U.S. v. Castelo, 04-60874.

• Decision Date: 29 June 2005
• Docket Number: No. 04-60874.,04-60874.
• Citation: 415 F.3d 407
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David CASTELO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 407

415 F.3d 407

UNITED STATES of America, Plaintiff-Appellee, v. David CASTELO, Defendant-Appellant.

No. 04-60874.

United States Court of Appeals, Fifth Circuit.

June 29, 2005.

Charles Wiley Spillers, Asst.U.S. Atty., David Anthony Sanders (argued), Oxford, MS, for U.S.

Bobby T. Vance (argued), Batesville, MS, for Castelo.

Appeal from the United States District Court for the Northern District of Mississippi.

Before JOLLY, HIGGINBOTHAM and JONES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this appeal we consider whether the warrantless search of the appellant's truck falls within either the automobile exception or the pervasively regulated industry exception to the warrant requirement of the Fourth Amendment.

During a roadside inspection, Mississippi Department of Transportation ("MDOT") officers found approximately 112 pounds of cocaine in the trailer of Castelo's truck. At trial, Castelo moved to suppress the cocaine. After a hearing, the motion was denied. Castelo ultimately accepted a plea agreement, under which he reserved the right to appeal the district court's denial of his motion to suppress. We hold that the Mississippi statutory scheme satisfies the requirements of New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), that the initial stop was lawful under that scheme, that after the stop the officers acquired probable cause to believe the truck contained contraband, and that the ensuing search was properly conducted under the automobile exception to the warrant requirement.

I

On November 12, 2003, David Castelo and Luis Roberto Quintero were stopped by MDOT officers while driving a tractor-trailer rig north on Interstate 55 in Grenada County, Mississippi. The officers, Sergeant James T. Luttrell and Officer Mark Hendrix, were designated as a "portable scale team", assigned to weigh and perform roadside inspections of commercial vehicles.

Luttrell motioned the driver, Quintero, to the rear of the trailer and asked whether it was loaded. Quintero stated that the trailer was loaded with scrap metal. When asked where the trailer had been loaded, Quintero could not recall, but stated that it was "just a few miles from here". Luttrell then asked Quintero to produce various required documents for inspection—specifically, the permit book, international fuel tax agreement, bill of lading, log book, driver's license, and registration. While Quintero was retrieving the documents, the officers inspected the seal and padlock on the trailer, and noted that the seal was fastened but not locked.

Luttrell later testified that, while he was inspecting the documents, Quintero was repeatedly sipping water from a bottle and kicking grass on the shoulder of the road, and generally appeared uneasy. During the inspection, Luttrell discovered that the vehicle's registration had been illegally altered. When questioned, Quintero admitted that he had changed the registration's expiration date by writing the number "1" in front of the eight, causing the actual date—November 8—to appear as November 18 (thus falsely indicating that the registration was valid at the time of the stop).

The officers then instructed Quintero to remove the padlock on the trailer so that they could verify that the actual cargo matched what was listed on the bill of lading. Quintero explained that the trailer had been sealed, to which Luttrell responded that he would break the seal, re-seal it after inspecting the cargo, and "sign off on his bill [of lading] that he had broken the seal".

Quintero proceeded to unlock the trailer and Luttrell entered to inspect the load. Luttrell testified that he saw two "soft carry bags" and a pillowcase lying on the floor of the trailer, and that outlines of "brick-shaped objects" protruded from the sides of the pillowcase. Suspecting that the objects were cocaine bricks, Luttrell exited the trailer and called for backup. Once the scene was secure, Quintero and Castelo were arrested. DEA agents confirmed that the bags contained 45 bricks of cocaine, weighing approximately 112 pounds.

Quintero and Castelo were each charged with one count of possession of a Schedule II narcotic controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a). At trial, Castelo moved to suppress the cocaine on the grounds that Luttrell's warrantless search was unreasonable under the Fourth Amendment. After a suppression hearing, the district court denied the motion, as well as Castelo's motion for reconsideration. Castelo ultimately accepted a plea agreement, under which he reserved—under Fed. R.Crim. P. 11(a)(2)—the right to appeal the district court's denial of his motion to suppress.

