F I L E D

United States Court of Appeals

Tenth Circuit

AUG 25 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff - Appellee,

v. No. 97-3208

GERALD G. BURCH, 

Defendant - Appellant.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 95-40045-01-SAC)

Eric Kjorlie, Topeka, Kansas, for Defendant-Appellant.

Thomas G. Luedke, Assistant United States Attorney (Jackie N. Williams, United

States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.

_________________________

Before LUCERO, McKAY, and MURPHY, Circuit Judges.

_________________________

McKAY, Circuit Judge.

__________________________
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Defendant, Mr. Gerald Burch, was traveling with his wife in a semitractor/trailer rig when he was stopped by Kansas Highway Patrolman Brian

Smith. A subsequent search of Mr. Burch’s commercial vehicle yielded

approximately 538 pounds of marijuana. After a jury trial, Defendant was found

guilty of conspiring to possess with intent to distribute 538 pounds of marijuana

in violation of 21 U.S.C. § 846 and possession with intent to distribute 538

pounds of marijuana in violation of 21 U.S.C. § 841(a)(1). 

Defendant argues that the search violated the Fourth Amendment’s

prohibition on unreasonable searches and, therefore, the district court erred in

refusing to suppress the marijuana seized. We review the factual findings of the

district court for clear error, and we view the evidence in the light most favorable

to the government. See United States v. Botero-Ospina, 71 F.3d 783, 785 (10th

Cir. 1995) (en banc), cert. denied, 518 U.S. 1007 (1996). The ultimate

determination of the reasonableness of the search and seizure is a question of law

that we review de novo. See United States v. Ibarra, 955 F.2d 1405, 1409 (10th

Cir. 1992).

Trooper Smith’s stated reason for stopping Defendant was to conduct a

routine safety inspection of Defendant’s commercial vehicle pursuant to Kansas

law. During the inspection, Trooper Smith requested Defendant collect the

necessary commercial vehicle paperwork and accompany him to his patrol car. 
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When the trooper had reviewed the paperwork to his satisfaction, he returned

Defendant’s documents and issued Defendant a clean inspection report. After

issuing the report and returning the paperwork, Trooper Smith directed Defendant

to open the trailer so he could inspect the cargo as authorized by the Kansas

statutes governing commercial vehicle inspections. Defendant does not dispute

that Trooper Smith’s initial stop and search met the constitutional requirements

for a valid regulatory search. Defendant asserts that when Trooper Smith issued

the inspection report and returned Defendant’s paperwork, Trooper Smith

abandoned his regulatory search and, therefore, any further search of Defendant’s

vehicle had to be supported by reasonable suspicion or consent. 

“[S]topping an automobile and detaining its occupants constitute a

‘seizure’” under the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653

(1979). We evaluate the reasonableness of a traffic stop in two respects: “[F]irst,

whether the officer’s action was justified at its inception, and, second, whether

the action was reasonably related in scope to the circumstances that first justified

the interference.” United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th

Cir.), cert. denied, 511 U.S. 1095 (1994); see Terry v. Ohio, 392 U.S. 1, 19-20

(1968). There is no dispute that Trooper Smith’s action was justified at its

inception pursuant to the regulatory search exception to the Fourth Amendment’s

warrant requirement. See Appellant’s Br. at 12; cf. V-1 Oil Co. v. Means, 94
1

 In Burger, the Supreme Court articulated a three-part test for determining

whether a warrantless inspection of a closely regulated industry violated the

Fourth Amendment:

First, there must be a “substantial” government interest that informs

the regulatory scheme pursuant to which the inspection is made.

Second, the warrantless inspections must be “necessary to

(continued...)

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F.3d 1420, 1426 (10th Cir. 1996) (“Motor carriers are closely regulated by both

state and federal governments.”); United States v. Dominguez-Prieto, 923 F.2d

464, 468-70 (6th Cir.) (holding regulatory search in trucking industry proper),

cert. denied, 500 U.S. 936 (1991); Lievesley v. Comm’r of Internal Revenue, 985

F. Supp. 206, 210 (D. Mass. 1997) (holding that the trucking industry is closely

regulated); State v. Campbell, 875 P.2d 1010, 1012-13 (Kan. Ct. App. 1994)

(noting that motor carriers in Kansas are a pervasively regulated industry). The

critical issue is whether the trooper’s search of the truck after issuing an

inspection report was “reasonably related in scope to the circumstances that first

justified the interference.” Gonzalez-Lerma, 14 F.3d at 1483.

Kansas Statutes Annotated §§ 66-1,105 through 66-1,142, §§ 66-1302

through 66-1334, and § 74-2108 outline the regulatory scheme that justified the

stop and search of Defendant and his truck. Defendant does not dispute that

searches pursuant to this statutory authority meet the test for a valid regulatory

search set forth in New York v. Burger, 482 U.S. 691, 702-03 (1987).1 See
1

(...continued)

further [the] regulatory scheme.” . . . .

Finally, “the statute’s inspection program, in terms of the

certainty and regularity of its application, [must] provid[e] a

constitutionally adequate substitute for a warrant.”

