F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v.

V I C T O R O R

O Z C O , Defendant-Appellant. No. 15-10385

D .C. No. 3:13-cr-00048-MMD-W G C-1

OPI NI ON

A ppeal from the United States District Court for the District of Nevada Miranda M. Du, District J udg e , Presiding

Arg ued and Submitted October 20, 2016 San F rancisco, California

F iled J une 1, 2017

B efore: A. W allace Tashima and Milan D. Smith, J r., Circuit J udg es, and Edward R. Korman, * Senior District

J udg e.

Opinion by

J udg e Korman

* T h e Ho n o rab le Ed w ard R

. Ko rm an , S en i o r D i s t r i c t J u d g e f or th e U.S. District Co u rt f

o r t h e E astern District o f New Yo rk

, sittin g b y d esig n atio n

.U N I T E D S T A T E S V

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SUMMARY * *

Crim inal Law

The panel reversed the district court’s denial o f a motion
to suppres s , vacated a c o n viction for two counts o f d rug possession arisi n g fr o m a stop of a tractor-trailer d riven b y the defendant, and remanded for further proceeding s.

Nevada H ig hway Patrol troopers made the st o p in order
to investig ate c riminal activity

, even thoug h the y lacked the quantum o f evidence necessary to justify the stop. The panel held that the stop was not justifie d u n der the administrative search doctrine, which permits stops and searches, initiated in furtherance of a v alid administrative scheme, to be conducted in the absence of reasonable suspicion or probable cause.

The p ane l h e ld that an administrative scheme allowing Nevada law enforcement o fficers to make stops o f commercial v ehicles and conduct limited inspections without reasonable suspicion w as valid on its face because its purpose

was to ensure the safe operation of c o mmercial vehicles. The objective evidence in this case, however, established bey ond doubt that the stop of t h e d e f e ndant’s vehicle was a pretex t for a stop to investig ate in f o r m a t ion of suspected criminal activity short of that ne c essary to g ive rise to reasonable suspicion. The stop would not h ave been made in the absence of a t i p that the defendant w as p ossibly carry ing narcotics. According ly

, the stop was a pretex tual stop that violated the F ourth Amendment. The panel emphasiz ed that the presence

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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O Z C O 3

of a criminal investig atory motive, by itself, does n ot render

an administrative stop pretex tual, a n d nor does a d ual motive—one valid and one impermissible. Rather, the defendant must show tha t t h e stop would not have occurred in the absence of an impermissible reason.

COUNSEL

J ust i n J

. B u stos (arg

ued), D ickinson W rig ht PL L C, Reno, Nevada, for Defendant-Appellant.

W illiam R. Reed (arg

ued), Assistant United States Attorney ; Eliz abeth O. W hite, Appellate Chief; U nited States Attorney ’s Office, Reno, Nevada; for Plaintiff-Appellee.

OP INION

KORMAN, District J udg e:

This a p p e al arises out of the stop of a tractor-trailer, d riven by defendant-appellant Victor Oroz co, on a hig hway in Nevada. The Nevada Hig h w a y P a trol troopers made the stop in order to investig ate criminal a c t ivity

, even thoug h they lacked the quantum of evidence necessary to justify the stop. Ultimately

, the stop led t o a consent search, during which officers fo u n d h eroin and methamphetamine, which served as the basis for Oroz co’s indictment and conviction on two cou n t s o f p ossession. The q uestion in this appeal is whether the stop w as justified under the a dministrative search doctrine, w hich permits stops and sea rches, initiated in furtherance o f a valid administrative scheme, to be conducted in the absence of reasonable suspicion or probable cause.U N I T E D S T A T E S V

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Nevada law enforcement officers may make s t o ps o f commercial v ehicles and conduct limited inspections without reasonable suspicion “[ t] o enforce the provisions of laws a nd
reg ulations relating to moto r ca r riers, the safety of their vehicles and equipment, and their transportation of haz ardous materials and other carg o.” Nev. Rev. Stat. § 480.360. This administrative scheme is valid on its face because its purpose is to ensure the safe operation of commercial vehi c l es— not to provide cover for criminal investig atory purposes, such a s drug interdiction, for which r e a sonable suspicion or probable cause is lacking

.

I n practice, however, this administrative scheme may also be used as a pretex t for conducting stops to investig ate criminal activity

. I n d e e d, one o f the Nevada troopers involved in the stop at issue h e r e t estified that it was “common knowledg e that if y ou sus p e ct criminal a ctivity

, that y ou can use y our administrative powers to make a stop.” W ith respect to the stop of the vehicle a t issue here, the Nevada trooper testified that he may h a ve had a discussion with his colleag ue, and possibly his serg eant, as to how “y ou could utiliz e the administrative ins p e ction to stop this truck
t h a t y o u b e l i e v e d w a s h a u l i n g m a r i j u a n a

– o r methamphetamine.” Specifically

, h e s a id, “I don’t know if

we had a d iscussion, but it’s c ommon knowledg e that we can do that, y e s.”

Under these circumstances, it does not matter that the Nevada administrative scheme was valid on its fa ce, where the objective evidence—detailed below—establishes bey ond doubt that this stop was a pretex t f or a stop to investig ate information of suspect e d criminal activity short of that

n e cessary to g ive rise to reasonable suspicion. T he s t o p would n o t have been made in the absence of the tip thatU N I T E D S T A T E S V

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Oroz co w as possibly carry ing narcotics in his tractor-trailer. T h i s fits the classic definition o f a pretex tual stop th at violates the F ourth Amendment.

