U.S. v. Seslar, 92-3352

• Citation: 996 F.2d 1058
• Decision Date: 22 June 1993
• Docket Number: No. 92-3352,92-3352
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Gregory Douglas SESLAR and Meredit Tarcisio Mayorga, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1058

996 F.2d 1058

UNITED STATES of America, Plaintiff-Appellant, v. Gregory Douglas SESLAR and Meredit Tarcisio Mayorga Defendants-Appellees.

No. 92-3352.

United States Court of Appeals Tenth Circuit.

June 22, 1993.

Richard L. Hathaway (Lee Thompson, U.S. Atty., with him on the brief), Asst. U.S. Atty., Topeka, KS, for plaintiff-appellant.

Stephen W. Kessler and Marilyn M. Trubey, Topeka, KS, for defendants-appellees.

Before SEYMOUR, ANDERSON and TACHA, Circuit Judges.

TACHA, Circuit Judge.

The government appeals a district court order granting the defendants' motions to suppress physical evidence and oral statements as the fruit of an illegal stop of defendants' rental truck. We affirm.

BACKGROUND

On February 7, 1992, at 9:10 a.m., Kansas Highway Patrol ("KHP") Trooper Dennis Gassman stopped a Ryder rental truck driven by defendant Gregory Seslar. Defendant Meredit Mayorga had rented the truck and was a passenger when it was stopped. Trooper Gassman stopped the truck to determine whether it was hauling a commercial load and, if so, whether the defendants possessed all permits required by the Kansas Corporation Commission. He conceded that he had no reason to believe that the truck was carrying a commercial load or that the defendants did not possess the proper permits.

Trooper Gassman examined the truck's rental papers, which showed that the truck had been rented in California for commercial purposes. After returning to his patrol car, he called in for a check on Mr. Seslar's driver's license. He also asked for a criminal history check because the defendants and the truck were from California, a drug source state. Transmission difficulties extended the time of these checks beyond the usual ten minutes.

While awaiting the results of the checks, Trooper Gassman began to fill out a truck inspection form. Seslar told him that Mr. Mayorga was moving to Atlanta, Georgia, and that the truck contained Mayorga's personal goods, including some furniture and some masonry sand. On the basis of this conversation, Trooper Gassman indicated on the inspection form that the load was noncommercial.

Because the rental papers stated that the load was commercial, Trooper Gassman directed the defendants to open the cargo area so that he could make sure that the load was not commercial. After Mayorga opened the cargo door, Trooper Gassman observed several items of furniture and some sealed boxes and determined that the load was not commercial. During this course of events, however, Mayorga told Trooper Gassman that he was moving his sister's belongings to Atlanta.

                When Mayorga said this, Trooper Gassman saw Seslar open his eyes wide in surprise.   After the door was closed again, Trooper Gassman told Seslar to return to the truck and took Mayorga to the patrol car to perform a driver's license and criminal history check
                

At 9:36 a.m., KHP Trooper Michael Weigel arrived to meet Trooper Gassman on unrelated business. Trooper Gassman told Weigel that he was suspicious of the defendants because of their conflicting stories and Seslar's look of surprise, and because it was odd to transport sand across the country. Trooper Weigel asked Mayorga if the truck was carrying any drugs. After Mayorga answered no, Trooper Weigel asked for consent to search the truck for contraband. Mayorga responded, "Sure you can," and opened the cargo hold. Trooper Weigel noticed a strong smell of fabric softener and saw a small "baggie" of vegetation which appeared to be marijuana. He began opening some of the boxes and ultimately found approximately 248 pounds of marijuana. After arresting the defendants, the troopers read them their Miranda warnings. Seslar later made several incriminating statements.

The defendants sought to suppress the marijuana and Seslar's incriminating statements on the ground that they were obtained in violation of the Fourth Amendment. After hearing evidence and reviewing the parties' arguments, the district court agreed. The court held that the initial stop of the truck was unconstitutional under the rationale of Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), because it was not supported by a warrant, probable cause, or reasonable suspicion. The court rejected the government's argument that the search was a valid "regulatory search" under the Supreme Court's "closely regulated industry" line of cases, concluding that the Kansas statutes cited by the government did not sufficiently circumscribe Trooper Gassman's discretion. The court held further that, even if the stop were legal, the continued detention of the defendants after Trooper Gassman could have determined that no permit requirements had been violated was unconstitutional. Because the court concluded that the subsequent search and the resulting statements were tainted by either the illegal stop or the illegal continued detention, it granted the defendants' motions to suppress. The government appealed.

