F I L E D
United States Court of Appeals
Tenth Circuit
April 19, 2006
PUBLISH
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 05-3057
ROBERT J. HERRERA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 04-CR-20023-02-JWL)
Submitted on the briefs:
Michael J. Gunter of Clayman and Gunter, Kansas City, Missouri, for
Defendant-Appellant Robert J. Herrera.
Eric F. Melgren, United States Attorney, and Tristram W. Hunt, Special Assistant
United States Attorney, Kansas City, Kansas, for Plaintiff-Appellee United States
of America.
Before HENRY, McKAY and EBEL, Circuit Judges.
EBEL, Circuit Judge.
A Kansas state trooper pulled over Defendant-Appellant Robert J. Herrera
to inspect Herrera’s pickup truck pursuant to a Kansas regulatory scheme that
permits random inspections of certain commercial vehicles. Herrera’s truck,
however, was not a commercial vehicle subject to such inspections. Although the
Fourth Amendment allows warrantless administrative inspections of pervasively
regulated businesses in some instances, the validity of such an inspection is
premised on the regulatory scheme giving notice to the members of the class of
affected individuals that they are subject to such an inspection. Because Herrera
did not have this notice, as he was in fact not a member of the class subject to
these random inspections, the trooper’s stop of Herrera violated the Fourth
Amendment. Further, we decline to extend the good-faith exception to the
exclusionary rule to this case because the Fourth Amendment violation is the
result of an officer’s mistaken belief that Herrera fell within the ambit of the
Kansas regulatory scheme. Exercising our jurisdiction under 28 U.S.C. § 1291,
we REMAND this cause to the district court with directions to VACATE
Herrera’s conviction and for further proceedings consistent with this opinion. 1
I. FACTS
On March 3, 2004, at 8:00 p.m., a Kansas state trooper encountered Herrera
1
After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G).
2
driving a Ford F-350 pickup truck with New Mexico license plates eastbound on
the Kansas turnpike. The trooper believed Herrera’s truck to be a commercial
vehicle under Kansas law because it had “[d]ual wheels on the back and a utility
bed with a heavy lift hydraulic lifter on the back, and also there was a sign on the
back, a paint sign for a paint company.” Herrera’s truck, however, did not have a
Department of Transportation (“DOT”) number displayed, as a commercial
vehicle would have.
The state trooper testified that, under Kansas law, “commercial vehicles
can be stopped at any time to check for compliance with . . . safety regulations.”
See Kan. Stat. § 74-2108(b); State v. Crum, 19 P.3d 172, 174-78 (Kan. 2001)
(upholding state trooper’s random stop made under Kan. Stat. § 74-2108); see
also United States v. Seslar, 996 F.2d 1058, 1061-62 (10th Cir. 1993) (discussing
Kansas statutes permitting state troopers to stop certain commercial vehicles). In
fact, however, Herrera’s truck was not a commercial vehicle under Kansas law
because it weighed 10,000 pounds, one pound short of the definition of a
commercial vehicle under Kansas law. 2 The state trooper explained his mistake
2
Kansas statutes regulate, among others, public and private motor
carriers of property. Kan. Stat. § 66-1,111; see also id. § 66-1,108 (further
defining these terms). The Government asserts that the state trooper in this case
specifically believed that Herrera was a private motor carrier of property. Kansas
law describes a private motor carrier of property as “a person who provides
transportation of property . . . by commercial vehicle and is not a for hire motor
(continued...)
3
by asserting that he had previously stopped other trucks of the same make and
model which had qualified as commercial vehicles because they did have a
manufacturer’s weight rating over 10,001 pounds. According to the trooper, the
only way to ascertain whether or not a truck in fact qualified as a commercial
vehicle was to stop the vehicle and “consult the VIN plate that’s on the inside of
the driver’s door” or “run the VIN number through the computer.”
After stopping Herrera, the state trooper arrested him because Herrera was
unable to produce proof of insurance as required under Kansas law, see Kan. Stat.
§ 40-3104. The trooper then conducted an inventory search of the truck, in
preparation for towing the truck from the highway following Herrera’s arrest.
During that inventory search, the state trooper discovered twenty-three kilograms
2
(...continued)
carrier.” Id. § 66-1,108(i) (emphasis added). And Kansas administrative
regulations define a commercial motor vehicle to include “[a] vehicle that has a
gross vehicle weight rating or gross combination weight rating of 10,001 or more
pounds.” Kan. Admin. Reg. 82-4-1(c)(1). That rating is established by the
manufacturer. See Kan. Stat. § 66-1,108(c). The rating can be ascertained using
the vehicle’s identification number (“VIN”). In other words, the determination of
whether a vehicle is a “commercial vehicle” under Kansas law is an objective
determination based upon a weight rating determined by the manufacturer, and
does not depend on the actual weight of the truck and its cargo at any given time.
Although the state trooper in this case believed that Herrera’s truck was a
commercial vehicle, no one now disputes that Herrera’s vehicle did not in fact
qualify as a commercial vehicle under Kansas law because it did not have a
manufacturer’s weight rating over 10,000 pounds. Thus, by definition, because
Herrera’s vehicle was not a commercial vehicle it could not have been a private
motor carrier of property subject to regulation under Kan. Stat. § 66-1,111.
4
of cocaine hidden amidst building materials in the truck’s bed.
As a result of that discovery, the Government charged Herrera with
possessing with the intent to distribute five kilograms or more of a substance
containing cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(ii). 3 Herrera moved to suppress the evidence seized, as well as the
statements Herrera made, during the traffic stop. After conducting an evidentiary
hearing, the district court denied Herrera’s motion to suppress. Herrera then
entered a conditional guilty plea to the charged offense, reserving his right to
appeal the district court’s decision denying his suppression motion. This appeal
followed.
II. DISCUSSION
A. Standard of review.
“In reviewing a district court’s denial of a motion to suppress evidence, we
accept the factual findings of the district court, and its determination of witness
credibility, unless they are clearly erroneous.” United States v. Alvarado, 430
3
Title 21, U.S.C. § 841(a)(1) makes it “unlawful for any person
knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dispense, a controlled substance.”