The consent to search that was obtained after the driver o f the tr u ck, Victor O roz co, had been detained for
approx imately an hour was the fruit of the unlawful stop. So
too was the evidence found pursuant to the consent search. W e now p roceed to a more thoroug h discussion o f t h e relevant factual backg

round and leg al principles.

BACK G ROUND

I. Nevada’s Adm inistrative-Search Schem e

B e cause the arg ument in su p p o r t of the validity of the stop of O roz co’s tractor-trailer i s intertwined with the administrative scheme that Nevada has a d opted to reg ulate commercial motor vehicles, we beg in w it h a d i scussion o f that reg u latory scheme. T he N evada L eg islature has charg ed the Nevada Transportation Authority w i t h r e g u l ation of motor carriers such a s the tractor-trailer driven by Oroz co. I t is the duty of the Department of Publ i c S a fety

, and its subsidiary
arm, the Nevada Hig hway Patrol, to e nforce the reg ulations

a d opted by the Authority

. Nev. Rev. Stat. § 706.151(1). Nevada law p ro v i des for the Authority to “employ compliance e nforcement officers whose duties shall include, without limitation, enforcemen t activities to ensure motor

c a r riers are operating in compliance w ith state statutes a n d
reg ulations, con d u cting operational inspections of motor carriers and investig ating c omplaints ag ainst motor carriers.” Nev. Rev. Stat. § 706.176(4). These officers may “ex amine,
at any time during the business hours of the day

, the books,
papers and records of a

ny fully reg ulated carrier, and of anyU N I T E D S T A T E S V

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other c ommon, contract or private motor carrier doi ng business in this State to the ex tent necessa ry f o r their respective duties.” Nev. Rev. Stat. § 706.171(1)(d).

Nevada h as also enacted a Commercial Vehicle S a fety Plan (“CVSP”), which com p l i e s with the Motor Carrier Safety Assistance P r og ram’s requirements for r eceiving federa l h i g hway f

unding by

, inter alia

, requiring Nevada Hig hway Patrol troopers to conduct inspections in a manner consistent with “the North American Standard [ “ NAS”] I nspection procedure.” 4 9 C.F .R. § 350.211(d). The Motor Carrier Safety Assistance Prog ram “ is a F ede r a l g rant prog r am that provides financial assistance to States to reduce the number and severity of a c cidents and haz ardous materials incidents involving commercial motor vehicl e s

. ” 49 C.F .R. § 3 5 0.101(a). Nevada’s CVS P p r o v ides that the Nevada Hig hway Patrol’s “enforcement activities” will include “scheduled and unannounced roadside i n spections.” S T A T E
O F N E V A D A , C O M M E R

C I A L V E H I C L E S A F E T Y P L A N 7 (2011) ( emphasis supplied), a v a i l a b l e a t h t t p : / / n h p

. n v

. go v /

u p l o a d e d F i l e s / n h p n v g o v / c o n t e n t / C E / C V S P 2 0 1 1

. p d f [ https://perma.cc/P6VZ -R4F 9]

. A “NAS L evel I I I ” inspection—the inspection a t issue here—in c l udes n ot only

a stop of a vehicle, but an entry into the cab for a f ull r eview of the d river’s papers, althoug h it ex c ludes any inspection o f the mechanical fitnes s o f t h e vehicle. I t is g eared toward preventing and deterring

dang erous driving by , for ex ample, including a review of the driving log

, which wo u ld reveal whether a driver had ex ceeded the max imum time allowed on the road, among

other possible safety

violations.

Nevertheless, “compliance enforcement officers” include Nevada Hig hway Patrol troopers who are trained to conduct NAS inspections but a

re also c harg ed with enforcement o fU N I T E D S T A T E S V

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Nevada’ s criminal laws, including “[ m] aking arrests for crimes committed in their p resence o r upon or adjacent to the hig hway s of this State.” Nev. Rev. Stat. § 4 80.360(1)( b). This merg er of administrative and law enfor c ement responsibilities in Nevada Hig hway Patrol tro o p e r s, combined with the unconstrained d iscretion they have in selecting which v ehicles to stop and search, accounts for the candid admission by the troopers who conducted the stop of Oroz co’s truck that it w as “common knowledg e that if y ou suspect criminal activity

, that y ou can use y our administrative powers to make a stop.”

Notwithstanding the temptation for law enforcem ent

o f f i c e rs to use their administrative powers as a p retex t t o investig ate criminal activi t y , w e previously h eld that a

c o m p a r a b l e M i s s o u

r i s c h eme involving rando m , s u s p i c i o n l e s s inspection stops of commercial vehicles was valid. See United S tates v. Delgado

, 545 F .3d 1195 (9th Cir. 2008). W e based our holding in part on the fact that “[ t] he privacy

ex p ectations of commercial truck drive r s a re markedly less than those of the public in g e n eral. The t r u c k i ng industry is hig hly reg ulated and drivers h ave long been subj e c t e d to federal reg ulation of thei r qualifications.” Id. at 1201 n.3 (internal quotation marks omitted).