Burger, 482 U.S. at 702-03 (citations omitted) (quoting Donovan v. Dewey, 452

U.S. 594, 600-603 (1981)).

2

 To check blocking and bracing, an officer must inspect the interior of a

trailer. Proper blocking and bracing ensures that the cargo is secured “so that,

when the vehicle decelerates at a rate of 20 feet per second per second, the cargo

will remain on the vehicle and will not penetrate the vehicle’s front-end structure”

and the cargo is protected against shifting sideways in transit. 49 C.F.R. §

393.104.

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United States v. Seslar, 996 F.2d 1058, 1061 (10th Cir. 1993). We can therefore

assume without deciding that the regulations of the trucking industry in Kansas

performed the two basic functions of a warrant: They advised Defendant that “the

search [was] being made pursuant to law and ha[d] a properly defined scope” and

they “limit[ed] the discretion of the inspecting officers.” Burger, 482 U.S. at 703;

see Seslar, 996 F.2d at 1061. Trooper Smith testified at the suppression hearing

that his reason for inspecting the cargo in the interior of the truck was to check

the blocking and bracing.2

 See R., Supplemental Vol. I at 26, 38, 50, 69, 70. 

Such an inspection is authorized by the Kansas Administrative Regulations. See

Kan. Admin. Regs. § 82-4-3; see also 49 C.F.R. §§ 373.100 - 393.106. Since

Trooper Smith’s inspection of the interior of the truck was specifically authorized

and limited by the regulatory scheme that “first justified” the stop, the inspection
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passes the “reasonably related in scope” prong of the test unless the issuance of a

clean inspection report made the subsequent search unrelated in scope to the

authorized inspection of the vehicle. Gonzalez-Lerma, 14 F.3d at 1483.

Although it is hardly model police procedure, we cannot say that issuing a

clean inspection report prevented Trooper Smith from completing the regulatory

search authorized by Kansas law. The clean inspection report did not remove the

trooper’s inspection from the scope of actions authorized by “the circumstances

that first justified” the stop. Id. When he issued the inspection report and

returned Defendant’s paperwork, Trooper Smith had not yet completed the

inspection authorized by law. Trooper Smith still had not determined, pursuant to

the Kansas regulations, that Defendant was operating the truck safely. The stop

and inspection were conducted pursuant to a statute that sets the scope of the

inspection and authorizes trained and certified officials like Trooper Smith to

conduct the inspections. See Burger, 482 U.S. at 711. Because the validity of the

regulatory scheme is unchallenged, we can assume that the Kansas statute curtails

inspecting officers’ individual discretion, notifies commercial carriers like

Defendant that they are subject to potential searches, and specifies what can be

investigated pursuant to the regulatory scheme. Defendant “[could not] help but

be aware that his property [was] subject to periodic inspections undertaken for

specific purposes,” including inspection of the blocking and bracing. Donovan,
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452 U.S. at 600; see Kan. Admin. Regs. § 82-4-3(a)(4); 49 C.F.R. § 393.104. 

Because Defendant was operating a carrier that is closely regulated, he had a

“significantly reduced expectation of privacy” in his trailer. Seslar, 996 F.2d at

1061; see Burger, 482 U.S. at 702. Defendant does not dispute that the regulatory

scheme at issue in this case is validated by a state interest that “outweighs the

intrusiveness of [the] program of searches or seizures” of commercial carriers. 

Seslar, 996 F.2d at 1061. Trooper Smith’s inspection of the tractor/trailer was

within the scope of the safety inspection that he initially stopped Defendant to

conduct, and, therefore, “the action was reasonably related in scope to the

circumstances that first justified the interference.” Gonzalez-Lerma, 14 F.3d at

1483. 

We note that the Kansas regulatory scheme does not give officers license to

harass commercial carriers or to conduct unreasonable searches. We also

emphasize that evidence of a regulatory scheme that circumscribes an officer’s

discretion by providing that the issuance of a clean inspection report terminates

the regulatory search would present a different case. In this case, the record

reveals no harassment of Defendant nor any evidence indicating that Trooper

Smith conducted his inspection unreasonably. We therefore agree with the

district court that the inspection qualifies as a reasonable search under the Fourth

Amendment.
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Defendant attempts to analogize the significance of the return of documents

in a Terry stop or a routine traffic stop to the return of his documents and the

issuance of the inspection report in this case. In Terry stops and routine traffic

stops, courts have consistently held that undue retention of a defendant’s

documents renders the encounter nonconsensual. See Florida v. Royer, 460 U.S.

491, 501-03 (1983); United States v. McKneely, 6 F.3d 1447, 1451 (10th Cir.

1993). In a Terry stop or routine traffic stop, an officer’s retention of a

defendant’s documents is significant because it indicates that the defendant, as a

general rule, did not reasonably feel free to terminate the encounter and,

therefore, the government cannot rely on the defendant’s consent to justify further

detention, questioning, or a search. See United States v. Lee, 73 F.3d 1034, 1040

(10th Cir. 1996); see also United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir.

