During a 2017 trip to Montana, Hoang Vinh Pham was heating up a bowl of noodles at a Conoco station on Interstate 94 when he looked out the window and saw something unusual: a police van stuffed with half a ton of marijuana. Around the same time, Richard Smith, a Montana Division of Criminal Investigations (DCI) agent who was helping two state troopers transport the marijuana to evidence storage in Billings, entered the gas station to use the restroom and buy some water. Smith thought Pham looked at the van for a suspiciously long period of time, which made Smith wonder if Pham might be involved in criminal activity.
That hunch eventually led to a search that discovered 19 pounds of marijuana in the trunk of Pham’s car, an arrest for possession with intent to distribute, and a 15-year prison sentence. But according to the Montana Supreme Court, which unanimously overturned Pham’s 2019 conviction last week, Smith’s hunch was not enough to justify detaining and grilling Pham, which required “particularized suspicion” based on “objective data and articulable facts from which [an officer] can make certain reasonable inferences.”
As Smith saw it, he did not need to satisfy that test, because his initial interaction with Pham after he followed him outside to the gas pumps was not only voluntary but “very cordial.” It did not qualify as a “seizure” under the Fourth Amendment, the state argued, because a reasonable person would have felt free to cut the conversation short and leave.
Pham, who mainly speaks Vietnamese and has some difficulty with English, saw things differently. Smith and the two troopers “did not let me go anywhere,” he testified at a pretrial suppression hearing. “They kept me in there, and they pulled me away even though I tried to pump the gas.”
While Smith “was aware that Vietnamese culture teaches deference to police,” he said he did not think he needed to tell Pham he was free to go. He also testified that “he did not believe the language barrier impacted Pham’s understanding.”
The Montana Supreme Court thought Pham’s depiction of the situation rang true, while the government’s strained credulity:
A reasonable person in Pham’s position would not have felt free to leave when faced with multiple law enforcement officers asking to search his vehicle. Two of the officers were armed and in uniform; Agent Smith was obviously law enforcement in plain clothes as he was armed and displaying visible law enforcement identification. It is inconceivable to say the continuous barrage of questions by Agent Smith and Trooper Kilpela was merely “cordial” and idle conversation, and that Pham was free to go. Who willingly would discuss their plans, their family, their travels, and whether they possessed any “guns, knives,…drugs, [or] child pornography” [with] three strangers unless they were police officers and they believed they were not free to go? The only credible interpretation of this “cordial” conversation was that Pham knew he had to answer the questions, knew he was being investigated, and knew that he was not free to just walk away.
Given that reality, Smith needed something more than Pham’s apparent interest in the police van full of pot to justify his investigation. Smith acknowledged that “DCI was aware of several arrests of Vietnamese people for drug trafficking traveling between Washington and Minnesota along I-94,” although he denied that Pham’s ethnicity had anything to do with his suspicions. “Based on this scant information,” the court said, “we see no objective data or resulting suspicion justifying Agent Smith’s seizure of Pham.” Since “no objective data supports Agent Smith’s assessment that Pham was suspicious,” it concluded, “his seizure of Pham was accordingly unconstitutional.”
Because Pham’s detention was illegal, so was the search that turned up the evidence that was used to convict him. The court therefore did not need to consider the plausibility of the state’s claim that Pham consented to the search of his car. But just as it is hard to believe that Pham would have submitted to Smith’s interrogation if he thought he was free to leave, it is hard to believe Pham would have allowed a search that he knew would turn up contraband if he understood he was free to say no.
This case, like many others, casts doubt on the legal fictions that courts frequently invoke when they uphold police stops that result in criminal convictions. As long as police have a legal reason to stop someone, the Supreme Court has said, they are then free to investigate other matters. They can ask whatever questions they want, on the theory that people can always decline to answer.
Police can keep asking questions even when a driver is notionally free to go, at which point they have no obligation to tell him any further cooperation is optional. Fourth Amendment cases also frequently feature motorists who supposedly agreed to let police search their vehicles, even though they knew they would go to jail as a result. For reasons illustrated by Pham’s encounter with Smith, the idea that any of these decisions are truly voluntary when people are confronted by armed agents of the state is hard to take seriously.
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