U.S. v. Kye Soo Lee

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________
NO. 91-4762

UNITED STATES OF AMERICA

Plaintiff - Appellant

v.

KYE SOO LEE, MIN HO CHAY,
and MIN SIK LEE
Defendants - Appellees

_________________________________________________________________

Appeal from the United States District Court
for the Western District of Louisiana
_________________________________________________________________
( May 22, 1992 )

Before GARWOOD and DeMOSS, Circuit Judges, and SCHWARTZ, District
Judge.1

SCHWARTZ, District Judge:

The Government appeals the judgment of the district court on

remand, granting the defendants' motion to suppress predicated on

its findings of lack of defendants' consent to accompany officers

to state police headquarters and the absence of probable cause to

arrest. We reverse and remand.

1
District Judge of the Eastern District of Louisiana,
sitting by designation.

1
 FACTS AND PRIOR PROCEEDINGS

The story of Kye Soo Lee, Min Ho Chay (Chay) and Min Sik Lee's

indictment for trafficking counterfeit goods in violation of Title

18, United States Code, Section 2320 begins on May 27, 1988, at

approximately 5:50 p.m., when Louisiana State Trooper Bruce

Vanderhoven (Vanderhoven), was patrolling westbound Interstate 20

(I-20) near Bossier City, Louisiana. A Ryder rental truck driven

by Chay captured his attention, since it was swerving in and out of

traffic without signalling, thus creating a traffic hazard.

Utilizing the emergency lights on his patrol car, Vanderhoven

pulled the defendants' truck over to the shoulder of I-20. Prior

to exiting his patrol car, he radioed a description of the truck

and its license number to state police headquarters which was less

that a mile away. State Trooper Archie Griffin received the

transmission at headquarters and proceeded to the scene to lend

assistance.

When Vanderhoven approached the Ryder truck, Chay was in the

driver's seat and was unable to produce any driver's license or

other identification.2 He was wearing a paging device and a

"Gucci" baseball cap. Chay informed Vanderhoven that his

passenger, Kye Soo Lee rented the Ryder truck. After "frisking"

Chay and finding nothing, Vanderhoven asked Chay to have a seat in

2
Chay claimed to hold a valid Texas driver's license.
Vanderhoven later confirmed that an individual by the name of Min
Ho Chay held a valid driver's license in the state of Texas.
However, without any identification on Chay whatsoever,
Vanderhoven had no way of knowing that he was in fact the same
Min Ho Chay.

2
the patrol car.

Vanderhoven then approached Chay's passenger, Kye Soo Lee, who

was the purported renter of the Ryder truck. Vanderhoven then

attempted to verify information gleaned from Chay with Kye Soo Lee.

His attempt was unsuccessful as Kye Soo Lee could neither speak nor

read English.3 So, Vanderhoven brought Chay back to the truck and

asked Chay to assist him in communicating with his passenger, with

which request Chay complied. With Chay translating, Vanderhoven

was successful in obtaining identification from Kye Soo Lee - that

is, his driver's license and Social Security card.

Upon further questioning by Vanderhoven, Kye Soo Lee stated

that a third party Min Sik Lee had rented the Ryder truck, which

was at odds with Chay's story. Upon the initial "frisk" of Kye Soo

Lee, Vanderhoven felt what later turned out to be a large wad of

currency in his pant's pocket. At that point Vanderhoven radioed

for assistance, thinking it prudent to have a back up present

before removing what he thought might be currency from Kye Soo

Lee's pocket. While awaiting the arrival of back up, Vanderhoven

had Kye Soo Lee seat himself in the patrol car alongside of Chay.

Upon further questioning prior to the arrival of the back up

unit, Chay informed Vanderhoven of the rental agreement's location

on the dashboard of the truck. The rental agreement indicated that

a third party Min Sik Lee was the lessee of the Ryder truck, contra

Chay's earlier statement.

