United States v. Fort

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 00-10418

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

ALVESTER FORT,
Defendant-Appellant

Appeal from the United States District Court for the
Northern District of Texas

April 17, 2001

Before FARRIS,* JOLLY, and DAVIS, Circuit Judges.

FARRIS, Circuit Judge:

This is an appeal from a conviction and sentence imposed following Alvester

Fort’s guilty plea to a one-count indictment charging him with possession with intent

to distribute approximately 561.2 pounds of marijuana, in violation of 21 U.S.C. §

841(a)(1).

Fort’s conviction arose from the stop of his commercial truck by a Texas

*
Circuit Judge of the Ninth Circuit, sitting by designation.
Department of Public Safety officer, Mike Scales. Fort filed a motion to suppress

all evidence obtained as a result of this stop and the subsequent seizure of his truck.

The district court denied the motion. See United States v. Fort, 81 F. Supp 2d. 694

(N.D. Tex. 2000). Fort then entered a conditional guilty plea pursuant to a plea

agreement, expressly reserving the right to appeal the denial of the motion to

suppress.

The parties stipulated that Officer Scales “stopped the truck to conduct a

routine commercial inspection.” Testimony that might have provided probable

cause for the stop was stricken, and the right to argue those facts was specifically

waived at the suppression hearing.

Scales’ safety inspection revealed violations. Further, as Scales was

conducting the safety inspection, he ran a license and wanted persons check on Fort,

the driver. It revealed that the State of Louisiana had issued a warrant for Fort’s

arrest because of a parole violation. The underlying offense for the Louisiana

warrant was possession of marijuana with intent to deliver. Further, the search of

the truck was with Fort’s consent.

The threshold question is whether the statute provided a basis for the

warrantless stop, thereby justifying denial of the motion to suppress. Fort raises

two additional issues: one that concerns the suppression denial and one that

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involves the constitutionality of 21 U.S.C. § 841 in light of Apprendi v. New Jersey,

120 S. Ct. 2348 (2000). We affirm.

STANDARDS OF REVIEW

In considering a district court’s ruling on a motion to suppress, questions of

law are reviewed de novo and factual findings are reviewed for clear error. See

United States v. Richard, 994 F.2d 244, 247 (5th Cir. 1993). Issues that are not

raised in the district court are reviewed for plain error. See United States v.

Knowles, 29 F.3d 947, 950-51 (5th Cir. 1994).

I. Statutory Authority for the Stop

Fort contends that the district court erroneously determined that the officer’s

stop of his truck was justified as a regulatory seizure. He argues that the Texas

statutes the district court relied upon do not authorize the stop of a moving vehicle

without probable cause or reasonable suspicion.

The district court relied on United States v. Burch, 153 F.3d 1140 (10th Cir.

1998), to provide the framework for considering Fort’s argument that the

warrantless stop violated his Fourth Amendment rights. In Burch, the Tenth Circuit

analyzed a stop and concluded that the officer’s action was justified at its inception

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pursuant to the regulatory exception to the Fourth Amendment’s warrant

requirement announced in New York v. Burger, 482 U.S. 691, 702-03 (1987). See

Burch, 153 F.3d at 1141-42.1 In the instant case, the district court concluded that

the stop of Fort’s truck was justified as a regulatory seizure, relying on Tex. Transp.

Code Ann. § 644.103(a), which provides that an officer “may enter or detain on a

highway or at a port of entry a motor vehicle that is subject to this chapter,” and §

644.104(a)(1), which authorizes officers to enter a motor carrier’s premises to

inspect real property, including a building, or equipment.

Fort contends that the statutory authority under section 644.103 to detain a

vehicle does not confer authority to stop it in the first place.2 The government

responds that the term “detain” under section 644.103 includes the authority to stop

a vehicle, relying on a definition from a previous edition of Black’s Law Dictionary

535 (4th ed. 1951), and on the rule that words are to be construed according to

common usage and common sense, see Tex. Govt. Code Ann.

§ 311.011.

1
In contrast to the instant case, the defendant in Burch did not dispute
that the stop and search of his truck pursuant to Kansas statutory authority were
valid under the regulatory exception. See Burch, 153 F.3d at 1142.
2
Fort also contends that the district court’s reliance on Tex. Transp.
Code Ann. § 644.104(a)(1) was misplaced because that statute does not refer to
vehicle stops or detentions.

