United States v. Victor Orozco ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF No. 15-10385
AMERICA,
Plaintiff-Appellee, D.C. No.
3:13-cr-00048-MMD-WGC-1
v.
VICTOR OROZCO, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Argued and Submitted October 20, 2016
San Francisco, California
Filed June 1, 2017
Before: A. Wallace Tashima and Milan D. Smith, Jr.,
Circuit Judges, and Edward R. Korman,* Senior District
Judge.
Opinion by Judge Korman
*
The Honorable Edward R. Korman, Senior District Judge for the
U.S. District Court for the Eastern District of New York, sitting by
designation.
2 UNITED STATES V. OROZCO
SUMMARY**
Criminal Law
The panel reversed the district court’s denial of a motion
to suppress, vacated a conviction for two counts of drug
possession arising from a stop of a tractor-trailer driven by
the defendant, and remanded for further proceedings.
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. The panel
held that the stop was not 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.
The panel held that an administrative scheme allowing
Nevada law enforcement officers to make stops of
commercial vehicles and conduct limited inspections without
reasonable suspicion was valid on its face because its purpose
was to ensure the safe operation of commercial vehicles. The
objective evidence in this case, however, established beyond
doubt that the stop of the defendant’s vehicle 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 a tip that the defendant was possibly carrying narcotics.
Accordingly, the stop was a pretextual stop that violated the
Fourth Amendment. The panel emphasized that the presence
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. OROZCO 3
of a criminal investigatory motive, by itself, does not render
an administrative stop pretextual, and nor does a dual
motive—one valid and one impermissible. Rather, the
defendant must show that the stop would not have occurred
in the absence of an impermissible reason.
COUNSEL
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.
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.
4 UNITED STATES V. OROZCO
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
UNITED STATES V. OROZCO 5
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
6 UNITED STATES V. OROZCO
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
UNITED STATES V. OROZCO 7
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 (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 (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. Prouse,
however, made clear that it was not “preclud[ing] the State of
8 UNITED STATES V. OROZCO
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 (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 (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
possibly be transporting drugs. Zehr put this tipster in contact
with Detective Sergeant Chris Brewer, of the Nevada
Division of Investigations. Shortly thereafter, on April 26,
Brewer received a call from the tipster regarding a specific
UNITED STATES V. OROZCO 9
commercial truck that “may possibly have controlled
substances.” The tipster told Brewer that this truck was red,
with a white box trailer and Michigan license plates.
The next day, April 27, 2013, the tipster again contacted
Brewer to provide an approximate time when the tractor-
trailer would be traveling through White Pine County,
Nevada, where Brewer was stationed. After receiving this
information, Sergeant Brewer “immediately” contacted
Trooper Zehr to “advise[] him of the vehicle and its location,”
and told him “that he would have to develop his own
probable cause to get the vehicle stopped” because “there
could possibly be drugs in the vehicle,” but “[t]here was
nothing solid.” Trooper Boynton testified that, at the time of
the stop, he knew “through some hearsay that there was a tip
about some possible transportation of narcotics.” Moreover,
Trooper Zehr testified that at least one of the reasons that he
made the stop was because he had been advised that Orozco’s
vehicle was “possibly engaging in criminal activity and could
possibly have drugs in the vehicle.”
After Zehr’s conversation with Brewer, Zehr and Trooper
Boynton “knew to be on the lookout for” Orozco’s truck.
They drove out to Mile Post 37 in White Pine County to wait
for it. When the truck arrived, Zehr had to pull out behind a
different commercial truck and drive past it in order to pull
over Orozco’s truck. Indeed, Troopers Zehr and Boynton
acknowledged that, even before they saw the truck, they
planned to stop it. Thus, Zehr gave the following testimony:
Q: Do you recall what your conversations
were with Trooper Boynton about locating
and stopping this truck?
10 UNITED STATES V. OROZCO
A: Yes.
Q: And what were those?
A: If the truck is located, we’ll both stop
it, or one of us will stop it, or one of us
will be close for backup for a more high
risk traffic stop.