II

Castelo contends that the district court erred in denying his motion to suppress evidence obtained via Officer Luttrell's warrantless search of the trailer. We start with the premise that warrantless searches are per se unreasonable under the Fourth Amendment "unless they fall within a few narrowly defined exceptions". United States v. Saucedo-Munoz, 307 F.3d 344, 350 (5th Cir.2002). Thus, the question before us is whether Luttrell's search fits within any such exception.

A

As a threshold matter, we must determine whether the initial stop was permissible under the Fourth Amendment. Generally, where the police lack probable cause to stop a vehicle—or some constitutionally adequate substitute therefor—evidence obtained from a subsequent search of the vehicle may be suppressed. See, e.g., United States v. Miller, 146 F.3d 274, 277 (5th Cir.1998). The government contends that both the stop and subsequent search of the trailer were permissible under the "pervasively regulated industry" exception to the warrant requirement, as set forth in New York v. Burger.

Under Burger, a warrantless search of a pervasively regulated business is permitted if: (1) there is a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made; (2) the inspection is necessary to further the regulatory scheme; and (3) the statutory or regulatory scheme provides a constitutionally adequate substitute for a warrant. See 482 U.S. at 702-03, 107 S.Ct. 2636.

Initially, it is clear that commercial trucking is a pervasively regulated industry. As we noted in United States v. Fort, the myriad federal and state statutes that govern commercial trucking place it squarely within the class of industries to which Burger applies. See 248 F.3d 475, 480 (5th Cir.2001). It is also clear that Mississippi has a substantial interest that informs the regulatory scheme—i.e., random roadside inspections and weighing of commercial vehicles—pursuant to which the stop and search occurred. See id. ("[T]he state has a substantial interest in traveler safety and in reducing taxpayer costs that stem from personal injuries and property damage caused by commercial motor carriers.").

Thus, whether the stop was permissible under the pervasively regulated industry exception turns on whether the last two prongs of the Burger test are satisfied—that is, (1) whether the stop was necessary to further Mississippi's regulatory scheme, and (2) whether that scheme provides a constitutionally adequate substitute for a warrant.

Castelo contends that the stop in this case exceeded the statutory authority conferred to MDOT officers. As such, Castelo argues, the stop was not conducted in furtherance of Mississippi's regulatory scheme, as required under the second prong of Burger. The argument is without merit.

Section 63-5-49(1) of the Mississippi Code gives MDOT officers the authority to require drivers of commercial vehicles to "stop and submit to a weighing of the vehicle". Section 63-5-49(3) provides that "pursuant to subsection (1) ... [MDOT officers] shall have the authority to inspect such vehicle to determine whether or not such vehicle is engaged in the illegal transportation of contraband".

Castelo contends that, because the officers never actually weighed the rig in this case, Luttrell's search was not "pursuant to" a weighing stop, and therefore cannot be justified under § 63-5-49(3). This argument misses the point. As explained infra, the search of the trailer was supported by probable cause stemming from Quintero's conduct and various irregularities in the truck's documentation. As such, the government's reliance upon the "pervasively regulated industry" exception need extend only so far as the initial stop. Once the government establishes that the stop was authorized under § 63-5-49(1), the question of whether the ensuing search was "pursuant to" that stop, as required by § 63-5-49(3), becomes moot for our purposes today.

Luttrell and Hendrix were designated as a "portable scale team" and were carrying portable scales at the time of the stop. Although it is true that they ultimately did not weigh the vehicle, Quintero's unusual behavior intervened and gave Luttrell probable cause to search the trailer and discover a large quantity of cocaine.

Thus, the initial stop in this case was authorized under § 63-5-49(1) of the Mississippi Code. We therefore hold that the stop was carried out in furtherance of Mississippi's regulation of the commercial trucking industry, as required under the second prong of Burger, and was a lawful stop.

Castelo further contends that, even if the initial stop was authorized under the relevant statutory provisions, those provisions fail to provide a "constitutionally adequate substitute for a warrant", as mandated by the third prong of the Burger test. We do not agree.

In order to satisfy Burger's requirement of a constitutionally adequate substitute for a warrant, a regulatory regime must (1) advise the owner of the regulated business that the inspection is being made pursuant to law; and (2) limit the discretion of the inspecting officers. See 482 U.S. at 703, 107 S.Ct. 2636. Castelo concedes that §§ 63-5-49(1) and (3) provide notice to commercial drivers that th...