Prior to Del

g a d o , the Supreme Court, in Delaware v

. Prouse
, 440 U.S. 648 (1979), held that e ven thoug h automobiles are subject to “ pervasive and continuing
g overnmen t a l reg ulation and c ontrols,” South Dakota v

. Opperman
, 428 U.S. 364, 368 (1976), the police co u ld not, absent reasonable suspicion, stop individual vehicles for the
purpose of checking the d r i v er’s license and the reg istration of the automobile. P r o u s e , 4 40 U.S. at 663. P rouse , however, made clear that it was not “preclud[ ing ] the State o fU N I T E D S T A T E S V

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Delaware or o ther States from develop ing methods

. . . that involve less intrusion or that do n o t involve the unconstrained

ex e r cise of discretion. Questioning of all oncoming traffic at roadblock-ty

pe stops i s one possible alternative.” Id. M o r eover, as J ustice B lackmun o b served in h is c oncurr i n g opinion, other alternatives include “not purely random stops (such as every 10th car to pass a g iven point) that equate with, but a

re less intrusive than, a 100% roadblock stop.” Id.
at 664 ( B lackmun, J
., concurring ). Thus, Prouse h o lds “ only that p ersons in automobiles o n p ublic roadway s m a y n o t for that reason a lone have their travel and p rivacy interfered with
at the u nbridled discretion of p olice officers .” P rouse , 440 U.S. at 663 ( emphasis supplied). W hat Prouse therefore requires “are neutral selection c r iteria within a sy stem which does not carry with it any sig nificant chance of undetectable subterfug e.” 5 W A

Y N E R. L E F A

V E , S E A R

C H A N D S E I Z U R E , 410–11 (5th ed. 2012).

The stop o f Oroz co’s commercial truck demonstrates why

, as a p r actical matter, such “neutral selec t i o n c riteria”
may in fact be necessary

to withstand the temptation for law enforcement officers to use thei r a dministrative powers as a pretex t, and to defend a g ainst a claim that a searc h was pretex tual.

II. The Stop of Orozco’s Com m ercial Truck

A t some p oint in spring 2013, T rooper Adam Z e h r stopped a commercial trucker, who ind i c at ed that he h ad information relating to a trucking c ompany that could possibly be transporting drug s. Z ehr put this tipster in contact with Detective Serg eant Chris B rewer, o f the Nevada Division of I nves t i ga t i ons. Shortly thereafter, on April 26, B rewer received a call from the t i p ster reg a rding a specificU N I T E D S T A T E S V

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commercial truck that “may p ossibly h ave con t r o l led substances.” T he tipster told B rewer that this truck was red, with a white box trailer and Michig an license plates.

The nex t day

, April 27, 2013, the tipster ag ain contacted B rewer to provide an approx imate time when the tractortrailer w ould be traveling throug h W hite Pine County
, Nevada, where B rewer was st a t i o n ed. After receiving this information, Serg e ant B rewer “immediately ” contacted Trooper Z ehr to “advise[ ] him of the vehicle and its location,” and told him “that he w o u ld have to develop his o wn probable cause to g et the vehic l e stopped” because “there could p ossibly be drug s in the v e h icle,” but “ [ t] here was nothing solid.” Trooper B oy nton testified that, at the time o f the stop, he knew “throug h some h earsay that there was a tip about some possible transportation of narcotics.” Moreover, Trooper Z ehr testified that at least one of the reasons that he made the stop w as because he had been advised that Oroz co’s vehicle was “possibly eng a g ing in criminal activity and could possibly have drug s in the vehicle.”

After Z ehr’s conversation with B rewer, Z ehr a nd Trooper B oy nton “knew to be on the lookout for” Oroz c o’s truck. They d rove out to Mile Post 3 7 in W hite Pine County to w ait for it. When the truck arrived, Z ehr had to pull out behind a diffe re nt commercial truck a nd drive past it in order to pull

over Oroz c o’s truck. I n dee d

, T roopers Z ehr and B oy nton acknowledg ed that, e v en before t h e y saw the truck, they planned to stop it. Thus, Z e h r g ave the f ollowing testimony :

Q: Do y o u recall what y our conversations

were with Trooper B oy

nton about l ocating and stopping this truck?U N I T E D S T A T E S V

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A: Yes.

Q: And what were those?

A : I f the truck is located, we’ll both stop it, o r o n e of us will stop it, or o n e of us will be close for backup for a more h ig h risk traffic stop.

Around 4 :30 PM, as e x pected, they saw a r e d truck with Michig an license plates drive past Mile Post 37. Z e hr, taking the lead, pulled the truck over. B oy nton a l s o p u l l ed his c ar behind the truck and assisted Z ehr in questioning Oroz co.

Althoug h the troopers c hose to targ et Oroz co’s truck because of the information in the tip, Z ehr and B oy nton went throug h the motions of p erforming a NAS L evel I I I paperwork inspection. Notwithstanding numerous violations of the commercial vehicle reg ulations disc o v e red in the

course o f the paperwork inspection, they d i d n o t issue a citation. I nstead, w hile the inspect i o n was ong oing

, Z ehr instructed Trooper Kelly B arney ( “B ar ney ”), another police officer who was stationed nearby with a d rug -sniffing dog

, to call the El Paso I ntellig ence Center (“EPI C”) (an inter-ag ency facility that provides intellig e nce support to law enforcement)
reg arding Oroz co’s truck. B arne y called EPI C, and learned that Oroz co had made several recent b order crossing s. Z ehr and B arney also discussed the possibility of pe r f o rming a canine sniff of the tractor-trailer, using the drug -sniffing dog

. Althoug h they did n ot issue a citation

, t h e y did ask for, a nd obtain

, consent to search the tractor-trailer. B a rney then arrived with the dog

, who made a positive a lert as t o t h e presence o f drug s, which w as confirmed when the troopers found a duff

e l bag containing twenty -six pounds o fU N I T E D S T A T E S V

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methamp h e tamine and six pounds of heroin in the sleeper compartment.