3
Both Chay and Kye Soo Lee are Korean.

3
 State Trooper Griffin arrived at the scene approximately ten

minutes after the initiation of the stop. After Griffin's arrival,

Vanderhoven again "frisked" Kye Soo Lee, noting that the bulk of

what was he earlier surmised was a roll of currency had diminished

considerably over the short period of time that Kye Soo Lee

occupied his patrol car with Chay while awaiting assistance. The

then smaller bulge removed from Kye Soo Lee's pants pocket proved

to be a roll of United States currency. The missing bulk of

currency was recovered from Chay. The previous "frisk" of Chay's

person revealed nothing. In other words, all of the money that

Vanderhoven felt in Kye Soo Lee's pants pocket upon his initial

"frisk" had been split up between the two of them while they

occupied the patrol car together. Between the two, Vanderhoven

confiscated an unusually large amount of cash, $8,900.26 to be

exact.

Chay then gave Vanderhoven the "okay" to search the truck, but

indicated that neither he nor Kye Soo Lee, knew what was in the

truck nor did they have a key to the cargo section of the truck.

Contrary to that statement, in Vanderhoven's clear view was the

key that appeared to fit the door's lock. It was on the same key

ring as the ignition key.

Vanderhoven then opened the truck and found boxes, some of

which had spilled open which contained "Gucci" baseball caps and

"Louis Vuitton" handbags. The "Gucci" cap which Chay was wearing

when the truck was stopped was just like those contained in the

boxes which spilled open and about which Chay previously claimed no

4
knowledge.

At this juncture, Trooper Don Campbell and Special Agent Terry

Baldwin (Baldwin) of the Drug Enforcement Administration had

arrived at the scene. Baldwin stated that he believed that the

caps and handbags were "probably counterfeit" and "in the country

illegally."4 Vanderhoven was more concerned that Chay and Kye Soo

Lee were transporting narcotics or weapons.

Considering that it was getting dark and that traffic was

heavy on I-20 at the time,5 the troopers decided it was much too

hazardous to remain on the shoulder of I-20 to complete a thorough

search of the myriad of boxes, 289 in all, which comprised the

truck's cargo. Vanderhoven decided it would be safer for all

concerned to continue the search of the truck at headquarters which

was in their estimation only a short distance away. The duration

of the roadside stop was no more than forty-five minutes.

Vanderhoven told Chay and Kye Soo Lee that he intended to take

the truck to the police station to conclude the search and that

they could accompany the truck to the station if they so chose.

Vanderhoven remained in possession of Kye Soo Lee's identification

and the currency confiscated from both Kye Soo Lee and Chay. They

accompanied Vanderhoven to the station parking lot.

4
Transcript of the October 17, 1988 Suppression Hearing,
pp. 90, 136 (Record, Vol. 4).
5
Vanderhoven testified that there was quite a bit of
traffic on the highway at the time, explaining that is was
"racetrack traffic between the racetrack and Bossier City."
Transcript, at p. 70 (Record, Vol. 4).

5
 Once at headquarters, the officers unloaded the truck and the

Bossier City drug sniffing dog sniff-searched the contents of the

boxes and the truck's interior. Then Special Agent Jacques Duck of

the Customs Agency arrived and examined the counterfeit merchandise

found in the truck, i.e., the "Louis Vuitton" handbags and "Gucci"

baseball caps.6 Agent Duck concluded the merchandise was

counterfeit as did SA Baldwin earlier at the roadside. Their

conclusions were subsequently confirmed with the Customs Service

Fraud Team in New Orleans.7

On June 23, 1988, a Federal Grand Jury indicted both Kye Soo

Lee and Chay, along with the defendant Min Sik Lee, with conspiracy

in violation of Title 18, United States Code, Section 371 and with

trafficking counterfeit goods, 18 U.S.C. §2320. Prior to trial all

of the defendants plead not guilty and filed motions to suppress

the evidence seized during the search of the truck.

