A stop of a regulated truck for a regulatory inspection by an nonregulatory officer was unreasonable under the administrative search doctrine. Otherwise, it upends the Burger scheme. United States v. Feliciana, 2020 U.S. App. LEXIS 28881 (4th Cir. Sept. 11, 2020):
In the alternative, the Government argues that Officer Alto did not need reasonable suspicion for the seizure because he stopped Feliciana to conduct a permissible warrantless administrative inspection. A warrantless inspection of a pervasively regulated business may be reasonable under the Fourth Amendment if three criteria are met. “First, there must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made.” Burger, 482 U.S. at 702 (internal quotation marks omitted). “Second, the warrantless inspections must be necessary to further the regulatory scheme.” Id. (internal quotation marks and brackets omitted). Third, “the statute’s inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant,” that is, it must “advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope,” and it must “limit the discretion of the inspecting officers.” Id. at 703 (internal quotation marks and brackets omitted).
As these criteria indicate, we must first identify the regulatory scheme that authorized Officer Alto to stop Feliciana’s vehicle without a warrant or suspicion before we can evaluate whether that scheme and its execution here satisfy the Fourth Amendment. The Government relies on the Federal Motor Carrier Safety Administration (FMCSA) regulations governing the commercial trucking industry. In particular, 49 C.F.R. § 396.9(a) provides: “Every special agent of the [FMCSA] … is authorized to enter upon and perform inspections of a motor carrier’s vehicles in operation and intermodal equipment in operation.” The regulation goes on to require that the inspector use a particular report to record the results of motor vehicle and intermodal equipment inspections, which report covers equipment such as the parking brake, steering mechanism, lighting devices and reflectors, tires, horn, wheels and rims, and so forth. 49 C.F.R. §§ 396.9(b), 396.11. The driver must then deliver the report to the motor carrier or equipment provider, who must examine the report and correct violations or defects. Id. § 396.9(d).
While Section 396.9(a) appears to authorize warrantless inspections of a motor carrier’s vehicles in operation, the problem for the Government is that Officer Alto did not stop Feliciana pursuant to this or any other FMCSA regulation. He never suggested as much to Feliciana during the stop or at the suppression hearing, and the Government does not argue otherwise on appeal. As the Government admits in its brief, Officer Alto stopped Feliciana “to determine whether [he] had the requisite permits to drive on the Parkway,” as required by the NPS regulations. Response Br. 26.
The Government observes that other courts of appeals, citing the FMCSA regulations and state statutes, have held that commercial trucking is a pervasively regulated industry subject to Burger’s administrative inspection exception. See United States v. Delgado, 545 F.3d 1195, 1202 (9th Cir. 2008); United States v. Maldonado, 356 F.3d 130, 135 (1st Cir. 2004); United States v. Vasquez-Castillo, 258 F.3d 1207, 1210 (10th Cir. 2001); United States v. Fort, 248 F.3d 475, 480 (5th Cir. 2001); United States v. Dominguez-Prieto, 923 F.2d 464, 468 (6th Cir. 1991). That may be true, but here it puts the cart before the horse. In every case on which the Government relies, the officer actually stopped or searched the defendant’s truck as part of an administrative inspection pursuant to statutory or regulatory authority. See Delgado, 545 F.3d at 1198; Maldonado, 356 F.3d at 132; Vasquez-Castillo, 258 F.3d at 1209; Fort, 248 F.3d at 478; Dominguez-Prieto, 923 F.2d at 466. That is not the case here. Our analysis therefore ends before we reach the question whether commercial trucking is a pervasively regulated industry, because Officer Alto was not acting pursuant to commercial trucking regulations when he stopped Feliciana’s vehicle.
In other words, the Government cannot justify the constitutionality of this traffic stop by relying on a regulatory scheme that was not the basis for the stop. Doing so would render Burger’s criteria for assessing constitutionality a farce. Each of those criteria is rightly applied to “the regulatory scheme pursuant to which the inspection is made.” Burger, 482 U.S. at 702; see id. at 703 (focusing on the scope and limits of the particular statute authorizing the inspection); LeSueur-Richmond Slate Corp. v. Fehrer, 666 F.3d 261, 264-265 (4th Cir. 2012) (same). For example, Burger asks whether “the statute’s inspection program” “advise[s] the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope” and whether it “limit[s] the discretion of the inspecting officers.” Burger, 482 U.S. at 703 (internal quotation marks omitted). It makes no sense for us to assess whether Section 369.9(a) and related FMCSA regulations satisfy these criteria in the abstract when they were not the basis for the stop here.
