U.S. v. Dominguez-Prieto, DOMINGUEZ-PRIET

• Decision Date: 17 January 1991
• Docket Number: No. 90-5781,DOMINGUEZ-PRIET,D,90-5781
• Citation: 923 F.2d 464
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robertoefendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 464

923 F.2d 464

UNITED STATES of America, Plaintiff-Appellee, v. Roberto DOMINGUEZ-PRIETO, Defendant-Appellant.

No. 90-5781.

United States Court of Appeals Sixth Circuit.

Argued Dec. 3, 1990.

Decided Jan. 17, 1991.

John W. Gill, Jr., U.S. Atty., Steven H. Cook, Asst. U.S. Atty. (argued), Chattanooga, Tenn., for plaintiff-appellee.

John C. Cavett, Jr. (argued), Jahn & Jahn, Chattanooga, Tenn., for defendant-appellant.

Before MARTIN and NELSON, Circuit Judges, and BROWN, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

The Tennessee Public Service Commission and its officers are granted certain authority, including the authority to regulate motor carriers pursuant to Title 65 of the Tennessee Code. Among the duties, responsibilities, and authority granted to the Public Service Commission and its officers is the permission to inspect the contents of motor carriers in certain circumstances. The sole question before this Court is whether the Public Service Commission violated Roberto Dominguez-Prieto's fourth amendment rights when it entered the trailer portion of the truck he operated. We hold that the warrantless search did not violate Dominguez-Prieto's fourth amendment rights because it was made pursuant to the pervasively regulated business doctrine.

Among the legislation controlling the duties, responsibilities, and authority of the Public Service Commission is the following statute:

Powers of public service commission.--(a) The public service commission is vested with power and authority, and it shall be its duty to:

(1) License, supervise and regulate every motor carrier in this state, and to fix or approve the rates, fares, charges, classifications and rules and regulations pertaining thereto;

(2) Regulate and supervise the schedules, service and method of operation of such motor carriers;

(3) Require the filing of annual and other reports and any other data;

(4) Require that the accounts and records of such motor carriers be kept and maintained in a manner consistent with good accounting practice; and

(5) Supervise and regulate motor carriers in all matters affecting the relationship between such motor carriers and the public.

(b)(1) The commission shall designate enforcement officers charged with the duty of policing and enforcing the provisions of this part and such enforcement officer shall have authority to make arrests for violation of any of the provisions of this part, orders, decisions, rules and regulations of the commission, or any part or portion thereof, and to serve any notice, order or subpoena issued by any court, the commission, its secretary or any employee authorized to issue same, and to this end shall have full authority throughout the state.

....

(3) Such enforcement officers upon reasonable belief that any motor vehicle is being operated in violation of any provisions of this part, shall be authorized to require the driver thereof to:

(A) Stop and exhibit the registration certificate issued for such vehicle;

(B) Submit to such enforcement officer for inspection any and all bills of lading, waybills, invoices or other evidences of the character of the lading being transported in such vehicle; and

(C) Permit such officer to inspect the contents of such vehicle for the purpose of comparing same with bills of lading, waybills, invoices or other evidence of ownership or of transportation for compensation.

(4) It shall be the further duty of such enforcement officers to impound any books, papers, bills of lading, waybills and invoices which would indicate the transportation service being performed is in violation of this part, subject to the further orders of the court having jurisdiction over the alleged violation.

(5) Such enforcement officers shall also have the above authority with respect to anyone who procures, aids or abets any motor carrier in violation of this part or in his failure to obey, observe or comply with this part, or any such order, decision, rule, regulation, direction or requirement of the commission, or any part or portion thereof.

....

(d) In order to carry out the purposes of this part, the commission shall recognize for rate making and other regulatory purposes, the following as separate categories of motor carriers:

(1) Carriers of general commodities over regular routes;

(2) Carriers of household goods;

(3) Carriers of petroleum and other commodities requiring tank equipment;

(4) Carriers of passengers over regular routes; and

(5) Such other categories as the commission may by rule determine.