III. The Motion t

o S uppress and The District Court’s Ruling

Prior to trial, Oroz co moved to suppress the drug evidence

on the g round that the N A S l e v el I I I inspection was an impermissible pretex t “ motivated by a desire to s ea r ch for evidence of drug trafficking

, rather t h a n t o c onduct a commercial vehicle inspection.” United States v. O r o z co , No. 3:13-cr-48, 2 015 W L 370091, at *3 (D. Nev. J an. 2 8, 2015). The district court ac k n o wledg e d that information from an informant that Oroz c o was p ossibly carry ing n a rcotic drug s “was part of the r e a s on Trooper Z ehr stopped Oroz co’s vehicle for an administrative inspection.” Id. Nevertheless, because Z ehr testified that he also initiated the stop “to conduct a safety inspection,” the district ju d ge framed the question presented as “whether such dual purposes r e nder an otherwise valid administrative stop illeg al.” Id. She did so without undertaking an analy sis of the o bjective evidence to determine that Z ehr’s testimony was credible. Thus, she went

on to h old that “an officer having dual motives does not make

a warrantless search pretex t u al

, s o long as it is conducted pursuant t o a lawful a dministrative scheme with a constitutionally permissible motivation.” Id. a t *4. B ecause N A S L e v el I I I safety inspections are part of a facially val i d administrative scheme, the district judg e held that the stop o f Oroz co’s truck was lawful.

On this appeal from a judg ment convicti ng him of two

cou n t s of possession w ith intent to distribute a controlled substance for which h e w as sentenced to 192 months in prison, O roz co arg ues that the district court erred by deny ingU N I T E D S T A T E S V

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his motion to suppress on the g round that the “NAS L evel I I I inspection” was a pretex t to investig ate criminal activity

. W e ag ree with the district court that a dual m o t i v e f o r a

s u s p i c i o n l e s s s t o p d o e s n o t n e c e s s a r i l y ren d er i t imp e r missible. Nevertheless, we reverse the denial o f Oroz co’s m o tion to suppress and vacate his judg ment o f convict i o n , b e c a u s e t h e o b j e c t i v e evidence clearly demonstrates tha t , but for the officers’ belief that O roz co mig ht be carry

ing drug s, the stop nev e r w o u ld have happened.

D ISCUSSION

The F o urth Amendment protects ag ainst “ag ain st unreasonable searches and seiz ures.” U .S. Const. amend. I V

. “I t is well established that a v ehicle stop

. . . effectuates a seiz ure within the meaning of the F ourth Amendment.” City of Indianapolis v. Edmond , 531 U.S. 32, 40 (2000); see also Brower v. Cty. of

Inyo
, 4 89 U.S. 593, 596–97 (1989) (holding that a F ourth Amendment seiz ure occurs “when there is a g overnmental termination of freedom of movement through

means intentionally applied ”). W her e t h e circumstances o f

a vehicle stop, viewed objectively

, are sufficient to justify the detention based on either reasonable suspicion or probable

cause that a crime has been committed, the subjective intent of the law enforcement officers is irrelevant. See A shcroft v

. al-Kidd , 563 U.S. 731, 736 (2011).

W e d o n ot decide whet h e r the Nevada troopers h ad reasonable suspicion for the stop, because the U.S. Attorney waived this arg ument by failing to address it in his answering brief. See United States v

. Gamboa-Cardenas

, 508 F .3d 491, 402 (9th Cir. 2007) (holding that an arg ument not addressed in an answering brief is waived). F or the purposes of t hisU N I T E D S T A T E S V

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appeal, we a ssume there was n o reasonable suspicion for the stop.

A different rule applies to “ special-needs a nd administrative-search c a ses, where ‘actual motivation s’ do matter.” I d. ( quoting United States v

. Knights

, 534 U.S. 112, 122 (2001) (emphasis supplied). Sig nificantly , in New Y ork

v. Burger
, 482 U.S. 6 91 (1 9 8 7 )

, the Supreme Court upheld

a reg ulatory scheme allowing for warrantless inspection o f automobile j u n k y ards. Such inspections required neither
pr o bable cause nor r easonable suspicion because the New York L e g islature had a “proper reg ulatory purpose[ ] for enacting the administrative scheme” authoriz ing warrantless inspections of vehicle dismantling businesse s , and because the statute a u t h oriz ing the search “was not

. . . a ‘ pretex t’ to enable law enforcement a uthori t i e s to g ather evidence o f penal law violation s

. ” Id. at 716–17 n.27. More sig nificantly

, the Burger Court observed that t h e r e was “ no

reason to believe” that the inspection i n t h a t case “was actually a ‘pretex t’ for obtaining evidence of respondent’s violation of the penal laws.” Id. (citations omitted).

I ndeed, in W

hren v. United States
, the Supreme Court acknowledg ed its past “disapproval o f police a ttempts to use valid b ases of action ag ainst citiz ens as pretex ts for pursuing other investig a tory a g endas.” 517 U .S. 806, 811 (1996). Thus, it observed t h a t, “in Florida v. W ells

, 495 U .S. 1, 4 (1990), we stated that ‘an inventory search must not be a ruse for a g eneral rummag ing in or d e r t o d iscover incriminating evidence’; that in Colorado v. B ertine
, 479 U .S. 3 6 7
, 3 7 2 (1987), in approving an inventory search, we ap p a r ently thoug ht it sig n ificant that there had b e e n ‘no showing that the police, who were following standardiz ed procedures, acted in bad faith or f

or the sole purpose of investig ation’; and that inU N I T E D S T A T E S V

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New Y ork v. Burger
, 482 U.S. 691, 716–717 n. 27 (1987), we observed, in upholding the constitutionality of a warrantless administrative inspection, that the search did not appear to be ‘a “pretex t” for obtaining evidence of

. . . viola t i o n o f

. . . penal laws.’” I

d. (ellipses in orig inal).

Similarly

, the Supreme Court h eld i n S o uth Dakota v

. Opperman
, 428 U.S. 364 (1976), that “ there is no sug g estion whatever that this standard [ inventory search] procedure, essentially like that f

ollowed throug hout the country , was a pretex t c o n cealing an investig atory p olice motive.” Id. at 376. And ag ain, in Edmond

, decided af t e r W hren

, the Supreme Court took c og n iz ance of its disapprova l o f pretex tual searches that were undertaken pur s u ant to valid administrative schemes. 531 U .S. at 45. More recently

, the Supreme Court held that althoug h “[ a ] judi c ial warrant a nd probable cause are not needed where the search o r seiz u re is justified by special needs, bey ond the n o r m a l need for law enforcement,” al-Kidd

, 5 63 U.S. a t 736 ( i n t ernal quotation marks omitted), “those ex ceptions do n ot a pply where the officer’s purpose is not to attend to the special n eeds or to the investig ation for which the administrative inspe c t i on is justified.” I

d. at 737 (emphasis supplied).

Be c ause of this “reluctan[ ce] to recog niz e ex ceptions to the g e neral rule of [ requiring ] individualiz ed suspicion where
g overnmental a

uthorities primarily pursue their g eneral crime control ends,” Edmond , 531 U.S. at 43, the Supreme Court, in Edmond

, ex tended the inquiry into purpose from individual stops to c heckpoint prog rams themselves. Thus, Edmond did
not involve a challeng e to a pa rticular administrative search

on the g round that the administrative r a tionale was a pretex t. I nstead, the plaintiffs soug ht injunctive relief to stop the City of I ndianapolis from conducting a prog ram of r oadblockU N I T E D S T A T E S V

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stops, for which r e a s o nable suspicion w as not required. Id.
at 36. This scheme had the primary prog rammatic purpose o f “the discovery and interdiction of illeg al narcotics.” Id. at 34. Stops made for this purpose, the plaintiffs arg ued, could only be made based on reasonable suspicion or probable c au se. The City arg ued that the intrusion occasioned by such a stop

was the same as if the roa d b locks were desig ned solely to check for a license or the intox ication of the d river—and therefore could be justified w ithout reasonable suspicion a s

a special needs or administrative search. Id. at 47–48. The City a rg ued that “where the g overnment a rticulates a

nd
pu rsues a leg itimate interest for a suspicionless stop, courts should not look behind that interest to determine whether the
g overnment’s ‘primary p u rpose’ is valid.” Id. at 45 (internal quotation marks omitted).

The Supreme Court rejected this a r g ument and held that the p rog rammatic p urpose of an administrative scheme “may be relevant to the validity of F ourth Am e n dment intrusions undertaken pursuant to a g eneral scheme without individualiz ed suspicion.” I d. at 45

– 46. A n inquiry into
prog r ammatic p u r

p o s e w a s n e c es s a r y b ecause, “in determining whether individualiz ed suspicion is required, we must consider the n ature of the interests threatened and their connection to the particular law enforcement p ractices at issue.” Id. at 42–43. Ultimately

, after considering the nature of the interest threatened—“the severe and intractable nature of the drug problem,” id. at 42— the Supreme Court held that the narcotics detection could not be justified a s a valid administrative purpose.

W h i l e Edmond had n o occasion to address directly t h e purpose of law enforcemen t o f ficers w ho act to enforce a valid a dministrative scheme, there is one arg uably ambig uousU N I T E D S T A T E S V

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sentenc e a t t h e end of the opinion in which the Supreme Court cautioned that “the purpose inquiry in this c ontex t is to be conducted only at t he p rog rammatic level and is not an invitation t o p robe the minds of individual officers acting at the scene.” Id. at 48. W e do not r ead this dictum a s undermining the l o n g line of Supreme Court cases demonstrating a concern for pretex t, even where searches or seiz ures are undertaken by those charg ed with enforcing a valid administrative scheme. I nstead, it appears to apply , as the Supreme C o u r t said, “in this contex t”—namely

, in the
contex t of an invalid p rog ramm a t i c s cheme like the one at issue in Edmond

. I n this contex t, be c a u s e t h e d rug checkpoint scheme violates the F ourth Amendment, the fact that the individual officer is not looking for evidence of crime will not salvag e the validity of a suspicionless stop.

The present case involves the inv e r s e of Edmond. B ecause the p r og rammatic purpose o f the Nevada inspection scheme may be valid, a stop undertaken in furtherance of that
purpose does not violate the F ourth Amendment, even if reasonable suspicion o r probable cause is lacking

. Nevertheless, it could hardly be tha t a suspicionless stop made for reasons u nrelated to the prog r ammatic purpose o f the scheme is valid simply because it is undertaken by those charg ed with enfo r c i n g that scheme. I ndeed, that is why

, a s

we h ave show n , when the Supreme Court has upheld particular a dminis t r ative or special needs prog rams, it has consistently ob s e r ved that those prog r ams, and the searches and seiz ures conducted pursuant to them, did not appear to be pretex ts for obtaining evidence o f criminal a ctivity

. Otherwise, a valid prog ramm a tic purpose, as in the present
case, which c onfers “unbridled discretion [ on] police officers,” Prouse
, 440 U.S. at 663, would become a license to undertake pretex tual stops of commercial vehicles forU N I T E D S T A T E S V

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evidence of criminal activity o r a ny othe r impermissible
reason, such as the race or nation a l i ty of the driver. Cf. U n i t e d States v. Carrizoza-Gaxiola

, 523 F .2d 239, 240 ( 9 t h Cir. 1975) (listing as o ne of the r e as o n s for a stop that the driver “appeared to be Mex ican”).