DISCUSSION

The government makes three contentions on appeal: (1) the initial stop of the truck was constitutionally valid under Kansas statutes that authorize random stops of "motor carriers"; (2) the continued detention of the defendants until consent to search was obtained was valid because the troopers developed reasonable suspicion that criminal activity was afoot while performing the valid random stop; and (3) assuming that the stop and detention were lawful, the defendants have no standing to challenge the search of the truck. Because we conclude that the initial stop of the truck was unconstitutional, we affirm without addressing the last two arguments.

In general, there are three types of citizen-police encounters: (1) consensual encounters, which involve a citizen's voluntary cooperation with an official's non-coercive questioning and which are not seizures within the meaning of the Fourth Amendment; (2) investigative detentions or "Terry stops," which are seizures that are justified only if articulable facts and reasonable inferences drawn from those facts support a reasonable suspicion that a person has committed or is committing a crime; and (3) arrests, which are seizures characterized by highly intrusive or lengthy detention and which require probable cause to believe that the arrestee has committed or is committing a crime. See United States v. Werking, 915 F.2d 1404, 1407 (10th Cir.1990). In this case, the government concedes that the officers had neither consent, reasonable suspicion, ¹ nor probable cause to stop the defendants' rental truck and, instead, invokes the doctrine governing a less common type of citizen-police encounter, the so-called "regulatory search."

A regulatory search is governed by the Fourth Amendment but 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. The origins of the regulatory search doctrine are traced to Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). The Supreme Court there held that, although health, safety, and fire inspectors could not insist on entering private homes without a search warrant, magistrates could issue warrants to conduct general area inspections without a showing of probable cause to believe that a violation had occurred in a particular building. Id. at 538, 87 S.Ct. at 1735-36. The Court emphasized that the warrant requirement eliminated the inspector's untrammeled discretion, id. at 532-33, 87 S.Ct. at 1732-33, and reasoned that the government's interest in conducting the inspections outweighed the relatively limited intrusion occasioned by such warrants, id. at 536-37, 87 S.Ct. at 1734-35.

Since Camara, the Supreme Court has expanded the reach of the regulatory search doctrine by permitting, in some circumstances, the warrantless searches of entities doing business in "closely regulated" industries. The Court recently summarized the closely regulated industry line of cases by articulating a three-part test for determining whether a warrant is required for a regulatory search:

First, there must be a "substantial" government interest that informs the regulatory scheme pursuant to which the inspection is made.

Second, the warrantless inspections must be "necessary to further [the] regulatory scheme."....

Finally, "the statute's inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant."

New York v. Burger, 482 U.S. 691, 702-03, 107 S.Ct. 2636, 2644, 96 L.Ed.2d 601 (1987) (quoting Donovan v. Dewey, 452 U.S. 594, 600, 602, 603, 101 S.Ct. 2534, 2540, 69 L.Ed.2d 262 (1981) (citations omitted); see also S & S Pawn Shop, Inc. v. City of Del City, 947 F.2d 432, 436 (10th Cir.1991); V-1 Oil Co. v. Wyoming, 902 F.2d 1482, 1485-86 (10th Cir.), cert. denied, 498 U.S. 920, 111 S.Ct. 295, 112 L.Ed.2d 249 (1990). To satisfy the third part of the test, the statute must perform two functions: (1) "it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope"; and (2) "it must limit the discretion of the inspecting officers." Burger, 482 U.S. at 703, 107 S.Ct. at 2644.

Before applying this test, however, the court must determine whether the industry involved is in fact a "closely regulated" one. See id. at 699-702, 107 S.Ct. at 2642-44. This initial determination is important because the justification for permitting warrantless searches is that persons doing business in...