United States v. Orozco, (9th Cir. 2017)
Troopers received a tip that a tractor-trailer with a white box trailer and Michigan license plates was carrying illegal drugs. Told that he would need to observe his own basis for a stop, a trooper sat near the freeway watching for the truck. The trooper and a partner stopped the truck and performed a North American Standard Level III commercial vehicle inspection.
As the troopers were conducting the truck inspection, another trooper deployed a detector dog for a sniff. Following a positive final response, and with the consent of the driver, Orozco, the troopers searched the sleeper cab. They found 26 pounds of methamphetamine and 6 pounds of heroin.
Orozco asked the court to suppress the drugs, asserting that the Level III truck inspection was an impermissible pretext and the trooper’s only motivation in stopping him was to search for drugs. The court agreed. The drugs were excluded as evidence.
Carefully understanding the court’s logic and the interplay with the permissible pretext doctrine of Whren v. United States (517 U.S. 806 (1996)) will help officers avoid similar results. Each state that receives federal highway funds must have a commercial vehicle safety plan. The Federal Motor Carrier Safety Administration state public safety partners conduct approximately 3.4 million truck and bus roadside inspections each year. The commercial vehicle inspection and traffic enforcement programs are intended to reduce serious driver and vehicle violations, prevent crashes and save lives. Reliable estimates show that commercial vehicle enforcement and inspections prevent roughly 15,000 crashes and save about 500 lives each year.
Orozco began his appellate argument with one strong point in his favor. The prosecution conceded there was no reasonable suspicion for the stop, though the reasons for this critical concession are not entirely clear from the record. Thus, the court was left to consider whether stopping Orozco for reasons unrelated to administrative purposes of the motor carrier safety plan scheme was an unlawful pretext.
In Whren v. United States, the Supreme Court ruled that no Fourth Amendment violation occurs for a traffic stop based on a minor violation when the violation is a pretext rather than the actual motivation for the stop. The Supreme Court reaffirmed its rejection of subjective pretext as an unreasonable basis for a stop in Arkansas v. Sullivan (532 U.S. 769 (2001)).
These permissible-pretext cases dealt with drug crime investigation stops where the officers based the stops on traffic violations—not on an administrative or regulatory inspection scheme. However, the Supreme Court has scrutinized the subjective motives of police officers in a number of administrative search cases and certain special-needs searches (United States v. Knights, 534 U.S. 112 (2001)). The administrative inspection scheme in Orozco’s case allowed officers to randomly stop commercial vehicles and conduct limited safety inspections without any suspicion. Investigatory purposes and motives may not matter in pretext stops that follow witnessed violations, but motives matter when relying on administrative search doctrines.
The prosecution conceded “that, but for the tip, the officers would not have stopped” Orozco. One of the troopers testified it was “common knowledge that if you suspect criminal activity, that you can use your administrative powers to make a stop.” To be clear, that’s not the law. If an officer suspects criminal activity and observes a violation—even a minor traffic violation—a lawful stop can follow. But if an officer suspects criminal activity and there is no reasonable suspicion of a violation—as the prosecution conceded in this case—the stop is unlawful.
Thus, the court’s interpretation of the pretext doctrine, and its decision that the stop of Orozco was illegal, is narrowly limited to a situation where the prosecution can show no evidence of at least some reasonable suspicion of a violation. The court emphasized “that the presence of a criminal investigatory motive, by itself, does not render an administrative stop pretextual … Nor does a dual motive—one valid, and one impermissible.”