin noted the U-Haul was
scheduled to be returned in Brooklyn, Chow stated some of the things in the truck
-2- belonged to his cousin who was the passenger in the U-Haul and who resides in
Brooklyn. Chow told Trooper Kirlin he was moving from San Francisco but also
stated he began the journey in Seattle. He explained that his job required him to
split his time between California and Seattle. Trooper Kirlin testified that Chow
displayed visible signs of nervousness throughout the encounter by stammering,
avoiding eye contact, picking at his fingernails, and breathing rapidly.
Trooper Kirlin returned Chow’s documents and told him the traffic stop
was over. Chow, however, voluntarily agreed to answer additional questions.
Among other things, he told Trooper Kirlin his Seattle residence was a two-
bedroom home provided by his employer. Trooper Kirlin then asked Chow if he
could speak to his passenger. Although Chow agreed, Kirlin testified that Chow’s
“face drained of color” when he heard the question.
Chow’s passenger, Jia Jun Yu, told Trooper Kirlin that Chow was moving
out of a studio apartment in Seattle to New York. He also told Kirlin that he and
Chow were friends, not related to each other. Although Chow told Trooper Kirlin
that he worked for a security camera company and was a salaried employee, Yu
told Kirlin that Chow was moving to New York to do restaurant work. When
Trooper Kirlin finished questioning Yu, he returned to his patrol car, told Chow
he was detained, and gave him a Miranda warning. During further questioning,
Chow admitted there was marijuana in the back of the U-Haul. Approximately
292 pounds of marijuana were found in the vehicle.
-3- Chow was charged with possession of marijuana with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1(C). He filed a motion to suppress the
evidence uncovered during the search of the U-Haul, arguing he was seized in
violation of the Fourth Amendment when Trooper Kirlin told him he was detained
and read him his Miranda rights. Specifically, Chow asserted: “Mr. Chow’s main
point in this motion is that Trooper Kirlin lacked reasonable, articulable suspicion
to detain him based solely on what he observed in this case.” In its response, the
government argued the conflicting statements given by Chow and Yu gave rise to
reasonable articulable suspicion.
The district court denied Chow’s motion, concluding Chow’s detention was
based on Trooper Kirlin’s objectively reasonable suspicion that Chow was
engaged in criminal activity. See United States v. Arvizu, 534 U.S. 266, 273-74
(2002) (discussing the circumstances under which a brief investigatory stop does
not violate the Fourth Amendment). Chow pleaded guilty to the drug charge,
preserving his right to appeal the denial of his motion. See Fed. R. Crim. P.
11(a)(2).
III. Discussion
When reviewing the denial of a motion to suppress, this court views the
evidence in the light most favorable to the Government and accepts the district
court’s factual findings unless they are clearly erroneous. United States v. Price,
265 F.3d 1097, 1104 (10th Cir. 2001). The ultimate determination of whether a
-4- traffic stop was reasonable under the Fourth Amendment is a question of law
reviewed de novo. Id.
Chow does not challenge the lawfulness of the initial stop or the consensual
nature of his interaction with Trooper Kirlin after his documents were returned
and before Kirlin questioned Yu. He raises only two arguments. First, he asserts
the district court erred by concluding Trooper Kirlin had reasonable articulable
suspicion to detain him after Yu was questioned and before he admitted the U-
Haul contained marijuana. Chow also argues he was arrested without probable
cause when Trooper Kirlin gave him a Miranda warning.
As to Chow’s first argument, this court must “determine whether the
totality of the circumstances justify the detention.” United States v. Mendez, 118
F.3d 1426, 1431 (10th Cir. 1997). “While reasonable suspicion may not be based
on a ‘mere hunch,’ ‘the likelihood of criminal activity need not rise to the level
required for probable cause, and it falls considerably short of satisfying a
preponderance of the evidence standard.’” United States v. Karam, 496 F.3d
1157, 1162 (10th Cir. 2007) (quoting Arvizu, 534 U.S.
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FILED United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS December 20, 2017 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-8115 (D.C. No. 1:16-CR-00051-NDF-1) KWOK LUN CHOW, also known as (D. Wyo.) Kwok–Lun Chow, also known as Nelson Chow,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. Introduction
Defendant-Appellant, Kwok Lun Chow, was charged in a one-count
indictment with possession with intent to distribute more than fifty kilograms of
marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). Chow filed a motion
to suppress evidence seized during a roadside search of his vehicle. The district
court denied the motion and Chow entered a conditional guilty plea to the charged
crime. See Fed. R. Crim. P. 11(a)(2). He was sentenced to thirty-six months’
probation with the first eight months on home confinement. Chow then brought
this appeal challenging the denial of his suppression motion. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the denial of Chow’s
motion.
