United States v. Richmond

• Decision Date: 08 February 2019
• Docket Number: No. 17-40299,17-40299
• Citation: 915 F.3d 352
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Jennifer Lynn RICHMOND, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

915 F.3d 352

UNITED STATES of America, Plaintiff - Appellee

v.Jennifer Lynn RICHMOND, Defendant - Appellant

No. 17-40299

United States Court of Appeals, Fifth Circuit.

Filed February 8, 2019

Anna Elizabeth Kalluri, Assistant U.S. Attorney, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff - Appellee.

Marjorie A. Meyers, Federal Public Defender, Kayla R. Gassmann, Assistant Federal Public Defender, Michael Lance Herman, Assistant Federal Public Defender, Scott Andrew Martin, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant - Appellant.

Before GRAVES and COSTA, Circuit Judges and BENNETT, District Judge.^*

GREGG COSTA, Circuit Judge:

During a traffic stop, a state trooper pushed his fingers against the vehicle’s tire to try and confirm his suspicion that it contained more than just air. We conclude that the brief physical examination of the tire was subject to the Fourth Amendment under the recently revived trespass test for deciding what is a search. The search was a reasonable one, however, because there was probable cause to believe the loose tire posed a safety risk.

I.

A

Texas State Trooper Manuel Gonzales was patrolling U.S. Highway 77 in south Texas when he saw a blue pickup Jennifer Richmond was driving. He drove alongside the truck and saw that the tires were "shaking," "wobbly," and "unbalanced." He was concerned that the tires were a potential danger to the public. After the truck drove across the fog line between the right lane and the shoulder of the highway, Gonzales initiated a traffic stop. When the vehicle came to a stop, Gonzales saw that one of the truck’s brake lights was broken. He ran the license plate and learned the truck was registered two days earlier in nearby Brownsville.

When he approached the vehicle, Gonzales explained the reason for the stop—that Richmond crossed the fog line—and also told her about the brake light. Richmond apologized and, without prompting, stated that she was from Arizona. She avoided eye contact, and Gonzales noticed that her hands were "trembling," her mouth was "dry," and her lips had "a white coating."

In response to questioning, Richmond said that she was from Tucson but was traveling to Brownsville, where she was moving with her husband. Gonzales asked Richmond to exit the truck so that he could show her the broken brake light. Richmond complied.

As Gonzales walked to the rear of the truck, he looked at the passenger-side rear tire and observed that the bolts "had been stripped as [if] they had been taken off numerous times."

This is when the challenged conduct occurred. Gonzales pushed on the tire with his hand. The resulting sound was not what "a normal tire with air" would produce; instead there was a "solid thumping noise" that indicated something besides air was inside. Gonzales, who already was concerned about the tires because he had seen them bouncing before the stop, became more suspicious that they might contain drugs.

After tapping the tire, Gonzales resumed asking Richmond about her personal history and itinerary. She could not readily recall her age, date of birth, or husband’s name. Richmond asserted that she was traveling to Dallas to visit a friend, but did not know the friend’s phone number or address. Stranger still, she said she intended to use Google to learn the friend’s address and would return home if that search came up empty.

When Gonzales went back to his car to check Richmond’s license and the vehicle’s registration, he discovered that, contrary to her story about driving from Arizona, the truck had entered Mexico the day before. It had crossed back into the United States only a few hours before the traffic stop.

Gonzalez then obtained Richmond’s consent to search the truck. After finding suspicious items inside the vehicle, Gonzales "let some air out [of the tires] and [ ] smelled some kind of chemical cleaning odor coming out of them." At least one of the tires did not release air. Gonzales checked beneath the truck and saw "fingerprints [ ] on the inside of ... the rims" and an atypical amount of weight placed on the tires to try to balance them. When he removed the tires, they seemed unusually heavy and solid.

Gonzales decided to take the truck to a local car dealership and have the tires examined. Technicians at the dealership discovered secret compartments that contained methamphetamine.

B

After being charged with trafficking that meth, Richmond tried to suppress its discovery. She challenged the lawfulness of the stop and its length. The district court rejected those arguments, concluding that reasonable suspicion of a traffic violation supported the stop and that Richmond’s suspicious statements and demeanor raised sufficient concerns about drug trafficking to support extending the stop for the additional time that resulted in her consenting to the search.