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 The interpretation of the Texas statutes relied upon by the district court is an

issue of first impression. Neither the state courts nor the Fifth Circuit have

addressed whether either statute provides authority for an officer to stop a vehicle in

the absence of probable cause or reasonable suspicion. The only Texas case that

has addressed section 644.103 involved a stop for which the officer had probable

cause. See $217,590.00 In United States Currency v. State, 970 S.W.2d 660, 664-

65 (Tex. App. 1998) (en banc), rev’d on other grounds, 18 S.W.3d 631 (Tex.

2000). The court therefore relied upon section 644.103 solely to support the

officer’s subsequent detention and inspection of the vehicle. See id. at 665.

If section 644.103 had simply provided “stop” and “detain,” its intent would

be clear. Instead, we must determine whether “stop” is interchangeable with

“detain,” so as to render section 644.103 sufficient statutory authority for a vehicle

stop. We hold that under the circumstances it must be considered so. It is

impossible to “detain” a moving vehicle, as Fort’s truck clearly was, unless the

vehicle is first brought to a stop. We therefore conclude that the district court did

not err by ruling that sections 644.103 and 644.104 authorized the stop.3

3
We reject Fort’s contention that sections 644.103 and 644.104
authorize inspections only of vehicles registered in Texas. It is true that Chapter
644 refers to section 548.001(1) for the definition of “commercial motor vehicle,”
(continued...)

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 Because we agree with the district court that the Texas statutes provided

authority to stop the truck, we must now determine whether the warrantless stop and

inspection of the truck were permitted under the regulatory exception to the warrant

requirement announced in New York v. Burger, 482 U.S. 691 (1987).

II. The statutes satisfy the requirements of Burger

The district court concluded that the stop and inspection were permissible

under Burger’s warrant exception for closely or pervasively regulated industries.

See Burger, 482 U.S. at 702-03; cf. United States v. Hernandez, 901 F.2d 1217,

1221 n.4 (5th Cir. 1990) (noting that the state may regulate commercial trucking).

Fort contends, however, that Delaware v. Prouse, 440 U.S. 648 (1979) is the

controlling authority, rather than Burger. Prouse held that random stops of vehicles

involving officers’ unconstrained exercise of discretion to check driver’s licenses in

the absence of articulable suspicion violated the Fourth Amendment. See id. at 662-

3
(...continued)
see Tex. Transp. Code Ann. 644.001(1), and that Chapter 548 requires inspection of
all vehicles registered in Texas, see Tex. Transp. Code Ann. §§ 548.051, 548.201.
Section 548.001(1), however, does not limit the definition of “commercial motor
vehicle” to those registered in Texas. Because Fort has failed to point out any
explicit limitation on the types of vehicles that are subject to Chapter 644, we
conclude that the limitation on inspections provided in Chapter 548 is inapplicable
to Chapter 644.

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63. Fort contends that the random stop of his truck was based upon the unfettered

discretion of the officer, and argues that if the Texas statutory scheme confers such

discretion, then it does not satisfy the test for warrantless regulatory searches under

Burger, 482 U.S. at 702-03. We agree with the government that Prouse itself

recognized an exception based upon regulatory inspections. See Prouse, 440 U.S.

at 663 n.26 (noting that its holding did not cast doubt on permissibility of truck

weigh-in stations and checkpoints).4 We conclude therefore that the Burger

analysis is applicable to the stop and inspection of Fort’s truck.

A warrantless inspection of a pervasively regulated business is valid under

Burger if: 1) there is a substantial government interest that informs the regulatory

scheme pursuant to which the inspection is made; 2) the inspection is necessary to

further the regulatory scheme; and 3) the statutory or regulatory scheme provides a

constitutionally adequate substitute for a warrant. See Burger, 482 U.S. at 702-03.

4
In City of Indianapolis v. Edmond, 121 S. Ct. 447 (2000), the
Supreme Court again recognized the regulatory exception of Burger as permitting
searches for administrative purposes without particularized suspicion of misconduct.
See id. at 452. Although a regulatory scheme with a primary purpose of general
crime control might not pass constitutional muster under Edmond, see id. at 454,
there is no allegation in the instant case that the Texas statutory scheme’s purpose
was to uncover evidence of ordinary criminal wrongdoing.

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A. Prerequisite to Application of Burger: Trucking is pervasively regulated.