Section 841(b)(1)(A)(ii)(II) provides for a sentence of between ten years to life in
prison for a violation of § 841(a) involving “5 kilograms or more of a mixture or
substance containing a detectable amount of . . . cocaine.” And 18 U.S.C. § 2(a)
provides that “[w]hoever commits an offense against the United States or aids,
abets, counsels, commands, induces or procures its commission, is punishable as a
principal.”
5
F.3d 1305, 1307-08 (10th Cir. 2005) (quotation omitted). Further, “we consider
the evidence in the light most favorable to the district court’s ruling;” in this case,
in the light most favorable to the Government. Id. at 1308 (quotation omitted).
The Government “bears the . . . burden of demonstrating the reasonableness of a
warrantless seizure.” Seslar, 996 F.2d at 1062. We “review de novo the ultimate
determination of reasonableness under the Fourth Amendment.” Alvarado, 430
F.3d at 1308 (quotation omitted).
“Whether the good faith exception to the exclusionary rule applies is a
question of law that this court [also] reviews de novo.” United States v. Johnson,
408 F.3d 1313, 1320 (10th Cir.) (quotation omitted), cert. denied, 126 S. Ct. 458
(2005).
B. Whether there was a Fourth Amendment violation.
“The Fourth Amendment protects the right of the people to be
secure . . . against unreasonable searches and seizures.” United States v.
Bradford, 423 F.3d 1149, 1156 (10th Cir. 2005). “The basic purpose of this
Amendment . . . is to safeguard the privacy and security of individuals against
arbitrary invasions by governmental officials.” Camara v. Municipal Court, 387
U.S. 523, 528 (1967). “A traffic stop is a ‘seizure’ within the meaning of the
Fourth Amendment, ‘even though the purpose of the stop is limited and the
resulting detention quite brief.’” Bradford, 423 F.3d at 1156 (quoting Delaware
6
v. Prouse, 440 U.S. 648, 653 (1979)).
Ordinarily, the Government seeks to justify a traffic stop based on the
existence of probable cause, or at least articulable reasonable suspicion, that there
has been a criminal violation or that there is evidence of criminal activity in the
vehicle. See United States v. Tibbetts, 396 F.3d 1132, 1136-37 (10th Cir. 2005);
United States v. DeGasso, 369 F.3d 1139, 1143 (10th Cir. 2004). For example,
“[a]n initial traffic stop is valid . . . if based on an observed traffic violation, [or]
if the officer has a reasonable articulable suspicion that a traffic or equipment
violation has occurred or is occurring.” Tibbetts, 396 F.3d at 1136-37 (quotation
omitted).
In this case, however, the Government does not seek to justify the stop
based upon the existence of any individualized suspicion that Herrera was
involved in criminal activity. 4 Ordinarily “[a] search or seizure
is . . . unreasonable in the absence of individualized suspicion of wrongdoing.”
City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). Nonetheless, in this
case, the Government seeks to justify its initial seizure of Herrera as a random,
4
Before the district court, the Government did assert that Herrera’s
truck had drifted over the highway’s fog line, a traffic violation that could have
justified the trooper’s stopping Herrera. The district court, however, rejected that
justification and the Government has not appealed from that decision.
7
warrantless administrative seizure and search 5 permitted by the Kansas statutory
scheme regulating motor carriers. See id. (recognizing that “searches for certain
administrative purposes without particularized suspicion of misconduct” are
allowable “provided that those searches are appropriately limited”).
“[T]he Fourth Amendment’s prohibition against unreasonable searches
[still] applies to administrative inspections of private commercial property.”
Donovan v. Dewey, 452 U.S. 594, 598 (1981). But under the Fourth Amendment,
an administrative search is very different from a search based upon individualized
suspicion.
A regulatory search . . . does not require probable cause as
defined traditionally by the courts. In general, probable cause, and the
less stringent standard of reasonable suspicion, require particularized
suspicion–that is, the officer must have some articulable basis to
believe that the individual to be searched or seized has committed or is
committing a crime. In contrast, a regulatory search is justified if the
state’s interest in ensuring that a class of regulated persons is obeying
the law outweighs the intrusiveness of a program of searches or seizures
of those persons.
Seslar, 996 F.2d at 1061 (emphasis in original).
The Supreme Court has further distinguished a regulatory search of
commercial property from “searches of private homes, which generally must be
conducted pursuant to a warrant in order to be reasonable,” holding that
5
Cases addressing such seizures and searches refer to them as both
“regulatory” and as “administrative” searches. We also employ both terms
interchangeably here.
8
“legislative schemes authorizing warrantless administrative searches of
commercial property do not necessarily violate the Fourth Amendment.”
Donovan, 452 U.S. at 598 (emphasis added). The Court has recognized that the
“expectation of privacy in commercial premises . . . is different from, and indeed
less than, a similar expectation in an individual’s home. This expectation is
particularly attenuated in commercial property employed in ‘closely regulated’
industries.” New York v. Burger, 482 U.S. 691, 700 (1987) (citation omitted);
see also Donovan, 452 U.S. at 601-02; Marshall v. Barlow’s, Inc., 436 U.S. 307,
312-13 (1978); United States v. Biswell, 406 U.S. 311, 313-17 (1972); Seslar, 996
F.2d at 1061. There are “[c]ertain industries [that] have such a history of
government oversight that no reasonable expectation of privacy could exist for a
proprietor . . . ,” Burger, 482 U.S. at 700 (quotations, citation omitted); that is,
“when an entrepreneur embarks upon such a business, he has voluntarily chosen
to subject himself to a full arsenal of governmental regulation,” Marshall, 436
U.S. at 313; see also Biswell, 406 U.S. at 316 (noting that “[w]hen a [firearms]
dealer chooses to engage in this pervasively regulated business and to accept a
federal license, he does so with the knowledge that his business records, firearms,
and ammunition will be subject to effective inspection”). “Industries such as
these,” which includes the sale of liquor and firearms,
fall within [a] carefully defined class[] of cases. . . . The element that
distinguishes these enterprises from ordinary businesses is a long
9
tradition of close government supervision, of which any person who
chooses to enter such a business must already be
aware. . . . [B]usinessmen engaged in such . . . licensed and regulated
enterprises accept the burdens as well as the benefits of their trade . . . .
