they please the court my name is dave rowland i represent the appellant mr ron calderon the us supreme court in marshall versus barlow's inc explain the historical setting from which the fourth amendment emerged it pointed out that prior to the american revolution the british crown would issue writs of assistance also known as general warrants that authorized representatives of the crowned to engage in suspicion with searches of colonists and their property the colonists were so outraged at this practice at this violation of their privacy in their property that they demanded the adoption of a fourth amendment that would ensure that americans had a right to go about their business free from unreasonable government intrusion the u s supreme court said in marshall vs barlow's ink that that right is jeopardized if the government inspector may seize in search without any suspicion of wrongdoing such a seizure or search infringes on citizens privacy whether the government's motivation is to investigate crime or whether it's motivated to investigate breaches of other statutory or regulatory standards in this case the government contends that mr cowles own voluntarily waived this right protected by the fourth amendment he did not the u s supreme court has said that the closely regulated industry exception to the fourth amendment is limited to purvey simply regulated business where the business person has voluntarily chosen to subject him or herself to a full arsenal of government regulation and the tradeoff is that by sacrificing their privacy they are obtaining the right the freedom to earn a profit in this closely regulated industry this exception to the fourth amendment is not applicable where the person searched was not engaged in any regulated or licensed business that's from arlo's inc at age three thirteen the one fact that both parties agree on and the district court agreed on is that mr calderon is not a professional commercial trucker he owns a horse and cattle ranch and he has a truck that he occasionally drives solely for the purpose of  transporting is own property in support of his horse and calories which he had that vehicle registered as a local commercial vehicle under missouri law with a farm tab indicating that it was only to be used for support of the farm under missouri law having those designations means that you are prohibited from using that vehicle for hire to transport people or property in return for compensation and in the absence of that hire in the absence of earning any money in return for transporting someone else's goods or some other people mr cowles own cannot in any reasonable sense be said to participate in a industry or participate in a business related to professional commercial truck i think part of the error that was made at the district court is the title that has been given to this industry both at the federal level and in the state of missouri the state  in the in the federal government heavily regulate motor carriers and motor carriers are understood as being those persons engaged in the business of transporting persons and property for hi e because the vernacular recognizes that this is generally considered professional commercial trucking that's the label that has stuck in cases that have dealt with this industry and the mistake that has been made is the assumption that because missouri law labels certain vehicles as commercial vehicles they must necessarily be considered participants in this motor carrier industry that's the situation we have here it is true that missouri law defines mr cals own farm vehicle as a commercial vehicle it is also true and has been the on this jury for more than sixty years that every half ton pickup truck in the state is by definition a commercial vehicle furthermore any economy class car that is regularly used to transport merchandise is by definition under missouri law a commercial vehicle the state does not distinguish between these different types of quote unquote commercial vehicles as far as the state is his dump truck would be the same as in small as in as far as the definition of commercial vehicle in a missouri last concern yes your honor the definition of commercial vehicle that they have relied on does not make that distinction  i think it's also important to point out that although this matter has been somewhat overlooked in the course of this case there are three separate subsections that mr calderon challenged in bringing this lawsuit to which authorize the suspicion with search and seizure of almost every vehicle on missouri's highways and interstates whether or not they're classified as commercial vehicle it is only subsection seven of the statute that addresses commercial vehicles as a group and that is the provision that the government has said is at issue here but in fact it's actually all three of these different subsections whether or not the vehicles labeled a commercial vehicle but the central point the dispositive point in this case is that the u s supreme court has said repeatedly consistently that this closely regulated industry exception only kicks in when the person to be searched is in gauged in a regulated business because mr cowles own plainly is not exception inc is the one that i would rely on primarily but i also think that tell the twenty fifteen us supreme court decision that said that hotels cannot be considered a closely regulated regulated industry they emphasized that  participating in a business is a critical aspect of falling within this closely regulated industry exception and patel is important for another reason your honor in