United States v. Lola Chang ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 19-3500 & 20-1111
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LOLA CHANG and EY LAO,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Eastern District of Wisconsin.
No. 1:19-cr-00058-WCG — William C. Griesbach, Judge.
____________________
ARGUED OCTOBER 30, 2020 — DECIDED JUNE 4, 2021
____________________
Before MANION, ROVNER, and SCUDDER, Circuit Judges.
ROVNER, Circuit Judge. After sliding off the road on a
snowy night, Lola Chang and Ey Lao were arrested after a
police officer, originally approaching the car to check on their
safety, grew suspicious and a search eventually turned up ev-
idence of drugs and weapons. Chang and Lao both contend
that the search violated their Fourth Amendment rights. Lao
also challenged the district court’s ruling prohibiting the in-
troduction of Chang’s later hearsay statement claiming
2 Nos. 19-3500 & 20-1111
possession of and responsibility for all of the illegal items in
the car. Although the defendants are correct that the officer’s
hunch alone was not sufficient justification for the seizure,
other factors provided the reasonable suspicion necessary.
Moreover, we have found no abuse of the district court’s dis-
cretion in barring the hearsay evidence.
I.
As is often the case in Wisconsin, March came in like a lion
on March 1, 2019, and the snow made road conditions so
treacherous that the Brown County Sheriff’s Department had
to call its supervisors out to respond to reports of accidents
and cars stuck in ditches. At around 11:30 p.m., Lieutenant
Jason McAuly responded to such a report and found a black
BMW sedan far off the roadway in the gore—the area be-
tween the exit ramp and the road. The car was turned perpen-
dicular to the road. McAuly pulled up in front of the car, acti-
vated his emergency lights, and walked to the driver’s side
window. As he approached, Lao lowered the car window and
told the officer that he had summoned a tow truck and that it
was on its way. He reiterated this information several times.
According to McAuly, Lao displayed mannerisms that the of-
ficer associated with nervousness—rapid speaking, shaky
hands, quivering voice, and acting as though he was dismiss-
ing the officer and wanting him to leave. He was also speak-
ing loudly and sharply to his passenger, co-defendant Chang.
McAuly testified that these behaviors immediately aroused
his suspicions and were counter to his experience over his
twenty-four-year career that people who find themselves in
trouble are ordinarily relieved when a police officer arrives.
Shortly after McAuly arrived, Chang got out of the car and
opened the trunk to retrieve a special eye bolt used for towing
Nos. 19-3500 & 20-1111 3
the car. McAuly testified that he intended to stay with the pair
and the car until help arrived to make sure they were safe and
also to investigate whether the accident might have been the
result of a traffic law violation.
McAuly asked both Chang and Lao for identification and
asked that they remain in the vehicle. As he returned to his
car to run their names through the database, Lao got out of
the car. McAuly exited his squad car and told Lao to return to
the vehicle. Lao seemed reluctant to do so, but McAuly re-
mained standing outside his squad car until he complied.
McAuly’s check of Lao and Chang’s driver’s licenses re-
vealed that both had extensive recent felony criminal histories
and that both were under extended state supervised release
for methamphetamine drug convictions. Upon McAuly’s re-
quest, Sergeant Timothy Johnson arrived ten minutes later to
provide back up.
Lao consented to a pat-down search which revealed a light
pen used to detect counterfeit bills and a set of keys on a lan-
yard. Chang, who had been hunched with her head down and
eyes lowered, also consented to a search. She claimed to have
a bottle, but when McAuly conducted the search, he discov-
ered that under her shirt she was carrying a small, locked,
portable gun safe, with a corner of a plastic bag sticking out. 1
He also found, concealed in her bra strap, a large pocket knife
with a spring-loaded blade. Chang denied both ownership of
the safe and knowledge of what was inside. When McAuly
1 A personal portable gun safe is a small locked box (as small as 9”x6”x2”)
that often can be secured in place with a locking cord.
4 Nos. 19-3500 & 20-1111
asked her if the safe had been abandoned, she responded,
“yes.”
