D.Nev.: Dual motive stop of truck for NAS level III safety inspection and looking for drugs was valid

An administrative stop of a tractor trailer for an NAS level III safety inspection with the dual motive of looking for drugs is valid. United States v. Orozco, 2015 U.S. Dist. LEXIS 10190 (D.Nev. January 28, 2015):

Generally, 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. United States v. McCarty, 648 F.3d 820, 833 (9th Cir. 2011) (citations omitted); see also United States v. Bowhay, 992 F.2d 229, 231 (9th Cir. 1993). In the context of general administrative schemes that do not require individualized suspicion, the inquiry into an officer’s motive is thus at the programmatic level, and the Court will otherwise not inquire into the minds of individual officers. City of Indianapolis v. Edmond, 531 U.S. 32, 45-46 (2000). The Ninth Circuit “has consistently held that if the scheme under which the administrative search is conducted is constitutional, the subjective motive of the individual conducting the search will not invalidate the search.” United States v. Bulacan, 156 F.3d 963, 966-67 (9th Cir. 1998) (citing Bowhay, 992 F.2d at 231).

After analyzing the relevant case law in the Ninth Circuit, the court in McCarty holds that, regardless of their subjective beliefs, officials are able to carry out a valid administrative inspection so long as “(1) the search was undertaken pursuant to a legitimate administrative search scheme; (2) the searcher’s actions are cabined to the scope of the permissible administrative search; and (3) there was no impermissible programmatic secondary motive for the search[.]” McCarty, 648 F.3d at 834-35 (citations omitted). The administrative search scheme in Bulacan provides an example of an improper secondary programmatic purpose. In that case, the officers performed administrative searches on entrants to a federal building. 156 F.3d at 965. The administrative search was primarily for weapons and explosives, “conducted in light of the heightened danger following the Oklahoma City bombing.” Id. at 968. However, the officers performing the administrative searches were also instructed to search for narcotics. Id. The Bulacan court held that “when an administrative search scheme encompasses both a permissible and an impermissible purpose, and when the officer conducting the search has broad discretion in carrying out the search, that search does not meet the Fourth Amendment’s reasonableness requirements.” Id. at 973 (emphasis added). Thus, “[c]entral to Bulacan’s holding was that the search scheme itself imposed an additional, impermissible motive unrelated to administrative purposes, such that individual officers, in exercising the broad discretion granted them, could conduct more extensive searches based on the secondary law enforcement-related motive.” McCarty, 648 F.3d at 833 (emphasis added) (citing Bulacan, 156 F.3d at 971, 973.).

In this case, the constitutionality of the administrative scheme allowing for NHP officers to carry out an NAS level III safety inspection of Orozco’s tractor trailer is not in dispute. Orozco does not argue that Trooper Zehr’s initiation of the stop of Orozco’s tractor trailer was itself outside of the scope permissible pursuant to an NAS level III safety inspection. Finally, and most crucially, Orozco fails to show that the administrative inspection scheme contained an impermissible secondary programmatic purpose. Orozco asserts that Troopers Zehr and Boynton testified that the use of an administrative stop to pursue an investigation “is a recognized and established practice by the Nevada Highway Patrol” and “an established and proper practice.” (Dkt. no. 76 at 2, 6.) However, Orozco mischaracterizes the testimony to which he cites. The relevant testimony from Trooper Boynton is that it is “common knowledge” that Troopers Zehr and Boynton can use their administrative inspection ability to stop a truck that they also believe to be involved in criminal activity. (Dkt. no. 75 at 216:7-17.) Trooper Boynton testifies to this after clearly stating that Orozco’s tractor trailer was stopped both for an administrative inspection and because they believed it was transporting drugs. (Id. at 215:22-25; 216:1-6.) The Court finds no evidence in this case that NHP officers are trained or instructed to investigate criminal activity while carrying out an administrative inspection, or that such an investigation is a part of the relevant administrative scheme. Further, there is no evidence that Troopers Zehr and Boynton were instructed to investigate criminal activity while carrying out their administrative inspection duties. The Court therefore determines that, although there were dual purposes in Trooper Zehr’s initiation of the stop, there was no impermissible purpose at the programmatic level that would render an otherwise permissible initiation of an NAS level III safety inspection invalid.

To hold otherwise would lead to an illogical result. Orozco is in effect asking the Court to find that Troopers Zehr and Boynton could have stopped any commercial motor vehicle for an NAS level III safety inspection without individualized suspicion except those vehicles suspected of criminal activity as in this case. The Ninth Circuit has considered and rejected this argument: “Tsai essentially asks us to conclude that the customary, relatively uninvasive warrantless search that he underwent would be permissible with respect to any passenger except those whom the INS had cause to suspect of criminal activity. But this would turn customary Fourth Amendment reasoning on its head.” United States v. Tsai, 282 F.3d 690, 695 (9th Cir. 2002).