The businessman in a regulated industry in effect consents to the
restrictions placed upon him.
Marshall, 436 U.S. at 313 (quotation, citation omitted).
Because the owner or operator of commercial premises in a
“closely regulated” industry has a reduced expectation of privacy, the
warrant and probable-cause requirements, which fulfill the traditional
Fourth Amendment standard of reasonableness for a governmental
search, have lessened application in this context. Rather, we conclude
that, as in other situations of “special needs,” where the privacy
interests of the owner are weakened and the government interests in
regulating particular businesses are concomitantly heightened, a
warrantless inspection of commercial premises may well be reasonable
within the meaning of the Fourth Amendment.
This warrantless inspection, however, even in the context of a
pervasively regulated business, will be deemed to be reasonable only so
long as three criteria are met. First, there must be a “substantial”
government interest that informs the regulatory scheme pursuant to
which the inspection is made.
Second, the warrantless inspections must be necessary to further
the regulatory scheme. . . .
Finally, the statute’s inspection program, in terms of the certainty
and regularity of its application, must provide a constitutionally
adequate substitute for a warrant. In other words, the regulatory statute
must perform the two basic functions of a warrant: 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. 6 To perform this first function,
6
The Supreme Court has indicated that a warrant stating with
(continued...)
10
the statute 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. In addition, in defining how a statute limits the discretion of
the inspectors, we have observed that it must be carefully limited in
time, place, and scope.
Burger, 482 U.S. at 702-03 (citations, quotations, alterations omitted; footnote,
emphasis added). “The random detention and inspection of a vehicle used in a
closely regulated industry . . . must meet essentially the same requirements as a
warrantless regulatory search of business premises.” V-1 Oil Co. v. Means, 94
F.3d 1420, 1425 (10th Cir. 1996).
In this case, Herrera does not challenge the constitutional validity of the
Kansas statutory scheme regulating motor carriers; nor does he challenge the
trooper’s authority under that scheme to stop vehicles subject to that regulation
for random inspection. For purposes of this appeal, therefore, we will assume
that motor carriers are engaged in a pervasively regulated industry and that the
Kansas regulatory scheme applicable to those motor carriers properly permits
state troopers to stop commercial vehicles randomly for inspection. See United
States v. Burch, 153 F.3d 1140, 1142 (10th Cir. 1998) (“assum[ing] without
6
(...continued)
particularity the place to be searched or the items to be seized not only prevents
general searches but “assures the individual whose property is searched or seized
of the lawful authority of the executing officer, his need to search, and the limits
of his power to search.” Groh v. Ramirez, 540 U.S. 551, 561 (2004) (quotation
omitted).
11
deciding that the regulations of the trucking industry in Kansas performed the two
basic functions of a warrant” as Burger requires); Seslar, 996 F.2d at 1063 n.3
(“assum[ing], without holding, that Kansas closely regulates the motor carrier
industry and that the Kansas regulatory scheme satisfies the Burger [three-part]
test”).
The problem this case presents is that Herrera’s truck did not fall within
Kansas’s definition of a commercial vehicle subject to these random regulatory
seizures and searches. Herrera was not engaging in a closely regulated industry
and, thus, would not have had any reason to know that his truck could be subject
to a random inspection. 7 See Seslar, 996 F.2d at 1062 (noting that the Supreme
Court cases addressing regulatory searches “all involve defendants who were
obviously engaged in the regulated industry”) (emphasis added).
It is clear, then, that the state trooper’s stopping Herrera cannot be justified
under the Kansas regulatory scheme. We reached a similar conclusion in Seslar,
996 F.2d 1058. There, this court held that “the closely regulated industry line of
cases does not justify the warrantless search of unregulated persons.” Id. at 1063
7
In contrast to closely regulated industries, the Supreme Court has
held that the government’s regulation of automobiles generally does not justify
“sporadic and random stops of individual vehicles.” Prouse, 440 U.S. at 657,
662; see also id. at 663 (holding “that persons in automobiles on public roadways
may not . . . have their travel and privacy interfered with at the unbridled
discretion of police officers” simply because the government regulates vehicles
and their drivers); Seslar, 996 F.2d at 1063.
12
(emphasis in original). That case controls here.
In Seslar, a Kansas state trooper stopped a rental truck to determine if the
truck was subject to Kansas regulations governing motor carriers. 8 See id. at
1059. In that case, this court rejected the Government’s assertion that a Kansas
state trooper can randomly “stop . . . any truck on the highway . . . , whether
operated by a motor carrier or not, to first determine whether [the truck] is”
covered by that scheme. Id. at 1062; see also id. at 1063. “[B]ecause the
justification for permitting warrantless [regulatory] searches is that persons doing
business in closely regulated industries have a significantly reduced expectation
of privacy,” id. at 1061, this court held that such a stop was not justified by the
regulatory scheme if the truck did not fall within the parameters of that
regulation, see id. at 1062-63. See also State v. Campbell, 875 P.2d 1010,
1013-14 (Kan. Ct. App. 1994) (holding random stop of rental truck that was
transporting private property and thus was not subject to Kansas regulations
governing motor carriers, violated Fourth Amendment); Dominguez v. State, 720
S.W.2d 703, 707-08 (Ark. 1986) (holding that a statute that arguably authorized
8
The vehicle at issue in Seslar was a rental truck. See 996 F.2d at
1059. A rental truck carrying commercial property was subject to random
inspections under Kansas law. See id. at 1061-62 & 1062 n.2. But a rental truck
carrying only private property was not subject to those random inspections. See
id. The officer in Seslar admitted he had no reason to believe that the rental truck
he stopped was carrying commercial property; rather, he stopped the truck just to
find out what it was carrying. See id. at 1059.
13
random stops of motor carriers could not be read to authorize random stops of any
motor vehicle merely to determine whether the detainees belonged to the
regulated class), cited with approval in Seslar, 996 F.2d at 1063.
Applying Seslar to this case, then, we conclude that because Herrera’s truck
was not a commercial vehicle subject to the Kansas regulatory scheme, that
scheme cannot justify the state trooper’s stopping Herrera. Because that is the
only justification the Government offers for this stop, that warrantless stop
violated the Fourth Amendment.