patel the majority pointed out that we are running the risk of allowing this closely regulated industry exception wallow the rule they noted that many of the circuit courts have recognized a wide array of industries that they would contend are closely regulated within the meaning of new york versus burger but the supreme court suggested that maybe that was overstepping what they had authorized what they had justified with their own cases dealing with this exception to the fourth amendment and in fact that's why they drew a line with to tell they said it is not sufficient that a  business owner and they were focusing on business owners in that case is so a subject as you think was that two hundred fifty acres yes city of los angeles for spits out they said it's not sufficient that a business owner be subject to a wide array of regulation the regulation itself has to be both comprehensive and distinctive setting the regulated industry apart from other businesses that's patel at page twenty four fifty four your honor in this situation we have pointed out in our briefing that mr cowles own although certainly subject to some of the regulations that are applicable to all vehicle drivers some regulations that would only be subject that would only govern vehicle drivers he is exempt from a very fast a ray of the regulations that would bind motor carriers again that's i think the proper label for the industry that arguably is closely regulated but but the regulations that bind him are not as narrowly devised nor as distinctive to his situation as the supreme court suggested was necessary under patel outside of the general bright line rule well let me state what we believe the bright line rule really ought to be the the closely regulated industry exception cannot reasonably apply to someone who's not participating in a business related to that industry in this particular situation we have heard the government suggests they're concerned that law enforcement officials might not be able to distinguish between vehicles that are within their closely regulated industry exception and those that are not we submit that as i noted earlier where you have a vehicle that is specifically licensed for local commercial and has a farm tab that vehicle is lawfully prohibited from carrying people or property for hire therefore that's a very clear visible signal to law enforcement that this is not a vehicle that you can subject to a suspicion a search now if they observe some other condition suggesting that there is a violation of some law they of course w and they could then engage in a stop in a search at that point if they have probable cause but the constitutional infirmity of this statute and it's challenge subsections is that it does not require any any probable cause at all it authorizes searches to take place without any suspicion at all that either the driver or the vehicle is in violation of the law and that is in fact the situation that mr calderon was in when it comes to regulating these heavy vehicles over a certain weight why do you think it makes a constitutional difference whether the vehicles are being used for local commercial use used for hire the state law and to him that i'm saying when it comes to whether it's a heavily regulated industry why why can't the state regulate heavy vehicles they're used for local commercial use and why isn't that what is in that quote so you aren't regulating regulating property or regulating items is different from regulating isn't this the closely regulated industry exception focuses on this business regulations if you could regulate any property associated with an industry then you could have private wine cellars inspected because there are heavily regulated liquor sales persons you could have private firearms collectors inspected because firearms sales are heavily regulated i'd like to make sure that i was sort of the whole time or show you this it's not your honor no business use local commercial activity is no business no your honor the local commercial label is just a label it doesn't designate that this person is holding themselves out for hire to w the farm tag does right i mean if you look at it and not don't not not wholly well prior but as can be used in commercial activity generally and so you're taking a twenty seven under a rock that poses unique safety concerns it's issued a special license that is limited to commercial farm vehicles and the inspection is all about safety and that's an unreasonable search under the fourth amendment so your honor to respond to that is the the heavily regulated or the closely regulated industry exception doesn't just say if there's commercial activity that's regulated you fall within it i would suggest to the court the case of versus robinson it's nine o two and third four eighty three this was a fifth circuit case that was just handed down august thirty first i think two days before i had my reply so i wasn't able to cite it but they talk about different types of regulation in the way that they fit we're talking primarily about medical regulations and the analyze it from different perspectives and i think that that would be helpful for the court thank you thank you what's the site that you think we should look at nine zero nine zero two f third  read for the highway patrol the really two parts of the question before the court today one is the constitutionally permissible scope of the closely regulated industry exception and the second is the actual scope of missouri's regulatory scheme so starting with the constitutional scope the first time this case was up before this