No. 15-10385
United States Court of Appeals for the Ninth Circuit
June 1, 2017
D.C. No. 3:13-cr-00048-MMD-WGC-1. Argued and Submitted October 20, 2016, San Francisco, California. Before: A. Wallace Tashima and Milan D. Smith, Jr., Circuit Judges, and Edward
Opinion by Judge Korman
FOR PUBLICATION
SUMMARY**
Criminal Law
The panel reversed the district court‘s denial of a motion to suppress, vacated a conviction for two counts of drug possession arising from a stop of a tractor-trailer driven by the defendant, and remanded for further proceedings.
Nevada Highway Patrol troopers made the stop in order to investigate criminal activity, even though they lacked the quantum of evidence necessary to justify the stop. The panel held that the stop was not justified under the administrative search doctrine, which permits stops and searches, initiated in furtherance of a valid administrative schеme, to be conducted in the absence of reasonable suspicion or probable cause.
The panel held that an administrative scheme allowing Nevada law enforcement officers to make stops of commercial vehicles and conduct limited inspections without reasonable suspicion was valid on its face because its purpose was to ensure the safe operation of commercial vehicles. The objective evidence in this case, however, established beyond doubt that the stop of the defendant‘s vehicle was a pretext for a stop to investigate information of suspected criminal activity short of that necessary to give rise to reasonable suspicion. The stop would not have been made in the absence of a tip that the defendant was possibly carrying narcotics. Accordingly, the stop was a pretextual stop that violated the
COUNSEL
Justin J. Bustos (argued), Dickinson Wright PLLC, Reno, Nevada, for Defendant-Appellant.
William R. Reed (argued), Assistant United States Attorney; Elizabeth O. White, Appellate Chief; United States Attorney‘s Office, Reno, Nevada; for Plaintiff-Appellee.
OPINION
KORMAN, District Judge:
This appeal arises out of the stop of a tractor-trailer, driven by defendant-appellant Victor Orozco, on a highway in Nevada. The Nevada Highway Patrol troopers made the stop in order to investigate criminal activity, even though they lacked the quantum of evidence necessary to justify the stop. Ultimately, the stop led to a consent search, during which officers found heroin and methamphetamine, which served as the basis for Orozco‘s indictment and conviction on two counts of possession. The question in this appeal is whether the stop was justified under the administrative search doctrine, which permits stops and searches, initiated in furtherance of a valid administrative scheme, to be conducted in the absence of reasonable suspicion or рrobable cause.
Nevada law enforcement officers may make stops of commercial vehicles and conduct limited inspections without reasonable suspicion “[t]o enforce the provisions of laws and regulations relating to motor carriers, the safety of their vehicles and equipment, and their transportation of hazardous materials and other cargo.”
In practice, however, this administrative scheme may also bе used as a pretext for conducting stops to investigate criminal activity. Indeed, one of the Nevada troopers involved in the stop at issue here testified that it was “common knowledge that if you suspect criminal activity, that you can use your administrative powers to make a stop.” With respect to the stop of the vehicle at issue here, the Nevada trooper testified that he may have had a discussion with his colleague, and possibly his sergeant, as to how “you could utilize the administrative inspection to stop this truck that you believed was hauling marijuana—or methamphetamine.” Specifically, he said, “I don‘t know if we had a discussion, but it‘s common knowledge that we can do that, yes.”
Under these circumstances, it does not matter that thе Nevada administrative scheme was valid on its face, where the objective evidence—detailed below—establishes beyond doubt that this stop was a pretext for a stop to investigate information of suspected criminal activity short of that necessary to give rise to reasonable suspicion. The stop would not have been made in the absence of the tip that Orozco was possibly carrying narcotics in his tractor-trailer. This fits the classic definition of a pretextual stop that violates the
The consent to search that was obtained after the driver of the truck, Victor Orozco,
BACKGROUND
I. Nevada‘s Administrative-Search Scheme
Because the argument in support of the validity of the stop of Orozco‘s tractor-trailer is intertwined with the administrative scheme that Nevada has adopted to regulate commercial motor vehicles, we begin with a discussion of that regulatory scheme. The Nevada Legislature has charged the Nevada Transportation Authority with regulation of motor carriers such as the tractor-trailer driven by Orozco. It is the duty of the Department of Public Safety, and its subsidiary arm, the Nevada Highway Patrol, to enforce the regulations adopted by the Authority.