The Government further argues, however, that there can be no
constitutional violation here because, even though Herrera’s truck did not in fact
qualify as a commercial vehicle under Kansas law, the state trooper had an
objectively reasonable, yet mistaken, belief that it did. Indeed, the trooper was
mistaken by only one pound in believing that Herrera’s truck was a commercial
vehicle subject to the Kansas regulatory scheme.
The Government’s argument might be persuasive if it had sought to justify
this stop based upon individualized suspicion; that is, if the Government had
argued that the trooper had probable cause or at least reasonable suspicion to
believe that Herrera was involved in criminal activity. This court has
“consistently held that an officer’s mistake of fact . . . may support probable
cause or reasonable suspicion necessary to justify a traffic stop,” provided the
14
officer’s mistake of fact was objectively reasonable. 9 Tibbets, 396 F.3d at 1138;
see also DeGasso, 369 F.3d at 1144; United States v. Vercher, 358 F.3d 1257,
1261 (10th Cir. 2004) (noting “reasonable suspicion may be supported by an
‘objectively reasonable’ good faith belief even if premised on factual error”); cf.
Illinois v. Rodriguez, 497 U.S. 177, 179, 186 (1990) (upholding validity of search
of apartment premised on officer’s factual mistake in believing that third party
consenting to search possessed sufficient common authority over premises such
that she could validly consent).
In this case, however, the Government does not seek to justify its stop of
Herrera based upon the existence of probable cause or reasonable suspicion that
he was involved in criminal activity. Rather, the Government justifies the stop
only as a random regulatory inspection. Therefore, our cases addressing the
existence of reasonable suspicion or probable cause based upon factual mistakes
are inapposite. That is because, as we have noted, a regulatory inspection is not
premised on an officer’s on-the-spot perception that he has an individualized
suspicion that the specific individual to be seized and searched is involved in
9
On the other hand, an officer’s legal mistakes will not preclude a
Fourth Amendment violation. See Tibbetts, 396 F.3d at 1138; DeGasso, 369 F.3d
at 1144. While an officer may make an objectively reasonable factual mistake, a
“failure to understand the law by the very person charged with enforcing it is not
objectively reasonable.” Tibbetts, 396 F.3d at 1138 (emphasis in original); see
also DeGasso, 369 F.3d at 1144.
15
criminal activity. An administrative search is instead premised on the individual
subject to the warrantless seizure and search knowingly and voluntarily engaging
in a pervasively regulated business, and on the existence of a statutory scheme
that puts that individual on notice that he will be subject to warrantless
administrative seizures and searches. See generally Burch, 153 F.3d at 1143
(distinguishing generally between traffic stops premised on reasonable suspicion
and those premised on an administrative search).
The Government’s argument that there was no Fourth Amendment violation
in this case because the state trooper had an objectively reasonable, but mistaken,
belief that Herrera was subject to a random administrative inspection focuses on
the wrong participant in the seizure at issue here. The validity of an
administrative seizure and search does not turn on whether or not the trooper had
an objectively reasonable belief that Herrera’s truck qualified as a commercial
vehicle subject to random inspections. Rather, it turns on Herrera’s decision to
engage in a pervasively regulated business, knowing that by doing so he would be
subject to random warrantless inspections. The validity of an administrative
inspection is premised on the fact that the owner of the property subject to the
search “cannot help but be aware that his property will be subject to periodic
[administrative] inspections undertaken for specific purposes.” Burger, 482 U.S.
at 703 (quotation omitted). It is only under such circumstances that the individual
16
citizen has a reduced expectation of privacy in his or her commercial property that
justifies a warrantless regulatory search and seizure under the Fourth Amendment.
See id. at 700, 703. But in this case, Herrera had never chosen to engage in a
pervasively regulated business and so, of course, had no notice or understanding
that he could be subject to random warrantless seizures and inspections. He was,
then, completely unaware (and reasonably so) that a law enforcement officer
might seize and search his vehicle randomly pursuant to a regulatory scheme that
did not apply to him. 10 See Seslar, 996 F.2d at 1062-63; see also Dominguez, 720
S.W.2d at 707.
The state trooper in this case testified that the only way to determine
whether or not Herrera’s truck weighed over 10,000 pounds and was thus a
commercial vehicle subject to random seizures and searches under Kansas law
was to stop the truck and check the VIN plate. 11 But permitting a state trooper to
10
We also note that a state trooper need not make the decision to effect
a random regulatory seizure under the same time restrictions that often attend the
decision to stop a vehicle based upon probable cause or reasonable suspicion to
believe the vehicle is involved in criminal activity. And the Government does not
assert that there were any exigent circumstances present in this case that might
warrant an immediate random motor carrier inspection.
11
As previously mentioned, Kansas law bases its definition of a
commercial vehicle in part on the vehicle’s “weight rating.” Kan. Admin. Reg.
82-4-1(c)(1). That rating is established by the manufacturer, see Kan. Stat.
§ 66-1,108(c), and can be ascertained using the VIN. So requiring a trooper to
distinguish between vehicles that are and are not commercial vehicles subject to
random searches does not require a trooper to speculate as to a particular
(continued...)
17
stop any vehicle simply to ascertain whether or not the vehicle was subject to a
random regulatory search would allow the officer the unbridled discretion that the
Supreme Court sought to preclude in Burger. See Campbell, 875 P.2d at 1013-14;
see also Dominguez, 720 S.W.2d at 707. This Seslar forbids. See 996 F.2d at
1062-63. “‘It would be a circumvention of the Fourth Amendment if the business
exception to the probable cause or warrant requirement could be used wholly out
of the context of its justification.’” Id. at 1063 (quoting Dominguez, 720 S.W.2d
at 707) (alteration omitted).
In summary, “[t]o determine the initial validity of a traffic stop, we ask
11
(...continued)
vehicle’s weight, given the vehicle’s specific cargo at any given time. And
although Herrera’s truck was very close to having a manufacturer’s weight rating
that would have made it a commercial vehicle subject to the Kansas regulatory
scheme, the state trooper in this case testified that determining whether other
vehicles have weight ratings that fall within these regulations is “easy.” For
example, “large semi trucks . . . are easy to tell because of their manufacture . . . .