The Supreme Court’s ex press concern that prog rammatic searches not be used as a p retex t necessarily requires an inquiry into an officer’s purpose in conducting a stop o r search without reasonable suspicion or probable c ause, when such a n intrusion is soug h t to b e justified pursuant to the admi n i s t rative search doctrine, and where the defendant has

come forward with obj e c tive evidence to sug g est that the intrusion w as not made for the purpose of enforcing the administrative inspection scheme. I ndeed, our precedents support the n eed for such an inquiry

. Thu s , w hile we have declined to inquire into an o fficer’s subjective purpose in the absence of “objective evidence supporting a c harg e o f pretex t,” U

nited States v. W

ilson

, 7 F .3d 828, 833 (9 t h C i r. 1993); see also United States v

. Soylan d

, 3 F .3d 1312, 1314 (9th Cir. 1993); United States v. Kos h n e v i s , 9 79 F .2d 691, 694 ( 9th Cir. 1992); United Stat e s v

. Barnett
, 9 35 F .2d 178, 181 (9th Cir. 1991), we have found pretex t where the police officers admitted that thei r subjective purpose was to find evidence of c rime. See United St a t e s v. Hellman

, 5 56 F .2d 442, 444 ( 9th Cir. 1977) (“Here it is clear from the testimony of the searching officer that the citation, the impounding a nd the inventory ing [ of the defendant’s vehicle] all were for ‘an investig atory police motive.’ This a lone is suff icient to conclude that t he warrantless search of the car was unreasonable.”).

W e emphasiz e that the presence of a criminal investig atory m o tive, by itself, does n ot render anU N I T E D S T A T E S V

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administrative stop p retex tual. See United States v. Tsai
, 282 F .3d 690
, 6 9 5 ( 9 t h Cir. 2002); see also U nited States v

. Goldfine

, 538 F .2d 815
, 8 1 9 ( 9th Cir. 1976) (declining to adopt rule that ag ent can only conduct search if and o nly if he h ad no reason to suspect a possible v iolation of law)

. N o r does a dual motive—one v al id, a nd one impermissible. “More is involved than the mere ex p e c tation that incriminating evidence mig ht be found; the pretex t arises out of the f act that the evidence is found in a search which would
not have occurred a t all

. . . .” 3 W A Y N E R. L E F A

V E , S E A R

C H
A N D S E I Z U R

E 902 (5th e d

. 2012). Th u s , “[ w] e apply an objective test to determine whether a stop made for an ostensibly leg a l reason is a p retex t f o r w h at is, in reality

, an impermissible reason.” United States v. Maestas
, 2 F .3d 1485, 1489 (10th Ci r

. 1993) (citations omitted). More specifically

, “we ask whether the officer would have made the stop in the absence of the invalid purpose. Thus, in order to
prove that a stop is unreasonably pretex tual, a defendant must show that the stop would not have occurred in the absence o f

an impermissible reason.” Id. (citations o m i tted) (emphasis in orig inal). Oroz co has met his burden of making such a showing here.

T he o bjective evidence clearly establishes that the on l y

reason for the stop was the officers’ belief that Oroz co could possibly be hauling ma r ijuana or methamphetamine in his tractor-trailer. W e f

o c us o n two such sources o f evidence. F irst, the m a n n e r in which the stop itself was conducted strong ly sug g ests that it was wholly pretex tual. B riefly

, a s discussed above, after receiving a tip about the loc a t i o n o f Oroz co’s truck, Serg eant B rewer “immediately ” c o ntacted Trooper Z ehr to “advise[ ] him of the vehicle and its location.” After this conversation, the troopers drove out to Mile Post 37 in W hite Pine County
, to “ be on the lookout for” Oroz c o’sU N I T E D S T A T E S V

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O Z C O 19

truck. Thus, but for the tip, the officers would not even have been in position to stop the truck. W hen the truck arrived, Z e hr had to pull out behind a different commercial truck a nd dr i v e past it in order to pull over Oroz co’s truck. I ndeed,
arrang ements had apparen t l y been made for a drug -sniffing dog to be stationed less than a mile away

.
Second, we find sig nificant Trooper B oy nton’s testimony
reg arding the use of administrative inspections as a pretex t to investig ate criminal activity

, a n d more specifically

, his testimony reg arding “common knowledg e.” W e disag r ee with the district c ourt’s sug g estion that it was common knowledg e only that Troopers Zehr and Boynton
, as opposed
to N e vada troopers in g eneral, understood that they could use adminis t r ative inspections to investig ate criminal a ctivity

. That reading simply cannot be reconciled with the lang uag e B oy nton used: when law enforcement officers test ify that it i s “ c o m mon knowledg e that y ou can do that,” they are obviously referring to knowledg e of pra ctices possessed b y those o fficers charg ed with enforcing the administrative scheme.