Nevada has also enacted a Commercial Vehicle Safety Plan (“CVSP“), which complies with the Motor Carrier Safety Assistance Program‘s requirements for receiving federal highway funding by, inter alia, requiring Nevada Highway Patrol troopers to conduct inspections in a manner consistent with “the North American Standard [“NAS“] Inspection procedure.”
Nevertheless, “compliance enforcement officers” include Nevada Highway Patrol troopers who are trained to conduct NAS inspections but are also charged with enforcement of Nevada‘s criminal laws, including “[m]aking arrests for crimes committed in their presence or upon or adjacent to the highways of this State.”
Notwithstanding the temptation for law enforcement officers to use their administrative powers as a pretext to investigate criminal activity, we previously held that a comparable Missouri scheme involving random, suspicionless inspection stops of commercial vehicles was valid. See United States v. Delgado, 545 F.3d 1195 (9th Cir. 2008). We based our holding in part on the fact that “[t]he privacy expectations of commercial truck drivers are markedly less than those of the public in general. The trucking industry is highly regulated and drivers have long been subjected to federal regulation of their qualifications.” Id. at 1201 n.3 (internal quotation marks omitted).
Prior to Delgado, the Supreme Court, in Delaware v. Prouse, 440 U.S. 648 (1979), held that even though automobiles are subject to “pervasive and continuing governmental regulation and controls,” South Dakota v. Opperman, 428 U.S. 364, 368 (1976), the police could not, absent reasonable suspicion, stop individual vehicles for the purpose of checking the driver‘s license and the registration of the automobile. Prouse, 440 U.S. at 663. Prouse, however, made clear that it was not “preclud[ing] the State of Delaware or other States from developing methods . . . that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative.” Id. Moreover, as Justice Blackmun observed in his concurring opinion, other alternatives include “not purely random stops (such as every 10th car to pass a given point) that equate with, but are less intrusive than, a 100% roadblock stop.” Id. at 664 (Blackmun, J., concurring). Thus, Prouse holds “only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers.” Prouse, 440 U.S. at 663 (emphasis supplied). What Prouse therefore requires “are neutral selection criteria within a system which does not carry with it any significant chance of undetectable subterfuge.” 5 WAYNE R. LEFAVE, SEARCH AND SEIZURE, 410–11 (5th ed. 2012).
The stop of Orozco‘s commercial truck demonstrates why, as a practical matter, such “neutral selection criteria” may in fact be necessary to withstand the temptation for law enforcement officers to use their administrative powers as a pretext, and to defend against a claim that a search was pretextual.
II. The Stop of Orozco‘s Commercial Truck
At some point in spring 2013, Trooper Adam Zehr stopped a commercial trucker, who indicated that he had information relating to a trucking company that could possibly be transporting drugs. Zehr put this tipster in contact with Detective Sergeant Chris Brewer, of the Nevada Division of Investigations. Shortly thereafter, on April 26, Brewer received a call from the tipster regarding a specific commercial truck that “may possibly have controlled substances.” The tipster told Brewer that this truck was red, with a white box trailer and Michigan licеnse plates.
The next day, April 27, 2013, the tipster again contacted Brewer to provide an approximate time when the tractor-trailer would be traveling through White Pine
After Zehr‘s conversation with Brewer, Zehr and Trooper Boynton “knew to be on the lookout for” Orozco‘s truck. They drove out to Mile Post 37 in White Pine County to wait for it. When the truck arrived, Zehr had to pull out behind a different commercial truck and drive past it in order to pull over Orozco‘s truck. Indeed, Troopers Zehr and Boynton acknowledged that, even before they saw the truck, they planned to stop it. Thus, Zehr gave the following testimony:
Q: Do you recall what your conversations were with Trooper Boynton about locating and stopping this truck?
A: Yes.
Q: And what were those?
A: If thе truck is located, we‘ll both stop it, or one of us will stop it, or one of us will be close for backup for a more high risk traffic stop.
Around 4:30 PM, as expected, they saw a red truck with Michigan license plates drive past Mile Post 37. Zehr, taking the lead, pulled the truck over. Boynton also pulled his car behind the truck and assisted Zehr in questioning Orozco.
