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9th Circuit: Where purportedly administrative search of truck would not have occurred but for tip suggesting drug smuggling, evidence recovered during search must be suppressed

United States v. Orozco, — F.3d —, 2017 WL 2367983 (9th Cir. June 1, 2017): Where intent to search for evidence of crime was but-for cause of purported administrative search of truck, evidence derived from search should have been suppressed

A while ago, Nevada had the idea of giving its highway patrol troopers the simultaneous powers to enforce the state’s criminal laws and to exercise “unconstrained discretion” to select commercial vehicles for “administrative” searches geared toward such matters as checking the driving log to ensure that the driver had not exceeded the maximum allowable time on the road. After all, they’re out on the highways anyway – what could possibly go wrong?

If you guessed: “Well, not to be cynical, but perhaps Nevada highway patrol troopers could get in the habit of using their administrative search powers to conduct what in reality are unconstitutional criminal searches without probable cause,” an extra bowl of pudding for you.

In the spring of 2013, a Nevada trooper got a tip that a truck meeting a particular description “may possibly” be smuggling drugs. The trooper contacted a second trooper posted in the area through which the truck was expected to pass, telling him that there was “nothing solid” and that the second trooper would “have to develop his own probable cause.” The second trooper apparently was not concerned: As his partner later candidly acknowledged on the stand, among Nevada troopers it was “common knowledge that if you suspect criminal activity, that you can use your administrative powers to make a stop.”

And that is what they did. They lay in wait for the truck meeting the tipster’s description, pulled it over, “went through the motions” of conducting an administrative stop while ignoring numerous citation-worthy breaches of the applicable regulations, got consent to search the tractor-trailer, and summoned a drug-sniffing dog, which alerted to the sleeper compartment, where they found methamphetamine and heroin.

The driver moved to suppress the drug evidence, arguing that the purportedly administrative search was a pretext for an unlawful criminal search without probable cause, in violation of the Fourth Amendment. The district court denied the motion, reasoning that even if the troopers had “dual purposes,” the search would still be lawful. The Ninth Circuit disagreed, holding that while a “dual motive” search can be lawful, it is not lawful where the evidence shows that the “impermissible reason” – i.e., the intent to search for evidence of crime without probable cause – is the but-for cause for the search. The evidence showed that to be the case here – in fact, at oral argument the government’s attorney conceded that “but for the tip, the officers would not have stopped the defendant’s truck.” The driver’s consent was immaterial, because it was the fruit of the unlawful stop. The Ninth Circuit accordingly reversed the defendant’s conviction and remanded the case.

(Congratulations to Justin J. Bustos, of Dickinson Wright PLLC, Reno, Nevada.)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)

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