U.S. v. Fort

• Decision Date: 17 April 2001
• Docket Number: No. 00-10418,00-10418
• Citation: 248 F.3d 475
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALVESTER FORT, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 475

248 F.3d 475 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALVESTER FORT, Defendant-Appellant

No. 00-10418

UNITED STATES COURT OF APPEALS, Fifth Circuit

April 17, 2001

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Northern District of Texas.

Before FARRIS,^* JOLLY, and DAVIS, Circuit Judges.

FARRIS, Circuit Judge:

This is an appeal from a conviction and sentence imposed following Alvester Fort's guilty plea to a one-count indictment charging him with possession with intent to distribute approximately 561.2 pounds of marijuana, in violation of 21 U.S.C. 841(a)(1).

Fort's conviction arose from the stop of his commercial truck by a Texas Department of Public Safety officer, Mike Scales. Fort filed a motion to suppress all evidence obtained as a result of this stop and the subsequent seizure of his truck. The district court denied the motion. See United States v. Fort, 81 F. Supp 2d. 694 (N.D. Tex. 2000). Fort then entered a conditional guilty plea pursuant to a plea agreement, expressly reserving the right to appeal the denial of the motion to suppress.

The parties stipulated that Officer Scales "stopped the truck to conduct a routine commercial inspection." Testimony that might have provided probable cause for the stop was stricken, and the right to argue those facts was specifically waived at the suppression hearing.

Scales' safety inspection revealed violations. Further, as Scales was conducting the safety inspection, he ran a license and wanted persons check on Fort, the driver. It revealed that the State of Louisiana had issued a warrant for Fort's arrest because of a parole violation. The underlying offense for the Louisiana warrant was possession of marijuana with intent to deliver. Further, the search of the truck was with Fort's consent.

The threshold question is whether the statute provided a basis for the warrantless stop, thereby justifying denial of the motion to suppress. Fort raises two additional issues: one that concerns the suppression denial and one that involves the constitutionality of 21 U.S.C. 841 in light of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). We affirm.

STANDARDS OF REVIEW

In considering a district court's ruling on a motion to suppress, questions of law are reviewed de novo and factual findings are reviewed for clear error. See United States v. Richard, 994 F.2d 244, 247 (5th Cir. 1993). Issues that are not raised in the district court are reviewed for plain error. See United States v. Knowles, 29 F.3d 947, 950-51 (5th Cir. 1994).

I. Statutory Authority for the Stop

Fort contends that the district court erroneously determined that the officer's stop of his truck was justified as a regulatory seizure. He argues that the Texas statutes the district court relied upon do not authorize the stop of a moving vehicle without probable cause or reasonable suspicion.

The district court relied on United States v. Burch, 153 F.3d 1140 (10th Cir. 1998), to provide the framework for considering Fort's argument that the warrantless stop violated his Fourth Amendment rights. In Burch, the Tenth Circuit analyzed a stop and concluded that the officer's action was justified at its inception pursuant to the regulatory exception to the Fourth Amendment's warrant requirement announced in New York v. Burger, 482 U.S. 691, 702-03 (1987). See Burch, 153 F.3d at 1141-42.¹ In the instant case, the district court concluded that the stop of Fort's truck was justified as a regulatory seizure, relying on Tex. Transp. Code Ann. 644.103(a), which provides that an officer "may enter or detain on a highway or at a port of entry a motor vehicle that is subject to this chapter," and 644.104(a)(1), which authorizes officers to enter a motor carrier's premises to inspect real property, including a building, or equipment.

Fort contends that the statutory authority under section 644.103 to detain a vehicle does not confer authority to stop it in the first place.² The government responds that the term "detain" under section 644.103 includes the authority to stop a vehicle, relying on a definition from a previous edition of Black's Law Dictionary 535 (4th ed. 1951), and on the rule that words are to be construed according to common usage and common sense, see Tex. Govt. Code Ann. 311.011.

The interpretation of the Texas statutes relied upon by the district court is an issue of first impression. Neither the state courts nor the Fifth Circuit have addressed whether either statute provides authority for an officer to stop a vehicle in the absence of probable cause or reasonable suspicion. The only Texas case that has addressed section 644.103 involved a stop for which the officer had probable cause. See $217,590.00 In United States Currency v. State, 970 S.W.2d 660, 664-65 (Tex. App. 1998) (en banc), rev'd on other grounds, 18 S.W.3d 631 (Tex. 2000). The court therefore relied upon section 644.103 solely to support the officer's subsequent detention and inspection of the vehicle. See id. at 665.