They are all manufactured over 10,000 pounds.” Further, in closer cases such as
Herrera’s pickup truck, it seems possible that the manufacturers’ weight ratings
for each brand and model of vehicle are, or could be made, available to state
troopers who could then determine the manufacturer’s weight rating for a
particular make and model of vehicle before stopping it. In any event, a trooper’s
having to determine the manufacturer’s weight rating for a vehicle will generally
be easier than it was for the trooper in Seslar to determine whether a rental truck
was transporting commercial or private property, see Seslar, 996 F.2d at 1061-62.
Yet we concluded in Seslar that there was a Fourth Amendment violation when a
Kansas state trooper mistakenly stopped a rental truck that turned out to be
carrying only private, not commercial, property. See id. at 1063; see also
Campbell, 875 P.2d at 1013-14 (holding under Kansas scheme regulating motor
carriers, state trooper cannot stop rental truck to determine whether it is carrying
commercial property such that it would be subject to those regulations).
18
whether the stop was objectively justified.” DeGasso, 369 F.3d at 1143
(quotation omitted). Because the Government sought to justify its stopping
Herrera in this case based only upon a regulatory scheme permitting random
administrative inspections of commercial vehicles, the authority for that stop must
come from that regulatory scheme. And because Herrera’s truck did not fall
within the class of vehicles subject to that regulatory scheme’s random
inspections, the state trooper in this case had no authority to stop Herrera. The
trooper’s seizure of Herrera, therefore, violated the Fourth Amendment.
C. Whether the good-faith exception to the application of the
exclusionary rule should apply under the circumstances of this
case.
Having concluded that there was a Fourth Amendment violation in this case
because Herrera’s truck was not a commercial vehicle subject to the random
inspections permitted under the Kansas scheme regulating motor carriers, we must
decide what to do about that violation. That question leads us to United States v.
Leon, 468 U.S. 897 (1984). In Leon, the Supreme Court accepted that there had
been a Fourth Amendment violation when police officers seized evidence
pursuant to a search warrant that a court later determined was not supported by
probable cause. See id. at 902-03, 905. The Supreme Court, therefore, had to
decide the appropriate remedy for the Fourth Amendment violation occurring in
that case. See id. at 906 (noting that “[w]hether the exclusionary sanction is
19
appropriately imposed [as a remedy] in a particular case, our decisions make
clear, is an issue separate from the question whether the Fourth Amendment rights
of a party seeking to invoke the rule were violated by police conduct”) (quotation
omitted); see also United States v. Nielson, 415 F.3d 1195, 1202 (10th Cir. 2005),
petition for cert. filed, 74 U.S.L.W. 3532 (U.S. Mar. 10, 2006) (No. 05-1152).
Ordinarily, courts will remedy a Fourth Amendment violation by invoking
the exclusionary rule to exclude the Government’s introduction of the unlawfully
seized evidence as direct evidence against the defendant in a criminal
prosecution. See Illinois v. Krull, 480 U.S. 340, 347 (1987); see also James v.
Illinois, 493 U.S. 307, 311 (1990) (noting exclusionary rule is the “principal mode
of discouraging lawless police conduct. Without it the constitutional guarantee
against unreasonable searches and seizures would be a mere form of words.”)
(alteration, quotation omitted); United States v. Hill, 60 F.3d 672, 677-78 (10th
Cir. 1995) (discussing exclusionary rule). But the exclusionary rule is only “a
judicially created remedy designed to safeguard Fourth Amendment rights
generally through its deterrent effect, [and is not] a personal constitutional right
of the party aggrieved.” Leon, 468 U.S. at 906 (quotation omitted). Further, the
exclusionary rule “is harsh, requiring the exclusion of potentially reliable
evidence of wrongdoing.” Nielson, 415 F.3d at 1202. Therefore, the Supreme
Court in Leon concluded that the exclusionary rule should be invoked only when
20
doing so furthers the purpose of that rule, which is “designed to deter police
misconduct.” Leon, 468 U.S. at 916 (emphasis added). The Leon Court
concluded that, even if an officer in a given case obtained evidence in violation of
the Fourth Amendment, it made no sense to exclude that evidence if the officer
was nevertheless acting in an objectively reasonable manner when he seized the
evidence. See id. at 918-20. We will ordinarily not deter, nor do we want to
deter, objectively reasonable police conduct. See id. In Leon, then, the Supreme
Court adopted a good-faith exception to the application of the exclusionary rule
and specifically applied that exception where “an officer acting with objective
good faith has obtained a search warrant from a judge or magistrate and acted
within its scope,” even though the search warrant was later deemed to be invalid.
Id. at 920.
In this case, the Government asks that we extend Leon’s good-faith
exception and decline to exclude the evidence obtained during the state trooper’s
unconstitutional but arguably good-faith traffic stop of Herrera. We decline to do
so in this case for two reasons. First, Leon’s good-faith exception applies only
narrowly, and ordinarily only where an officer relies, in an objectively reasonable
manner, on a mistake made by someone other than the officer. But in this case, it
was the state trooper’s own factual mistake that led to the Fourth Amendment
violation that occurred in this case.
21
Second, the Fourth Amendment violation in this case occurred in the
context of the state trooper’s conducting a random warrantless administrative
search of someone who was not in fact subject to such a search. Unlike a stop
based upon probable cause or reasonable suspicion, the validity of a warrantless
administrative a search is premised on the party who is subject to the search being
aware that he is subject to such a search. In the context of an administrative
search, limiting an officer’s ability to stop only those individuals who are actually
subject to such a search will satisfy both Leon’s purpose of deterring
unconstitutional police errors as well as the Fourth Amendment principles
underlying the validity of a warrantless administrative search–that those being
searched be objectively aware that they are subject to such a search.
1. Leon’s good-faith exception is ordinarily limited to
situations when the police officer reasonably relied upon
the judgment of a neutral third party.