Although the troopers chose to target Orozco‘s truck because of the information in the tip, Zehr and Boynton went through the motions of performing a NAS Level III paperwork inspection. Notwithstanding numerous violations of the commercial vehicle regulations discovered in the course of the paperwork inspection, they did not issue a citation. Instead, while the inspection was ongoing, Zehr instructed Trоoper Kelly Barney (“Barney“), another police officer who was stationed nearby with a drug-sniffing dog, to call the El Paso Intelligence Center (“EPIC“) (an inter-agency facility that provides intelligence support to law enforcement) regarding Orozco‘s truck. Barney called EPIC, and learned that Orozco had made several recent border crossings. Zehr and Barney also discussed the possibility of performing a canine sniff of the tractor-trailer, using the drug-sniffing dog. Although they did not issue a citation, they did ask for, and obtain, consent to search the tractor-trailer. Barney then arrived with the dog, who made a positive alert as to the presence of drugs, which was confirmed when the troopers found a duffel bag containing twenty-six pounds of methamphetaminе and six pounds of heroin in the sleeper compartment.
III. The Motion to Suppress and The District Court‘s Ruling
Prior to trial, Orozco moved to suppress the drug evidence on the ground that the NAS level III inspection was an impermissible pretext “motivated by a desire to search for evidence of drug trafficking, rather than to conduct a commercial vehicle inspection.” United States v. Orozco, No. 3:13-cr-48, 2015 WL 370091, at *3 (D. Nev. Jan. 28, 2015). The district court acknowledged that information from an informant that Orozco was possibly carrying narcotic drugs “was part of the reason
On this appeal from a judgment convicting him of two counts of possession with intent to distribute a controlled substance for which he was sentenced to 192 months in prison, Orozco argues that the district court erred by denying his motion to suppress on the ground that the “NAS Level III inspection” was a pretext to investigate criminal activity. We agree with the district court that a dual motive for a suspicionless stop does not necessarily render it impermissible. Nevertheless, we reverse the denial of Orozco‘s motion to suppress and vacate his judgment of conviction, because the objective evidence clearly demonstrates that, but for the officers’ belief that Orozco might be carrying drugs, the stop never would have happened.
DISCUSSION
The
We do not decide whether the Nevada troopers had reasonable suspicion for the stop, because the U.S. Attorney waived this argument by failing to address it in his answering brief. See United States v. Gamboa-Cardenas, 508 F.3d 491, 402 (9th Cir. 2007) (holding that an argument not addressed in an answering brief is waived). For the purposes of this appeal, we assume there was no reasonable suspicion for the stop.
A different rule applies to “special-needs and administrative-search cases, where ‘actual motivations’ do matter.” Id. (quoting United States v. Knights, 534 U.S. 112, 122 (2001) (emphasis supplied). Significantly, in New York v. Burger, 482 U.S. 691 (1987), the Supreme Court upheld a regulatory scheme allowing for warrantless inspection of automobile junkyards. Such inspections required neither probable cause nor reasonable suspicion because the New York Legislature had a “proper regulatory purpose[] for enacting the administrative scheme” authorizing warrantless inspections of vehicle dismantling businesses, and because the statute
Indeed, in Whren v. United States, 517 U.S. 806, 811 (1996), the Supreme Court acknowledged its past “disapproval of police attempts to use valid bases of action against citizens as pretexts for pursuing other investigatory agendas.” Thus, it observed that, “in Florida v. Wells, 495 U.S. 1, 4 (1990), we stated that ‘an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence‘; that in Colorado v. Bertine, 479 U.S. 367, 372 (1987), in approving an inventory search, we apparently thought it significant that there had been ‘no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation‘; and that in New York v. Burger, 482 U.S. 691, 716–717 n. 27 (1987), we observed, in upholding the constitutionality of a warrantless administrative inspection, that the search did not appear to be ‘a “pretext” for obtaining evidence of . . . violation of . . . penal laws.‘” Id. (ellipses in original).
Similarly, the Supreme Court held in South Dakota v. Opperman, 428 U.S. 364 (1976), that “there is no suggestion whatever that this standard [inventory search] procedure, essentially like that followed throughout the country, was a pretext concealing an investigatory police motive.” Id. at 376. And again, in Edmond, decided after Whren, the Supreme Court took cognizance of its disapproval of pretextual searches that were undertaken pursuant to valid administrative schemes. 531 U.S. at 45. More recently, the Supreme Court held that although “[a] judicial warrant and probable cause are not needed where the search or seizure is justified by special needs, beyond the normal need for law enforcement,” al-Kidd, 563 U.S. at 736 (internal quotation marks omitted), “those exceptions do not apply where the officer‘s purpose is not to attend to the special needs or to the investigation for which the administrative inspection is justified.” Id. at 737 (emphasis supplied).
