444 F.3d 1238 (10th Cir. 2006), 05-3057, United States v. Herrera

Docket Nº:05-3057.
Citation:444 F.3d 1238
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert J. HERRERA, Defendant-Appellant.
Case Date:April 19, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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444 F.3d 1238 (10th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,


Robert J. HERRERA, Defendant-Appellant.

No. 05-3057.

United States Court of Appeals, Tenth Circuit.

April 19, 2006

Appeal from the United States District Court for the District of Kansas, D.C. No. 04-CR-20023-02-JWL.

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[Copyrighted Material Omitted]

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Michael J. Gunter of Clayman and Gunter, Kansas City, Missouri, for Defendant-Appellant Robert J. Herrera.

Eric F. Melgren, United States Attorney, and Tristram W. Hunt, Special Assistant United States Attorney, Kansas City, Kansas, for Plaintiff-Appellee United States of America.

Before HENRY, McKAY and EBEL, Circuit Judges.

EBEL, Circuit Judge.

A Kansas state trooper pulled over Defendant-Appellant Robert J. Herrera to inspect Herrera's pickup truck pursuant to a Kansas regulatory scheme that permits random inspections of certain commercial vehicles. Herrera's truck, however, was not a commercial vehicle subject to such inspections. Although the Fourth Amendment allows warrantless administrative inspections of pervasively regulated businesses in some instances, the validity of such an inspection is premised on the regulatory scheme giving notice to the members of the class of affected individuals that they are subject to such an inspection. Because Herrera did not have this notice, as he was in fact not a member of the class subject to these random inspections, the trooper's stop of Herrera violated the Fourth Amendment. Further, we decline to extend the good-faith exception to the exclusionary rule to this case because the Fourth Amendment violation is the result of an officer's mistaken belief that Herrera fell within the ambit of the Kansas regulatory scheme. Exercising our jurisdiction under 28 U.S.C. § 1291, we REMAND this cause to the district court with directions to VACATE Herrera's conviction and for further proceedings consistent with this opinion.1


On March 3, 2004, at 8:00 p.m., a Kansas state trooper encountered Herrera driving a Ford F-350 pickup truck with New Mexico license plates eastbound on the Kansas turnpike. The trooper believed Herrera's truck to be a commercial vehicle under Kansas law because it had "[d]ual wheels

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on the back and a utility bed with a heavy lift hydraulic lifter on the back, and also there was a sign on the back, a paint sign for a paint company." Herrera's truck, however, did not have a Department of Transportation ("DOT") number displayed, as a commercial vehicle would have.

The state trooper testified that, under Kansas law, "commercial vehicles can be stopped at any time to check for compliance with . . . safety regulations." See Kan. Stat. § 74-2108(b); State v. Crum, 270 Kan. 870, 19 P.3d 172, 174-78 (Kan.2001) (upholding state trooper's random stop made under Kan. Stat. § 74-2108); see also United States v. Seslar, 996 F.2d 1058, 1061-62 (10th Cir. 1993) (discussing Kansas statutes permitting state troopers to stop certain commercial vehicles). In fact, however, Herrera's truck was not a commercial vehicle under Kansas law because it weighed 10,000 pounds, one pound short of the definition of a commercial vehicle under Kansas law.2 The state trooper explained his mistake by asserting that he had previously stopped other trucks of the same make and model which had qualified as commercial vehicles because they did have a manufacturer's weight rating over 10,001 pounds. According to the trooper, the only way to ascertain whether or not a truck in fact qualified as a commercial vehicle was to stop the vehicle and "consult the VIN plate that's on the inside of the driver's door" or "run the VIN number through the computer."

After stopping Herrera, the state trooper arrested him because Herrera was unable to produce proof of insurance as required under Kansas law, see Kan. Stat. § 40-3104. The trooper then conducted an inventory search of the truck, in preparation for towing the truck from the highway following Herrera's arrest. During that inventory search, the state trooper discovered twenty-three kilograms of cocaine hidden amidst building materials in the truck's bed.

As a result of that discovery, the Government charged Herrera with possessing with the intent to distribute five kilograms or more of a substance containing cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii).3 Herrera

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moved to suppress the evidence seized, as well as the statements Herrera made, during the traffic stop. After conducting an evidentiary hearing, the district court denied Herrera's motion to suppress. Herrera then entered a conditional guilty plea to the charged offense, reserving his right to appeal the district court's decision denying his suppression motion. This appeal followed.