Concluding that all three defendants had standing to challenge

the search, the district court granted their motions to suppress

adopting the magistrate's October 28th, 1988 report and

recommendation as its opinion in addition to holding that all three

6
Vanderhoven testified that Duck and two or three other
agents from Customs got samples/materials out of the handbags,
examined them and concluded they were counterfeit. Transcript,
at p. 91 (Record, Vol. 4).
7
Agent Duck testified that he called Agent Lew Bock, who
had worked several cases involving counterfeit Louis Vuitton
merchandise, to get confirmation on what he knew. Transcript, at
p. 195 (Record, Vol. 4).

6
defendants had standing to challenge the search.8

The Government appealed the district court's February 2nd,

1989 ruling on defendants' motion to suppress, which is the subject

of an opinion of a prior panel of this Circuit. United States v.

Kye Soo Lee, 898 F.2d 1034 (5th Cir.), reh'g denied, 905 F.2d 1536

(5th Cir. 1990). Therein, the prior panel held inter alia that the

initial stop and detention of the defendants Lee and Chay was

justified under Terry v. Ohio, and their consent to search the

truck at the roadside was valid.9 Thus, the panel reversed the

original order of the district court suppressing the evidence and

remanded the case for findings as to whether Chay and Kye Soo Lee

consented to accompany the officers to the Louisiana State Police

Headquarters and/or whether there was probable cause to arrest the

pair at the roadside.10

On remand, the district court referred the matter to the

magistrate for findings and a report and recommendation based

thereon. All of the parties agreed that the issues were adequately

8
See, Order and Reasons entered February 2, 1989 (Record,
Vol. 2, Doc. No. 161).
9
See, United States v. Kye Soo Lee, 898 F.2d 1034, 1040
(5th Cir. 1990) stating:
We are persuaded that there was no
illegal detention in this case. When
Vanderhoven first pulled the Ryder truck over
on the interstate highway, it was because the
truck was weaving between lanes and speeding.
Thus, the initial detention, as evaluated
under Terry, was proper because Vanderhoven
had reasonable articulable facts which
warranted the intrusion.
10
Id. at 1041.

7
addressed in the October 17th, 1988 suppression hearing and thus,

there was no necessity for an additional hearing. On May 15th,

1991 the magistrate issued his findings with respect to the issues

on remand.11 The district court adopted the magistrate's May 15th,

1991 report and recommendation as its opinion and granted the

defendants' motion to suppress finding neither probable cause to

arrest nor valid consent to accompany the officers to state police

headquarters.12

As to the existence of probable cause to arrest, the

magistrate's May 15th, 1991 report merely refers to the reasons

outlined in his prior report and recommendation, stating he

"continues to believe no probable cause to arrest was present at

the time the defendants were taken to the police station."13 The

magistrate concluded with the statement that he "would have never

issued a search warrant to enter the truck based upon the evidence

in possession of the police at that time."14 This concluding remark

reflects utter disregard of the exigencies/realities of a roadside

stop as they unfold in a situation such as this, i.e., "that police

officers, unlike . . . judges, must make probable cause

determinations under the pressure of time and in the immediate

11
See, Magistrate's Report and Recommendation, entered May
15th, 1991 (Record Excerpt No. 4).
12
See, Judgement entered August 1, 1991 (Record Excerpt No.
3).
13
See, supra note 11.
14
Id.

8
context of fast-developing events."15

Moreover, the magistrate's May 15th report16 wholly ignores

certain facts which unquestionably materialized during the lawful

roadside search as significant to the determination of probable

cause to arrest in the case at bar, to wit: (1) Chay was wearing a

"Gucci" baseball cap identical to those found in the truck during

the roadside search; (2) both Chay and Kye Soo Lee lied about their

knowledge of the commercial cargo and their ability to gain access

to it; (3) neither Chay nor Kye Soo Lee could produce any evidence

of written consignment or bill of lading with respect to the

apparently expensive "designer" merchandise which comprised their

load and which they were not inclined to abandon; (4) the method of

packaging such merchandise for transportation was sloppy and

haphazard - that is, inconsistent with the type of cargo; (5)