court the court held that missouri's regulatory scheme or commercial trucking protects missouri motorists and missouri roads from the unique safety concerns that arise from overweight commercial vehicles consistent with that interest following birders factors missouri may define the commercial trucking industry drewe include all operators of large commercial vehicles because all large commercial vehicles pose the same safety concerns and when we look at missouri's regulatory scheme you find that missouri doesn't fact define the commercial trucking industry to include all operators of commercial vehicles to start with the vehicle have to be used in a certain type of commercial activity to be labeled commercial vehicle no you're on when i when it comes i think to the so the scope of the constitutional exception concerns that arise from overweight virtual vehicles i think my opponent makes a mistake when he limits that industry either to motor carriers or to commercial use for hire and i think we heard him use both of those terms a number of times both of those limitations air for i think three different reasons the first is because i ignore his burghers factors in the actual interest that is at stake in this case because the interest at stake is the unique safety concerns that arise from overweight commercial vehicles is appropriate for the state to define the commercial trucking industry to include all operators of commercial vehicles and i think the second mistake there  is that limiting commercial trucking industry only to long haul motor carriers excludes a whole lot of the uses of overweight commercial vehicles this is one example of that farming operations often use large overweight commercial vehicles on missouri roads but there are a lot of other examples of this too short term motor or short haul motor carriers when dean's dairy takes their load of milk to my local convenience store that's a large commercial vehicle it's not a long haul motor trucking yes that driver is exempt from some federal regulations that apply to long haul motor carriers but it's still a large commercial vehicle and it still should be part of the commercial trucking industry  there are a lot of other examples of this as well for example busing busing your local greyhound bus whether it's cross country or local that's a large commercial vehicle and both under federal law and state law is treated as a overweight commercial vehicle construction vehicles would be another example and so when you artificially narrow this definition of the end astri you exclude a whole lot of the commercial trucking industry as it  regulated under federal and state law when it comes to be for use limitation i think that is even weaker because wal mart or deans dairy or any cross country carrier might move their own  stuff but that doesn't mean they're not part of the commercial trucking industry it might not be a commercial truck for hire because wal mart might not hire a third party that might move their own stuff but we're still within the same industry we're talking about the same thing and the reason we're talking about the same thing is because of the state's interest in regulating overweight commercial vehicles and i think the third reason why that might put his definition of the commercial trucking industry is artificially narrow is because respectfully i think mr calderon is using his truck for commercial purposes and there are at least three bases for this one is the registration he registered his vehicle for local commercial use two on the side of his truck is the name of his business it says right there this is what this truck is being used for in advance to advance mature calzones farming operation and three in his own complaint in this paragraph eighteen he said what do i use my truck for quote in support of his cattle and horse ranch he's using it and to advance his own commercial interests in the same way that dean's dairy would use a truck to advance their commercial interest but in both instances it's a commercial use this is a range of classes right according to the weight rating would be over the weight limit exactly so no that truck would be ten thousand pounds are would be rated at ten thousand pounds and that's over ten thousand pounds i considered a class three rating and under under the federal regulations anything class three or above is considered a commercial vehicle mr calzones truck at twenty seven tons which is way larger than tha actually rated at exactly ten thousand and there's a ten circuit case i believe it's the herrera case and it involves an f three fifty and that's your honor why in herrera that was not considered a large commercial vehicle it simply fell outside of the statutory definition  moving to the scope of missouri's regulatory scheme i think there's a related question here and mr calzone raised against day which is that he suggests that the statutory definition of a commercial motor vehicle is overbroad under missouri law i don't think that question is in front of the court today because of the size of mr cousins dumptruck under any definition of a commercial vehicle a twenty seven ton dump truck is a commercial vehicle  there may be a future case and my client the highway patrol would say we're not stopping pickup trucks as commercial vehicles we're not conducting were innocent like this one for those kind of small vehicles but if that case arose maybe there would be a question of whether missouri's regulatory scheme is overbroad as applied to that smaller vehicle i don't think that case would ever come up because that's not the way the