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Date: 10-22-2021
Case Style:
United States of America v. ALVESTER FORT
Case Number: 00-10418
Judge: Joseph Jerome Farris
Court: UNITED STATES COURT OF APPEALS
For the Fifth Circuit
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
New Orleans, LA - Criminal defense lawyer represented defendant with one-count indictment charging him with possession with intent to distribute approximately 561.2 pounds of marijuana charge.
Fort’s conviction arose from the stop of his commercial truck by a Texas
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
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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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.
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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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
(...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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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-
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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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.
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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
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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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
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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
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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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
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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’”).
Outcome: 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
Apprend.
AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments: