United States v. Vasquez-Castillo

                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                       PUBLISH
                                                                       JUL 31 2001
                    UNITED STATES COURT OF APPEALS
                                                                   PATRICK FISHER
                                                                            Clerk
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                          No. 01-2023

 RIGOBERTO VASQUEZ-
 CASTILLO,

               Defendant - Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW MEXICO
                       (D. Ct. No. CR-00-687-BB)


Mario A. Esparza, Las Cruces, New Mexico, for Appellant.

David N. Williams, Assistant United States Attorney (Norman C. Bay, United
States Attorney, with him on the brief), Albuquerque, New Mexico, for Appellee.


Before TACHA, Chief Judge, POLITZ, * and LUCERO, Circuit Judges.


TACHA, Chief Circuit Judge.


      Mr. Vasquez-Castillo appeals the district court’s order denying his motion


      Honorable Henry A. Politz, Senior Circuit Judge, United States Court of
      *

Appeals for the Fifth Circuit, sitting by designation.
to suppress physical evidence. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and affirm.



                                  I. Background

      The New Mexico Motor Transportation Division operates a permanent port

of entry on Interstate 40 near San Jon, New Mexico, approximately fifteen miles

from the Texas-New Mexico border. New Mexico law requires all commercial

carriers entering or leaving New Mexico to stop at all ports of entry. N.M. Stat.

Ann. § 65-5-1(A). The state authorizes personnel assigned to the ports of entry

to inspect commercial vehicles and their documentation to determine whether the

vehicles, drivers, and cargo are in compliance with state laws regarding public

safety, health, and welfare. N.M. Stat. Ann. § 65-5-1.

      The San Jon port of entry has a primary and secondary inspection area,

known respectively as the “driveway” and “inspection bay.” Commercial carriers

displaying a current CVSA inspection decal 1 are routinely subject to only a brief


      1
        A CVSA inspection decal signifies that a vehicle has passed an inspection
using the criteria established by the Commercial Vehicle Safety Alliance, “a non-
profit organization of federal, state, and provincial government agencies and
representatives from private industry in the United States, Canada and Mexico
dedicated to improving commercial vehicle safety.”
http://www.cvsa.org/About_Us/about_us.html (last modified June 25, 2001).
Each decal is good for three months. http://www.cvsa.org/
Inspections/CVSA_Decals/cvsa_decals.html       (last modified June 25, 2001).
                                                                       (continued...)

                                        -2-
inspection at the driveway. But if the commercial carrier does not display a

current CVSA inspection decal, port of entry personnel routinely direct it to an

inspection bay for a more thorough inspection. Inspectors conduct three levels of

inspections at the inspection bays. Of these, Level 1 is the most thorough.

      At about 1:30 p.m. on May 2, 2000, Appellant Rigoberto Vasquez-Castillo

drove a 1992 International cab-over truck hauling a trailer into the eastbound

side of the San Jon port of entry. A passenger accompanied him. Officer Taylor,

one of the agents on duty, noticed that Mr. Vasquez-Castillo’s truck did not have

a CVSA decal. He also noticed that Mr. Vasquez-Castillo’s logbook was not

current. He further observed some irregularities with Mr. Vasquez-Castillo’s bill

of lading. The amount of cargo, 10,000 pounds, seemed to him to be very small

for a commercial carrier. The logbook also showed that the truck had made three

previous stops, but Mr. Vasquez-Castillo presented only one bill of lading, rather

than one for each stop as is customary. Because of the lack of a CVSA decal and

the other irregularities, Officer Taylor directed Mr. Vasquez-Castillo to the

inspection bay for a Level 1 safety inspection.

      At the inspection bay, Inspector Pacheco conducted the inspection. After

inspecting the outside of the truck and trailer, he inspected the undercarriage and


      1
       (...continued)
Inspectors at the New Mexico ports of entry, like their counterparts in 48 states,
follow the CVSA guidelines.

                                        -3-
brakes. When Inspector Pacheco had finished, Officer Taylor discussed with him

the irregularities regarding Mr. Vasquez-Castillo’s log book and bill of lading.

They then decided to inspect the blocking and bracing and cargo. 2

      After Mr. Vasquez-Castillo opened the trailer, Inspector Pacheco entered

the trailer. He observed three pallets with shrink-wrapped boxes lying unsecured,

along with a stack of empty pallets near the front of the trailer. He considered

this an unusually small amount of cargo for a truck of that size. As he proceeded

forward in the trailer he detected the odor of raw marijuana. He also noticed a

crack in the wall of the trailer, through which he could see a space between the

inner wall and outer hull of the trailer. He further noticed that the front wall of

the trailer had footprints on it with the toe facing down, was exceptionally clean,

and had shiny new siderails while the rest of the trailer and truck was fairly old.

Finally, he noticed an air vent in the trailer that appeared to lead to nowhere.

      Inspector Pacheco asked Mr. Vasquez-Castillo to join him at the front of

the trailer so he could explain whether the front of the trailer had been broken.

Mr. Vasquez-Castillo stated that he had owned the trailer for only five months

and that it was in the same condition as when he bought it. Inspector Pacheco

then asked for Mr. Vasquez-Castillo’s permission to search behind the wall. Mr.




      “Blocking and bracing” refers to the securing of cargo so that it does not
      2

move or shift during transit. See 49 C.F.R. § 393.104.

                                        -4-
Vasquez-Castillo signed a consent to the search. He also loaned Inspector

Pacheco his cordless drill to remove the braces from the wall.

      Once he had opened the wall, Inspector Pacheco found wrapped bundles

containing over 800 pounds of marijuana concealed in the compartment. Mr.

Vasquez-Castillo was placed under arrest at that time. He then made a number of

inculpatory statements, saying that it was all his fault and making other

admissions.

      Mr. Vasquez-Castillo moved to suppress the marijuana discovered in the

trailer and his subsequent statements. The district court denied his motion. Mr.

Vasquez-Castillo then entered into a conditional plea agreement, reserving the

right to withdraw his guilty plea if the district court’s order is reversed on appeal.

He was sentenced to thirty months imprisonment to be followed by four years of

supervised release. This appeal followed.



                                   II. Discussion

      “In reviewing the denial of a motion to suppress, we accept the factual

findings of the district court unless they are clearly erroneous. The evidence is

viewed in the light most favorable to the district court’s determination. The

ultimate determination of reasonableness under the Fourth Amendment is a

question of law which is reviewed de novo.” United States v. West, 219 F.3d


                                         -5-
1171, 1176 (10th Cir. 2000) (citations omitted).

       Mr. Vasquez-Castillo argues that Inspector Pacheco’s search of the trailer

went beyond the permissible scope of safety inspection and was, therefore, a

violation of the Fourth Amendment. We find this argument to be without merit.



                            A. Closely Regulated Industry

       We have previously held that commercial trucking is an industry closely

regulated by both federal and state governments.         United States v. Burch, 153

F.3d 1140, 1141-43 (10th Cir. 1998); V-1 Oil Co. v. Means, 94 F.3d 1420, 1426

(10th Cir. 1996); accord 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);

New Mexico v. Jutte, 968 P.2d 334, 338 (N.M. Ct. App. 1998). Because it is a

closely regulated industry, we apply the test articulated in     New York v. Burger ,

482 U.S. 691 (1987).

       In Burger , the Supreme Court established a three-part test for determining

whether a warrantless inspection of a closely regulated industry violates the

Fourth Amendment:

       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.

                                            -6-
Burger, 482 U.S. 691, 702-03 (citations and internal quotation marks omitted).



                       1. Substantial Government Interest

      We find that the safety inspections of commercial carriers satisfy the first

prong of the Burger test. “The state clearly has a substantial interest in

regulating [commercial carriers] to protect public safety on the highways.”

Means, 94 F.3d at 1426; accord Fort, 248 F.3d at 480; Dominguez-Prieto, 923

F.2d at 468.



                2. Necessary to Further the Regulatory Scheme

      While we have not squarely answered the question of whether routine

safety inspections are necessary to further the regulatory scheme governing

commercial carriers, two of our sister circuits have. We agree with the Fifth and

Sixth Circuits that the factors justifying the warrantless inspections of

commercial carriers are “more compelling than those present in       Burger ” because

commercial carriers, unlike the automobile junkyards considered in      Burger , “pass

quickly through states and out of the jurisdiction of the enforcement agencies.”