II. Background
The factual background is fully set forth in the district court’s order
denying Chow’s motion to suppress and Chow does not challenge any of the
court’s factual findings. Wyoming Highway Patrol Trooper Aaron Kirlin stopped
Chow for speeding on February 13, 2016. Chow was driving a rented U-Haul
truck. Trooper Kirlin asked Chow to sit in his patrol car while he completed the
paperwork for a warning. During that time, Trooper Kirlin questioned Chow
about his travel plans. Chow first said he was moving to New York, but then said
he was moving to New Jersey. When Trooper Kirlin noted the U-Haul was
scheduled to be returned in Brooklyn, Chow stated some of the things in the truck
-2- belonged to his cousin who was the passenger in the U-Haul and who resides in
Brooklyn. Chow told Trooper Kirlin he was moving from San Francisco but also
stated he began the journey in Seattle. He explained that his job required him to
split his time between California and Seattle. Trooper Kirlin testified that Chow
displayed visible signs of nervousness throughout the encounter by stammering,
avoiding eye contact, picking at his fingernails, and breathing rapidly.
Trooper Kirlin returned Chow’s documents and told him the traffic stop
was over. Chow, however, voluntarily agreed to answer additional questions.
Among other things, he told Trooper Kirlin his Seattle residence was a two-
bedroom home provided by his employer. Trooper Kirlin then asked Chow if he
could speak to his passenger. Although Chow agreed, Kirlin testified that Chow’s
“face drained of color” when he heard the question.
Chow’s passenger, Jia Jun Yu, told Trooper Kirlin that Chow was moving
out of a studio apartment in Seattle to New York. He also told Kirlin that he and
Chow were friends, not related to each other. Although Chow told Trooper Kirlin
that he worked for a security camera company and was a salaried employee, Yu
told Kirlin that Chow was moving to New York to do restaurant work. When
Trooper Kirlin finished questioning Yu, he returned to his patrol car, told Chow
he was detained, and gave him a Miranda warning. During further questioning,
Chow admitted there was marijuana in the back of the U-Haul. Approximately
292 pounds of marijuana were found in the vehicle.
-3- Chow was charged with possession of marijuana with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1(C). He filed a motion to suppress the
evidence uncovered during the search of the U-Haul, arguing he was seized in
violation of the Fourth Amendment when Trooper Kirlin told him he was detained
and read him his Miranda rights. Specifically, Chow asserted: “Mr. Chow’s main
point in this motion is that Trooper Kirlin lacked reasonable, articulable suspicion
to detain him based solely on what he observed in this case.” In its response, the
government argued the conflicting statements given by Chow and Yu gave rise to
reasonable articulable suspicion.
The district court denied Chow’s motion, concluding Chow’s detention was
based on Trooper Kirlin’s objectively reasonable suspicion that Chow was
engaged in criminal activity. See United States v. Arvizu, 534 U.S. 266, 273-74
(2002) (discussing the circumstances under which a brief investigatory stop does
not violate the Fourth Amendment). Chow pleaded guilty to the drug charge,
preserving his right to appeal the denial of his motion. See Fed. R. Crim. P.
11(a)(2).
III. Discussion
When reviewing the denial of a motion to suppress, this court views the
evidence in the light most favorable to the Government and accepts the district
court’s factual findings unless they are clearly erroneous. United States v. Price,
265 F.3d 1097, 1104 (10th Cir. 2001). The ultimate determination of whether a
-4- traffic stop was reasonable under the Fourth Amendment is a question of law
reviewed de novo. Id.
Chow does not challenge the lawfulness of the initial stop or the consensual
nature of his interaction with Trooper Kirlin after his documents were returned
and before Kirlin questioned Yu. He raises only two arguments. First, he asserts
the district court erred by concluding Trooper Kirlin had reasonable articulable
suspicion to detain him after Yu was questioned and before he admitted the U-
Haul contained marijuana. Chow also argues he was arrested without probable
cause when Trooper Kirlin gave him a Miranda warning.