Fort initially contends that commercial trucking is not a pervasively regulated

industry. Although we have not previously addressed this issue, three of our sister

circuits have concluded that Burger does apply to the commercial trucking industry.

See United States v. Burch, 153 F.3d 1140, 1141-42 (10th Cir. 1998) (applying

Burger test to stop of a semi-tractor/trailer rig); V-1 Oil Co. v. Means, 94 F.3d

1420, 1426-28 (10th Cir. 1996) (analyzing random safety inspection of a

commercial vehicle under Burger); United States v. V-1 Oil Co., 63 F.3d 909, 911

(9th Cir. 1995) (applying the Burger test to inspection of a facility because its trucks

hauled hazardous materials); United States v. Dominguez-Prieto, 923 F.2d 464, 468

(6th Cir. 1991) (concluding that commercial trucking is a pervasively regulated

industry).

Because commercial trucking is governed by extensive federal and state

regulations, the district court correctly concluded that Burger was applicable. See

Dominguez-Prieto, 923 F.2d at 468; Hernandez, 901 F.2d at 1221 n.4.

B. 1st Prong: There is a substantial government interest.

The district court correctly concluded that the state has a substantial interest

in traveler safety and in reducing taxpayer costs that stem from personal injuries and

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property damage caused by commercial motor carriers. Cf. Dominguez-Prieto, 923

F.2d at 468 (concluding that the safe operation of large commercial vehicles

satisfies the “substantial interest” prong).

C. 2d Prong: Warrantless stop and inspection are necessary.

Fort contends that unfettered discretion of officers to stop commercial

vehicles is not necessary to promote the State’s interest in traveler safety through

the regulation of commercial vehicles. As it has been framed, the issue is not

whether warrantless inspections are necessary to further the statutory scheme, but

taking one step back, whether unfettered discretion in deciding to make the stop in

order to perform the inspection is necessary. We reject Fort’s importation of the

Prouse standard into the Burger analysis. The district court concluded that

warrantless stops and inspections are necessary under Burger because Texas must

be able to conduct driver and vehicle safety inspections for problems that may not

be apparent to officers on patrol. See Burger, 482 U.S. at 702-03. We concur with

the district court.

Texas undoubtedly has a strong interest in promoting safety and compliance

with both federal and state regulations and statutes governing commercial vehicles.

See Tex. Transp. Code Ann. §§ 644.051(c), (d) (allowing the director to adopt all or

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part of the federal safety regulations and to adopt rules that ensure, inter alia, that

commercial motor vehicles are “safely maintained, equipped, loaded, and operated”

and that the physical condition of the commercial vehicle’s driver enables the safe

operation of the vehicle); see also 49 U.S.C. §§ 31131(a), (b) (indicating that safety

regulations concerning commercial vehicles are necessary to promote the safe

operation of commercial motor vehicles and to enhance commercial vehicle safety to

reduce highway fatalities, injuries and property damage). We agree with the

government that random stops are one means to promote Texas’s interest in

commercial vehicle safety.

Commercial trucks pass quickly through states and out of the jurisdictions of

the enforcement agencies. See Dominguez-Prieto, 923 F.2d at 469.5 Because of

the transitory nature of the commercial trucking industry, we conclude that the need

for warrantless stops and inspections is even more compelling than the warrantless

inspections of automobile junkyards upheld in Burger. See id. (recognizing that if

the state is to be successful in regulating common carriers in the trucking industry

5
We recognize that Dominguez-Prieto did not involve a completely
random stop, but rather that the statute required the stop to be based on a reasonable
belief that the vehicle was being operated in violation of the regulatory scheme. See
Dominguez-Prieto, 923 F.2d at 466. We do not, however, find this distinction
compelling in light of our conclusion that the Texas statutes authorized the stop in
the instant case in order to inspect for safety violations.

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and the types of cargo they transport, the state must be able to inspect trucks and

cargo frequently); see also V-1 Oil Co., 94 F.3d at 1426 (noting that random safety

inspections may be necessary because drivers can avoid both fixed and temporary

checkpoints).