Around 4:30 PM, as expected, they saw a red truck with
Michigan license plates drive past Mile Post 37. Zehr, taking
the lead, pulled the truck over. Boynton also pulled his car
behind the truck and assisted Zehr in questioning Orozco.
Although the troopers chose to target Orozco’s truck
because of the information in the tip, Zehr and Boynton went
through the motions of performing a NAS Level III
paperwork inspection. Notwithstanding numerous violations
of the commercial vehicle regulations discovered in the
course of the paperwork inspection, they did not issue a
citation. Instead, while the inspection was ongoing, Zehr
instructed Trooper Kelly Barney (“Barney”), another police
officer who was stationed nearby with a drug-sniffing dog, to
call the El Paso Intelligence Center (“EPIC”) (an inter-agency
facility that provides intelligence support to law enforcement)
regarding Orozco’s truck. Barney called EPIC, and learned
that Orozco had made several recent border crossings. Zehr
and Barney also discussed the possibility of performing a
canine sniff of the tractor-trailer, using the drug-sniffing dog.
Although they did not issue a citation, they did ask for, and
obtain, consent to search the tractor-trailer. Barney then
arrived with the dog, who made a positive alert as to the
presence of drugs, which was confirmed when the troopers
found a duffel bag containing twenty-six pounds of
UNITED STATES V. OROZCO 11
methamphetamine and six pounds of heroin in the sleeper
compartment.
III. The Motion to Suppress and The District Court’s
Ruling
Prior to trial, Orozco moved to suppress the drug evidence
on the ground that the NAS level III inspection was an
impermissible pretext “motivated by a desire to search for
evidence of drug trafficking, rather than to conduct a
commercial vehicle inspection.” United States v. Orozco, No.
3:13-cr-48, 2015 WL 370091, at *3 (D. Nev. Jan. 28, 2015).
The district court acknowledged that information from an
informant that Orozco was possibly carrying narcotic drugs
“was part of the reason Trooper Zehr stopped Orozco’s
vehicle for an administrative inspection.” Id. Nevertheless,
because Zehr testified that he also initiated the stop “to
conduct a safety inspection,” the district judge framed the
question presented as “whether such dual purposes render an
otherwise valid administrative stop illegal.” Id. She did so
without undertaking an analysis of the objective evidence to
determine that Zehr’s testimony was credible. Thus, she went
on to hold that “an officer having dual motives does not make
a warrantless search pretextual, so long as it is conducted
pursuant to a lawful administrative scheme with a
constitutionally permissible motivation.” Id. at *4. Because
NAS Level III safety inspections are part of a facially valid
administrative scheme, the district judge held that the stop of
Orozco’s truck was lawful.
On this appeal from a judgment convicting him of two
counts of possession with intent to distribute a controlled
substance for which he was sentenced to 192 months in
prison, Orozco argues that the district court erred by denying
12 UNITED STATES V. OROZCO
his motion to suppress on the ground that the “NAS Level III
inspection” was a pretext to investigate criminal activity. We
agree with the district court that a dual motive for a
suspicionless stop does not necessarily render it
impermissible. Nevertheless, we reverse the denial of
Orozco’s motion to suppress and vacate his judgment of
conviction, because the objective evidence clearly
demonstrates that, but for the officers’ belief that Orozco
might be carrying drugs, the stop never would have
happened.
DISCUSSION
The Fourth Amendment protects against “against
unreasonable searches and seizures.” U.S. Const. amend. IV.
“It is well established that a vehicle stop . . . effectuates a
seizure within the meaning of the Fourth Amendment.” City
of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000); see also
Brower v. Cty. of Inyo, 489 U.S. 593, 596–97 (1989) (holding
that a Fourth Amendment seizure occurs “when there is a
governmental termination of freedom of movement through
means intentionally applied”). Where the circumstances of
a vehicle stop, viewed objectively, are sufficient to justify the
detention based on either reasonable suspicion or probable
cause that a crime has been committed, the subjective intent
of the law enforcement officers is irrelevant. See Ashcroft v.
al-Kidd, 563 U.S. 731, 736 (2011).