After the motion was denied, Richmond entered a guilty plea that allowed her to appeal the suppression ruling. Before sentencing, Richmond filed an amended motion to suppress that argued for the first time that Gonzales’s tap of her tire was a search not supported by probable cause. At the sentencing hearing, the district court considered but rejected Richmond’s amended motion because "as the law stands now, tapping tires is not a search." The district court noted that it would permit Richmond to appeal the tire tap issue along with her original Fourth Amendment claims in light of her conditional guilty plea.

II.

Richmond no longer challenges the initial stop or that there was reasonable suspicion of drug trafficking to extend the stop until the point when Gonzales physically examined the tire. And in not challenging events after Gonzales learned that the tire likely contained more than just air, Richmond apparently acknowledges that discovery justified further investigation into the trafficking up until when she consented to a full search.¹

So the tap of the tire is the focus of this appeal. Richmond contends that it was a search within the meaning of the Fourth Amendment. That is the case, she says, because touching the tire was a trespass which counts as a search under recent Supreme Court cases. See Florida v. Jardines , 569 U.S. 1, 5, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) ; United States v. Jones , 565 U.S. 400, 404–07 & n.3, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012).

The government counters that we have previously held that similar law enforcement conduct is not a search. In United States v. Muniz-Melchor , 894 F.2d 1430 (5th Cir. 1990), a border patrol agent used a pocket knife to tap the side of a propane tank mounted in the bed of a pickup. Id . at 1432. We acknowledged that the tapping "may have constituted a technical trespass," id . at 1435, but explained that Katz v. United States , 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), had "rejected the notion that what constitutes a trespass under various property laws necessarily constitutes a search under the Fourth Amendment." 894 F.2d at 1434. Instead, the then-prevailing Katz test—which came not from the majority opinion but from Justice Harlan’s concurrence—asked whether the person challenging a search had a reasonable expectation of privacy in the item being examined.² Id . (quoting Katz , 389 U.S. at 360–61, 88 S.Ct. 507 (Harlan, J., concurring) ). The answer was "no" for the owner of the tapped propane tank because he "surely ... must have reasonably expected that someone, such as a gasoline station attendant, might lean against the tank or touch it in some manner." Id at 1435.

That expectation of contact is even greater for a vehicle’s tire as it is routinely checked for air pressure. So Muniz-Melchor binds us on the "reasonable expectation of privacy" question. Richmond did not have a reasonable basis to believe that the tire would not be touched.

But a precedent binds us only as far as it goes. See Brecht v. Abrahmson , 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (explaining that an opinion is not binding on a question it "never squarely addressed"). Richmond contends that Muniz-Melcher did not decide whether tapping part of a vehicle was a search under a trespass theory because, as the opinion recognized, at that time a physical intrusion did not on its own constitute a search.

We agree. Katz held that "[t]he premise that property interests control the right of the Government to search and seize has been discredited." 389 U.S. at 353, 88 S.Ct. 507 (quoting Warden v. Hayden , 387 U.S. 294, 304, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) ). In the decades that followed, a trespass did not automatically amount to a search. See United States v. Karo , 468 U.S. 705, 713, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) ("[A]n actual trespass is neither necessary nor sufficient to establish a constitutional violation."); Oliver v. United States , 466 U.S. 170, 183–84, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (holding that narcotics agent searching for marijuana in the open fields of a farm was not a search even though it was a trespass). But in 2012, United States v. Jones revived the property approach that most, including our court, thought Katz had jettisoned.³

565 U.S. at 400, 132 S.Ct. 945. In explaining why a search occurred when law enforcement placed a GPS tracking device on the undercarriage of a car, the Court relied on "the common-law trespassory test," which it treated as a separate basis for finding a search alongside the Katz "reasonable expectation of privacy" test. 565 U.S. at 409, 132 S.Ct. 945.

Lower courts recognized Jones as a sea change. See, e.g. , United States v. Ackerman , 831 F.3d 1292, 1307 (10th Cir. 2016) (Gorsuch, J.) (explaining that that there is now "reason to wonder" about the vitality of a 1984 Supreme Court decision after " Jones held that the Katz formula is but one way to determine if a ... ‘search’ has taken place"); United States v. Sweeney , 821 F.3d 893, 899 (7th...