Commercial vehicles are subject to administrative stops for compliance inspections without reasonable suspicion. When, however, the use of the stop is predicated on pretext for criminal investigation, the stop and its continuation require reasonable suspicion. Here, that was lacking, and defendant’s consent obtained after the truck had been detained a hour was involuntary. United States v. Orozco, 2017 U.S. App. LEXIS 9659 (9th Cir. June 1, 2017):
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.
. . .
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 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 administrative stop pretextual. …