McAuly testified that after discovering the knife and gun
safe, he thought there might be drugs and more weapons pre-
sent. He asked Sergeant Johnson to detain Lao while he
looked through the windows of the car with his flashlight. In
the front passenger door pocket, he saw a razor blade and a
piece of cardboard which he associated with dividing or cut-
ting drugs. In the driver’s side door handle area, he saw a
small plastic container that appeared to hold a white sub-
stance that he thought, it turns out incorrectly, might be
drugs.
McAuly knew that Wisconsin Act 79 (Wis. Stat.
§ 302.113(7r)) authorizes a law enforcement officer, without
consent, a warrant, or probable cause, to search any property
under the control of a person who is under court supervision
if the officer has a reasonable suspicion of criminal activity or
a violation of a condition of release. Wis. Stat. § 302.113(7r).2
Based on his understanding of this state law, McAuly con-
cluded that he had authority to search the gun safe. McAuly
found the key to the gun safe on the same ring as the key to
the car, both of which were on Lao’s lanyard. When McAuly
opened the gun safe with the key, he found a large quantity
of what appeared to be an illegal substance in multiple con-
tainers, a digital scale, and a scraping tool. The drugs were
2 2013 Wisconsin Act 79 created multiple statutes relating to searches by
law enforcement officers of individuals on community supervision (e.g.,
parole, probation, extended supervision). See State v. Euell, 943 N.W.2d
352, 352 at n.4 (Wisc. Ct. App. 2020).
Nos. 19-3500 & 20-1111 5
later tested and found to be 75.6 grams of methamphetamine.
He placed Lao and Chang under arrest.
McAuly did a cursory search of the car on site and discov-
ered that the small plastic container contained a toy and not
drugs. A later search executed pursuant to a search warrant
revealed a firearm, ammunition, and some methampheta-
mine materials in the glove box. The police subsequently ob-
tained footage from Lao’s cell phone in which he is holding
up a baggie with a uniquely-shaped rock of methampheta-
mine which appeared to be identical to the one found in the
safe. In the video he described how he had just purchased the
methamphetamine from someone named “Lola.”
Once at the Sheriff’s station, the defendants received Mi-
randa warnings and then participated in interviews. During
this interview, Chang allegedly declared that everything in
the safe belonged to her, although she was unable to describe
its contents. According to the briefs, she stated, “I don’t know
whatever you just found in the car is mine. Everything you
found in the car is mine. He had nothing to do with it.” Lao
Brief at 15 (citing R. 55 at 5–6, R. 72 at 3); Government Brief at
11 (citing Lao Brief). 3
An indictment charged Lao and Chang with possession
with intent to distribute fifty grams or more of actual meth-
amphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A) and 18 U.S.C. § 2. Lao was also charged with posses-
sion of a firearm during and in relation to a crime involving
drug-trafficking in violation of 18 U.S.C. § 924(c)(1)(A), and
3This in-custody video statement from Chang does not appear to be part
of the record. We discuss the effect of this lack of citation to the record
evidence further in Section II.B. below.
6 Nos. 19-3500 & 20-1111
with being a felon in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1) and 924 (a)(2).
Chang filed a motion to suppress evidence seized from the
stop, claiming that Lieutenant McAuly lacked a reasonable
suspicion to detain her at the point in time when he asked Lao
and Chang for their identification and instructed them to re-
main in the car. Lao filed a similar motion and joined Chang’s
arguments. After an evidentiary hearing, the court denied the
motion to suppress, finding that the officers did not violate
the defendants’ Fourth Amendment rights.
Chang entered into a plea agreement but reserved the
right to appeal the denial of her motion to suppress. Lao, in
contrast, chose to go to trial. Before trial, the government
moved in limine to exclude Chang’s hearsay statements that
Chang claimed exculpated him. The court held, however, that
the statements did not fall within any hearsay exception and
could not be admitted if Chang chose to invoke her Fifth
Amendment right not to testify.