1995) (“[W]hat began as a consensual encounter quickly became an investigative

detention once the agents received Mr. Lambert’s driver’s license and did not

return it to him.”); United States v. Walker, 933 F.2d 812, 817 (10th Cir. 1991)

(“[T]he encounter in this case was clearly not consensual. Officer Graham

retained the defendant’s driver’s license and registration during the entire time he

questioned the defendant.”), cert. denied, 502 U.S. 1093 (1992). In this case,

however, the government does not rely on Defendant’s consent to justify the

inspection of the trailer. The legality of Trooper Smith’s search “depends not on
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consent but on the authority of a valid statute.” United States v. Biswell, 406

U.S. 311, 315 (1972). Whether Defendant felt free to leave is irrelevant to

Trooper Smith’s authority to inspect the cargo. Our analysis is whether the return

of Defendant’s documents and the issuance of a clean inspection report removed

the cargo inspection from the scope of the search justified at the inception. 

Because we determined that the cargo inspection was reasonably related to the

initially proper stop and search, we affirm the district court’s denial of

Defendant’s Motion to Suppress.

Defendant claims that the district court erred in admitting evidence of his

possession of $60,000.00 in cash at a New York airport on January 21, 1996. He

claims that this evidence is improper bad act evidence under Federal Rule of

Evidence 404(b). We review the district court’s decision to admit this evidence

under an abuse of discretion standard. See United States v. Mitchell, 113 F.3d

1528, 1531 (10th Cir. 1997), cert. denied, U.S. , 118 S. Ct. 726 (1998);

United States v. Rackley, 986 F.2d 1357, 1362 (10th Cir.), cert. denied, 510 U.S.

860 (1993). 

After reviewing the district court’s decision to admit this evidence, we

believe Defendant misunderstood the basis for its admission. It was not admitted

pursuant to Rule 404(b). The evidence was admitted within the bounds of

relevant cross-examination under Federal Rule of Evidence 611(b) to impeach the
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substantive evidence offered by Defendant and his credibility. Defendant raised

the issue of his financial status on direct examination by submitting his tax return

and his bankruptcy petition into evidence. See R., Vol. V at 25-27, 81. As we

have explained, 

Cross examination “may embrace any matter germane to the direct

examination, qualifying or destroying, or tending to elucidate,

modify, explain, contradict, or rebut testimony given in chief by the

witness.” Admission of rebuttal evidence, particularly when the

defendant “opens the door” to the subject matter, is within the sound

discretion of the district court.

United States v. Troutman, 814 F.2d 1428, 1450 (10th Cir. 1987) (citations

omitted); see Fed. R. Evid. 611(b). In this case, as in Rackley, “[t]he government

did not offer the evidence for any of the purposes covered by Rule 404, proper or

improper, but rather to impeach credibility.” Rackley, 986 F.2d at 1363.

Without expressly balancing the probative value and prejudicial effect

according to the test set out in Rule 403, the trial court declined to exclude the

evidence on that basis. See R., Vol. V at 80-81. “The trial court has broad

discretion to examine whether the probative value of evidence substantially

outweighs the danger of unfair prejudice,” and we find no error in the trial court’s

conclusion. United States v. Reddeck, 22 F.3d 1504, 1508 (10th Cir. 1994); see

United States v. Hardwell, 80 F.3d 1471, 1490 (10th Cir. 1996). The use of the

evidence on cross-examination was not unfairly prejudicial in light of

Defendant’s testimony about his financial condition on direct examination. 
3

 Because the offered information was unnecessary to our determination,

we deny Defendant’s Motion to Supplement.

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See United States v. Lara, 956 F.2d 994, 997 (10th Cir. 1992). Our review of the

record indicates that the trial court properly admitted the evidence for

impeachment purposes.3

Finally, Defendant argues that the district court erroneously added two

points to his sentence offense level for obstruction of justice. We review the

district court’s decision to apply the enhancement under U.S. Sentencing

Guideline § 3C1.1 for clear error. United States v. Fitzherbert, 13 F.3d 340, 344

(10th Cir. 1993), cert. denied, 511 U.S. 1059 (1994). The enhancement was based

on the district court’s “specific finding” that Defendant had perjured himself. 

United States v. Massey, 48 F.3d 1560, 1573 (10th Cir.), cert. denied sub nom.,

515 U.S. 1167 (1995); see R., Vol. VII at 19-21. “Because ‘the trial judge is

entitled to observe the defendant at trial and consider in sentencing 

whether he . . . gave perjured testimony,’ we apply deference in reviewing the

trial court’s finding” of perjury. United States v. Yost, 24 F.3d 99, 106 (10th Cir.

1994) (quoting United States v. Markum, 4 F.3d 891, 897 (10th Cir. 1993)). 

After a thorough review of the record, we hold that the district court’s findings

clearly satisfied the requirements of the law. See R., Vol. VII at 20-21; United

States v. Smith, 81 F.3d 915, 918 (10th Cir. 1996). Because we find no clear
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error in the district court’s decision to apply the two-point enhancement, we

affirm.

AFFIRMED.