15
United States v. Mendoza, 722 F.2d 96, 102 (5th Cir.
1983).
16
The magistrate's initial report and recommendation
entered October 28th, 1988, makes only one finding which bears on
the issue of probable cause to arrest - which is, that none of
the officers suspected the defendants' cargo was counterfeit
merchandise. See, Magistrate's Report and Recommendation dated
October 28th, 1990, at p. 4. (Record, Vol. 2, Doc. No. 150).
The magistrate's finding in this regard is not supported by any
evidence and is belied by the uncontroverted testimony of
Vanderhoven that SA Baldwin stated at the roadside his belief
that the merchandise was "probably counterfeit" and "in the
country illegally." (Transcript, pp. 90, 134, 136). Moreover,
the magistrate's report does recount that Agent Jacques Duck was
present in the parking lot of the police station and made a
determination there that the merchandise was counterfeit, which
was later confirmed by Customs Service in New Orleans. See,
Magistrate's October 28th, 1990 Report and Recommendation, supra,
at pp. 5-6. These uncontroverted facts evidence that from the
outset, a customs violation was considered highly likely,
otherwise, Customs would not have been called into the
investigation.

9
neither Chay nor Kye Soo Lee offered any explanation, much less any

reasonable one, for their "secrecy" with respect to such cargo; and

(6) neither Chay nor Kye Soo Lee could produce any documentation

tending to establish any lawful connection with either the truck or

its cargo either as consignee, lessee, or owner. All of the

aforementioned facts are significant to any determination regarding

the existence of probable cause to arrest at the roadside.17

In its Objection to the Magistrate's May 15th, 1991 Report and

Recommendation (Record Excerpt No. 6) the Government conceded

without further explanation that the defendants' consent to

accompany the officers to the Louisiana State Police Headquarters

was not voluntary. However, the Government asserted therein its

original position that there was probable cause to arrest Chay and

Kye Soo Lee when the truck's cargo doors were opened at the

roadside revealing "probably counterfeit" merchandise - that is, at

that point in time strong reasonable suspicion ripened into

probable cause. As previously mentioned, the district court simply

adopted the magistrate's May 15th report without addressing the

Government's objections which were based on the undisputed facts

17
Generally in reviewing a district court's ruling on a
motion to suppress based on testimony at a suppression hearing,
the reviewing court accepts the district court's factual findings
unless they are clearly erroneous or influenced by an incorrect
view of the law. United States v. Maldonado, 735 F.2d 809, 814
(5th Cir. 1984). However, in the instant case the factual
findings predicate to the determination of probable cause are
wholly absent. Where, as here, the determinative facts are
undisputed, the question of whether or not they establish
probable cause is a question of law freely reviewable on appeal.
See e.g., United States v. Martinez-Perez, 941 F.2d 295, 297 (5th
Cir. 1991).

10
reiterated above and which were not addressed by either of the

magistrate's reports and recommendations in connection with a

determination of lack of probable cause to arrest.

[A] showing of probable cause requires much
less evidence than a finding of guilt, United
States v. Beck, 5 Cir., 1970, 431 F.2d 536,
538. Probable cause must be judged not with
the logic of cold steel, but with a common
sense view to the realities of everyday life.
Brinegar v. United States, 1949, 338 U.S. 160,
175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890.

United States v. Agostino, 608 F.2d 1035, 1037 (5th Cir. 1979).

Because we have determined for the reasons set out herein

below that probable cause to arrest developed at the roadside and

thus, the district court erred in granting the motion to suppress,

we need not and do not decide whether the defendants voluntarily

consented to accompany the police officers to their headquarters

and/or whether the Government waived its right to appeal that issue

by conceding it to the district court.