(3) Except as inconsistent with the express terms and provisions of this part, the commission shall have the same power as to and over rates, practices, regulation, control and operation of motor vehicles, to which this part is applicable, as the commission now has under present law, with reference to railroads and utilities; provided, that nothing in this subsection is intended to impose regulations upon contract carriers except insofar as the nature and character of their business so justify under the constitutions of Tennessee and the United States and the valid laws made pursuant thereto.

TENN.CODE ANN. Sec. 65-15-106 (Supp.1990) (emphasis added).

On December 7, 1989, Dominguez-Prieto was driving a Kenworth tractor pulling a refrigerated trailer on Interstate 75 in Bradley County, Tennessee. Tennessee Public Service Commission Officer Reed Clayton pulled Dominguez-Prieto into a truck inspection station to make a routine examination for compliance with federal and state safety and hauling regulations. Officer Clayton had been a Public Service Commission employee for over three years at the time of this inspection and had performed around 3,000 such inspections.

Clayton noticed that, unlike the normal trucker, Dominguez-Prieto was visibly nervous and shaking. Clayton first asked for Dominguez-Prieto's bill of lading to which Dominguez-Prieto responded that he did not have one. Dominguez-Prieto told Officer Clayton that he was driving without a load from Houston, Texas to New York City. Officer Clayton had never before heard of anyone traveling with an empty tractor-trailer rig for more than three hours. A trip from Houston to New York would be approximately 1,600 miles. Officer Clayton then asked to examine Dominguez-Prieto's log book. Federal regulations require truckers to log travel time, departure and destination points, and points of change from duty to off-duty or vice versa. The regulations also require the trucker to keep this log book up-to-date. Dominguez-Prieto had not made any entry in his log book after December 1, 1989, six days prior to the inspection. In the thousand or more log books Officer Clayton had examined in 1989, only twenty or so were out of date and none that he could recall were as out of date as Dominguez-Prieto's. Officer Clayton also noticed the supposedly empty rig was padlocked. He found this to be "extremely unusual" and could not recall ever seeing an empty trailer padlocked.

After completing the inspection, Officer Clayton wrote up a citation on the log book and he talked with his sergeant about Dominguez-Prieto. He then asked Dominguez-Prieto if he could look into the trailer. While not denying entry, Dominguez-Prieto responded that he did not have the keys. Officer Clayton also found this to be inconsistent with his experiences: truckers with locked trailers normally have the keys to the lock.

Officer Clayton again talked with his sergeant about Dominguez-Prieto. They then, along with other officers at the inspection station, attempted to cut Dominguez-Prieto's trailer lock with bolt cutters. Because of the unusually large size of the lock, the officers were unsuccessful in removing it. They then borrowed an acetylene torch from a mechanic working on the lot and removed the lock with the torch. Inside, the officers found boxes filled with over 200 kilograms of cocaine. They then arrested Dominguez-Prieto. In a subsequent search of the cab, the officers found $538,470 and the keys to the trailer lock.

The Supreme Court has recognized an exception to the warrant requirement for searches of "closely" or "pervasively" regulated industries. See, e.g., Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981). This exception to the warrant requirement has undergone significant development over the years. The Supreme Court most recently addressed the doctrine in New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987).

In Burger, the Court held that a warrantless inspection of a pervasively regulated business is reasonable when three criteria are present:

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

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

[Third], "the statutes inspection program, in terms of certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant." ... In other words, the regulatory statute must perform the two basic functions of a warrant: 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 it must limit the discretion of the inspecting officers.

Burger, 482 U.S. at 702-03, 107 S.Ct. at 2644 (citations omitted).

In Burger, the Court addressed the specific question of "whether the warrantless search of an automobile junkyard, conducted pursuant to a statute authorizing such a search, falls within the exception to the warrant requirement for administrative inspections of pervasively regulated industries." Burger, 482 U.S. at 693, 107 S.Ct. at 2639. The state statute at issue in Burger required junkyard operators to maintain certain records. It further provided as follows:

Upon request of an agent of the commissioner or any police officer and during his regular and usual...