scheme is enforced by this court can can protect against that kind of case by simply  reaffirming what it said in the the first time this case is up which is missouri's interest is in regulating and protecting missouri motorists and missouri roads from overweight commercial vehicles because the scope of the constitutional exception is limited to that interest to protecting against the unique safety concerns from overweight commercial vehicles that would also take care of any question or problem whether missouri law could ever be used to apply include a weight limit some of the missouri is regulations that are set the safety regulations especially incorporate the federal definition which does contain a weight limit the state limit talks about a vehicle that is designed or actually used to to move right and i think that the plain meaning of those terms is referring to large vehicles not to personal use vehicles but again i think that the courts need to be concerned about that definition in this case because we're dealing with something that obviously is a commercial vehicle under any definition and that means me i think to the regulatory scheme itself again as commercial be a commercial motor vehicle as defined mr cousins dump truck under the is a commercial vehicle the inspection statute provides mr goes on notice that if he's going to drive twenty seven ton dump truck on missouri roads this license for local commercial use is going to be subject to warrantless inspection stops and the statute also appropriately cabin's the discretion of the officer as this court in the first time this case is out the statute limits the scope of the officers inspection discretion join examination for regulatory compliance and these kind of inspections for regulatory and compliance are important for all overweight vehicles and apply to  large commercial vehicles tend to have large loads so there are regulations governing load size and the security and what happens as the load isn't properly secured and something falls off those kind of regulations apply to mr calzones dumptruck same way they would point just to make the court aware of a few other cases in this area the briefs containing a lot of tables about how many regulations apply to this versus how many plight and what are carriers i think at least industry is being closely regulated there is not really a place for the court to be digging through and saying well how many exceptions apply to vehicle x and how many exceptions apply to vehicle why it's once there's a scheme the state can appropriately regulate within that scheme and i think that makes a lot of sense because missouri is clearly going to regulate buses differently than dump trucks it's going to regulate eighteen wheelers differently than short haul long haul differently than short haul and so what both maldonado and mitchell say is  that once you've found a number that there is a regular tory scheme you don't just kind of redo the same analysis under a given set of facts you've found a regulatory scheme and that's with the administrative search exception right you have an administrative  certain weight or greater and i just wonder what the missouri law is sure let me tell you tell me if this answers your question there are there are a few different markings on mr cousens truck the first designated as a local commercial vehicle and all that means is that certain local believe so there are when i got in by that yeah there are three different markings and i believe local commercial uses it and my pony and cart with around us but local commercial use means only within fifty miles of farm vehicle me and that's a farm vehicle so it's subject to certain exceptions  and one of those it one of the limitations for the farm marking is that it can't be used for hire cannot be used for hire and then the third marking is the weight class which is  it's rated for fifty five fifty four thousand pounds which is twenty seven tons which means it can move up to twenty seven tons and again missouri is going to regulate different weighted vehicles  differently and so they licensing and registration takes it into a conversation for the depending on how heavy the truck is and in this instance the highway patrol officer could see look this is a large truck it's weighted the rated it's rated for fifty four thousand pounds this is the kind of truck that needs to be inspected or it can be inspected for compliance with safety regulations applicable laws there the government as engage in a little bit of sleight of hand mr calderon is not arguing that his truck can't be regulated that's not the issue missouri can and does regulate large vehicles he's required to take his truck in for regular inspections matter of fact the record shows he had his truck inspected just two hours before he got pulled over by the  officer in this case so they do regularly inspect large vehicles and mr calderon is not contesting that the question here is whether the government can engage in suspicion list stop vehicles and the us supreme court has repeatedly said suspicion was stops have to be limited to where you're dealing with a closely regulated industry so that the people who are engag in that industry making money in that industry have voluntarily surrendered their fourth amendment protections so they can profit that is not mr cals own in this case your honour's we ask that this case be reversed and that it be that judgment be entered in favor of mr calderon and an injunction be entered stating that the highway patrol may not engage in suspicion with stops of vehicles that as a matter of