Dominguez-Prieto, 923 F.2d at 469; accord Fort, 248 F.3d at 481; see also

Means, 94 F.3d at 1426 (“It could reasonably be concluded that random truck

safety inspections are necessary to further that interest.”). Thus, we find that the


                                         -7-
safety inspections presently under consideration satisfy the second prong of the

Burger test.



                      3. Adequate Substitute for a Warrant

        To satisfy this requirement, a regulation must sufficiently inform the

commercial property owner that his property will be subject to periodic

inspections undertaken for specific purposes, must notify owners as to who is

authorized to conduct an inspection, and must limit the discretion of inspectors in

time, place, and scope. Burger, 482 U.S. at 701-03; accord Means, 94 F.3d at

1425.

        We find that the regulatory scheme governing commercial carriers provides

adequate notice to owners and operators of commercial carriers that their

property will be subject to periodic inspections and adequately limits the

discretion of inspectors in place and scope. New Mexico law requires     all

commercial motor vehicle carriers to “stop at every port of entry . . . for

manifesting and clearance stickers.” N.M. Stat. Ann. § 65-5-1(A). The operators

of commercial motor vehicle carriers are required, upon request, to produce a

manifest containing fourteen specific items of information relating to the vehicle

and its owner, driver, and cargo. N.M. Stat. Ann. § 65-5-1(B). Inspectors at the

port of entry are permitted to verify this information and to ascertain whether the


                                         -8-
condition of the vehicle is safe for operation on the state’s highways. N.M. Stat.

Ann. § 65-5-1(C). To determine whether the vehicle is safe, those in charge of

the port of entry are permitted to “inspect the vehicle and its contents to

determine whether all laws and all rules and regulations of the departments of

[New Mexico] with respect to public safety, health, welfare and comfort have

been fully complied with.” N.M. Stat. Ann. § 65-5-1(F) (emphasis added). New

Mexico has also authorized its employees to enforce federal laws relating to

commercial motor vehicle carriers. N.M. Stat. Ann. § 65-1-9.

      Along with numerous other requirements, both federal and New Mexico

regulations require proper blocking and bracing.      See 49 C.F.R. § 393.104; N.M.

Admin. Code § 18.2.3.13.     “Proper blocking and bracing ensures that the cargo is

secured ‘so that, when the vehicle decelerates at a rate of 20 feet per second per

second, the cargo will remain on the vehicle and will not penetrate the vehicle’s

front-end structure’ and the cargo is protected against shifting sideways in

transit.” Burch, 153 F.3d at 1142 n.2 (quoting 49 C.F.R. § 393.104). We have

previously noted that “[t]o check blocking and bracing, an officer must inspect

the interior of a trailer.” Id. Thus, we find in this case, as we found in   Burch ,

that “Defendant could not help but be aware that his property was subject to

periodic inspections undertaken for specific purposes, including inspection of the

blocking and bracing.” Id. at 1142 (internal quotation marks omitted).


                                           -9-
        Unlike the statute considered in   Burger , no time limitation is placed on the

regulatory scheme governing commercial carriers. We agree with the Sixth

Circuit, however, that   “[s]uch a limitation would, of course, render the entire

inspection scheme unworkable and meaningless. Trucks operate twenty-four

hours a day and the officers must, necessarily, have the authority to conduct these

administrative inspections at any time.” Dominguez-Prieto, 923 F.2d at 470. We

therefore find that this regulatory scheme satisfies the third prong of the     Burger

test.

        Having found that all three prongs of the     Burger test are satisfied by the

state and federal regulatory schemes governing commercial carriers, we find that

Inspector Pacheco permissibly entered Mr. Vasquez-Castillo’s trailer to inspect

the blocking and bracing. He was, therefore, authorized by state and federal

regulations to be in the trailer when he detected the odor of marijuana and

observed the other aforementioned irregularities.      3
                                                           We now consider whether

Inspector Pacheco had probable cause to search the secret compartment where the




       Inspector Pacheco stated that he also entered the trailer to inspect the
        3

cargo. Mr. Vasquez-Castillo argues that entering the trailer to inspect the cargo
exceeded the permissible scope of the safety inspection. Because we find that
Inspector Pacheco permissibly entered the trailer to inspect the blocking and
bracing, we need not consider whether he also could have entered the trailer to
inspect the cargo.