Because of this “reluctan[ce] to recognize exceptions to the general rule of [requiring] individualized suspicion where governmental authorities primarily pursue their general crime control ends,” Edmond, 531 U.S. at 43, the Supreme Court, in Edmond, extended the inquiry into purpose from individual stops to checkpoint programs themselves. Thus, Edmond did not involve a challenge to a particular administrative search on the ground that the administrative rationale was a pretext. Instead, the plaintiffs sought injunctive relief to stop the City of Indianapolis from conducting a program of roadblock stops, for which reasonablе suspicion was not required. Id. at 36. This scheme had the primary programmatic purpose of “the discovery and interdiction of illegal narcotics.” Id. at 34. Stops made for this purpose, the plaintiffs argued, could only be made based on reasonable suspicion or probable cause. The City argued that the intrusion occasioned by such a stop was the same as if the roadblocks were designed solely to check for a license or the intoxication of the driver—and therefore could be justified without reasonable suspicion as a special needs or administrative
The Supreme Court rejected this argument and held that the programmatic purpose of an administrative scheme “may be relevant to the validity of
While Edmond had no occasion to address directly the purpose of law enforcement officers who act to enforce a valid administrative scheme, there is one arguably ambiguous sentence at the end of the opinion in which the Supreme Court cautioned that “the purpose inquiry in this context is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene.” Id. at 48. We do not read this dictum as undermining the long line of Supreme Court cases demonstrating a concern for pretext, even where searches or seizures are undertaken by those charged with enforcing a valid administrative scheme. Instead, it appears to apply, as the Supreme Court said, “in this context“—namely, in the context of an invalid programmatic scheme like the one at issue in Edmond. In this context, because the drug checkpoint scheme violates the
The present case involves the inverse of Edmond. Because the programmatic purpose of the Nevada inspection scheme may be valid, a stop undertaken in furtherance of that purpose does not violate the
The Supreme Court‘s express concern that programmatic searches not be used as a pretext necessarily requires an inquiry into an officer‘s purpose in conducting a stop or search without reasonable suspicion or probable cause, when such an intrusion
We emphasize that the presence of a criminal investigatory motive, by itself, does not render an administrative stop pretextual. See United States v. Tsai, 282 F.3d 690, 695 (9th Cir. 2002); see also United States v. Goldfine, 538 F.2d 815, 819 (9th Cir. 1976) (declining to adopt rule that agent can only conduct search if and only if he had no reason to suspect a possible violation of law). Nor does a dual motive—one valid, and one impermissible. “More is involved than the mere expectation that incriminating evidence might be found; the pretext arises out of the fact that the evidence is found in a search which would not have occurred at all . . . .” 3 WAYNE R. LEFAVE, SEARCH AND SEIZURE 902 (5th ed. 2012). Thus, “[w]e apply an objective test to determine whether a stop made for an ostensibly legal reason is a pretext for what is, in reality, an impermissible reason.” United States v. Maestas, 2 F.3d 1485, 1489 (10th Cir. 1993) (citations omitted). More specifically, “we ask whether the officer would have made the stop in the absence of the invalid purpose. Thus, in order to prove that a stop is unreasonably pretextual, a defendant must show that the stop would not hаve occurred in the absence of an impermissible reason.” Id. (citations omitted) (emphasis in original). Orozco has met his burden of making such a showing here.
The objective evidence clearly establishes that the only reason for the stop was the officers’ belief that Orozco could possibly be hauling marijuana or methamphetamine in his tractor-trailer. We focus on two such sources of evidence. First, the manner in which the stop itself was conducted strongly suggests that it was wholly pretextual. Briefly, as discussed above, after receiving a tip about the location of Orozco‘s truck, Sergeant Brewer “immediately” contacted Trooper Zehr to “advise[] him of the vehicle and its location.” After this conversation, the troopers drovе out to Mile Post 37 in White Pine County, to “be on the lookout for” Orozco‘s truck. Thus, but for the tip, the officers would not even have been in position to stop the truck. When the truck arrived, Zehr had to pull out behind a different commercial truck and drive past it in order to pull over Orozco‘s truck. Indeed, arrangements had apparently been made for a drug-sniffing dog to be stationed less than a mile away.