PROBABLE CAUSE TO ARREST

The Government argues that probable cause to arrest Chay and

Kye Soo Lee existed when they opened the cargo section of the truck

and it revealed "probably counterfeit" merchandise, i.e., the

"Louis Vuitton" handbags and "Gucci" baseball caps. The Government

concedes that Vanderhoven himself did not know all the facts

constituting probable cause; rather, the Government argues that the

arrest was legal because the collective knowledge of the agents

working the case at the roadside amounted to probable cause to

arrest the pair. We agree because it is clear to us that the

collective knowledge of the officers working the case at the

11
roadside did establish probable cause to arrest the pair then and

there.

Probable cause to arrest exists "where 'the facts and

circumstances within [the arresting officers'] knowledge and of

which they had reasonably trustworthy information [are] sufficient

in themselves to warrant a man of reasonable caution in the belief

that' an offense has been or is being committed." United States v.

Preston, 608 F.2d 626, 632 (5th Cir. 1979), cert. denied, 446 U.S.

940, 100 S.Ct. 2162, 64 L.Ed.2d 794 (1980)(quoting Draper v. United

States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327

(1950)).

It is not necessary that the arresting officer himself have

personal knowledge of all of the facts. The Government correctly

points out that "probable cause can rest upon the collective

knowledge of the police, rather than solely on that of the officer

who actually makes the arrest,' when there is 'some degree of

communication between the two.'" United States v. Ashley, 569 F.2d

975, 983 (5th Cir.), cert. denied, 439 U.S. 853, 99 S.Ct. 163, 58

L.Ed.2d 159 (1978).

One scenario in which we have applied this "collective

knowledge" doctrine, is where the arresting officer has personal

knowledge of facts which standing alone do not establish probable

cause for an arrest but, when added to information known by other

officers involved in the investigation, tips the balance in favor

12
of the arrest.18 In such cases, the "laminated total" of the

information known by officers who are in communication with one

another must amount to probable cause to arrest.19

Unquestionably, no one item of the government's evidence,

considered in isolation, would have been sufficient to justify a

reasonable man in the belief that the truck in Chay and Kye Soo

Lee's possession contained contraband. Nonetheless, the totality

of the circumstances, including the stated belief of DEA Special

Agent Baldwin that the truck's cargo was "probably counterfeit" and

"in the country illegally" did establish probable cause to believe

that Chay and Kye Soo Lee were transporting seizable contraband.20

18
See e.g., United States v. Nieto, 510 F.2d 1118, 1120
(5th Cir.)(per curiam), cert. denied, 423 U.S. 854, 96 S.Ct. 101,
46 L.Ed.2d 78 (1975); United States v. Agostino, 608 F.2d 1035,
1037 (5th Cir. 1979).
19
United States v. Edwards, 577 F.2d 883, 895 (5th Cir.)(en
banc), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427
(1978); Agostino, 608 F.2d at 1037.
20
The Government argues that the sum total of the
following information available to the state troopers at the time
they decided to continue the search at headquarters was "rather
substantial" and amounts to probable cause, to wit: (1) Chay was
driving without a valid license and without any other
identification; (2) Kye Soo Lee, who had identification, was
unable to communicate with the troopers; (3) the Ryder truck had
Florida license plates, yet Chay and Kye Soo Lee stated they were
travelling from New York to Dallas, Texas; (4) the truck rental
agreement was in the name of a third party, Min Sik Lee, with a
California address; (5) Chay had a "beeper" on his person at all
pertinent times; (6) Chay lied when he initially told Vanderhoven
that Kye Soo Lee was the lessee of the truck; (7) Chay and Kye
Soo Lee were travelling with an unusually large amount of cash;
(8) Chay and Kye Soo Lee lied about their knowledge of the
contents of the truck and their ability to gain access to it; (9)
the contents of the truck was expensive "designer" merchandise
but was packaged in a manner inconsistent with its character;
(10) though this was apparently commercial cargo, neither Chay
nor Kye Soo Lee could show any registration, permit, bill of

13
 The initial stop of the truck was a valid traffic stop which

did not violate the defendants' constitutional rights, as the prior

panel held.21 Because Chay was driving without a driver's license

and had no other identification to support his contention that he

was the same Min Ho Chay who was licensed to drive in Texas,

undeniably Louisiana law enforcement authorities had a right to

arrest him.22 See, L.S.A.- R.S. 32:52 and 402.