A. Standard of review.

"In reviewing a district court's denial of a motion to suppress evidence, we accept the factual findings of the district court, and its determination of witness credibility, unless they are clearly erroneous." United States v. Alvarado, 430 F.3d 1305, 1307-08 (10th Cir. 2005) (quotation omitted). Further, "we consider the evidence in the light most favorable to the district court's ruling;" in this case, in the light most favorable to the Government. Id. at 1308 (quotation omitted). The Government "bears the . . . burden of demonstrating the reasonableness of a warrantless seizure." Seslar, 996 F.2d at 1062. We "review de novo the ultimate determination of reasonableness under the Fourth Amendment." Alvarado, 430 F.3d at 1308 (quotation omitted).

"Whether the good faith exception to the exclusionary rule applies is a question of law that this court [also] reviews de novo." United States v. Johnson, 408 F.3d 1313, 1320 (10th Cir. 2005) (quotation omitted), cert. denied, --- U.S. ----, 126 S.Ct. 458, 163 L.Ed.2d 348 (2005).

B. Whether there was a Fourth Amendment violation.

"The Fourth Amendment protects the right of the people to be secure . . . against unreasonable searches and seizures." United States v. Bradford, 423 F.3d 1149, 1156 (10th Cir. 2005). "The basic purpose of this Amendment . . . is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). "A traffic stop is a 'seizure' within the meaning of the Fourth Amendment, 'even though the purpose of the stop is limited and the resulting detention quite brief.' " Bradford, 423 F.3d at 1156 (quoting Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)).

Ordinarily, the Government seeks to justify a traffic stop based on the existence of probable cause, or at least articulable reasonable suspicion, that there has been a criminal violation or that there is evidence of criminal activity in the vehicle. See United States v. Tibbetts, 396 F.3d 1132, 1136-37 (10th Cir. 2005); United States v. DeGasso, 369 F.3d 1139, 1143 (10th Cir. 2004). For example, "[a]n initial traffic stop is valid . . . if based on an observed traffic violation, [or] if the officer has a reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring." Tibbetts, 396 F.3d at 1136-37 (quotation omitted).

In this case, however, the Government does not seek to justify the stop based upon the existence of any individualized suspicion that Herrera was involved in criminal activity.4 Ordinarily "[a] search

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or seizure is . . . unreasonable in the absence of individualized suspicion of wrongdoing." City of Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). Nonetheless, in this case, the Government seeks to justify its initial seizure of Herrera as a random, warrantless administrative seizure and search5 permitted by the Kansas statutory scheme regulating motor carriers. See id. (recognizing that "searches for certain administrative purposes without particularized suspicion of misconduct" are allowable "provided that those searches are appropriately limited").

"[T]he Fourth Amendment's prohibition against unreasonable searches [still] applies to administrative inspections of private commercial property." Donovan v. Dewey, 452 U.S. 594, 598, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981). But under the Fourth Amendment, an administrative search is very different from a search based upon individualized suspicion.

A regulatory search . . . does not require probable cause as defined traditionally by the courts. In general, probable cause, and the less stringent standard of reasonable suspicion, require particularized suspicion–that is, the officer must have some articulable basis to believe that the individual to be searched or seized has committed or is committing a crime. In contrast, a regulatory search is justified if the state's interest in ensuring that a class of regulated persons is obeying the law outweighs the intrusiveness of a program of searches or seizures of those persons.

Seslar, 996 F.2d at 1061 (emphasis in original).

The Supreme Court has further distinguished a regulatory search of commercial property from "searches of private homes, which generally must be conducted pursuant to a warrant in order to be reasonable," holding that "legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment." Donovan, 452 U.S. at 598, 101 S.Ct. 2534 (emphasis added). The Court has recognized that the "expectation of privacy in commercial premises . . . is different from, and indeed less than, a similar expectation in an individual's home. This expectation is particularly attenuated in commercial property employed in 'closely regulated' industries." New York v. Burger, 482 U.S. 691, 700, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) (citation omitted); see also Donovan, 452 U.S....

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