Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Orozco

United States Court of Appeals, Ninth Circuit

June 1, 2017

United States of America, Plaintiff-Appellee,
v.
Victor Orozco, Defendant-Appellant.

          Argued and Submitted October 20, 2016 San Francisco, California

         Appeal from the United States District Court No. 3:13-cr-00048-MMD-WGC-1 for the District of Nevada Miranda M. Du, District Judge, Presiding

          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.

          Before: A. Wallace Tashima and Milan D. Smith, Jr., Circuit Judges, and Edward R. Korman, [*] Senior District Judge.

         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 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.

          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.

         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 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 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.