Courts applying the good-faith exception recognized in Leon have done so
only in very narrow circumstances. The Supreme Court, although expanding the
good-faith exception’s application a bit beyond the facts of Leon, has still limited
that exception to circumstances where someone other than a police officer has
made the mistaken determination that resulted in the Fourth Amendment
violation. In Leon, for example, it was the magistrate who mistakenly issued the
search warrant without probable cause. See 468 U.S. at 905, 913-14, 920-21.
22
Such circumstances represent the most common application of Leon’s good-faith
exception. Thus, this court has applied the good-faith exception primarily when,
as in Leon, the officers involved in a seizure or search have acted in an
objectively reasonable manner by relying on a warrant issued by a neutral and
detached magistrate. 12 See, e.g., United States v. Soderstand, 412 F.3d 1146,
1152 (10th Cir. 2005), cert denied, 126 S. Ct. 1478 (2006); United States v.
Riccardi, 405 F.3d 852, 863-64 (10th Cir.), cert. denied, 126 S. Ct. 299 (2005);
United States v. Lora-Solano, 330 F.3d 1288, 1294-95 (10th Cir. 2003) (dicta).
The Supreme Court did extend Leon’s good-faith exception, applying it
where officers conducting a search relied in good faith, not on a warrant, but on a
statute’s regulatory scheme that permitted warrantless administrative searches,
when that statutory regulatory scheme was later declared unconstitutional. See
Krull, 480 U.S. at 343, 346, 353, 356-57. But in Krull, it was the legislature’s
mistake in enacting an unconstitutional statute, rather than any error on the
officer’s part, that led to the Fourth Amendment violation. See id. at 349-53; see
12
“The point of the Fourth Amendment, which often is not grasped by
zealous officers, is not that it denies law enforcement the support of the
usual inferences which reasonable men draw from evidence. Its
protection consists in requiring that those inferences be drawn by a
neutral and detached magistrate instead of being judged by the officer
engaged in the often competitive enterprise of ferreting out crime.”
United States v. Ramirez, 63 F.3d 937, 940-41 (10th Cir. 1995) (quoting Johnson
v. United States, 333 U.S. 10, 13-14 (1948)).
23
also United States v. Vanness, 342 F.3d 1093, 1094-96, 1097-1100 (10th Cir.
2003) (applying Krull and the good-faith exception, without deciding whether city
noise ordinance was constitutional, where officers reasonably relied on that
ordinance to stop defendant).
In addition, the Supreme Court indicated that the Leon exception to the
exclusionary rule would apply where an “officer [had] acted in reliance on a
police record indicating the existence of an outstanding arrest warrant,” if that
error was made by a court clerk’s employee rather than a police officer. See
Arizona v. Evans, 514 U.S. 1, 3-4, 14-16 (1995). In Evans, the Supreme Court
remanded for the state court to determine who was responsible for the error, a
court clerk’s employee or the police. See id. at 15-16.
If court employees were responsible for the erroneous computer record,
the exclusion of evidence at trial would not sufficiently deter future
errors so as to warrant such a severe sanction. . . .
...
If it were indeed a court clerk who was responsible for the
erroneous entry on the police computer, application of the exclusionary
rule . . . could not be expected to alter the behavior of the arresting
officer. . . . Excluding the evidence can in no way affect the officer’s
future conduct unless it is to make him less willing to do his duty. . . .
Application of the Leon framework supports a categorical exception to
the exclusionary rule for clerical errors of court employees.
Id. at 14, 15-16 (quotation, alteration omitted).
24
Thus, application of Leon’s good-faith exception to the exclusionary rule
turns to a great extent on whose mistake produces the Fourth Amendment
violation. And because the purpose underlying this good-faith exception is to
deter police conduct, logically Leon’s exception most frequently applies where
the mistake was made by someone other than the officer executing the search that
violated the Fourth Amendment. The Supreme Court has never extended Leon’s
good-faith exception beyond circumstances where an officer has relied in good
faith on a mistake made by someone other than the police; that is, on someone
outside the police officer’s “often competitive enterprise of ferreting out crime,”
Leon, 468 U.S. at 914 (quotation omitted). See also 1 LaFave, Search and
Seizure § 1.3(f) (noting that Leon “does not allow law enforcement authorities to
rely on an error of their own making”) (quotation omitted); 2 LaFave, Search and
Seizure § 3.5(d) (noting “the Evans rationale would seem inapplicable whenever
the mistake was instead attributable to the law enforcement agency”); cf. Groh,
540 U.S. at 563-64 (refusing to apply the good-faith exception, and refusing to
conclude that the officer was entitled to qualified immunity in a civil action for
damages, where the officer “himself prepared the invalid warrant” and so “he may
not argue that he reasonably relied on the Magistrate’s assurance that the warrant
contained an adequate description of the things to be seized and was therefore
25
valid”). 13
Nor has this court ever extended Leon to a case where it was the officer’s
mistake, rather than that of a neutral third party, that resulted in a Fourth
Amendment violation. 14 In United States v. Scales, 903 F.2d 765 (10th Cir.
1990), this court refused to apply Leon’s good-faith exception where officers,
acting without a warrant, unlawfully seized a suitcase and held it for twenty-four
hours before obtaining a warrant. See id. at 767-68. In doing so, this court
specifically “decline[d] to extend the holding of Leon to cases in which the good
faith of the officer cannot be presumptively established by the existence of a
search warrant valid on its face.” Id. at 768. And in United States v. Owens, 782
13
“[T]he same standard of objective reasonableness that . . . applie[s]
in the context of a suppression hearing in Leon defines the qualified immunity
accorded an officer” in a civil damages action. Groh, 540 U.S. at 565 n.8
(quotation omitted).
14
In United States v. Johnson, 364 F.3d 1185 (10th Cir. 2004), this
court addressed an officer’s Terry stop of an individual walking down the street.
See id. at 1187, 1188-89. Although this court discussed Leon’s good-faith
exception to the exclusionary rule in that case, see id. at 1195, this court
nevertheless held that the Terry stop was reasonable, and thus not a Fourth
Amendment violation. See id. at 1188-95 (holding brief stop was reasonable
under the circumstances). Similarly, in United States v. Walraven, while this
court again mentioned Leon, it in fact determined that the stop at issue there was
based upon articulable reasonable suspicion and thus comported with Fourth
Amendment requirements. See 892 F.2d at 974-75. And in United States v.