We do not decide whether the Nevada troopers had
reasonable suspicion for the stop, because the U.S. Attorney
waived this argument by failing to address it in his answering
brief. See United States v. Gamboa-Cardenas, 508 F.3d 491,
402 (9th Cir. 2007) (holding that an argument not addressed
in an answering brief is waived). For the purposes of this
UNITED STATES V. OROZCO 13
appeal, we assume there was no reasonable suspicion for the
stop.
A different rule applies to “special-needs and
administrative-search cases, where ‘actual motivations’ do
matter.” Id. (quoting United States v. Knights, 534 U.S. 112,
122 (2001) (emphasis supplied). Significantly, in New York
v. Burger, 482 U.S. 691 (1987), the Supreme Court upheld
a regulatory scheme allowing for warrantless inspection of
automobile junkyards. Such inspections required neither
probable cause nor reasonable suspicion because the New
York Legislature had a “proper regulatory purpose[] for
enacting the administrative scheme” authorizing warrantless
inspections of vehicle dismantling businesses, and because
the statute authorizing the search “was not . . . a ‘pretext’ to
enable law enforcement authorities to gather evidence of
penal law violations.” Id. at 716–17 n.27. More
significantly, the Burger Court observed that there was “no
reason to believe” that the inspection in that case “was
actually a ‘pretext’ for obtaining evidence of respondent’s
violation of the penal laws.” Id. (citations omitted).
Indeed, in Whren v. United States, the Supreme Court
acknowledged its past “disapproval of police attempts to use
valid bases of action against citizens as pretexts for pursuing
other investigatory agendas.” 517 U.S. 806, 811 (1996).
Thus, it observed that, “in Florida v. Wells, 495 U.S. 1, 4
(1990), we stated that ‘an inventory search must not be a ruse
for a general rummaging in order to discover incriminating
evidence’; that in Colorado v. Bertine, 479 U.S. 367, 372
(1987), in approving an inventory search, we apparently
thought it significant that there had been ‘no showing that the
police, who were following standardized procedures, acted in
bad faith or for the sole purpose of investigation’; and that in
14 UNITED STATES V. OROZCO
New York v. Burger, 482 U.S. 691, 716–717 n. 27 (1987), we
observed, in upholding the constitutionality of a warrantless
administrative inspection, that the search did not appear to be
‘a “pretext” for obtaining evidence of . . . violation of . . .
penal laws.’” Id. (ellipses in original).
Similarly, the Supreme Court held in South Dakota v.
Opperman, 428 U.S. 364 (1976), that “there is no suggestion
whatever that this standard [inventory search] procedure,
essentially like that followed throughout the country, was a
pretext concealing an investigatory police motive.” Id. at
376. And again, in Edmond, decided after Whren, the
Supreme Court took cognizance of its disapproval of
pretextual searches that were undertaken pursuant to valid
administrative schemes. 531 U.S. at 45. More recently, the
Supreme Court held that although “[a] judicial warrant and
probable cause are not needed where the search or seizure is
justified by special needs, beyond the normal need for law
enforcement,” al-Kidd, 563 U.S. at 736 (internal quotation
marks omitted), “those exceptions do not apply where the
officer’s purpose is not to attend to the special needs or to the
investigation for which the administrative inspection is
justified.” Id. at 737 (emphasis supplied).
Because of this “reluctan[ce] to recognize exceptions to
the general rule of [requiring] individualized suspicion where
governmental authorities primarily pursue their general crime
control ends,” Edmond, 531 U.S. at 43, the Supreme Court,
in Edmond, extended the inquiry into purpose from individual
stops to checkpoint programs themselves. Thus, Edmond did
not involve a challenge to a particular administrative search
on the ground that the administrative rationale was a pretext.
Instead, the plaintiffs sought injunctive relief to stop the City
of Indianapolis from conducting a program of roadblock
UNITED STATES V. OROZCO 15
stops, for which reasonable suspicion was not required. Id.
at 36. This scheme had the primary programmatic purpose of
“the discovery and interdiction of illegal narcotics.” Id. at 34.