Before Lao’s trial began, the government agreed to dismiss
the charge of possession of a firearm during and in relation to
a drug-trafficking crime (the § 924(c) charge). The jury con-
victed Lao on the remaining two counts. The district court
sentenced Lao to the mandatory minimum of 180 months on
the first count (drug possession), and 120 concurrent months
on count three (felon in possession of a weapon) and a total of
ten years’ supervised release. After her plea, the court sen-
tenced Chang to 111 months’ imprisonment, concurrent with
several state sentences, to be followed by five years’ super-
vised release.
Nos. 19-3500 & 20-1111 7
The defendants appeal the district court’s denial of their
motion to suppress and its ruling that Chang’s out-of-court
statements were inadmissible hearsay.
II.
A. The Motion to Suppress
Lao and Chang both argue that the district court erred by
denying their motion to suppress the evidence found in the
roadside and subsequent searches. They claim that Lieuten-
ant McAuly detained and seized them in violation of the
Fourth Amendment, and therefore all of the evidence that re-
sulted from that illegal detention must be suppressed. We re-
view the district court’s legal conclusions de novo and the
facts found on the way to that conclusion for clear error.
United States v. Cherry, 920 F.3d 1126, 1132 (7th Cir. 2019). The
defendants do not dispute any of the district court’s findings
of fact, including its finding that the officers were credible,
therefore we focus only on the court’s decision that the sei-
zure and search were not unlawful.
The district court opined that Lao and Chang were not
seized because they were already detained by the snow and
accident and Lieutenant McAuly’s directives added little ad-
ditional restraint. The district court hedged its bet, however,
by stating that even if they had been detained, the seizure was
justified. We conclude that the district court’s latter conclu-
sion was correct: Chang and Lao were detained. McAuly
asked both Chang and Lao to remain in the vehicle while he
searched their license and criminal history information, he
temporarily retained their driver’s licenses, and when Lao ex-
ited the car, McAuly told him to return and remained stand-
ing outside his squad car until Lao complied. Taking into
8 Nos. 19-3500 & 20-1111
account all of the circumstances surrounding the encounter,
Chang and Lao would not have felt free to leave nor at liberty
to ignore the police presence and go about their business. Flor-
ida v. Bostick, 501 U.S. 429, 437 (1991). 4
Having determined that they were detained, the next step
for the court is to determine whether the detention violated
Lao and Chang’s Fourth Amendment rights. In the run-of-
the-mill traffic stop case, a court is often asked to evaluate
whether the police officer had the necessary level of suspicion
to stop the vehicle. We are guided by the keystone principle
in roadside search cases that a police officer cannot stop a ve-
hicle without probable cause or a reasonable suspicion of a
violation of law. Delaware v. Prouse, 440 U.S. 648, 663 (1979).
Here we have a slightly different presentation, as Lieutenant
McAuly did not stop the car, but rather he came upon a car
that had itself come to a stop facing the wrong direction after
sliding off a snow-slick road. In either case, however, a citizen
“may not be detained even momentarily without reasonable,
objective grounds for doing so; and his refusal to listen or an-
swer does not, without more, furnish those grounds.” Florida
v. Royer, 460 U.S. 491, 498 (1983). See also, Illinois v. Wardlow,
528 U.S. 119, 125 (2000) (An officer who has no reasonable sus-
picion or probable cause may approach an individual, but
that person “has a right to ignore the police and go about his
business.”) (citing Royer, 460 U.S. at 498); Rodriguez v. United
States, 575 U.S. 348, 355 (2015) (An officer “may conduct cer-
tain unrelated checks during an otherwise lawful traffic stop,
[but]… may not do so in a way that prolongs the stop, absent
4 Although we view this standard from the point of view of the reasonable
detainee, we also note that Lieutenant McAuly testified that he would
have stopped them if they had tried to leave. R. 52 at 49.
Nos. 19-3500 & 20-1111 9
the reasonable suspicion ordinarily demanded to justify de-
taining an individual.”); City of Indianapolis v. Edmond, 531
U.S. 32, 41 (2000) (noting that vehicle checkpoint cases have
recognized only limited exceptions to the general rule that a
seizure must be accompanied by some measure of individu-
alized suspicion, and that a “general interest in crime control”
is insufficient). Although an arrest requires probable cause
that a crime has been committed, an officer without probable
cause may conduct a brief, investigatory stop based on a
lower standard—that is, the officer must have a reasonable
suspicion of criminal activity, and that suspicion must be
founded on articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 27
(1968); United States v. Cole, 994 F.3d 844, 849 (7th Cir. 2021).