Moreover, even if the “common knowledg e” were limited
to the practice follow ed by Z ehr and B oy nton, the f

ailure o f their superiors to stop them from using the scheme in this
way may be s ufficient to elevate it to a policy and practice that pr e c ludes reliance on an o therwise valid administrative scheme. As J udg e Koz inski ha s o b s e rved, citing cases relating to 4 2 U.S.C. § 1983, 1 which impose liability on

1 S ee Ci t y o f S t

. Lo u is v. Pra

p ro tn ik

, 4 8 5 U.S. 1 1 2
, 1 3 0 (1 9 8 8) (p lu rality o p i n io n ) (p o ten tial s ectio n 19 8 3 liab i lity “ if a s eries o f d ecisio n s b y a su b o rd in ate o ffi c i al m an if

ested a ‘ cu sto m o r u sag e’ o f w h ich th e

su p erv iso r m

u st h av e b een aw are”); Gillette v. Delmo re , 9 7 9 F.2 d 1 3 4 2
,U N I T E D S T A T E S V

. O R

O Z C O 20

municipalities and supervisory o f fice r s f or their p olicies, customs, and practices, “ [ w] hile these cases arise in a

s omewhat different contex t, they provide an apt analog y t o

our situation. B ecause administrativ e searches a re so easily diverted from their narr o w l y defined purposes, g overnment officials h a ve a

n affirmative responsibility to keep them from being misused. Acquiescen c e i n a custom or practice that routinely disreg ards the limits o f particu l a r administrative searches mig ht itself b e sufficient to establish a breach o f this responsibility .” United S tates v. Soyland

, 3 F .3d 1 312, 1318 n.11 (9th Cir. 1993) (Koz inski, J
., concurring i n p art and dissenting in part ). 2 Nevertheless, eve n u n der the crabbed construction the district judg e placed on B oy nton’s testimony
reg arding “common k

nowledg e,” it sig nificant l y adds to the objective evidence that the stop in this case was pretex tual.

I ndeed, our c onclusion that the s top was p retex tual is buttressed by the Assistant U.S. Attorney ’s o r a l concession
t h a t , but for the tip, the officers would not have stopped the

1 3 4 9 (9 th Cir.1 9 9 2 ) (cu sto m o r in f o rm al p o licy m ay b e p ro v en t h ro u g h “e v id en ce o f rep eated co n stitu tio n al v io latio n s f

o r w h i ch th e erran t

m u n icip al o f

f i cials w ere n o t d isch arg ed o r rep rim an ded ”); Ovia tt b y a n d th ro ug h W

a u g h v. Pea rce , 95 4 F.2 d 1 4 70
, 1 4 7 7 (9 th Cir.1 9 9 2) (p o licy m ak er’ s in actio n in f

ace o f pro b lem co n stitu

ted p o licy f

o r p u rp o ses

o f sectio n 1 9 8 3 liab ility ).

2 T h e S oyla nd m aj o rity d id n o t tak e issu e w ith J u d g e Ko zin sk i’ s arg u m en t. In s tead

, it o b serv ed th at “ [th e def en d an t] do es n o t arg u e an d

n o o bj ectiv e ev id en ce d em o n strates” t h a t t h e B o rd er P atro l, “ in estab lish in g t

h e ch eck p o i n t, in ten d ed to search f o r illeg al d ru g s u

n d er th e p retex t o f search in g f

o r u n d o cu m en ted alien s.” 3 F.3 d at 1 3 1 4

. Un der th e circu m s tan ces, it h ad “ n o o ccasio n to ad d ress th e i ssu e o f w h eth er ch eck p o in t of f icers ro u t in ely ov erstep th eir au th o rity b y co n d u c t in g p retex tu al n arco tics se a r c h es.” Id

. J u d g e Ko zin sk i arg u ed th at th e d ef en d an t w as en titled to d i sco v ery o n th is issu e. Id

. at 1 3 1 9

.U N I T E D S T A T E S V

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d e fendant’s truck. U nited States Court of Appeals for th e Ninth C i r cuit, 15-10385 USA v. Victor Orozco
, Y O U T U B E (Oct. 20, 2016), https://www.y outube.com/wa tch? v=MUC AvREwbTs, at 18:30–19:30. I n a post-arg ument lett e r , he
soug h t to retract that concession in a way that only reinforced it, writing : “ I would have been correct to say that the officers had n o other specific reason to choose defendan t ’ s t ruck for an administrative inspection.” ECF No. 44.

U n ited States v. M

cCarty
, 6 48 F .3d 820 (9th Cir. 2 01 1 ),

as amended ( Sept. 9
, 2011), up o n w h ich the d istrict court relied, does not hold that a pretex tual stop is valid simply because law enforcement officers can point to a valid
prog r ammatic scheme that they are charg ed with enforcing

. I n that case, McCarty checked bag s t h a t were subject to a mandatory TSA screening p rocess. They were scanned using

a CTX 5500 D S security x -ray mac h i n e , which alerted TSA officials that one of the bag s had an un u s ually dense item that, under TSA policy

, automatically required f u rther i n s pection. Id. at 824. I n one of the e nvelopes in the bag

, a

screener found photog raphs that looked “improper” because
t hey depicted nude c hildren. I d. a t 836–37. On e o f t h e

screeners also read lines from newspaper clipping s and letters in McCarty ’s bag in order to determine w hether children h ad been harmed. Id.