                                           - 10 -
marijuana was hidden.   4




            B. Probable Cause to Search the Secret Compartment

      Although the automobile exception to the Fourth Amendment’s
      warrant requirement is based in part on the ready mobility of
      automobiles, “the justification to conduct such a warrantless search
      does not vanish once the car has been immobilized; nor does it
      depend upon a reviewing court's assessment of the likelihood in each
      particular case that the car would have been driven away, or that its
      contents would have been tampered with, during the period required
      for the police to obtain a warrant.”

United States v. Anderson, 114 F.3d 1059, 1066 (10th Cir. 1997) (quoting

Michigan v. Thomas, 458 U.S. 259, 261 (1982) (per curiam)). “Probable cause

to search a vehicle is established if, under the totality of the circumstances, there

is a fair probability that the car contains contraband or evidence.” United States

v. Downs, 151 F.3d 1301, 1303 (10th Cir. 1998) (internal quotation marks and

emphasis omitted). “The scope of a warrantless search of an automobile ‘is

defined by the object of the search and the places in which there is probable

cause to believe that it may be found.’” United States v. Nielsen, 9 F.3d 1487,

1491 (10th Cir. 1993) (quoting United States v. Ross, 456 U.S. 798, 824 (1982)).



      4
        We note that Mr. Vasquez-Castillo signed a written consent to search the
secret compartment in his trailer. He argues, however, that his consent was not
voluntary under the circumstances. Because we find that Inspector Pacheco had
sufficient probable cause to search the vehicle without Mr. Vasquez-Castillo’s
consent, we need not address this issue.

                                        - 11 -
“It is well established that although probable cause to search a car may not exist

when a car is first stopped for a traffic citation, it can arise during the course of

the stop.” United States v. West, 219 F.3d 1171, 1178 (10th Cir. 2000) (citing

Colorado v. Bannister, 449 U.S. 1 (1980)).

       “An officer’s detection of the smell of drugs . . . in a car is entitled to

substantial weight in the probable cause analysis and can be an independently

sufficient basis for probable cause.” West, 219 F.3d at 1178; see also United

States v. Ozbirn, 189 F.3d 1194, 1200 (10th Cir. 1999) (holding that odor of raw

marijuana, combined with nervous behavior and vague description of travel

plans, satisfied probable cause standard). When an officer encounters the smell

of raw marijuana, there is the fair probability that the vehicle is being used to

transport marijuana “and that the marijuana has been secreted in places other than

the passenger compartment.” Downs, 151 F.3d at 1303.

       Inspector Pacheco detected the odor of raw marijuana. Viewing this under

the totality of the circumstances – the unusually small amount of cargo, the

irregularities in the log book and bill of lading, the space between the inner wall

and outer hull of the trailer, the footprints on the front wall, the new appearance

of the front wall and siderails compared with the rest of the trailer, and the vent

which appeared to serve no purpose – we find that probable cause existed to

search the secret compartment in the trailer.       See Dominguez-Prieto, 923 F.2d at


                                           - 12 -
470 (holding that irregular log book entries and empty trailer contributed to

probable cause to search for contraband). Consequently, we hold that this search

did not violate Mr. Vasquez-Castillo’s Fourth Amendment rights.



                                 III. Conclusion

       We find that Inspector Pacheco’s presence inside Mr. Vasquez-Castillo’s

trailer was within the permissible scope of a warrantless search of the closely

regulated industry of commercial trucking. We further find that Inspector

Pacheco’s detection of the odor of raw marijuana under the totality of the

circumstances provided probable cause to search the secret compartment of the

trailer.

       Accordingly, we AFFIRM the district court’s order denying suppression of

the physical evidence and Mr. Vasquez-Castillo’s subsequent statements.




                                       - 13 -