United States v. Jennifer Richmond
Opinion
*354 During a traffic stop, a state trooper pushed his fingers against the vehicle's tire to try and confirm his suspicion that it contained more than just air. We conclude that the brief physical examination of the tire was subject to the Fourth Amendment under the recently revived trespass test for deciding what is a search. The search was a reasonable one, however, because there was probable cause to believe the loose tire posed a safety risk.
I.
A
Texas State Trooper Manuel Gonzales was patrolling U.S. Highway 77 in south Texas when he saw a blue pickup Jennifer Richmond was driving. He drove alongside the truck and saw that the tires were "shaking," "wobbly," and "unbalanced." He was concerned that the tires were a potential danger to the public. After the truck drove across the fog line between the right lane and the shoulder of the highway, Gonzales initiated a traffic stop. When the vehicle came to a stop, Gonzales saw that one of the truck's brake lights was broken. He ran the license plate and learned the truck was registered two days earlier in nearby Brownsville.
When he approached the vehicle, Gonzales explained the reason for the stop-that Richmond crossed the fog line-and also told her about the brake light. Richmond apologized and, without prompting, stated that she was from Arizona. She avoided eye contact, and Gonzales noticed that her hands were "trembling," her mouth was "dry," and her lips had "a white coating."
In response to questioning, Richmond said that she was from Tucson but was traveling to Brownsville, where she was moving with her husband. Gonzales asked Richmond to exit the truck so that he could show her the broken brake light. Richmond complied.
As Gonzales walked to the rear of the truck, he looked at the passenger-side rear tire and observed that the bolts "had been stripped as [if] they had been taken off numerous times."
This is when the challenged conduct occurred. Gonzales pushed on the tire with his hand. The resulting sound was not what "a normal tire with air" would produce; instead there was a "solid thumping noise" that indicated something besides air was inside. Gonzales, who already was concerned about the tires because he had seen them bouncing before the stop, became more suspicious that they might contain drugs.
After tapping the tire, Gonzales resumed asking Richmond about her personal history and itinerary. She could not readily recall her age, date of birth, or husband's name. Richmond asserted that she was traveling to Dallas to visit a friend, but did not know the friend's phone *355 number or address. Stranger still, she said she intended to use Google to learn the friend's address and would return home if that search came up empty.
When Gonzales went back to his car to check Richmond's license and the vehicle's registration, he discovered that, contrary to her story about driving from Arizona, the truck had entered Mexico the day before. It had crossed back into the United States only a few hours before the traffic stop.
Gonzalez then obtained Richmond's consent to search the truck. After finding suspicious items inside the vehicle, Gonzales "let some air out [of the tires] and [ ] smelled some kind of chemical cleaning odor coming out of them." At least one of the tires did not release air. Gonzales checked beneath the truck and saw "fingerprints [ ] on the inside of ... the rims" and an atypical amount of weight placed on the tires to try to balance them. When he removed the tires, they seemed unusually heavy and solid.
Gonzales decided to take the truck to a local car dealership and have the tires examined. Technicians at the dealership discovered secret compartments that contained methamphetamine.
B
After being charged with trafficking that meth, Richmond tried to suppress its discovery. She challenged the lawfulness of the stop and its length. The district court rejected those arguments, concluding that reasonable suspicion of a traffic violation supported the stop and that Richmond's suspicious statements and demeanor raised sufficient concerns about drug trafficking to support extending the stop for the additional time that resulted in her consenting to the search.
After the motion was denied, Richmond entered a guilty plea that allowed her to appeal the suppression ruling. Before sentencing, Richmond filed an amended motion to suppress that argued for the first time that Gonzales's tap of her tire was a search not supported by probable cause. At the sentencing hearing, the district court considered but rejected Richmond's amended motion because "as the law stands now, tapping tires is not a search." The district court noted that it would permit Richmond to appeal the tire tap issue along with her original Fourth Amendment claims in light of her conditional guilty plea.
II.
Richmond no longer challenges the initial stop or that there was reasonable suspicion of drug trafficking to extend the stop until the point when Gonzales physically examined the tire. And in not challenging events after Gonzales learned that the tire likely contained more than just air, Richmond apparently acknowledges that discovery justified further investigation into the trafficking up until when she consented to a full search. 1
So the tap of the tire is the focus of this appeal. Richmond contends that it was a search within the meaning of the Fourth Amendment. That is the case, she says, because touching the tire was a trespass which counts as a search under recent Supreme Court cases.