Second, we find significant Trooper Boynton‘s testimony regarding the use of administrative inspections as a pretext to investigate criminal activity, and more specifically, his testimony regarding “common knowledge.” We disagree with the district
Moreover, even if the “common knowledge” were limited to the practice followed by Zehr and Boynton, the failure of their superiors to stop them from using the scheme in this way may be sufficient to elevate it to a policy and practice that precludes reliance on an otherwise valid administrative scheme. As Judge Kozinski has observed, citing cases relating to
municipalities and supervisory officers for their рolicies, customs, and practices, “[w]hile these cases arise in a somewhat different context, they provide an apt analogy to our situation. Because administrative searches are so easily diverted from their narrowly defined purposes, government officials have an affirmative responsibility to keep them from being misused. Acquiescence in a custom or practice that routinely disregards the limits of particular administrative searches might itself be sufficient to establish a breach of this responsibility.” United States v. Soyland, 3 F.3d 1312, 1318 n.11 (9th Cir. 1993) (Kozinski, J., concurring in part and dissenting in part).2 Nevertheless, even under the crabbed construction the district judge placed on Boynton‘s testimony regarding “common knowledge,” it significantly adds to the objective evidence that the stop in this case was pretextual.
Indeed, оur conclusion that the stop was pretextual is buttressed by the Assistant U.S. Attorney‘s oral concession that, but for the tip, the officers would not have stopped the
defendant‘s truck. United States Court of Appeals for the Ninth Circuit, 15-10385 USA v. Victor Orozco, YOUTUBE (Oct. 20, 2016), https://www.youtube.com/watch?v=MUCAvREwbTs, at 18:30–19:30. In a post-argument letter, he sought to retract that concession in a way that only reinforced it, writing: “I would have been correct to say that the officers had no other specific reason to choose defendant‘s truck for an administrative inspection.” ECF No. 44.
United States v. McCarty, 648 F.3d 820 (9th Cir. 2011), as amended (Sept. 9, 2011), upon which the district court relied, does not hold that a pretextual stop is valid
This conduct persuaded the district court in that case that the TSA screener “searched the photographs in the envelope not for sheet explosives but for evidence of child pornography.” United States v. McCarty, 672 F. Supp. 2d 1085, 1097 n.8 (D. Haw. 2009), vacated, 648 F.3d 820 (9th Cir. 2011), as amended (Sept. 9, 2011). Significantly, it accepted testimony “that a packet of photographs may cause a dense item alarm and TSA protocol requires the TSA employee to ensure that the photographs do not include any sheet explosives.” Id. at 1098. Nevertheless, it found that the testimony “does not establish that [the TSA employees] examined the photographs for sheet explosives—rather, after they noticed the photographs that were initially visible they inspected the content of additional photographs for the purpose of determining their criminal nature.” Id. (emphasis in original).
We agreed with the district court in that case that “the scope of the permissiblе search—mandated by the TSA protocol—was defined by the point at which the screener was convinced the bag posed no threat to airline safety.” McCarty, 648 F.3d at 836. More specifically, a TSA screener is ”required to leaf or thumb through the stack of photographs until she is sure there are no sheet explosives.” Id. at 825 (emphasis supplied). Nevertheless, we reversed as clearly erroneous the district court‘s finding that the TSA screener “searched the photographs in the envelope not for sheet explosives but for evidence of child pornography,” McCarty, 672 F. Supp. 2d at 1097 n.8—a finding for which we could find “no support in the record.” McCarty, 648 F.3d at 836. Once the district court‘s factual finding was reversed, McCarty became an easy case.3 Thus, even an “unlawful secondary search purpose” does not “invalidate [an] otherwise lawful administrative . . . search” when, as in
McCarty, “the searching officer‘s actions would have been the same regardless of his true motivation.” Id. at 833 (citations and internal quotation marks omitted); see also United States v. Bowhay, 992 F.2d 229, 231 (9th Cir. 1993) (“When the police conduct would have been the same regardless of the officer‘s subjective state of mind, no purpose is served by attempting to tease out the officer‘s ‘true’ motivation.“) (citing Horton v. California, 496 U.S. 128 (1990)).
We observe that our inquiry into the purpose of the search of the photographs
Turning back to the case at hand, the only purpose of the stop of Orozco‘s truck was to investigate criminal activity. There was no secondary administrative purpose at all—only a charade to camouflage the real purpose of the stop. Indeed, the present case is distinguishable from McCarty principally because it involved a seizure that would not have taken place were it not for the fact that the officers intended to search for evidence of criminal activity. While we reject the district judge‘s finding the Nevada troopers had a “dual motive” for stopping Orozco‘s truck, her holding that “having dual motives does not make a warrantless search pretextual” avoids the critical question whether the stop of Orozco‘s truck would have been made at all if the Nevada troopers were not acting on the information that it was “possibly” carrying drugs. The objective evidence dеmonstrates that the answer to that question is no.
CONCLUSION
The judgment of conviction is REVERSED, and the case is REMANDED for further proceedings consistent with this opinion.