Even this lower standard for a brief Terry stop, however, “re-
quires more than curiosity, inchoate suspicion, or a hunch.”
Cole, 994 F.3d at 849; see also Kansas v. Glover, 140 S. Ct. 1183,
1187 (2020) (“a mere ‘hunch’ does not create reasonable sus-
picion”); Terry, 392 U.S. at 22 (explaining that stops based on
“inarticulate hunches” violate the Fourth Amendment);
United States v. Eymann, 962 F.3d 273, 282 (7th Cir. 2020) (“Rea-
sonable suspicion requires more than an inchoate and unpar-
ticularized suspicion or ‘hunch’ … .”); United States v. Rodri-
guez-Escalera, 884 F.3d 661, 668 (7th Cir. 2018) (a reasonable
suspicion “requires more than a hunch or inchoate suspi-
cion”).
Lieutenant McAuly testified that he initially approached
the car to assess the safety of everyone at the scene. He also
asserted other reasons for the stop—that he suspected that the
driver may have violated a traffic statute, and that he had a
“hunch” that “something was going on.” R. 52 at 41. We can
readily dismiss McAuly’s “hunch” as insufficient for even a
10 Nos. 19-3500 & 20-1111
brief detention. See Terry, 392 U.S. at 22, 27; Cole, 994 F.3d at
849.
We can also leapfrog over the district court’s discussion
about whether a police officer may request a driver’s license
when the police contact results from a “motorist assist” rather
than an “investigative stop,” and thus the officer has neither
probable cause nor a reasonable suspicion to suspect a traffic
violation or other unlawfulness. R. 35 at 7. The district court
relied on a Wisconsin Court of Appeals case rather than Su-
preme Court precedent to opine about a situation which was
not presented in this case—a motorist assist without any in-
dicia of a traffic violation or other wrongdoing. R. 35 at 7-9.
For our purposes, we can rely on the Supreme Court prece-
dents cited above in our description of key Fourth Amend-
ment principles, as applied to situations in which a law en-
forcement officer has a reasonable suspicion that a traffic vio-
lation or other unlawful conduct has occurred.
In short, we need not depend on McAuly’s hunch, his gen-
eralized safety concerns, or even his assessment that Lao and
Chang were behaving in a suspicious manner. The Supreme
Court has determined that a court need not delve into the sub-
jective motivations of the officer who effectuated the deten-
tion. Whren v. United States, 517 U.S. 806, 813 (1996). Terry ap-
plies an objective standard, in which we evaluate whether an
officer would have the requisite reasonable suspicion given
the totality of the circumstances. D.Z. v. Buell, 796 F.3d 749,
754 (7th Cir. 2015). See also, Cole, 994 F.3d at 849. Once McAuly
saw the car that had spun off the road, he had a reason to sus-
pect that a traffic violation may have occurred, and thus suf-
ficient justification for a brief detention while he investigated
further. In the ordinary course of events, cars do not slide off
Nos. 19-3500 & 20-1111 11
the road, and many of the vehicles on the road that night were
successfully navigating the conditions. Perhaps the driver
was driving too fast for the icy conditions, or impaired. Of
course it may also have been true that the conditions of the
road were such that any car hitting that spot at that time also
would have careened off the side of the road, despite follow-
ing all traffic laws and driving as conditions warranted. But
an officer need not be certain a violation has occurred, only
reasonably suspicious. Glover, 140 S. Ct. at 1188 (noting that
reasonable suspicion does not “demand scientific certainty”);
Navarette, 572 U.S. at 403 (explaining that reasonable suspi-
cion does not require that an officer “rule out the possibility
of innocent conduct”). And beyond determining whether to
issue a traffic ticket, an officer’s mission includes “ordinary
inquiries incident to [the traffic] stop.” Caballes, 543 U.S. at
408. After stopping a car for a traffic violation, an officer may
take other actions that help to ensure roadway safety, includ-
ing checking the validity of driver’s licenses, determining
whether there are outstanding warrants against the driver,
and inspecting the vehicle’s registration and proof of insur-
ance. Rodriguez, 575 U.S. at 355. Thus, McAuly had adequate
justification to run a driver’s license check based on a reason-
able suspicion that a traffic violation had occurred.
