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MT Supreme Court: seizure 'unconstitutional,' drug conviction reversed

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The Montana Supreme Court on Monday overturned the conviction of a 51-year-old man convicted of transporting drugs through Custer County. 

The 7-0 opinion, authored by Justice Laurie McKinnon, found law enforcement's seizure of the Vietnamese man "unconstitutional," and reversed his conviction, which led to a 15-year state prison sentence in 2019.

According to the filing, Hoang Pham was heating up noodles inside a Miles City gas station in August 2017 when an agent with the Montana Division of Criminal Investigation walked in. Outside, the agent's van was loaded "to the ceiling" with 960 pounds of marijuana the agent was transporting to evidence storage in Billings. Two Montana Highway Patrol troopers were driving a marked vehicle behind the unmarked DCI van. One trooper later testified the van would indeed be an abnormal sight.

Pham, according to court filings, stared at the van long enough that the DCI agent, Richard Smith, began to believe Pham was either lost or committing a crime. Once outside the gas station, Smith approached Pham at his own vehicle. He later testified that Pham's ethnicity did not factor into his decision to approach him, but said DCI "was aware of several arrests of Vietnamese people for drug trafficking" along Interstate 94. The two troopers approached Pham, as well, according to court documents. 

Pham told the law enforcement officers he was going to Minnesota and had visited Butte, where work was being done on his vehicle. Smith ultimately searched the vehicle and found 19 pounds of marijuana in the trunk, leading to Pham's arrest and conviction. Smith testified that Pham voluntarily opened the vehicle's door and trunk, which Pham disputed, but court documents note Smith was not wearing a recording device at the time of the incident. 

During his case in District Court, Pham's attorneys attempted to suppress the drugs found in the search because Smith did not have a warrant or consent from Pham to search the vehicle. The Supreme Court opinion published Monday concluded Smith's encounter with Pham constituted a seizure when Smith continued conversation with him after learning about his travels and by later asking to search Pham's vehicle. McKinnon also wrote Smith did not have particularized suspicion to justify the seizure. 

"Viewed in the totality of the circumstances, we are left with the fact that Agent Smith saw a Vietnamese person, traveling along a route where other Vietnamese individuals had been arrested for drug trafficking, and became suspicious that Pham was trafficking drugs," McKinnon wrote. "No objective data supports Agent Smith's assessment that Pham was suspicious, and his seizure of Pham was accordingly unconstitutional."

The Supreme Court reversed Pham's conviction and ordered the case back to District Court for new proceedings. A call to Custer County Attorney Wyatt Glade seeking comment on where the case goes next was not immediately returned Wednesday afternoon. Pham is currently being held at Crossroads Correctional Center outside of Shelby.

Montana State News Bureau

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