We reject Fort’s contention that Prouse forbids random, suspicionless stops

and inspections of commercial trucks. The concerns that informed the analysis in

Prouse have less applicability in the context of statutory or regulatory inspections in

the pervasively regulated industry of commercial trucking. In Prouse, the Supreme

Court focused on the need to balance the intrusion on an individual’s Fourth

Amendment privacy interests against the promotion of legitimate government

interests, in reaching its conclusion that unconstrained exercises of discretion to

spot-check vehicles and drivers was impermissible. See Prouse, 440 U.S. at 654,

661-63. In contrast, both the Supreme Court and this court have recognized a

reduced expectation of privacy for regulated industries, and, thus, the Fourth

Amendment standard of reasonableness for a government search has lessened

application in this context. See Burger, 482 U.S. at 702; Hernandez, 901 F.2d at

1221 n.4 (noting that because the state may regulate commercial trucking, the

Fourth Amendment’s guarantees are implicated to a lesser degree in searches of

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commercial cargo being carried by a commercial truck).6

We conclude that the district court did not err by determining that the random

stop and inspection were necessary to promote Texas’s statutory and regulatory

scheme. See Burger, 482 U.S. at 702-03; Dominguez-Prieto, 923 F.2d at 469.

D. 3d Prong: The statutes provide an adequate substitute for a warrant.

Burger requires that the statute’s inspection program must: 1) advise the

owner of the commercial premises that the search is being made pursuant to law;

and 2) limit the discretion of the inspecting officers. See Burger, 482 U.S. at 703.

The district court concluded that the Texas statutory scheme met both

requirements because Texas law provides property owners with adequate notice that

their vehicles may be seized and searched on the highways under section

644.103(a), and limits the discretion of the inspecting officers under section

644.104(b).

We agree, even though both statutes could have been more comprehensive

and defined. There is enough, however, to permit any owner of a commercial

vehicle to be aware that he would be subject to warrantless and suspicionless stops

6
We also note that the federal statutes do not specifically prohibit
random inspections of commercial motor vehicles. See 49 U.S.C. § 31142(d).

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while driving. See Burger, 482 U.S. at 703. Although the sections do appear to

limit the discretion of an officer after the stop, see Tex. Transp. Code Ann.

§ 644.103(c) and § 644.104(b), they are subject to criticism for failing to provide

specific limitations on the officer’s discretion in making the decision to stop. See

Burger, 482 U.S. at 703. We are satisfied, however, from the “background”

testimony, that this stop met constitutional muster.

We conclude that the warrantless stop and inspection of Fort’s commercial

vehicle were valid under Burger’s regulatory exception to the warrant requirement.

Given our conclusion that the stop was permissible, we need not address the

government’s argument that this court should affirm because Officer Scales had

probable cause or reasonable suspicion to stop Fort’s truck based on his observation

of a regulatory violation. We note, however, that the government waived this

argument at the suppression hearing by expressly representing to the district court

that it was relying on this evidence only as “background and not reasonable

suspicion or probable cause for the stop.” See Matter of Christopher, 28 F.3d 512,

521 (5th Cir. 1994) (waiver may be demonstrated by a showing that a party

intended to relinquish a known right or privilege). As a result of the government’s

representation, the facts concerning the officer’s observation were not developed.

The time for doing so has passed.

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III. Constitutionality of 21 U.S.C. § 841 under Apprendi v. New Jersey

Fort contends that section 841 is unconstitutional because Congress intended

the facts that determine the maximum sentence to be sentence enhancements rather

than elements, in violation of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). We

recently rejected the argument that 21 U.S.C. §§ 841(a) and (b) are unconstitutional

on their face in light of Apprendi. See United States v. Slaughter, 238 F.3d 580,

582 (5th Cir. 2000) (revised opinion) (per curiam). Fort’s contention is rejected.

To the extent that Fort contends that the statute is unconstitutional as applied

to him, this contention also lacks merit. Fort contends that because the baseline

marijuana offense is 21 U.S.C. § 841(b)(4), with a statutory maximum of one year,

his 21-month sentence exceeds that maximum and violates Apprendi. Because Fort

did not raise the issue of the applicability of section 841(b)(4) in the district court,

his contention is reviewed for plain error. See United States v. Rios-Quintero, 204

F.3d 214, 215 (5th Cir.), cert. denied, 121 S. Ct. 301 (2000).

The one-year maximum sentence applies only to distribution of a “small

amount of marihuana for no remuneration.” See 21 U.S.C. §§ 841(b)(4), 844.

Because the indictment specifically charged Fort with possessing 561.2 pounds of

marijuana and he stipulated to that amount at the time of his plea, section 841(b)(4)

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is inapplicable to the instant case. See United States v. Salazar-Flores, 238 F.3d

672, 674 n.1 (5th Cir. 2001) (rejecting argument that section 841(b)(4) applied

where defendant admitted at the sentencing hearing that he possessed 195 pounds of

marijuana because “195 pounds, under any standard, does not qualify as a ‘small

amount’”).