If section 644.103 had simply provided "stop" and "detain," its intent would be clear. Instead, we must determine whether "stop" is interchangeable with "detain," so as to render section 644.103 sufficient statutory authority for a vehicle stop. We hold that under the circumstances it must be considered so. It is impossible to "detain" a moving vehicle, as Fort's truck clearly was, unless the vehicle is first brought to a stop. We therefore conclude that the district court did not err by ruling that sections 644.103 and 644.104 authorized the stop.³

Because we agree with the district court that the Texas statutes provided authority to stop the truck, we must now determine whether the warrantless stop and inspection of the truck were permitted under the regulatory exception to the warrant requirement announced in New York v. Burger, 482 U.S. 691 (1987).

II. The statutes satisfy the requirements of Burger

The district court concluded that the stop and inspection were permissible under Burger's warrant exception for closely or pervasively regulated industries. See Burger, 482 U.S. at 702-03; cf. United States v. Hernandez, 901 F.2d 1217, 1221 n.4 (5th Cir. 1990) (noting that the state may regulate commercial trucking).

Fort contends, however, that Delaware v. Prouse, 440 U.S. 648 (1979) is the controlling authority, rather than Burger. Prouse held that random stops of vehicles involving officers' unconstrained exercise of discretion to check driver's licenses in the absence of articulable suspicion violated the Fourth Amendment. See id. at 662-63, 99 S.Ct. 1391. Fort contends that the random stop of his truck was based upon the unfettered discretion of the officer, and argues that if the Texas statutory scheme confers such discretion, then it does not satisfy the test for warrantless regulatory searches under Burger, 482 U.S. at 702-03. We agree with the government that Prouse itself recognized an exception based upon regulatory inspections. See Prouse, 440 U.S. at 663 n.26 (noting that its holding did not cast doubt on permissibility of truck weigh-in stations and checkpoints).⁴ We conclude therefore that the Burger analysis is applicable to the stop and inspection of Fort's truck.

A warrantless inspection of a pervasively regulated business is valid under Burger if: 1) there is a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made; 2) the inspection is necessary to further the regulatory scheme; and 3) the statutory or regulatory scheme provides a constitutionally adequate substitute for a warrant. See Burger, 482 U.S. at 702-03.

A. Prerequisite to Application of Burger: Trucking is pervasively regulated.

Fort initially contends that commercial trucking is not a pervasively regulated industry. Although we have not previously addressed this issue, three of our sister circuits have concluded that Burger does apply to the commercial trucking industry. See United States v. Burch, 153 F.3d 1140, 1141-42 (10th Cir. 1998) (applying Burger test to stop of a semi-tractor/trailer rig); V-1 Oil Co. v. Means, 94 F.3d 1420, 1426-28 (10th Cir. 1996) (analyzing random safety inspection of a commercial vehicle under Burger); United States v. V-1 Oil Co., 63 F.3d 909, 911 (9th Cir. 1995) (applying the Burger test to inspection of a facility because its trucks hauled hazardous materials); United States v. Dominguez-Prieto, 923 F.2d 464, 468 (6th Cir. 1991) (concluding that commercial trucking is a pervasively regulated industry).

Because commercial trucking is governed by extensive federal and state regulations, the district court correctly concluded that Burger was applicable. See Dominguez-Prieto, 923 F.2d at 468; Hernandez, 901 F.2d at 1221 n.4.

B. 1st Prong: There is a substantial government interest.

The district court correctly concluded that the state has a substantial interest in traveler safety and in reducing taxpayer costs that stem from personal injuries and property damage caused by commercial motor carriers. Cf. Dominguez-Prieto, 923 F.2d at 468 (concluding that the safe operation of large commercial vehicles satisfies the "substantial interest" prong).

C. 2d Prong: Warrantless stop and inspection are necessary.

Fort contends that unfettered discretion of officers to stop commercial vehicles is not necessary to promote the State's interest in traveler safety through the regulation of commercial vehicles. As it has been framed, the issue is not whether warrantless inspections are necessary to further the statutory scheme, but taking one step back, whether unfettered discretion in deciding to make the stop in order to perform the inspection is necessary. We reject Fort's importation of the Prouse standard into the Burger analysis. The district court concluded that warrantless stops and inspections are necessary under Burger because Texas must be able to conduct driver and vehicle...