Our conclusion that the car in the gore gave McAuly suf-
ficient justification for a brief detention allows us to avoid the
other morass of deciding whether talking fast, smoking, mov-
ing around a lot, and a quivering voice and harsh words be-
tween Lao and Chang were sufficient indicia of nervousness
such that Lieutenant McAuly might reasonably suspect that
some unlawfulness was afoot. A reasonable officer might sur-
mise that all of these mannerisms and actions are also con-
sistent with the stress that comes after sliding one’s car into
12 Nos. 19-3500 & 20-1111
an inescapable ditch in the midst of a snowstorm, or the nerv-
ousness that many people have when interacting with police.
See, e.g., United States v. Howell, 958 F.3d 589, 600 (7th Cir.
2020) (noting that nervousness when interacting with police,
“at least not as a categorical matter, does not create reasonable
suspicion that a suspect is armed and dangerous”). Fortu-
nately, we need not decide. Under an objective standard,
McAuly’s detention of Lao while he checked his driver’s li-
cense did not violate Lao’s Fourth Amendment rights, as a
reasonable officer would have had, at a minimum, a well-
founded suspicion that Lao had violated a traffic law.
Chang, as a passenger, however, had an independent set
of rights. When a police officer stops a vehicle, the officer
seizes everyone in the vehicle, including the passengers.
Brendlin v. California, 551 U.S. 249, 255 (2007). Nevertheless,
the Supreme Court has held that if “it is lawful for police to
detain an automobile and its occupants pending inquiry into
a vehicular violation,” then the stop is a lawful detention of
the passengers as well. Arizona v. Johnson, 555 U.S. 323, 327
(2009). “The police need not have, in addition, cause to believe
any occupant of the vehicle is involved in criminal activity.”
Id. Therefore if Lao was lawfully detained for a brief investi-
gatory stop, Chang was as well.
During the license check, McAuly learned that both Lao
and Chang had extensive criminal histories and that they
were currently under court-ordered supervision for metham-
phetamine drug convictions. Of course the fact of their prior
records did not supply probable cause for a search, as this
would mean that anyone with a previous criminal record
could be arrested or stopped at will. Beck v. Ohio, 379 U.S. 89,
97 (1964). McAuly did not need probable cause however,
Nos. 19-3500 & 20-1111 13
because McAuly asked for and received Lao’s consent to per-
form a pat-down search. See Schneckloth v. Bustamonte, 412
U.S. 218, 219 (1973) (“[O]ne of the specifically established ex-
ceptions to the requirements of both a warrant and probable
cause is a search that is conducted pursuant to consent.”). In
the course of that search, Lt. McAuly found the counterfeit-
detecting pen light, and a lanyard with a set of keys attached.
McAuly also asked for and received Chang’s consent for a pat
-down search. That search revealed that Chang was holding,
under her shirt, what appeared to be a gun safe with a part of
a small plastic baggie sticking out of the corner, and had con-
cealed in her bra strap a small knife with a spring-loaded
blade.
To recap, reasonable suspicion of a traffic violation sup-
plied the justification for the initial detention and consent
supplied the permission for the pat-down search. And be-
cause there was no taint from an illegal detention, we have no
reason to doubt the validity of the consent. See United States v.