The baseline statutory maximum is therefore 5 years under section

841(b)(1)(D), and Apprendi does not invalidate Fort’s 21-month sentence. See

United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000) (per curiam), cert denied,

121 S. Ct. 1163 (2001) (Apprendi applies only to cases in which the sentence

exceeds the statutory maximum, not to cases in which a sentence is enhanced within

the statutory range based on a finding of drug quantity).

Fort has not shown that his sentence exceeded the otherwise applicable

statutory maximum. He therefore fails to demonstrate that his sentence violates

Apprendi.

AFFIRMED.

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E. GRADY JOLLY, Circuit Judge, dissenting:

Because I disagree with my colleagues’ interpretation of the Texas statute and

their application of the Burger test, I respectfully dissent.

First, I cannot accept that section 644.103 authorizes random, discretionary

stops of commercial vehicles: The words “stop” and “detain” are simply not

interchangeable. In Fourth Amendment cases, we have routinely distinguished

between the initial stop and the ensuing detention. The evident reason for this

distinction is that the purpose of the initial stop determines the proper scope of the

subsequent detention and investigation. See, e.g., Florida v. Royer, 460 U.S. 491,

500, 103 S.Ct. 1319, 1325-26, 75 L.Ed.2d 229 (1983) (plurality opinion). Section

644.103 addresses this issue by specifying the scope of the officer’s investigative

authority after he has lawfully stopped a commercial vehicle.7

7
The only state court decision interpreting section 644.103 supports this
narrow reading. See $217,590 in United States Currency v. State, 970 S.W.2d 660
(Tex. App. 1998)(en banc), rev’d on other grounds, 18 S.W.3d 631 (Tex. 2000). In
$217,590, the Texas officer stopped a truck with a missing mud flap. Because the
officer had observed a traffic violation and had the authority to stop the truck, the
question was whether the officer could perform a full commercial inspection under
section 644.103 or whether he was limited to issuing a citation for the missing mud
flap. The Texas appellate court explained that section 644.103 allows the officer to
detain the truck for the purpose of conducting a full inspection. Id. at 664.

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 Second, I further depart from my colleagues because even if we assume that

section 644.103 authorizes discretionary stops, the Texas statutory and regulatory

scheme fails to provide “a constitutionally adequate substitute for a warrant.” New

York v. Burger, 482 U.S. 691, 703, 107 S.Ct. 2636, 2644, 96 L.Ed.2d 601 (1987).

This third prong of the Burger test requires that the regulations “limit the discretion

of the inspecting officers” and thereby produce a measure of “certainty and

regularity” in how the scheme is applied. Id. It is undisputed that the regulations

limit the officer’s discretion after the stop, that is, the Texas regulations specify

what may be inspected (e.g., the driver’s log book, the bill of lading, the condition

of the tires). But the Burger-related issue presented here is whether the statute

limits the officer’s discretion in choosing whom to stop. Instead of confronting this

issue squarely, my colleagues rely on Officer Scales’ “background testimony” that

he believed Fort’s truck had a flat tire. As they acknowledge, however, the

Government never contended that such a basis for the stop existed until Officer

Scales testified at the suppression hearing. When Fort objected to this testimony,

the Government promptly and expressly waived any argument based on reasonable

suspicion of a traffic violation. Consequently, as the majority recognizes, there was

no further development of this testimony; and these purely factual questions of

whether Scales actually heard a sound indicative of a flat tire and whether it had any

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connection to the stop cannot be resolved by this appellate court. See United States

v. Parker, 722 F.2d 179, 183 n.2 (5th Cir. 1983), overruled on other grounds,

United States v. Hurtado, 905 F.2d 74 (5th Cir. 1990)(en banc); see also Waganer

v. Sea-Land Service, Inc., 486 F.2d 955, 959 (5th Cir. 1973). Thus, I am unable to

agree with my colleagues in their contradictory conclusion -- that the officer’s

testimony is sufficiently reliable to show that the stop was not arbitrary and thus

“met constitutional muster” under Burger, while at the same time acknowledging

that the testimony is so undeveloped that it cannot establish reasonable suspicion of

a traffic violation.

For these reasons, I respectfully dissent.

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