This conduct persuaded the district court in that case that the TSA screener “searched the photog r aphs in the envelope
not for sheet ex plosives but for evid e n c e o f child
pornog raphy .” U

n i t e d States v. M

cCarty
, 672 F

. Supp. 2d 1085, 1097 n.8 (D. Haw. 2009), vacated

, 648 F .3d 8 2 0 (9th Cir. 2 0 11), a s amended (Se p t

. 9, 2011). Sig nificantly

, it accepted testimony “that a packet of photog raphs may cause

a dense item alarm a n d T SA protocol requires the TSAU N I T E D S T A T E S V

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O Z C O 22

e m p l o y ee to e nsure that the photog raphs do not include an y sheet e x plosives.” Id. at 1098. Nevertheless, it found that the testimony “ does not establish that [ the TSA employ ees]

ex a mined the photog raphs for sheet e x plosives—rather, a fter they noticed the photog raphs t h at were initially visible they inspected the content of additio nal p hotog raphs f o r the
purpose o f determining their criminal nature.” Id. (emphasis in orig inal).

W e ag reed wi t h t h e d istrict court in that case that “the
scope of the permissible search—mandated by the TSA protocol—was defined by the point at w hich the screener was convinced the bag posed no threat to airline safety

. ” McCarty
, 648 F .3d a t 836. More specifically

, a TSA screener is “ required to leaf or thumb throug h the stack of photog raphs until she is s u r e t h ere are no sheet ex plosives.” Id. at 825 (emphasis supplied). Nevertheless, we re v ersed a s clearly

erroneous the district court’s f inding that the TSA s creener “searched the photog raphs in the envelope not f o r sheet

ex p losives b ut for evidence o f child p ornog raphy ,” McCarty
, 672 F

. Supp. 2 d at 1097 n.8—a finding for whi c h we could find “ no support in the record.” M c Ca r ty , 648 F .3d at 836. Once th e district court’s factual finding was reversed, McCarty became a

n easy case. 3 Thus, even an “unlawful secondary search purpose” d oes not “invalidate [an] otherwise lawful administrative

. . . search” w h e n, as in

3 Ou r f in din g in McCa rty w as co m p arab le to th e f

actu al f in d i n g in Co lo ra d o v. Bertin e , w

h ere th e Su

p rem e Co u rt em

p h asized th at “ th e t

rial

co u rt f o u n d t h at th e P o lice Dep artm en t’ s p ro ced u res m an d ated t h e

o p en in g o f

clo sed co n tain ers an d th e listin g o f th eir co n ten ts.” 4 7 9 U.S.
at 3 74 n

. 6

. A n d th at, acco rd in g ly

, an in v e n to ry search co n d u cted
p u rsu an t to th e m an d ated p ro ced u res co m p lied w ith th e Su

p rem e Co u rt’ s

co n sisten tly articu l ated “ req u irem en t t h at in v en to ries b e co n d u cted

acco rd i n g to stan d ard ized criteria.” Id

.U N I T E D S T A T E S V

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McCarty
, “the search i n g officer’s actions would have been the same reg ardless of his true motivation.” Id. a t 833 (citations a

nd internal quotation marks omitted); see a l so United States v. Bowhay

, 992 F .2d 2 29, 231 (9th Cir. 1 993) (“W hen the police conduct w ould have been the same

r e ga rdless of the officer’s subjective state of mind, no purpose is served by attempting to tease out the officer’s ‘true’ motivatio n .”) (citing Horton v. California

, 496 U.S. 128 (1990)).

W e observe that our inquiry into the p urpose of the search of the photog raphs would have been unnecessa ry if the
purpose o f the TSA screener was i r r e levant simply because the justification proffered for the search was that it had been undertaken p ursuant to a valid administrative prog ram—a position that McCarty appeared to h ave accepted at an earlier point in its discussion of the applicable law. There, w e read City of Indianapolis v. Edmond a s sug g esting that where “the search is ‘undertaken pursuant to a gen e r a l scheme without i n dividualized suspicion ,’” al-Kidd

, 1 31 S.Ct. at 2081 (quoting E

dmond

, 531 U.S. at 45– 4 6, 121 S.Ct. 447), consideration of the g overnment actor’s actual motivation has been limited to a

n inquiry into the prog ra m m a t i c purposes motivating the search.” Id. at 8 32–33 (emphasis in orig inal). Our discussion of Edmond

, above, an a ly z ed this dictum. Nevertheless, to the ex tent that M c Carty sug g e sts that the Edmond dictum precludes an inquiry into pretex t, that view would beg the question of w hether a particular search was in fact “undertaken pursuant” to a valid a dministrative scheme,

or w h e t her the invocation of the scheme w as wholly pretex tual—an inquiry t h a t a line of Supreme Court a nd Ninth Circuit cases say is nec e s s a ry , and that McCarty actually undertook.U N I T E D S T A T E S V

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Turning b a ck to the case at hand, the only p urpose of the stop of Oroz c o ’s truck w as to investig ate criminal a ctivity

. There was no secondary

administrative purpose at all—only

a charade to camouflag e the r eal purpose of the stop. I ndeed, the present case is disting uishable from McCarty principally because it involved a seiz ure that would not have taken place

were it not for the fact that the officers intended to search for evidence of criminal activity

. W hile we r e ject the district judg e’s finding the Nevada troopers had a “dual motive” for stopping Oroz co’s truck, her holding t h a t “ having d ual motives does not make a warrantless search pr e t ex tual” avoids the critical question wh et h e r the stop of Oroz co’s truck would have b een m a d e at all if the Nevada troopers

were not a cting on the informatio n that it was “possibly ”
carry ing drug s. The objective evidence demonstrates that the answer to that question is no.

CONCLUSION

The judg ment of conviction is REVERSED
, and the case is REMANDED for further proceeding s consistent w ith this opinion.