Pedroza, 269 F.3d 821, 827 (7th Cir. 2001) (“[I]f a seizure of a
suspect, such as the pat-down search here, is illegal, the illegal
seizure will vitiate the suspect’s subsequent consent to a
search unless the state proves that the consent resulted from
an independent act of free will.”). After those consensual
searches, Lieutenant McAuly determined that the discovery
of the knife and gun safe, along with Chang’s odd responses
to his questions, gave him reason to suspect the presence of
drugs or guns. Sergeant Johnson then looked through the car
window with a flashlight and saw the razor blade stuck in a
piece of cardboard, which he associated with drug use or sale,
and the small plastic container which he believed (errantly, it
turns out) to contain drugs. See Texas v. Brown, 460 U.S. 730,
739–40 (1983) (an officer may look into a car with a flashlight
14 Nos. 19-3500 & 20-1111
and view anything in plain sight without violating the Fourth
Amendment). All of this, along with the counterfeit currency
detector, was more than sufficient to allow the officers to
search the locked gun safe. We conclude that these facts were
sufficient to give the officers probable cause for a search of the
safe. But even if these factors were insufficient for probable
cause, Wisconsin Statute § 302.113(7r) authorizes a law en-
forcement officer to search the property of any person who is
on community supervision based on a reasonable suspicion
that the person is committing, has committed or is about to
commit a crime or violation of a condition of release. 5 There
is no doubt that the presence of the gun safe, the knife, the
currency detector, the razor-blade, Chang’s evasive answers
about ownership of the safe, and the suspected container of
drugs was sufficient to allow a reasonable officer to suspect
that these two had violated a condition of release or a criminal
statute. The opening of the safe, therefore, did not violate ei-
ther Lao or Chang’s Fourth Amendment rights and the dis-
trict court properly denied the motion to suppress the evi-
dence. Consequently, the subsequent search of the vehicle
pursuant to a warrant obtained after their arrest bore no taint.
5 Neither defendant has questioned the constitutionality of Wis. Stat.
§ 302.113(7r). This court has held that similar conditions of release do not
violate the Fourth Amendment. See, e.g., United States v. Armour, 804 F.3d
859, 870 (7th Cir. 2015) (citing United States v. Sines, 303 F.3d 793, 801 (7th
Cir. 2002)) (“Although it is true that persons on supervised release, like
prisoners, do not relinquish all constitutional rights, those rights are not
unfettered. A court may impose conditions of supervised release which
implicate fundamental rights so long as those conditions are reasonably
related to the ends of rehabilitation and protection of the public from re-
cidivism.”).
Nos. 19-3500 & 20-1111 15
That search uncovered a firearm, and some other drug mate-
rials in the glove box.
B. The Hearsay Statements
As Lao’s case headed to trial, the Government moved the
court to bar the admission of Chang’s out-of-court statements
in which she attempted to bear all of the culpability for the
crime, thus exculpating Lao. The statement Lao wished to in-
troduce came from Chang’s police interview at the Sheriff’s
office shortly after her arrest. After being advised of her Mi-
randa rights, Chang allegedly told the interviewing officer
that all of the “stuff” was hers. R. 21-1. Oddly, however, she
could not describe the contents of the safe and when any
drugs were placed into it. Id.; R. 55 at 5. She also allegedly
stated: “I don’t know whatever you just found in the car is
mine. Everything you found in the car is mine. He had noth-
ing to do with it,” although, as we will discuss in a moment,
these statements lack citation to record evidence. Lao wished
to introduce these statements as evidence that the drugs and
weapons were not his. The district court prohibited Lao from
introducing these statements, concluding that the statements
were not against Chang’s penal interest and lacked sufficient
indicia of trustworthiness. R. 110 at 220–21.
To overturn the district court’s ruling on the admissibility
of this hearsay statement, we would have to conclude that the
district court abused its discretion. Gunville v. Walker, 583 F.3d
979, 985 (7th Cir. 2009). The district court, however, was in a
much better position to observe the proceedings and deter-
mine the impact of Chang’s statements as a whole, and there-
fore, we will defer to the district court’s determination unless
it strikes us as fundamentally incorrect. United States v. Ferrell,
816 F.3d 433, 438 (7th Cir. 2015). This is particularly so in this
16 Nos. 19-3500 & 20-1111
case where the district court presided over a somewhat unu-
sual hearing in which Chang initially declared that she would
testify, then changed her mind and opted to invoke her Fifth
Amendment right not to testify, but in the process of doing
so, engaged in a colloquy with the court about what her testi-
mony might be. See R. 109 at 179–83.