Louisiana law authorizes warrantless misdemeanor arrests if an

officer has probable cause to believe that the suspect has

committed a crime in his presence. There is no question but that

Officer Vanderhoven had probable cause to believe that Chay

violated a criminal statute, in this case L.S.A.-R.S. 32:52 which

requires the driver of a motor vehicle to be licensed.23

lading, consignment or other documents tending to demonstrate
their lawful connection either with the cargo or the truck; and
(11) at the roadside when the cargo doors were opened SA Baldwin
stated his belief that the merchandise was "probably
counterfeit." The Court agrees with the Government, that
considering these factors, Chay and Kye Soo Lee's conduct can
hardly be characterized as "innocuous" as appellees suggest or as
consistent with the operation of a legitimate commercial
enterprise. Rather, their conduct was to the opposite effect -
that is, consistent with that of individuals involved in illegal
activity, specifically transporting stolen goods and/or
contraband.
21
Kye Soo Lee, 898 F.2d at 1039.
22
Vanderhoven testified that his normal procedure for an
offense such as Chay's was to transport the individual to the
Bossier Parish Jail for fingerprinting and either posting a bond
or paying a citation. Transcript, at p. 106 (Record, Vol. 4).
23
See, La.C.Cr.P. Art. 933(4); L.S.A.-R.S. 14:2; State v.
Pickering, 432 So.2d 1067, 1070 (La.App. 3rd Cir.), cert. denied,
438 So.2d 574 (La.1988)(a violation of L.S.A.-R.S. 32:52 is
considered a criminal act).

14
 The Court disagrees with appellee's contention that L.S.A.-

R.S. 32:391 requires the issuance of a summons in lieu of arrest.

Summons is only required after arrest if the conditions of R.S.

32:391(A) can be met and only in the case that the individual

complies with R.S. 32:41124 is he given the option of release

pending bail.25 Given the circumstances that Chay did not have a

driver's license in his possession to give to the arresting officer

in lieu of bail, the mandate of R.S. 32:391 (i.e., the issuance of

a summons in lieu of arrest) is not applicable.

Upon stopping Chay and Kye Soo Lee on I-20, Vanderhoven was

confronted with information that these two individuals were

transporting some cargo through the state, in a truck rented to a

third person, and neither could explain why they had the truck,

what the cargo was, and why they had no access to the cargo, all of

which was wholly inconsistent with the operation of a legitimate

business.26 Moreover as previously mentioned, they had lied to

24
L.S.A.-R.S. 32:411 requires deposit of license in lieu
of security upon arrest.
25
See, State v. Gardner, 476 So.2d 938, 941-42 (La.App.
2nd Cir.), cert. denied, 478 So.2d 1233 (La. 1985) stating that
R.S. 32:391 provides for the mandatory issuance of a summons in
lieu of full custody arrest if certain provisos are met. The
Gardner court further notes that R.S. 32:391(C) provides specific
authorization for the arresting officer's traditional discretion
to institute full custody arrest.
26
We make special mention here of Louisiana law regulating
motor carriers - that is, L.S.A.-R.S. 45:161 et seq. Section
163.1A(1)(a) explains that motor carriers include common
carriers, contract carriers and private carriers. It further
sets out registration/permit requirements for all motor carriers
entering, leaving or crossing the state of Louisiana. Section
163C(1) states that any of the Louisiana Public Service
Commission's duly appointed officers have the authority to make

15
Vanderhoven about certain significant facts: (1) Chay lied when he

originally told Vanderhoven that his passenger Kye Soo Lee rented

the truck (i.e., the rental agreement indicated a third person Min

Sik Lee was the lessee of the vehicle); (2) Chay lied about his

knowledge of the contents of the truck, which became apparent to

the officers when they accessed the cargo and found "Gucci"

baseball caps just like the one he was wearing; and (3) both Chay

and Kye Soo Lee lied when they claimed that they could not open the

cargo section of the truck, when the key to the cargo section was

on the key ring along with the truck's ignition key.