As to Chow’s first argument, this court must “determine whether the
totality of the circumstances justify the detention.” United States v. Mendez, 118
F.3d 1426, 1431 (10th Cir. 1997). “While reasonable suspicion may not be based
on a ‘mere hunch,’ ‘the likelihood of criminal activity need not rise to the level
required for probable cause, and it falls considerably short of satisfying a
preponderance of the evidence standard.’” United States v. Karam, 496 F.3d
1157, 1162 (10th Cir. 2007) (quoting Arvizu, 534 U.S. at 274). “We assess
reasonable suspicion in light of the totality of the circumstances.” United States
v. Valles, 292 F.3d 678, 680 (10th Cir. 2002). Individual factors can contribute to
reasonable suspicion even if each factor “is not by itself proof of any illegal
conduct and is quite consistent with innocent travel.” United States v. Sokolow,
490 U.S. 1, 9 (1989).
-5- The district court concluded Chow’s own conflicting statements about his
travel plans were of “limited significance” because they were not necessarily
inconsistent. It did, however, give the following inconsistent statements of Chow
and Yu “considerable weight.”
. . . Chow stated that he was traveling with his cousin and that he was working for a camera company. Chow told Trooper Kirlin that he was being transferred by the company to New York (although he was going to live in New Jersey). Chow stated that the company was paying him and that he was on the clock at the time. Chow clarified that he was a salaried employee, not hourly. Chow went into great detail about his job, including telling Trooper Kirlin that he had just registered for a convention in Las Vegas, Nevada in April (the stop was in February) and told him about the convention. Chow stated that he was traveling between California and Seattle and the company provided him housing in Seattle, and when asked Chow said it was two-bedroom housing.
. . . The passenger confirmed Chow was moving to New York, but when asked about his new job, he said Chow was going to work in the restaurant industry. Given how much information Chow provided to Trooper Kirlin about his job with the camera company, with no mention of work in the restaurant industry, this was a significant inconsistency. Finally, after a question from Trooper Kirlin, the passenger stated Chow had a studio apartment in Seattle, not a two bedroom place as Chow had told Trooper Kirlin.
As to Chow’s abnormal travel plans, the district court did not consider them a
“significant factor” on their own. Finally, the court noted that nervousness is of
limited significance when determining reasonable articulable suspicion but
considered Chow’s nervousness because it was excessive.
Chow does not challenge any of the district court’s factual findings. His
argument is confined to an assertion the facts were insufficient to establish
-6- reasonable articulable suspicion of illegal activity. We disagree. Under the
totality of the circumstances based on the district court’s findings, Trooper Kirlin
had reasonable suspicion to detain Chow and extend the traffic stop. See United
States v. Kitchell, 653 F.3d 1206, 1219 (10th Cir. 2011) (“The motorist’s or his
passengers’ inconsistent statements in response to . . . questions can give rise to
reasonable suspicion of criminal activity.”); Karam, 496 F.3d at 1164-65
(“[C]onfusion about details is often an indication that a story is being fabricated
on the spot, and vague and evasive answers may be considered, in conjunction
with other factors, as contributing to an officer’s determination of reasonable
suspicion.” (quotation omitted)); United States v. Santos, 403 F.3d 1120, 1127
(10th Cir. 2005) (holding unusual nervousness “may be considered as part of the
totality of the circumstances a reasonable law enforcement officer would analyze
in investigating possible crimes”).
Chow concedes that his second argument—that his detention was an arrest
not supported by probable cause—was not presented to the district court. In
United States v. Anderson, this court held that any theory of suppression not
presented to the district court falls outside the scope of the appellate rights
reserved by a conditional guilty plea. 374 F.3d 955, 957-58 (10th Cir. 2004). In
the written plea agreement, Chow, like the defendant in Anderson, reserved only
the right to appeal the adverse determination of his motion to suppress. On
appeal, he does not argue he did not knowingly and voluntarily enter into his plea
-7- agreement or that enforcement of the appellate waiver results in a miscarriage of
justice. See id. at 958-59. Accordingly, we will not consider Chow’s second
argument because it falls outside the scope of Chow’s reserved appellate rights.
IV. Conclusion
The order of the district court denying Chow’s motion to suppress is
affirmed.
ENTERED FOR THE COURT
Michael R. Murphy Circuit Judge
-8-