Furthermore, an inspection pursuant to Section 369.9(a) may be conducted only by a “special agent of the FMCSA,” and nothing in the record indicates that Officer Alto is such an agent. 49 C.F.R. § 396.9(a); see id. Ch. III, Subch. B, App. B(3) (“Special agents are [FMCSA] employees who are identified by credentials issued by the FMCSA authorizing them to enforce [relevant statutes and regulations].”); see, e.g., Maldonado, 356 F.3d at 132 (noting that the patrolman in that case was also an agent of the FMCSA authorized to conduct inspections under these regulations and to carry the requisite inspection forms). Officer Alto testified that he was “certified as a federal commercial vehicle inspector,” J.A. 59, but the Government does not suggest that credential, or any other, qualified Officer Alto as a special agent of the FMCSA authorized to conduct inspections pursuant to these regulations. And, despite the Government’s argument to the contrary, it should go without saying that the officer conducting an administrative inspection must be authorized by the relevant statute or regulation to do so. See Burger, 482 U.S. at 717 (noting that the state statute permitted “police officers … to conduct the … inspection” at issue). The Government has failed to carry its burden to show that Officer Alto was so authorized.
Unlike the Government, the district court focused its Burger analysis on NPS regulations, finding that the Parkway “constitutes a ‘pervasively regulated’ federal enclave subject to specific rules and regulations.” J.A. 202. Setting aside the question whether a federal enclave could qualify as a “pervasively regulated business” under Burger’s framework for analyzing warrantless inspections of commercial premises, 482 U.S. at 702, neither the district court nor the Government has identified any regulation authorizing a warrantless stop for a permit check under NPS regulations. The district court noted that state traffic laws apply on the Parkway and that a Virginia regulation authorizes “[l]aw-enforcement officers specifically designated by the superintendent [of the Virginia State Police]” to inspect motor carrier vehicles and intermodal equipment in operation, incorporating Section 396.9(a). 19 Va. Admin. Code § 30-20-230; see id. § 30-20-10 (defining “superintendent”). The Government, however, disavows reliance on state law, Response Br. 24 n.10, and use of this state regulation suffers from infirmities similar to those associated with Section 396.9(a): there is no evidence Officer Alto was designated by the superintendent of the Virginia State Police to conduct such inspections or that those inspections authorize enforcement of the federal NPS permit requirement. The Government cites a statute generally authorizing park police officers to investigate federal offenses and make arrests without warrants for federal offenses committed in their presence, see 54 U.S.C. § 102701(a)(2), but that provision plainly does not authorize stops or inspections to enforce park regulations without warrants or suspicion.
Nor can the combination of these regulatory schemes remedy their individual deficits. The Government’s effort to combine the FMCSA regulations and NPS regulations for its Burger analysis does not solve the basic problem that it has failed to identify any statute or regulation “pursuant to which the [stop] [wa]s made.” Burger, 482 U.S. at 702. Moreover, the NPS permit regulations are detached from the government’s interest in regulating commercial trucking. Commercial trucks are swept within the ambit of the permit regulations via the category of “commercial vehicles,” which also applies nonexclusively to “station wagons, pickups, passenger cars or other vehicles.” 36 C.F.R. § 5.6(b). Sections 5.6(b) and 7.96(f) are no more commercial trucking regulations than are any generally applicable traffic laws. In these circumstances, we reject the Government’s effort to graft the two regulatory schemes together in order to satisfy Burger’s criteria.
Indeed, even if we accepted the Government’s regulatory mash-up, it would fail Burger’s third requirement that the program “provide a constitutionally adequate substitute for a warrant.” Burger, 482 U.S. at 703 (internal quotation marks omitted). One of the basic functions of a warrant is to advise the property owner that the search is being conducted pursuant to the law and has a properly defined scope. Id. To perform this function, the statute or regulation “must be sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.” Id. at 703 (internal quotation marks omitted); see LeSueur-Richmond Slate Corp., 666 F.3d at 265. Even considering together all of the various regulations cited by the Government, the driver of a commercial vehicle on the Parkway would have no notice that he could be stopped for a suspicionless permit check—the specific purpose of the stop at issue here. The regulations thus are no substitute for a warrant in these circumstances.