The "laminated total" of these factors when considered

together with the haphazard manner in which the "designer"

merchandise was packaged, the lack of any written evidence of

consignment or a bill of lading and no explanation whatsoever for

the secrecy maintained by the two with regard to the contents of

the truck amounted to probable cause to arrest Chay and Kye Soo

Lee. This is so, particularly in light of the fact that upon

viewing the cargo at the roadside, SA Baldwin had the distinct

impression that the cargo was probably counterfeit, i.e.

arrests for violations of any of the provisions of R.S. 45:161
through 45:178, and Section 163C(4) extends that authority with
respect to anyone who procures, aids, or abets any motor carrier
in his failure to observe and or comply with the aforementioned
provisions. There is no question but that the state may regulate
commercial trucking, and logically the reasonable expectation of
privacy guaranteed by the Fourth Amendment is implicated to a
lesser degree when dealing with searches of commercial cargo than
with searches on one's person for personal possessions. Cf.
United States v. Hernandez, 901 F.2d 1217, 1221 n.4 (5th Cir.
1990).

16
contraband, and said so at the time. That Vanderhoven continued to

suspect drugs is irrelevant.27

Whereas here, Chay and Kye Soo Lee produced no documentation

whatsoever, nothing indicated either of them owned/leased the truck

or that they were employed by the truck's lessee Min Sik Lee, there

was probable cause to arrest as it appeared to the officers that

they were unlawfully in possession of a truck and/or merchandise

which from all appearances was counterfeit.

In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d

419 (1970), the Supreme Court refined the exigency requirement and

held that the existence of exigent circumstances was to be

determined at the time the automobile is seized. In Chambers, the

car search at issue took place at the police station, where the

vehicle was immobilized sometime after the driver had been

arrested. Given probable cause and exigent circumstances at the

time the vehicle was first stopped, the Chambers court held that

the later warrantless search at the station passed constitutional

27
This is so because we analyze what the law objectively
authorized Vanderhoven to do based on the facts known to him at
the pertinent time and not on the basis of his subjective intent.
United States v. Hernandez, 901 F.2d 1217, 1219 (5th Cir.
1990)(quoting United States v. Causey, 834 F.2d 1179, 1184 (5th
Cir. 1987)(en banc) for the proposition that "so long police do
no more than they are objectively authorized and legally
permitted to do, their motives in doing so are irrelevant and
hence not the subject of inquiry."); see also, United States v.
Basey, 816 F.2d 980, 990 (5th Cir.), reh'g denied, 820 F.2d 1223
(5th Cir. 1987)(en banc). In other words, it is irrelevant that
Vanderhoven strongly suspected that the contraband was drugs
somewhere hidden in the cargo, because he was unquestionably
aware of the fact that the cargo itself was "probably
counterfeit."

17
muster.28

In Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079, 3080, 73

L.Ed.2d 750 (1982)(per curiam), the Supreme Court reaffirmed its

earlier holding in Chambers, inter alia, stating:

We firmly reiterate this holding in Texas v.
White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d
209 (1975). See also, United States v. Ross,
456 U.S. 798, 807, n.9, 102 S.Ct. 2157, 2163,
n.9, 72 L.Ed.2d 572 (1982). It is thus clear
that the justification to conduct such a
warrantless search does not vanish once the
car has been immobilized; nor does it depend
upon a reviewing court's assessment of the
likelihood in each particular case that the
car would have been driven away, or that its
contents would have been tampered with, during
the period required for the police to obtain a
warrant.