Stops made for this purpose, the plaintiffs argued, could only
be made based on reasonable suspicion or probable cause.
The City argued that the intrusion occasioned by such a stop
was the same as if the roadblocks were designed solely to
check for a license or the intoxication of the driver—and
therefore could be justified without reasonable suspicion as
a special needs or administrative search. Id. at 47–48. The
City argued that “where the government articulates and
pursues a legitimate interest for a suspicionless stop, courts
should not look behind that interest to determine whether the
government’s ‘primary purpose’ is valid.” Id. at 45 (internal
quotation marks omitted).
The Supreme Court rejected this argument and held that
the programmatic purpose of an administrative scheme “may
be relevant to the validity of Fourth Amendment intrusions
undertaken pursuant to a general scheme without
individualized suspicion.” Id. at 45–46. An inquiry into
programmatic purpose was necessary because, “in
determining whether individualized suspicion is required, we
must consider the nature of the interests threatened and their
connection to the particular law enforcement practices at
issue.” Id. at 42–43. Ultimately, after considering the nature
of the interest threatened—“the severe and intractable nature
of the drug problem,” id. at 42— the Supreme Court held that
the narcotics detection could not be justified as a valid
administrative purpose.
While Edmond had no occasion to address directly the
purpose of law enforcement officers who act to enforce a
valid administrative scheme, there is one arguably ambiguous
16 UNITED STATES V. OROZCO
sentence at the end of the opinion in which the Supreme
Court cautioned that “the purpose inquiry in this context is to
be conducted only at the programmatic level and is not an
invitation to probe the minds of individual officers acting at
the scene.” Id. at 48. We do not read this dictum as
undermining the long line of Supreme Court cases
demonstrating a concern for pretext, even where searches or
seizures are undertaken by those charged with enforcing a
valid administrative scheme. Instead, it appears to apply, as
the Supreme Court said, “in this context”—namely, in the
context of an invalid programmatic scheme like the one at
issue in Edmond. In this context, because the drug
checkpoint scheme violates the Fourth Amendment, the fact
that the individual officer is not looking for evidence of crime
will not salvage the validity of a suspicionless stop.
The present case involves the inverse of Edmond.
Because the programmatic purpose of the Nevada inspection
scheme may be valid, a stop undertaken in furtherance of that
purpose does not violate the Fourth Amendment, even if
reasonable suspicion or probable cause is lacking.
Nevertheless, it could hardly be that a suspicionless stop
made for reasons unrelated to the programmatic purpose of
the scheme is valid simply because it is undertaken by those
charged with enforcing that scheme. Indeed, that is why, as
we have shown, when the Supreme Court has upheld
particular administrative or special needs programs, it has
consistently observed that those programs, and the searches
and seizures conducted pursuant to them, did not appear to be
pretexts for obtaining evidence of criminal activity.
Otherwise, a valid programmatic purpose, as in the present
case, which confers “unbridled discretion [on] police
officers,” Prouse, 440 U.S. at 663, would become a license to
undertake pretextual stops of commercial vehicles for
UNITED STATES V. OROZCO 17
evidence of criminal activity or any other impermissible
reason, such as the race or nationality of the driver. Cf.
United States v. Carrizoza-Gaxiola, 523 F.2d 239, 240 (9th
Cir. 1975) (listing as one of the reasons for a stop that the
driver “appeared to be Mexican”).
The Supreme Court’s express concern that programmatic
searches not be used as a pretext necessarily requires an
inquiry into an officer’s purpose in conducting a stop or
search without reasonable suspicion or probable cause, when
such an intrusion is sought to be justified pursuant to the
administrative search doctrine, and where the defendant has
come forward with objective evidence to suggest that the
intrusion was not made for the purpose of enforcing the
administrative inspection scheme. Indeed, our precedents
support the need for such an inquiry. Thus, while we have
declined to inquire into an officer’s subjective purpose in the
absence of “objective evidence supporting a charge of
pretext,” United States v. Wilson, 7 F.3d 828, 833 (9th Cir.