Cotton, 751 F.2d 1146, 1148-50 & 1149 n.2 (10th Cir. 1985), this court, although
mentioning Leon, ruled that the seizure of evidence in that case did not violate the
Fourth Amendment. These cases, then, while mentioning Leon, did not actually
need to apply Leon’s good-faith exception because this court ultimately concluded
in those cases that there was no Fourth Amendment violation.
26
F.2d 146 (10th Cir. 1986), this court again declined to apply the good-faith
exception where officers had effected an unlawful warrantless entry into a hotel
room. Id. at 150-52. In reaching that decision, this court specifically noted that
the officers had watched that hotel room for five and one-half hours without
making any attempt to obtain a search warrant. See id. at 152.
This authority, from both the Supreme Court and this circuit, indicates that
Leon’s good-faith exception to the exclusionary rule generally applies only
narrowly outside the context of a warrant. It has not been applied when the
mistake resulting in the Fourth Amendment violation is that of the officer
conducting the seizure and search, rather than a neutral third party not engaged in
the “competitive endeavor of ferreting out crime.” Leon, 468 U.S. at 914
(quotation omitted). In light of this very narrow application of Leon’s good-faith
exception, we are disinclined to extend that exception to the facts of this case,
where a state trooper conducted a random, warrantless seizure to effect an
administrative search based upon the officer’s own mistaken belief that Herrera’s
truck was subject to such a random inspection.
We acknowledge that this court has, on one occasion, suggested extending
the good-faith exception in the context of a warrantless administrative search,
where the officers conducting the search interpreted their authority to do so under
the relevant statutes in an objectively reasonable manner. See Johnson, 408 F.3d
27
at 1322-23. But Johnson is different from this case. In Johnson, officers
conducted a warrantless administrative search of a salvage yard pursuant to an
Oklahoma statutory regulatory scheme. See id. at 1316 & n.2. The officers
conducting the inspection searched not only the business premises, but they also
searched a locked toolbox found at the salvage yard and belonging to a salvage
yard employee. See id. at 1317-19. This court first determined that the relevant
Oklahoma statutes authorized the officers’ search of both the salvage yard and the
locked toolbox. 15 See id. at 1320-22. In dicta, this court then indicated that even
if these Oklahoma statutes did not permit the search, the good-faith exception to
the exclusionary rule would apply in light of the officers’ good-faith reliance on
those statutes. See id. at 1322-23. More specifically, as to the search of the
locked toolbox, this court indicated that, even if the Oklahoma statutes did not
permit that aspect of the administrative search, Leon’s good-faith exception
would apply because the officers reasonably interpreted those statutes to permit
the toolbox search. See id. at 1323.
[T]he officers would have no reason to believe they could not demand
to inspect inside a locked container which they reasonably believed to
be subject to the search, particularly when they had developed
15
The Oklahoma statutes in Johnson had never been invalidated, as the
statute in Krull had, and “nothing in these [Oklahoma] statutes would have given
rise to [a] suspicion” that the statutes were invalid. Johnson, 408 F.3d at 1323.
Therefore, there was no Fourth Amendment violation in Johnson. See id. at 1322,
1323.
28
additional [reasonable] suspicion [during the rest of the search]
concerning its possible contents. In sum, the officers relied in good
faith on the administrative inspection statutes, as interpreted by
Oklahoma cases, and in their objectively reasonable applicability to the
inspection conducted at Autoplex Salvage.
Id.
In Johnson, then, this court indicated that the good-faith exception would
apply where officers acted on their own objectively reasonable interpretation of
the legal authority granted to them by Oklahoma’s statutory scheme permitting
warrantless administrative inspections. See id. That conclusion is consistent with
Leon. In both Johnson and Leon, the officers objectively relied upon the
authority and judgment of a third party that the search being authorized was
consistent with the United States Constitution—in the case of Leon, the officers
relied upon the magistrate who issued the warrant, and in the case of Johnson,
officers relied upon the legislature that authorized the search by enacting its
regulatory statute. If it is reasonable for an officer to accept the legislative
determination that a particular regulatory search is consistent with the
constitution, then it is also reasonable to charge the party being searched with
notice that he or she is subject to a legislative search, notice which is the
underpinning of a valid regulatory search as enumerated in Burger.
As we indicated earlier, Leon’s focus on deterring police conduct requires
that Leon’s good-faith exception almost always applies only when there is a
29
determination made by a third party upon which the officer reasonably relied to
conduct the challenged seizure or search, such as the magistrate in Leon, the
legislature in Krull and in Johnson, and the court clerk in Evans. This third party
judgment provides a neutral check on the officer’s conduct. But in this case,
although the legislature determined that state troopers could randomly stop and
inspect commercial vehicles, no third party made the determination that Herrera’s
truck was a commercial vehicle subject to those random warrantless inspections.
And so to apply Leon under these circumstances would extend that good-faith
exception beyond its pedigree. While we do not conclude that Leon can never
apply where the officer has not reasonably relied on a third party’s determination
that a seizure or search is lawful, we think Leon could only be extended that far
under very unusual circumstances. Such circumstances are not presented in this
case. For these reasons, then, we decline to extend Leon’s good-faith exception
to the application of the exclusionary rule to the facts of this case.
Even if we were inclined to apply Leon’s good-faith exception to a
situation where the officer was not relying on the judgment of a neutral third
party, we would not be inclined to apply that good-faith exception to the facts of
this particular case. The Leon good-faith exception to the exclusionary rule is
reserved for situations where the exclusion of the illegally obtained evidence
would not deter illegal police conduct. But here, the exclusion of the evidence
30
would effectively deter the illegal police conduct that produced the Fourth
Amendment violation in the first place.