Id. at 3080-81. The Supreme Court in Michigan made mention of the

facts in Chambers and Texas, supra, that the searches at issue in

those cases were conducted at the station house. Id. at n.2.

In the case at bar, that the officers neither "arrested" nor

insisted that Chay and Kye Soo Lee be detained along with the truck

does not negate the existence of probable cause to arrest the

28
See also, California v. Acevedo, 111 S.Ct. 1982, 1986,
114 L.Ed.2d 619 (1991) explaining Chambers as follows:
The validity of the later search derived from
the ruling of Carroll that an immediate
search without a warrant at the moment of
seizure would have been permissible. See,
Chambers, 399 U.S., at 51, 90 S.Ct., at 1981.
The Court reasoned in Chambers that the
police could search later whenever they could
have searched earlier, had they so chosen.
Id. at 51-52, 90 S.Ct., 1981. Following
Chambers, if the police have probable cause
to justify a warrantless seizure of an
automobile on a public roadway, they may
conduct either an immediate or a delayed
search of the vehicle.

18
defendants at the time of the initial roadside search of the

truck.29 At that point the focus was contraband believed to be

either the cargo itself or secreted within the cargo of the truck

and not interrogation or physical investigation of the defendants.

Moreover, the officers were given no reason to exert any of the

types of restraints commonly associated with "custodial arrest"

because Chay and Kye Soo Lee opted to accompany the truck to

headquarters without exhibiting any qualms about doing so.

The first case cited by appellees, Hayes v. Florida, 470 U.S.

811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985) serves as no bar to this

Court's ruling in the instant case. The holding of Hayes

proscribes forcibly removing a person from a place where he is

entitled to be and transporting him to the police station where he

is detained, without probable cause to arrest or a warrant. Id. at

1647-48. Our holding that probable cause to arrest Chay and Kye

Soo Lee existed at the time of the roadside search obviates the

applicability of the Hayes case.

Another case cited by appellees, United States v. Place, 462

U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), did not involve an

automobile at all. In Place, the court considered the temporary

detention of luggage in an airport. Not only was no automobile

29
See, United States v. Galberth, 846 F.2d 983, 993 n.18
(5th Cir. 1988)(citing, Hoffa v. United States, 385 U.S. 293,
310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374 (1966) for the proposition
that police officers are not required to effectuate an arrest at
the moment probable cause arises because "officers are under no
constitutional duty to call a halt to a criminal investigation
the moment that they have minimum evidence to establish probable
cause, a quantum of evidence which may fall short of the amount
necessary to support a criminal conviction").

19
involved, but the defendant, Place, was waiting at the airport to

board his plane, not preparing to leave the airport in a car. The

search in Place involved personal luggage, whereas here the search

focussed on a Ryder rental truck with commercial cargo which

appeared to be counterfeit and thus, in the country illegally.30

Finally, in Place the narcotics agents detained the luggage for the

very purpose of obtaining probable cause. In the case at bar, the

officers had ample indicia of criminal enterprise establishing

probable cause to arrest Chay and Kye Soo Lee and to search their

truck for contraband.

CONCLUSION

The prior panel determined that initial detention of Chay and

Kye Soo Lee was justified under Terry v. Ohio and their consent to

search at the roadside was valid. We hold that probable cause to

arrest the pair existed at the time the roadside search revealed

"probably counterfeit" merchandise. Accordingly, there being both

probable cause to arrest and probable cause to believe that the

vehicle contained contraband extant at the time of the roadside

search, the later search of the truck at the state troopers'

headquarters passes constitutional muster. The order of the

district court suppressing the evidence is reversed and the case is

remanded for further proceedings.

REVERSED AND REMANDED.

30
See, California v. Acevedo, 111 S.Ct. at 1990 (stating,
"from Carroll through Ross, this Court has explained that
automobile searches differ from other searches").

20