1993); see also United States v. Soyland, 3 F.3d 1312, 1314
(9th Cir. 1993); United States v. Koshnevis, 979 F.2d 691,
694 (9th Cir. 1992); United States v. Barnett, 935 F.2d 178,
181 (9th Cir. 1991), we have found pretext where the police
officers admitted that their subjective purpose was to find
evidence of crime. See United States v. Hellman, 556 F.2d
442, 444 (9th Cir. 1977) (“Here it is clear from the testimony
of the searching officer that the citation, the impounding and
the inventorying [of the defendant’s vehicle] all were for ‘an
investigatory police motive.’ This alone is sufficient to
conclude that the warrantless search of the car was
unreasonable.”).
We emphasize that the presence of a criminal
investigatory motive, by itself, does not render an
18 UNITED STATES V. OROZCO
administrative stop pretextual. See United States v. Tsai,
282 F.3d 690, 695 (9th Cir. 2002); see also United States v.
Goldfine, 538 F.2d 815, 819 (9th Cir. 1976) (declining to
adopt rule that agent can only conduct search if and only if he
had no reason to suspect a possible violation of law). Nor
does a dual motive—one valid, and one impermissible.
“More is involved than the mere expectation that
incriminating evidence might be found; the pretext arises out
of the fact that the evidence is found in a search which would
not have occurred at all . . . .” 3 WAYNE R. LEFAVE, SEARCH
AND SEIZURE 902 (5th ed. 2012). Thus, “[w]e apply an
objective test to determine whether a stop made for an
ostensibly legal reason is a pretext for what is, in reality, an
impermissible reason.” United States v. Maestas, 2 F.3d
1485, 1489 (10th Cir. 1993) (citations omitted). More
specifically, “we ask whether the officer would have made the
stop in the absence of the invalid purpose. Thus, in order to
prove that a stop is unreasonably pretextual, a defendant must
show that the stop would not have occurred in the absence of
an impermissible reason.” Id. (citations omitted) (emphasis
in original). Orozco has met his burden of making such a
showing here.
The objective evidence clearly establishes that the only
reason for the stop was the officers’ belief that Orozco could
possibly be hauling marijuana or methamphetamine in his
tractor-trailer. We focus on two such sources of evidence.
First, the manner in which the stop itself was conducted
strongly suggests that it was wholly pretextual. Briefly, as
discussed above, after receiving a tip about the location of
Orozco’s truck, Sergeant Brewer “immediately” contacted
Trooper Zehr to “advise[] him of the vehicle and its location.”
After this conversation, the troopers drove out to Mile Post 37
in White Pine County, to “be on the lookout for” Orozco’s
UNITED STATES V. OROZCO 19
truck. Thus, but for the tip, the officers would not even have
been in position to stop the truck. When the truck arrived,
Zehr had to pull out behind a different commercial truck and
drive past it in order to pull over Orozco’s truck. Indeed,
arrangements had apparently been made for a drug-sniffing
dog to be stationed less than a mile away.
Second, we find significant Trooper Boynton’s testimony
regarding the use of administrative inspections as a pretext to
investigate criminal activity, and more specifically, his
testimony regarding “common knowledge.” We disagree
with the district court’s suggestion that it was common
knowledge only that Troopers Zehr and Boynton, as opposed
to Nevada troopers in general, understood that they could use
administrative inspections to investigate criminal activity.
That reading simply cannot be reconciled with the language
Boynton used: when law enforcement officers testify that it
is “common knowledge that you can do that,” they are
obviously referring to knowledge of practices possessed by
those officers charged with enforcing the administrative
scheme.
