## 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, Ka nsas, for Plaintiff-Appellee.

_________________________ Before LUCERO , McKAY , and MURPHY , Circuit Judges.

_________________________ McKAY , Circuit Judge.

__________________________-2-

Defendant, Mr. Gerald Burch, was traveling with his wife in a semitractor/trailer rig when he was stopped by Kansas H ighway Patrolman Brian Smith. A subsequent search of Mr. Burch’s commerci al 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 withintent to distribute 538 pounds of marijuana in violation of 21 U.S.C. § 841 (a)(1). Defendant argues that the search violated the Fourt h Amendment’s prohibition on unreasonable searches and, therefore , the district court erred in refusing to suppress the marijuana seized. We revi ew the factual findings of the district court for clear error, and we view the evi dence 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 a nd 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 requeste d Defendant collect the necessary commercial vehicle paperwork and accompany him to his patrol car.-3-

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, Tro oper Smith directed Defendant to open the trailer so he could inspect the cargo a s authorized by the Kansas statutes governing commercial vehicle inspections. Defendant does not dispute that Trooper Smith’s initial stop and search met th e constitutional requirements for a valid regulatory search. Defendant asserts t hat when Trooper Smith issued the inspection report and returned Defendant’s pape rwork, Trooper Smith abandoned his regulatory search and, therefore, anyfurther search of Defendant’s vehicle had to be supported by reasonable suspicionor 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 traffi c stop in two respects: “[F]irst, whether the officer’s action was justified at its i nception, and, second, whether the action was reasonably related in scope to the c ircumstances 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 a ction was justified at its inception pursuant to the regulatory search excepti on to the Fourth Amendment’s warrant requirement. See Appellant’s Br. at 12; cf. V-1 Oil Co. v. Means , 941 In Burger , the Supreme Court articulated a three-part test f or determining whether a warrantless inspection of a closely regul ated industry violated the Fourth Amendment: First, there must be a “substantial” government int erest that informs the regulatory scheme pursuant to which the inspect ion is made. Second, the warrantless inspections must be “necess ary to (continued...) -4- 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 i n 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 pervasi vely 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 regulato ry scheme that justified the stop and search of Defendant and his truck. Defend ant 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 See1 (...continued)

further [the] regulatory scheme.” . . . . Finally, “the statute’s inspection program, in term s 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 D onovan v. Dewey , 452 U.S. 594, 600-603 (1981)).

2 To check blocking and bracing, an officer must in spect 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 p er second per second, the cargo will remain on the vehicle and will not penetrate t he vehicle’s front-end structure” and the cargo is protected against shifting sideway s in transit. 49 C.F.R. § 393.104. -5- United States v. Seslar , 996 F.2d 1058, 1061 (10th Cir. 1993). We can the refore assume without deciding that the regulations of the trucking industry in Kansas performed the two basic functions of a warrant: Th ey advised Defendant that “the search [was] being made pursuant to law and ha[d] aproperly defined scope” and they “limit[ed] the discretion of the inspecting of ficers.” 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 int erior 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 Admi nistrative 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 t ruck was specifically authorized and limited by the regulatory scheme that “first ju stified” the stop, the inspection-6-

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-Ler ma , 14 F.3d at 1483. Although it is hardly model police procedure, we ca nnot say that issuing a clean inspection report prevented Trooper Smith fro m completing the regulatory search authorized by Kansas law. The clean inspect ion report did not remove the trooper’s inspection from the scope of actions auth orized by “the circumstances that first justified” the stop. Id. When he issued the inspection report and returned Defendant’s paperwork, Trooper Smith had n ot yet completed the inspection authorized by law. Trooper Smith still had not determined, pursuant to the Kansas regulations, that Defendant was operatin g 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 off icials 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 th at the Kansas statute curtails inspecting officers’ individual discretion, notifie s commercial carriers like Defendant that they are subject to potential search es, and specifies what can be investigated pursuant to the regulatory scheme. De fendant “[could not] help but be aware that his property [was] subject to periodi c inspections undertaken for specific purposes,” including inspection of the blo cking and bracing. Donovan ,-7-

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 c losely regulated, he had a “significantly reduced expectation of privacy” in h is trailer. Seslar , 996 F.2d at 1061; see Burger , 482 U.S. at 702. Defendant does not dispute thatthe regulatory scheme at issue in this case is validated by a stat e interest that “outweighs the intrusiveness of [the] program of searches or seizu res” 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 i nitially 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 unreasonab le searches. We also emphasize that evidence of a regulatory scheme thatcircumscribes an officer’s discretion by providing that the issuance of a clea n inspection report terminates the regulatory search would present a different cas e. In this case, the record reveals no harassment of Defendant nor any evidence indicating that Trooper Smith conducted his inspection unreasonably. We th erefore agree with the district court that the inspection qualifies as a r easonable search under the Fourth Amendment.-8-

Defendant attempts to analogize the significance of the return of documents in a Terrystop or a routine traffic stop to the return of hi s documents and the issuance of the inspection report in this case. In Terrystops and routine traffic stops, courts have consistently held that undue ret ention 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 Terrystop or routine traffic stop, an officer’s retenti on of a defendant’s documents is significant because it ind icates that the defendant, as a general rule, did not reasonably feel free to termi nate the encounter and, therefore, the government cannot rely on the defend ant’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 quic kly became an investigative detention once the agents received Mr. Lambert’s dr iver’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 cons ensual. Officer Graham retained the defendant’s driver’s license and regis tration 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 TrooperSmith’s search “depends not on-9-

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. Ou r analysis is whether the return of Defendant’s documents and the issuance of a clea n inspection report removed the cargo inspection from the scope of the search j ustified at the inception. Because we determined that the cargo inspection was reasonably related to the initially proper stop and search, we affirm the dis trict court’s denial of Defendant’s Motion to Suppress. Defendant claims that the district court erred in a dmitting evidence of his possession of $60,000.00 in cash at a New York airp ort on January 21, 1996. He claims that this evidence is improper bad act evide nce under Federal Rule of Evidence 404(b). We review the district court’s de cision 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 ad mit this evidence, we believe Defendant misunderstood the basis for its a dmission. It was not admitted pursuant to Rule 404(b). The evidence was admitted within the bounds of relevant cross-examination under Federal Rule of Ev idence 611(b) to impeach the-10-

substantive evidence offered by Defendant and his c redibility. 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 t o the direct examination, qualifying or destroying, or tending t o elucidate, modify, explain, contradict, or rebut testimony giv en in chief by the witness.” Admission of rebuttal evidence, particul arly when the defendant “opens the door” to the subject matter, i s 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.” Rack ley , 986 F.2d at 1363. Without expressly balancing the probative value and prejudicial effect according to the test set out in Rule 403, the tria l 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 o f evidence substantially outweighs the danger of unfair prejudice,” and we f ind 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 prej udicial in light of Defendant’s testimony about his financial conditionon direct examination.3 Because the offered information was unnecessary t o our determination,

we deny Defendant’s Motion to Supplement. -11- See United States v. Lara , 956 F.2d 994, 997 (10th Cir. 1992). Our review o f the record indicates that the trial court properly admi tted the evidence for impeachment purposes. 3 Finally, Defendant argues that the district court e rroneously added two points to his sentence offense level for obstructio n 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 Def endant had perjured himself. United States v. Massey , 48 F.3d 1560, 1573 (10th Cir.), cert. deniedsub 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 cons ider 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 thatthe 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 fi nd no clear-12-

error in the district court’s decision to apply the two-point enhancement, we affirm.
AFFIRMED

.