United States v. Orozco, 15-10385

• Decision Date: 01 June 2017
• Docket Number: No. 15-10385,15-10385
• Citation: 858 F.3d 1204
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Victor OROZCO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

858 F.3d 1204

UNITED STATES of America, Plaintiff–Appellee,

v.Victor OROZCO, Defendant–Appellant.

No. 15-10385

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 20, 2016, San Francisco, California

Filed June 1, 2017

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.

Before: A. Wallace Tashima and Milan D. Smith, Jr., Circuit Judges, and Edward R. Korman,^* Senior District Judge.

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 probable 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." Nev. Rev. Stat. § 480.360. This administrative scheme is valid on its face because its purpose is to ensure the safe operation of commercial vehicles—not to provide cover for criminal investigatory purposes, such as drug interdiction, for which reasonable suspicion or probable cause is lacking.

In practice, however, this administrative scheme may also be 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 the 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 Fourth Amendment.

The consent to search that was obtained after the driver of the truck, Victor Orozco, had been detained for approximately an hour was the fruit of the unlawful stop. So too was the evidence found pursuant to the consent search. We now proceed to a more thorough discussion of the relevant factual background and legal principles.

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. Nev. Rev. Stat. § 706.151(1). Nevada law provides for the Authority to "employ compliance enforcement officers whose duties shall include, without limitation, enforcement activities to ensure motor carriers are operating in compliance with state statutes and regulations, conducting operational inspections of motor carriers and investigating complaints against motor carriers." Nev. Rev. Stat. § 706.176(4). These officers may "examine, at any time during the business hours of the day, the books, papers and records of any fully regulated carrier, and of any other common, contract or private motor carrier doing business in this State to the extent necessary for their respective duties." Nev. Rev. Stat. § 706.171(1)(d).

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." 49 C.F.R. § 350.211(d). The Motor Carrier Safety Assistance Program "is a Federal grant program that provides financial assistance to States to reduce the number and severity of accidents and hazardous materials incidents involving commercial motor vehicles." 49 C.F.R. § 350.101(a). Nevada's CVSP provides that the Nevada Highway Patrol's "enforcement activities" will include "scheduled and unannounced roadside inspections." STATE OF NEVADA, COMMERCIAL VEHICLE SAFETY PLAN 7 (2011) (emphasis supplied), available at http://nhp.nv.gov/uploadedFiles/nhpnvgov/content/CE/CVSP2011.pdf [https://perma.cc/P6VZ–R4F9]. A "NAS Level III" inspection—the inspection at issue here—includes not only a stop of a vehicle, but an entry into the cab for a full review of the driver's papers, although it excludes any inspection of the mechanical fitness of the vehicle. It is geared toward preventing and deterring dangerous driving by, for example, including a review of the driving log, which would reveal whether a driver had exceeded the maximum time allowed on the road, among other possible safety violations.

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." Nev. Rev. Stat. § 480.360(1)(b). This merger of administrative and law enforcement responsibilities in Nevada Highway Patrol troopers, combined with the unconstrained discretion they have in selecting which vehicles to stop and search, accounts for the candid admission by the troopers who conducted the stop of Orozco's truck that it was "common knowledge that if you suspect criminal activity, that you can use your administrative powers to make a stop."

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, 99 S.Ct. 1391, 59 L.Ed.2d 660 (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, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (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, 99 S.Ct. 1391. 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, 99 S.Ct. 1391 (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, 99 S.Ct. 1391 (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...