Moreover, even if the “common knowledge” were limited
to the practice followed by Zehr and Boynton, the failure of
their superiors to stop them from using the scheme in this
way may be sufficient to elevate it to a policy and practice
that precludes reliance on an otherwise valid administrative
scheme. As Judge Kozinski has observed, citing cases
relating to 42 U.S.C. § 1983,1 which impose liability on
1
See City of St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988)
(plurality opinion) (potential section 1983 liability “if a series of decisions
by a subordinate official manifested a ‘custom or usage’ of which the
supervisor must have been aware”); Gillette v. Delmore, 979 F.2d 1342,
20 UNITED STATES V. OROZCO
municipalities and supervisory officers for their policies,
customs, and practices, “[w]hile these cases arise in a
somewhat different context, they provide an apt analogy to
our situation. Because administrative searches are so easily
diverted from their narrowly defined purposes, government
officials have an affirmative responsibility to keep them from
being misused. Acquiescence in a custom or practice that
routinely disregards the limits of particular administrative
searches might itself be sufficient to establish a breach of this
responsibility.” United States v. Soyland, 3 F.3d 1312, 1318
n.11 (9th Cir. 1993) (Kozinski, J., concurring in part and
dissenting in part).2 Nevertheless, even under the crabbed
construction the district judge placed on Boynton’s testimony
regarding “common knowledge,” it significantly adds to the
objective evidence that the stop in this case was pretextual.
Indeed, our conclusion that the stop was pretextual is
buttressed by the Assistant U.S. Attorney’s oral concession
that, but for the tip, the officers would not have stopped the
1349 (9th Cir.1992) (custom or informal policy may be proven through
“evidence of repeated constitutional violations for which the errant
municipal officials were not discharged or reprimanded”); Oviatt by and
through Waugh v. Pearce, 954 F.2d 1470, 1477 (9th Cir.1992)
(policymaker’s inaction in face of problem constituted policy for purposes
of section 1983 liability).
2
The Soyland majority did not take issue with Judge Kozinski’s
argument. Instead, it observed that “[the defendant] does not argue and
no objective evidence demonstrates” that the Border Patrol, “in
establishing the checkpoint, intended to search for illegal drugs under the
pretext of searching for undocumented aliens.” 3 F.3d at 1314. Under the
circumstances, it had “no occasion to address the issue of whether
checkpoint officers routinely overstep their authority by conducting
pretextual narcotics searches.” Id. Judge Kozinski argued that the
defendant was entitled to discovery on this issue. Id. at 1319.
UNITED STATES V. OROZCO 21
defendant’s truck. United States Court of Appeals for the
Ninth Circuit, 15-10385 USA v. Victor Orozco, YOUTUBE
(Oct. 20, 2016), https://www.youtube.com/watch?v=MUC
AvREwbTs, at 18:30–19:30. In a post-argument letter, he
sought to retract that concession in a way that only reinforced
it, writing: “I would have been correct to say that the officers
had no other specific reason to choose defendant’s truck for
an administrative inspection.” ECF No. 44.
United States v. McCarty, 648 F.3d 820 (9th Cir. 2011),
as amended (Sept. 9, 2011), upon which the district court
relied, does not hold that a pretextual stop is valid simply
because law enforcement officers can point to a valid
programmatic scheme that they are charged with enforcing.
In that case, McCarty checked bags that were subject to a
mandatory TSA screening process. They were scanned using
a CTX 5500 DS security x-ray machine, which alerted TSA
officials that one of the bags had an unusually dense item
that, under TSA policy, automatically required further
inspection. Id. at 824. In one of the envelopes in the bag, a
screener found photographs that looked “improper” because
they depicted nude children. Id. at 836–37. One of the
screeners also read lines from newspaper clippings and letters
in McCarty’s bag in order to determine whether children had
been harmed. Id.This conduct persuaded the district court in that case that
the TSA screener “searched the photographs in the envelope
not for sheet explosives but for evidence of child
pornography.” United States v. McCarty, 672 F. Supp. 2d
1085, 1097 n.8 (D. Haw. 2009), vacated, 648 F.3d 820 (9th
Cir. 2011), as amended (Sept. 9, 2011). Significantly, it
accepted testimony “that a packet of photographs may cause
a dense item alarm and TSA protocol requires the TSA
22 UNITED STATES V. OROZCO
employee to ensure that the photographs do not include any
sheet explosives.” Id. at 1098. Nevertheless, it found that the
testimony “does not establish that [the TSA employees]
examined the photographs for sheet explosives—rather, after
they noticed the photographs that were initially visible they
inspected the content of additional photographs for the
purpose of determining their criminal nature.” Id. (emphasis
in original).