The statement certainly meets the definition of hearsay:
Lao wished to offer the out-of-court statements as true—to
prove that Chang, not Lao, owned and controlled the drugs.
Lao asserted that this statement fell within the “unavailable
declarant” exception to the hearsay rule which allows the ad-
mission of hearsay evidence where (1) the declarant is una-
vailable; (2) the statement might expose the declarant to civil
or criminal liability; and (3) it is supported by corroborating
circumstances that clearly indicate its trustworthiness. See
Fed. R. Evid. 804; Ferrell, 816 F.3d at 439. As the one seeking
admission, Lao had the burden of demonstrating the satisfac-
tion of each of these elements. United States v. Jackson, 540 F.3d
578, 588 (7th Cir. 2008).
Once Chang invoked her Fifth Amendment rights, she be-
came an unavailable witness. The district court, however,
concluded that the statements by Chang that all of the drugs
were hers, both lacked corroborating circumstances of trust-
worthiness and were not against her interest. The court stated,
“my ruling was both that it wasn’t really against her interest
to say that the drugs are not his. It would be against her inter-
est certainly to say ‘they’re mine,’ but they could be both.”
R. 109 at 221. But in fact, according to the government, when
she was interviewed at the station she did indeed say, “the
drugs are mine,” and such a statement would, in fact, be
against her penal interest at the time she made it.
Nos. 19-3500 & 20-1111 17
Consequently, the district court erred by stating that the
testimony Lao wished to present was not against Chang’s pe-
nal interest. The district court was correct, however, that the
statements lacked sufficient indicia of trustworthiness. This
alone was sufficient reason for the district court to prohibit
Lao from introducing them at trial. See Fed. R. Evid.
804(b)(3)(B); Ferrell, 816 F.3d at 439.
Before we begin discussing the substantive lack of trust-
worthiness, we should address whether the statements are in
the record at all. Both parties refer to the following statement
that Chang allegedly made during her interrogation at the
Sheriff’s office: “I don’t know whatever you just found in the
car is mine. Everything you found in the car is mine. He had
nothing to do with it.” The citations to this statement in the
briefs are either missing or point to documents that eventu-
ally point to the Video of the Lola Chang Custodial Interview,
which the government concedes is not in the record. See Gov-
ernment’s Brief at 11, n.4. Although no party disputes the ac-
curacy of Chang’s statements or that they occurred, the fact
that this court does not have any record citation for these
statements, and no ability to assess their trustworthiness in
context is one reason to question the reliability of the state-
ments from the start.
The district court had other reasons to question the trust-
worthiness of the statements. The court reasoned that given
the officer’s initial concern about potential domestic abuse
when he encountered the bickering couple, and the fact that
Lao and Chang were “culturally” married, the court had rea-
son to believe that Chang’s statement might be the result of
either coercion or affection. We agree with the district court’s
18 Nos. 19-3500 & 20-1111
assessment that this significantly decreased any confidence in
the reliability of the statement.
Finally, although not explicitly articulated by the district
court, Chang’s statements lacked trustworthiness in other
ways. When stopped on the side of the road, she denied any
knowledge or ownership of the gun safe or its contents, de-
spite having been concealing it under her shirt. Then, shortly
after, at the Sheriff’s office, she told Sergeant Tappen that “all
of the stuff was hers.” R. 21-1. And then later, during a motion
in limine during Lao’s trial, she took responsibility for the
drugs in the car, but not the weapons. Her statements were
also contradicted by videos taken from Lao’s cell phone in
which he holds up a methamphetamine rock which looks just
like the uniquely shaped rock recovered from the safe and de-
scribes how he has just purchased it from “Lola.” R. 109 at
139–42. Given the conflicting evidence, the district court
clearly did not abuse its discretion in finding that the state-
ments lacked the necessary indicia of trustworthiness.
Because the court did not err in its hearsay ruling and be-
cause the stop did not violate the defendants’ Fourth Amend-
ment rights, the opinion of the district court is AFFIRMED.