First, “our good-faith inquiry is confined to the objectively ascertainable
question whether a reasonably well trained officer would have known that the
search was illegal.” Leon, 468 U.S. at 922 n.23. In light of that, we deem the
state trooper in this case to have been aware of our earlier decision in Seslar, 996
F.2d at 1062-63, indicating that a state trooper could not, under this Kansas
regulatory scheme, stop a vehicle just to determine whether the vehicle was
subject to random administrative inspections. See Nielson, 415 F.3d at 1203-04. 16
Second, excluding the evidence in this case will deter police officers from
conducting unauthorized administrative stops when the facts to support an
administrative search are ambiguous. Administrative searches are ordinarily more
deliberative than other searches and seizures, and that, along with clear statutory
parameters, are the essential ingredients allowing police to dispense with the
requirement of a warrant or individualized suspicion in the context of a regulatory
16
We do not require that a state trooper resolve unsettled law or
anticipate future legal rulings. But Seslar clearly resolved this issue. Cf. United
States v. Nolan, 199 F.3d 1180, 1185 (10th Cir. 1999) (holding a “reasonable
officer not versed in the intricacies of the law could not properly be charged with
knowledge that the search of Defendant Nolan’s residence might be
unconstitutional under the Fourth Amendment,” where the state of relevant Fourth
Amendment law at that time was unsettled) (emphasis in original); United States
v. Leary, 846 F.2d 592, 609 (10th Cir. 1988) (noting that “we are not expecting
the agents to anticipate legal determinations or resolve ambiguities in the law”).
31
inspection. Thus, limiting invocation of the regulatory search to situations where
the search, in fact, occurs within a regulated industry seems most consistent with
the rationale underlying the validity of regulatory searches under the Fourth
Amendment. And, as we observed in footnote eleven, in most regulatory stops
involving commercial vehicles made pursuant to a regulatory scheme, it will be
obvious whether the vehicle falls within the definition of vehicles being regulated
under that scheme, or there will be a means by which the officer can ascertain that
the vehicle is one subject to a regulatory inspection before the officer actually
makes the stop.
2. Leon’s good-faith exception ordinarily will not apply to a
warrantless administrative seizure and search
As we have previously discussed, the validity of a warrantless
administrative search is premised on notice to members of the regulated class that
they are subject to such a search. This notice actually takes the place of the
warrant that would otherwise be required. See Burger, 482 U.S. at 703. In Leon,
there was a facially valid warrant that was only later declared unconstitutional. In
that case, both the officer and the party subject to the search thus had notice of
the officer’s apparent lawful authority to conduct that search. But here, that is
not the case. Herrera never had any notice that a state trooper would have even
facially valid authority to stop him to conduct a random administrative inspection.
That is because Herrera was not in fact operating in a pervasively regulated
32
industry such that he could not “help but be aware” that he and his truck were
subject to search. Burger, 482 U.S. at 703. For this reason, as well, we decline to
apply Leon’s good-faith exception so far afield from that exception’s origin.
Nor is our conclusion contrary to this court’s decision in Johnson. Johnson
involved officers’ interpreting the legal authority provided to them by a statutory
regulatory scheme to conduct an administrative search. See 408 F.3d at 1323.
Because the search in Johnson was premised on the officers’ objectively
reasonable interpretation of the relevant statutes authorizing the search, it would
follow that the party subject to the search, also interpreting that statutory scheme
in the same objectively reasonable manner, should have foreseen that that
regulatory statute would subject him to such a warrantless administrative search.
So, in permitting officers to rely on their own objectively reasonable
interpretation of the regulatory statute in Johnson, we remain true to the general
Fourth Amendment principles underlying a valid administrative search—that the
person subject to the search have an objectively reasonable understanding that his
engaging in a pervasively regulated business would subject him to a random
warrantless administrative search.
By contrast, there is nothing in this record to suggest that Herrera
objectively should have been on notice that his vehicle was subject to a
warrantless administrative search. The fact of his vehicle’s rated weight, which
33
he could be charged with knowing, actually negated the possibility that his
vehicle was a commercial vehicle subject to a warrantless administrative stop.
Because the very justification for allowing warrantless administrative searches is
not present here, we do not believe it is appropriate under these circumstances to
expand the regulatory search concept further by upholding an unauthorized
administrative search because of the officer’s mistaken good-faith factual belief
(not shared by the person being searched) that the vehicle being searched was a
commercial vehicle subject to an administrative search.
D. Conclusion
There are, admittedly, several Fourth Amendment principles that are in
tension in this case. First, Leon recognizes that the exclusionary rule is a
prophylactic doctrine designed to modify police conduct that is not objectively
reasonable. That suggests that so long as officers are acting in an objectively
reasonable manner, a court should not exclude evidence obtained contrary to the
Fourth Amendment because to do so would not have the desired deterrent effect.
But here, previous Tenth Circuit authority (Selsar) precludes a search for the
purpose of determining whether a vehicle is in fact covered by Kansas’s
regulatory statutes authorizing an administrative search. Excluding the evidence
obtained as a result of this unauthorized administrative search will have the
beneficial effect of requiring police officers to determine in advance whether a
34
vehicle is in fact a rated commercial vehicle before executing an administrative
stop.
Further, the validity of such a warrantless administrative search under the
Fourth Amendment is premised on clear notice to those subject to such a search.
Applying Leon in the context of an unconstitutional regulatory search based upon
just the officer’s reasonable factual mistake would go beyond the underlying
justification for deeming such a regulatory search valid under the Fourth
Amendment—that the person engaging in a pervasively regulated business is
aware of and accepts the burdens of a random warrantless administrative search or
seizure. Under these circumstances, we determine that we are most faithful to the
Fourth Amendment and to the doctrine of the regulatory search exception to the
warrant requirement if we conclude that this search and seizure are
constitutionally infirm and exclude the fruits of the search and seizure.
III. CONCLUSION
For the foregoing reasons, we conclude that stopping Herrera to effect a
random inspection of commercial vehicles violated Herrera’s Fourth Amendment
rights because Herrera’s vehicle was not a commercial vehicle subject to random
inspection under Kansas law. Further, we decline to apply Leon’s good-faith
exception to the application of the exclusionary rule under the facts of this case.
Therefore, the evidence discovered during that unconstitutional seizure must be
35
suppressed. We thus REMAND this case to the district court with directions to
VACATE Herrera’s conviction and for such further proceedings as are consistent
with this Opinion.
36
United States v. Herrera
Court: Court of Appeals for the Tenth Circuit
Date filed: 2006-04-19
Citations: 444 F.3d 1238
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