See
Florida v. Jardines
,
*356
The government counters that we have previously held that similar law enforcement conduct is not a search. In
United States v. Muniz-Melchor
,
That expectation of contact is even greater for a vehicle's tire as it is routinely checked for air pressure. So Muniz-Melchor binds us on the "reasonable expectation of privacy" question. Richmond did not have a reasonable basis to believe that the tire would not be touched.
But a precedent binds us only as far as it goes.
See
Brecht v. Abrahmson
,
We agree.
Katz
held that "[t]he premise that property interests control the right of the Government to search and seize has been discredited."
*357
Lower courts recognized
Jones
as a sea change.
See, e.g.
,
United States v. Ackerman
,
Jones
thus requires us to consider the trespass test that
Muniz-Melchor
did not think was sufficient to establish a search but now is. Even under
Jones
, however, a trespass does not get a defendant all the way to characterizing police conduct as a search.
Jones
,
*358
So whether the touching was a search comes down to whether it was a trespass.
Muniz-Melchor
thought tapping a tank "may have constituted a technical trespass," but did not decide if that was the case.
This trespass analysis might seem simplistic. But proponents of the property-based approach view its bright line as a virtue over the less predictable expectation-of-privacy inquiry.
III.
Although the limited nature of the intrusion does not affect whether the physical examination of the tire is deemed a search, that is only the preliminary Fourth Amendment question. The ultimate question is whether the government's conduct was reasonable.
Heien v. North Carolina
, --- U.S. ----,
The government first argues that a search of the tire complied with the Fourth Amendment because Gonzales had probable cause to believe drugs were inside. Probable cause to believe a vehicle contains contraband allows a warrantless search because of the car's mobility.
Maryland v. Dyson
,
Did that probable cause exist before Gonzales tapped the tire? The information Gonzales had by that time-the wobbly tires, stripped bolts, Richmond's nervousness, and the new registration on an older vehicle stopped in a trafficking corridor-certainly gave him the reasonable suspicion of drug trafficking needed to justify extending the traffic stop to investigate further.
United States v. Brigham
,
But if probable cause of drug trafficking did not yet exist, the government argues that the physical inspection of the
*360
tire served another interest: "ensuring that vehicles on the road are operated safely and responsibly." Indeed, the wobbly tires, the truck veering outside its lane, and the stripped bolts gave a reasonable officer probable cause to believe that the tire posed a safety risk. TEX. TRANSP. CODE § 547.004(a) (making it a misdemeanor to operate a vehicle that is "unsafe so as to endanger a person"). On that basis, the tapping of the tire was justified. It does not matter that Gonzales also wanted to find out if drugs were in the tire.
See
Whren v. United States
,
Pulling back from the discrete Fourth Amendment doctrines we have examined, finding no constitutional violation makes sense in terms of the overall Fourth Amendment balance. The government's interest in making sure that a loose tire does not pose a safety threat strongly outweighs the intrusiveness of an officer's tapping the tire for a second or two.
* * *
The judgement of the district court is AFFIRMED.
The government does not dispute Richmond's premise that an unlawful search of the tire would have tainted the investigation that followed, including her consent.
Katz
's focus on privacy marked a reversal in allowing electronic eavesdropping to be treated as a search even when it does not involve physical penetration into an individual's property.
A prominent Fourth Amendment scholar contends that Jones did not so much revive the property-based approach as invent it. Kerr, supra note 2, at 68 (reaching "the surprising conclusion that no trespass test was used in the pre- Katz era"). That historical account is even more problematic for the government's view that a trespass test has always governed Fourth Amendment law, including when Muniz-Melchor was decided.
The notion that the trespass test had remained part of the post-
Katz
Fourth Amendment inquiry "came as a surprise to every student and scholar of the Fourth Amendment." Kerr,
supra
note 2, at 68 n.5. The titles of numerous post-
Jones
articles reflect this view that the decision restored a property-based approach that had been dormant since
Katz. See, e.g.
, Arnold H. Loewy, United States v. Jones:
Return To Trespass-Good News Or Bad
,
Professor Kerr also questions whether Jones got history right on this point. He observes that installing a device on the exterior of a car "is not an obvious case for trespass," as a "trespass usually implies some sort of invasion into property" beyond just touching it. Kerr, supra note 2, at 91.
Jones
recognized this similarity in addressing
Cardwell v. Jones
,
The district court held that Gonzalez did not search the tire, but we may consider the reasonableness of the search because we may affirm the denial of a suppression ruling on any basis supported by the record.
United States v. El-Mezain
,
Richmond argues that public safety must be an officer's sole motivation when that is the justification for the search, citing the pre-
Whren
cases of
South Dakota v. Opperman
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff - Appellee v. Jennifer Lynn RICHMOND, Defendant - Appellant
- Cited By
- 12 cases
- Status
- Published