We agreed with the district court in that case that “the
scope of the permissible search—mandated by the TSA
protocol—was defined by the point at which the screener was
convinced the bag posed no threat to airline safety.”
McCarty, 648 F.3d at 836. More specifically, a TSA screener
is “required to leaf or thumb through the stack of photographs
until she is sure there are no sheet explosives.” Id. at 825(emphasis supplied). Nevertheless, we reversed as clearly
erroneous the district court’s finding that the TSA screener
“searched the photographs in the envelope not for sheet
explosives but for evidence of child pornography,” McCarty,
672 F. Supp. 2d at 1097 n.8—a finding for which we could
find “no support in the record.” McCarty, 648 F.3d at 836.
Once the district court’s factual finding was reversed,
McCarty became an easy case.3 Thus, even an “unlawful
secondary search purpose” does not “invalidate [an]
otherwise lawful administrative . . . search” when, as in
3
Our finding in McCarty was comparable to the factual finding in
Colorado v. Bertine, where the Supreme Court emphasized that “the trial
court found that the Police Department’s procedures mandated the
opening of closed containers and the listing of their contents.” 479 U.S.
at 374 n. 6. And that, accordingly, an inventory search conducted
pursuant to the mandated procedures complied with the Supreme Court’s
consistently articulated “requirement that inventories be conducted
according to standardized criteria.” Id.UNITED STATES V. OROZCO 23
McCarty, “the searching officer’s actions would have been
the same regardless of his true motivation.” Id. at 833
(citations and internal quotation marks omitted); see also
United States v. Bowhay, 992 F.2d 229, 231 (9th Cir. 1993)
(“When the police conduct would have been the same
regardless of the officer’s subjective state of mind, no
purpose is served by attempting to tease out the officer’s
‘true’ motivation.”) (citing Horton v. California, 496 U.S.
128 (1990)).
We observe that our inquiry into the purpose of the search
of the photographs would have been unnecessary if the
purpose of the TSA screener was irrelevant simply because
the justification proffered for the search was that it had been
undertaken pursuant to a valid administrative program—a
position that McCarty appeared to have accepted at an earlier
point in its discussion of the applicable law. There, we read
City of Indianapolis v. Edmond as suggesting that where “the
search is ‘undertaken pursuant to a general scheme without
individualized suspicion,’” al-Kidd, 131 S.Ct. at 2081(quoting Edmond, 531 U.S. at 45–46, 121 S.Ct. 447),
consideration of the government actor’s actual motivation has
been limited to an inquiry into the programmatic purposes
motivating the search.” Id. at 832–33 (emphasis in original).
Our discussion of Edmond, above, analyzed this dictum.
Nevertheless, to the extent that McCarty suggests that the
Edmond dictum precludes an inquiry into pretext, that view
would beg the question of whether a particular search was in
fact “undertaken pursuant” to a valid administrative scheme,
or whether the invocation of the scheme was wholly
pretextual—an inquiry that a line of Supreme Court and
Ninth Circuit cases say is necessary, and that McCarty
actually undertook.
24 UNITED STATES V. OROZCO
Turning back to the case at hand, the only purpose of the
stop of Orozco’s truck was to investigate criminal activity.
There was no secondary administrative purpose at all—only
a charade to camouflage the real purpose of the stop. Indeed,
the present case is distinguishable from McCarty principally
because it involved a seizure that would not have taken place
were it not for the fact that the officers intended to search for
evidence of criminal activity. While we reject the district
judge’s finding the Nevada troopers had a “dual motive” for
stopping Orozco’s truck, her holding that “having dual
motives does not make a warrantless search pretextual”
avoids the critical question whether the stop of Orozco’s
truck would have been made at all if the Nevada troopers
were not acting on the information that it was “possibly”
carrying drugs. The objective evidence demonstrates that the
answer to that question is no.
CONCLUSION
The judgment of conviction is REVERSED, and the case
is REMANDED for further proceedings consistent with this
opinion.